Joint NGO Submission
The 14th Session of the Universal Periodic Review (UPR)
Republic of Korea
23 April 2012
Submitted by
The Korean NGO Coalition
for the 2nd Cycle of the UPR on the Republic of Korea
The 53 Korean NGOs participating in the preparation of the submission are as follows:
Advocates for Public Interest Law (APIL), Alliance for Enactment of Anti-Discrimination Act, Association of Korea Doctors for Health Rights, Association of Physicians for Humanism, Catholic Human Rights Committee (CHRC), Chingusai – Korean Gay Men’s Human Rights Group, Collective for Sexually Minor Cultures Pinks (PINKS), Cultural Action, Dandelions group of Korean parents who lost children to intercountry adoption, Disability and Human rights in Action (Footact), Human Asia, Human Rights Education Center DEUL (DEUL), International Child Rights Center (InCRC), Joint Committee with Migrants in Korea (JCMK), Korea Campaign to Ban Landmines (KCBL), Korea Center for United Nations Human Rights Policy (KOCUN), Korean Confederation of Trade Union (KCTU), Korean Dentists Association for Healthy Society, Korean Federation of Medical Groups for Health Rights (KFHR), Korean Government Employees’ Union (KGEU), Korean House for International Solidarity (KHIS), Korean Pharmacists for Democratic Society (KPDS), Korean Progressive Network Jinbonet (JINBONET), Korean Public Interest Lawyers’ Group (Gong-Gam), Korean Sexual-Minority Culture and Rights Center (KSCRC), Korea Sexual Violence Relief Center (KSVRC), Korea Solidarity for Conscientious Objection (KSCO), Korean Teachers and Education Workers Union (KTU), Korean Unwed Mothers and Families’ Association (KUMFA), Korea Women’s Association United (KWAU), Korean Women Workers Association (KWWA), Ewha Lesbian Rights Group, Lesbian Gay Bisexual Transgender Asexual Intersexual Questionary and You (LGBTAIQ), LGBT Human Rights Committee in HanYang University, KoRoot, Lesbian Counseling Center in South Korea, MINBYUN-Lawyers for a Democratic Society (MINBYUN), Minkahyup, My Sister’s Place-Durebang Shelter (Durebang), NANCEN Center for Refugee’s Rights (NANCEN), National Union of Mediaworkers, Peace Sharing Association (PSA), People’s Solidarity for Participatory Democracy (PSPD), SARANGBANG Group for Human Rights (SARANGBANG), Rainbow Action Against Sexual-Minority Discrimination, Save the Children Korea, Solidarity for LGBT Human Rights of Korea (DoingInRyun), Solidarity for Workers’ Health, The Center for Military Human Rights, Korea (CMHRK), The Korean Council for the Women Drafted for Military Sexual Slavery by Japan, Truth and Reconciliation for the Adoption Community of Korea (TRACK), Unninetwork, World Without War
The Secretariat of the Korean NGO Coalition
Advocate for Public Interest Law (APIL), Korea Center for United Nations Human Rights Policy (KOCUN), MINBYUN-Lawyers for a Democratic Society, People’s Solidarity for Participatory Democracy (PSPD)
I. BACKGROUND AND FRAMEWORK
1. This submission was jointly written by 53 NGOs based in the Republic of Korea (ROK). The submission aims to evaluate the implementation of the recommendations from the 1st cycle of the Universal Periodic Review (UPR) and to raise awareness regarding the situation of human rights in the ROK since 2008.
A. Scope of international obligations and implementation (Recommendation No. 1, 2 )
2. The ROK Government had reservations on the Article 22 of the International Covenant on Civil and Political Rights, Article 25 of the International Convention on the Rights of Persons with Disabilities, and Article 21 of the Convention on the Rights of the Child (CRC). In addition, the Government has yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the Convention against Torture (OP-CAT), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Hague Adoption Convention, and the core ILO conventions related to freedom of association and collective bargaining, and elimination of forced and compulsory labour. As for the implementation of the international treaties of which the ROK has ratified, there have been less than ten cases where human rights treaties or other international human rights norms have been cited in the decisions of the Constitutional Court or other court rulings, in all of which the norms referred to are used as supplementary grounds, at best, for such decisions and rulings. The Government should ratify the treaties of which it is not a state party and withdraw all of the reservations.
3. The Government has failed to actively disseminate the observations made by treaty bodies other than posting the results of individual complaints in the Official Gazette. Furthermore, the Government has not actively engaged in disseminating the recommendations from the 1st cycle of the UPR and has held only one panel discussion with civil society. At this panel discussion, the Government mistranslated a considerable number of the UPR recommendations when presenting them to civil society representatives.
B. National Human Rights Commission of Korea
4. In 2009, the Government downsized the National Human Rights Commission of Korea (NHRCK) by 21% and appointed a chairperson lacking experience and expertise in the field of human rights. Since then, the Commission has deferred its decisions on several serious human rights violation cases, where timely interventions by the Commission were crucial. These series of events have threatened the independence of the Commission and led to the simultaneous resignation of two standing commissioners and seventy advisors and experts in 2010.
C. Policy Measures – National Action Plan (NAP)
5. The Government excluded NGOs from participating in the implementation and evaluation process of the 1st NAP (2007-2011) and during the recent process of creating the 2nd NAP (2012-2015). The Government held a public hearing without adequate notification to the NGOs. As for the 1st NAP, no specific implementation took place regarding the National Security Act, the Security Surveillance Act, the Assembly and Demonstration Act, the death penalty, and alternative military service.
II. IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS
A. Equality and non-discrimination
6. Enactment of comprehensive anti-discrimination legislation (Recommendation No. 23): Although the Ministry of Justice maintains that it has been working on enacting anti-discrimination legislation since 2007, there has been no visible progress. The Ministry launched a “Special Committee for Anti-Discrimination Legislation” in 2010, but there has been no progress even after the special committee was dissolved at the end of 2010. The Prohibiting and Protecting against Gender Discrimination Act was repealed in 2005 and article 92(5) of the Military Criminal Code, which penalizes male homosexuals in the military, still exists. The Government must enact a comprehensive legislation which addresses all prohibited grounds of discrimination in concrete terms, through consultation with civil society and key stakeholders.
B. Right to life, liberty and security of the person
7. Death Penalty (Recommendation No. 20, 27): The Government, while maintaining a moratorium on the use of the death penalty, has not made any concrete efforts to abolish the death penalty. Instead, it uses results of public opinion polls for not abolishing the death penalty. The polls are usually conducted right after a serial killing or child sexual abuse cases has been aired in the media. The Government should conduct a national campaign against and abolish the death penalty.
8. Prohibition of Corporal Punishment in Schools and at Home (Recommendation No. 29): In 2011, the Government amended the Enforcement Decree of the Elementary and Secondary Education Act (Enforcement Decree) to prohibit ‘inflicting pain upon students by using tools and/or parts of the body.’ However, even without using tools or parts of the body, corporal punishment is still possible including in the use of group punishment. The Seoul Student Rights Ordinance is the minimum legal basis of protecting the rights of students, and each local government has already legislated or is now legislating its own Student Rights Ordinance in line with the principles stipulated in the CRC. However, on 27 February 2011, the elementary and secondary school regulations clause of the Enforcement Decree was amended and the Seoul Student Rights Ordinance, which is subordinate to the Enforcement Decree, became unavailing. Also, the number of suspected cases of domestic child abuse increases each year , but only 5.1 % of the reported child abuse cases develop into criminal cases by the actual accusation. In addition, no child-sensitive procedures were introduced to child-related criminal procedures. The Government should amend laws to ban all forms of corporal punishment at home and schools, conduct human rights campaigns on the prevention of child abuse and adopt child-sensitive procedures in child-related criminal procedures. The relevant laws need to be amended to ensure the implementation of the Student Rights Ordinances, one of the goals of which is to ban corporal punishment and guarantee the freedom of expression and assembly of students.
9. Civilian landmine victims: It is estimated that over 1,000 civilians have been killed or injured by landmine accidents since the outbreak of the Korean War in 1950. Up until today, people still fall victim to landmines every year. Unfortunately, no official statistics or investigation has been made regarding this matter. The cases of the landmine victims should be investigated and the legislation, which covers the victims’ living expenses, the costs of medical care, and compensation, should be enacted.
10. Compensation and diplomatic effort regarding the Japanese Military Sexual Slavery: From 1932 to the end of the Second World War, the Japanese government mobilized around 200,000 Asian women and forced them to serve as sexual slaves for the Japanese military. However, the Japanese government has been refusing to give an official apology and pay compensation for their past atrocities. The ROK Government has not put much diplomatic effort into resolving this issue either, and recently, the Constitutional Court of the ROK ruled that such lack of effort by the Government is unconstitutional. Nevertheless, the Government is still not putting any diplomatic pressure on the Japanese government to fulfil their legal responsibilities, despite the fact that many elderly survivors of Japanese Military Sexual Slavery have already passed away and the surviving women may soon pass away. Moreover, the Government has not yet specified the dispute resolution procedures, abstractly provided in the Korea-Japan treaty. The Government should make a clear request to the Japanese government for proper legal compensation to the victims of Japanese Military Sexual Slaves and make a settlement on the dispute resolution procedure promptly.
C. Administration of justice and the rule of law
11. Human rights training for military personnel (Recommendation No.11): The amount of human rights training provided to military personnel is entirely insufficient , and on the rare occasions that training does take place, it is often led by commanding officers, rather than by human right training specialists. The Government should provide effective human rights training to all military personnel in accordance with the World Programme for Human Rights Education.
12. Prohibition of torture (Recommendation No. 6, 10, 11, 12): Currently, domestic law lacks measures that define torture in line with Article 1 of the Convention Against Torture (CAT) or provide punishment for all acts of torture. It merely criminalizes “acts of violence or cruel treatment” and “unlawful arrest or detention in circumstances of abuse of authority” in its Criminal Code. As a result, instances of violence and cruel treatment perpetrated by the police or the prosecutor’s office continue to take place. The Government should adopt a comprehensive definition of torture as defined in the CAT and regularly undertake investigations to prevent torture and cruel, degrading and inhumane treatment, while providing human rights training to law enforcement officers.
13. Prohibition of arbitrary detention in the military (Recommendation No. 22, 26): Since the military court operates under the Ministry of Defence and not the Supreme Court of Justice, military personnel and civilian workers in the military are not guaranteed their right to fair trial. The military court adjudicators, who are appointed by the Minister of Defence, are military officers and not legal professionals. But they hold authority to influence military court decisions, which infringes the independence of the military court. Furthermore, according to the Military Personnel Management Act, a military officer who is not a judge may detain one’s subordinates in a military prison for maximum 15 days. The Government should abolish the military court during peacetime and require that lawsuits involving military personnel and civilian workers in the military take place in regular civilian courts. The Government should also revise the Military Personnel Management Act to require a warrant issued by a judge for a detention.
14. Abolition of the measure requiring sexual crimes to be investigated only upon complaint from victims (Recommendation No. 19): Under the current legal system, sexual crimes whose victims are non-disabled adults may only be investigated upon complaint from the victims. As a result, victims of sexual crimes are often subject to threats and other forms of pressure from perpetrators to waive or drop the charges or negotiate a settlement instead. Moreover, when victims were filing complaints or being investigated, law enforcement officers even encourage them to make a settlement, which puts them under extra pressure to give up the charges. The pending Revised Criminal Code also fails to abolish the relevant measure. The Government should establish a concrete and systematic plan to abolish such requirement for all sexual crimes.
D. Right to privacy, marriage and family life
15. Punishment of marital rape and domestic violence (Recommendation No. 14, 32): In 2010, marital rape accounted for 10.4% of sexual abuse cases. Although rape crime exists under the Article 297 of the Criminal Code, according to which female spouses can also be victims of rape crime, the punishment of such crime is not easily realized in the practice of the judicial procedure. The Government should amend the Act on Special Cases Concerning the Punishment, etc. of Crimes of Domestic Violence in order to better protect marital rape victims and punish the offenders.
16. Reconsideration on the resident registration system and the limitations of the use of registration numbers outside the public sector (Recommendation No. 13): The Government is still maintaining the resident registration system which involves taking fingerprints from the holders. The Government is even planning to introduce a chip equipped electronic resident registration card system, which may contain a lot of personal information. In February 2012, the Government amended the Act that limits the collection of residential number on the Internet. However, the Internet Personal Identification Number (I-Pin), an alternative system to resident registration number for personal identification online, still requires a residential number, and there is no restriction on collecting residential numbers outside the Internet. The Government should reconsider the resident registration system itself, including the electronic resident registration card system, and abolish the legislation that directly and indirectly requires the residential number before accessing an online service, so that private enterprises’ collection, storage, and the use of residential numbers can be strictly regulated or prohibited.
17. Collection of DNA information: The legislation which enables the collection of suspect’s DNA, who is under arrest for at least 1 of 11 crimes including child sexual violence, murder, and rape, is now in force and it has provisions that allow extensive search and report of collected DNA . The use of collected DNA should be strictly limited and the relevant legislation should be made.
18. Information leak of victims residing in shelters: Personal information of victims of sexual violence, domestic violence, and sex trafficking that reside in shelters is collected and piled in an online social welfare information system. The information is stored for 5 years after the victims leave the shelters. The Government is not complying with the personal information protection principle, which is the most basic principle in supporting violence victims, by compelling the use of the social welfare information system whose security has not been approved. Since the current online management number contains the facility number, it is possible for the victims to be put under other dangerous situations for their whereabouts are easily exposable with these numbers. The Government should amend the Social Service Act that requires the upload personal information of victims of sexual violence, domestic violence and sex trafficking on the Internet. Also, the Government should legislate a special law to ensure the needs of female victims of violence are taken into consideration.
E. Freedom of religion or belief, expression, association and peaceful assembly and right to participate in public and political life
19. Conscientious objectors (Recommendation No. 17, 24): The UN recommended to the ROK Government several times to provide alternatives to military service, and the Government has repeatedly insisted that it is working on such measures – but without any visible progress. In fact, the Government has only just conducted surveys on the issue without raising awareness on alternative military service. Only because the survey results show that a number of people refuse to adopt alternative military service, the Government has said that it has no intention to introduce alternative military service. In 2011, revising the Military Service Law regarding conscientious objectors had been proposed at the National Assembly but there has been no discussion since then, and it was abrogated due to the expiration of term. It is not fair to delay promoting and protecting human rights only because the majority does not agree. The Government should immediately introduce alternative military service that complies with international standards and take steps to raise awareness on this issue.
20. Freedom of association and peaceful assembly (Recommendation No. 9): In 2009, the Constitutional Court ruled night time assembly constitutional but night time demonstration is still prohibited. In principle, the Assembly and Demonstration Act stipulates that assemblies and demonstrations only need to be reported but in practice, it is being used as a de facto permit system and the police can make arbitrary decisions on granting assemblies and demonstrations. Also, members of the police who use violence against demonstrators are not being properly punished. The Government should revise the Assembly and Demonstration Act to guarantee freedom of association and peaceful assembly. In addition, the Government should forbid existing practice of permitting assemblies beforehand and ensure the conduct of police forces is in accordance with the international human rights standards, as well as investigate and punish law enforcement officers who overuse their force.
21. Freedom of expression of civil servants: Under the present administration, the freedom of political expression of civil servants has been severely restricted. In 2009, the Government took disciplinary action and brought criminal charges against the Korean Teachers and Educational Workers Union which expressed its opinion on political issues. In the same year, the Government also harassed the Korean Government Employees’ Union, the Korean Democratic Government Employees’ Union, and the Court Government Employees’ Union when they expressed its views on political issues, made an advertisement critical to the Government, and participated in assemblies sponsored by the opposition party. Freedom of expression of civil servants is guaranteed by the Constitution , and the Joint ILO and UNESCO Recommendation by the Committee of Experts on the Application of Recommendations Concerning Teaching Personnel. Freedom of expression of civil servants should not be restricted due to public sector employee’s responsibility to remain politically neutral. The Government should immediately amend related legislations including the National Public Service Law, the Political Fund Law, the Political Party Law, and the Teacher’s Union Law that include articles which ban political activities of civil servants.
22. Right to participate in political and public life: On 27 February 2012, the Public Official Election Act was amended ‘to allow election campaigns on the Internet and social networking service at all times (except the election day)’. However, penalty clause on slandering other candidates still remains and can be arbitrarily abused. The Article 93, clause 1 of the Public Official Election Act should be abolished and regulations on offline election campaigns should be eased. In addition, punishing the slandering other candidates under the election law should be abolished since there is no clear definition between slandering and justifiable criticism.
23. Freedom of expression on the Internet: The Korea Communications Standards Commission (KCSC) determines what information on the Internet is illegal, harmful to minors, and unsound and then takes measures to delete or correct it. Almost all the information that was screened by the KCSC is being deleted from the Internet. The KCSC, however, is not an independent administrative organization and is screening the information without clear standards and takes measures to delete content before a judicial body makes decisions. This gravely violates the freedom of expression on the Internet. The KCSC should not have authorities to screen online content.
24. National Security Act (Recommendation No. 4, 24, 33): Since 2008, the number of people who were persecuted for violating the National Security Act has greatly increased. However, the rate of the prosecution rate is much lower than that of being charged for violating the Act, which indicates that the National Security Act is being abused. The Government should launch domestic campaigns to promote the abolishment of the National Security Act, implement human rights trainings on law enforcement officers, and abolish the National Security Act.
F. Right to work and to just and favourable conditions of work and right to protection from corporate human rights abuse
25. Social security for non-regular employees: Although existing laws stipulate that non-regular employees should join social insurance mandatorily, low wage and unstable nature of non-regular employment make it difficult for them to bear the cost associated with joining a social insurance. In 2011, only 32.2% of non-regular employees were participating in the national pension (employer-provided), 37.3% in the national health insurance (employer-provided), and 35.8% in the unemployment insurance, all of which are substantially lower than the participation rates of regular employees. In a social security system based on social insurance, such a lack of access to social insurance for non-regular employees implies that the group is exposed to various risks associated with health problems, unemployment, and aging. The Government should subsidize the social insurance fees for low-wage, non-regular employees to increase their social insurance participation and should expand the scope of social services universally applied to all employees, regardless of their payment of social insurance fees.
26. Occupational injury insurance: Under the Industrial Accident Compensation Insurance Act, an employee who suffered damage from accident relating to the work must establish the medical causal relationship between the accident or damage and the work in order to receive compensation. However, in case of occupational illnesses, it is virtually impossible for an employee, who is not a medical expert, to prove the causality. Since the standard is very difficult to meet, only 52.1% of workplace illnesses are recognized as consequences of industrial accidents, eligible for compensation. The Government should revise the relevant laws to require the insurer, not the employee, to establish the medical causal relationship between the work and the accident or damage.
27. Need for National Contact Point reform: The National Contact Point (NCP), operated under the OECD Guidelines for Multinational Enterprises, has failed to prevent or remedy human rights violations perpetrated by Korean corporations operating abroad. In the ROK, the Working Group on the Foreign Investment has functioned as the NCP. However, the Working Group primarily consists of high-level government officials while civil society organizations are excluded. Since the establishment of the NCP, recommendations have been given only once and there has even been a case in which no action was taken for three years after a complaint was filed. The Government should establish a neutral and independent NCP in which civil society can participate and should regulate the NCP in accordance with the revised OECD Guidelines, such as stipulating a deadline for acting on each complaint that is filed.
G. Right to social security and to adequate standard of living
28. The welfare system in the ROK has improved and established a basic frame of social security services. However, it remains selective, since welfare benefits aimed at marginalized groups include low-income households, rather than a universal welfare benefits for every member of the society. The social welfare budget of the Government is only 7.5% of the GDP, which is at an unsatisfactory level compared to the OECD countries’ average (20.6%). Because of the current economic crisis, including the increase of non-regular workers, the working poor has increased and social and economic inequality has worsened. The Government should strengthen efforts to provide proper wages to all workers and regularise non-regular jobs. Also, the Government should expand the social security budget up to 15% of the GDP, secure support for the elderly, disabled persons and children, and expand public services on education, medical, and housing system.
29. Public assistance: The number of National Basic Livelihood security system recipients has stayed at 3% of the total population in the last 10 years, while the number of the poor has increased. The reason is that more than a million people who are in need of benefits are not entitled to receive public assistance due to strict qualification standards. Also, their wages do not even reach minimum standards of living. The strict standards for the recipients should be moderated and the Government should increase the minimum wage to a level of at least more than 40% of incomes earned by workers in urban areas.
30. National Health Insurance: In 2008, the National Health Insurance coverage is only 62.2 % which is lower than other OECD countries’ average (90%). The National Health Insurance should include all medical expenses, and there should be a limit on medical expense that individuals need to pay to ease one’s burden. Also, public hospitals should be more than 30% of total hospitals.
31. National pension scheme (social security for the elderly): About 45% of the aging population suffers from poverty, which is three times more than the OECD countries’ average (13%) and the suicide rate among the aging population is one of the highest in the world which is 78 out of one hundred thousand people. If one joins the national pension scheme for 40 years, he/she can receive 40% of their average income. However, non-regular workers who are reluctant to join social insurance are expected to receive only 15~16% of their wage. The basic old-age pension was introduced in owing to secure the wage of the elderly who are excluded from the national pension scheme, but it is not enough to provide enough security since the qualification for the pension is restrictive and the amount of the pension is low. The Government should provide measures to cover more applicants and extend the period in which the national pension scheme can apply. Moreover, the basic old-age pension should increase from 5% to 10% of their average wage in the national pension scheme and include all the elderly who are over 65 years old.
32. Unemployment insurance (expansion of employment security net): Unemployment insurance was designed for all paid workers, but according to the Korean Statistical Information Service, the insured persons are only 58.9% of all paid workers. Even the insured persons who are unemployed have difficulties in being beneficiaries of the unemployment insurance because criteria are very strict. Only 11% can get unemployment benefit among those who lose their jobs. Furthermore, unemployed young people and small shopkeepers who closed down their shops are excluded from the insurance benefits because they were not paid workers. The Government should take measures to ease criteria to expand the range of recipients and to extend the period of benefits. Also, the jobseeker’s allowance should be guaranteed to unemployed young people and unemployed small shopkeepers who seek for a job and to participate in a vocational training.
33. Right to education and to participate in the cultural life of the community: University tuition fees in the ROK are placed the second highest in the world (5,315PPP), only ‘bettered’ by the United States (6,312PPP). Korean students and their parents spend around 30~40% of annual income for the university tuition fees. 72.3% of candidates for graduation are in debt and 84% of the debt is for their tuition fees. More than 30,000 students have bad credit because they cannot pay back their student loan. Even though tuition fees are unaffordable, the college entrance rate is the highest in the world (83%) because the wage gap depending on educational background is very high. The higher educational budget is only 0.6% of total the GDP, which is half of the OECD countries’ average (1.1%). To ease the burden of students and their parents to the level of the OECD countries’ average (10% of annual income), the Government should expand the higher educational budget to the level of OECD countries’ average and increase the number of public universities.
H. Migrant, refugees and asylum-seekers
34. Rights of migrant women and measures against human trafficking and sex trafficking (Recommendation No. 8, 15, 21, 32): When a foreign woman immigrates to the ROK for international marriage, her legal status is dependent upon the Korean spouse’s certification of her identity. The spouse reference system has reinforced the inequality that exists between the Korean husband and migrant wife. Also, many migrant women are being recruited into Korea’s sex industry through fraud, coercion and various other means, yet very few traffickers are prosecuted or punished. In particular, the migrant women who enter the ROK on the E-6 “Entertainment Visa” are sent to bars and clubs that are frequented by foreigners and are subjected to prostitution or other forms of sexual exploitation by pimps. The existing law and the proposed revision of the Criminal Code are insufficient for regulating the practice of human trafficking in reality, and they pardon the act from constituting human trafficking as long as the “consent” of the human trafficking victim exists. Therefore, with regard to the pending Revised Criminal Code, the Government should enact a comprehensive definition of human trafficking in line with the Protocol to Prevent, Suppress and Punish Trafficking in Persons. Also, the Government should prioritize protecting trafficking victims during the investigation or trial process and the privacy of the trafficking victim should be protected through legal means. The victims should be provided legal status which should stay effective even after the completion of the litigation, in order to prevent the repatriation of the victims to their countries of origin where they could face retaliation and other dangers. Also, the Government should at least provide the minimum welfare benefits and medical care to the trafficking victims as well as the right to work. In order to address a more fundamental problem, the role and structure of the E-6 visa should be subjected to scrutiny, and E-6 broker agencies should be monitored and regulated more rigorously. Furthermore, the Government should abolish the spouse reference system, establish effective social safety nets for migrant women who are victims of sex trafficking, domestic violence and sexual violence and provide them legal status of residence and access to social services.
35. Birth registration of migrant children: Since there is no birth registration system in place for children of foreign nationality in the ROK, the children of undocumented migrant workers and refugees cannot be registered. The Government should revise relevant laws to enable the birth registration of all children regardless of their parents’ nationality, status of residence, and other legal or social status.
36. Children of undocumented migrants (Recommendation No. 7, 15): Access to medical services of undocumented migrant children in Korea, estimated to be about 17,000, is only partially protected. They can be supported regarding inpatient care and outpatient surgical care but cannot be supported regarding general office visits, vaccinations, or routine medical examinations. Moreover, undocumented migrant children can only access such services at 77 medical facilities nationwide. Furthermore, the Immigration Control Act, which regulates crackdowns, detentions and deportations of undocumented migrants, does not differentiate between adults and children, or contain child-sensitive measures for humanitarian purposes. The Government should enact the Migrant Children Rights Protection Act which was suggested in 2010. It should also revise the Immigration Control Act to ensure that the children who are found out to be undocumented migrants and are ordered to be deported are permitted to complete their education for the semester or the school year, in order to protect the children’s right to primary and secondary education.
37. Refugees and asylum-seekers (Recommendation No. 30): Since the Ministry of Justice and the Korean courts often reject asylum applications based on the grounds irrelevant to the definition of refugee according to the 1951 Refugee Convention, Korea’s refugee recognition rate has been substantially low. The newly passed Refugee Act, which is set to be enforced from beginning of July 2013, still retains many problems from the refugee related provisions in the Immigration Control Act. In addition, asylum-seekers often lack access to information and support regarding applying for asylum. The Government should provide adequate mandatory training for immigration officers and law enforcement officers in order to ensure that they properly identify asylum-seekers. Refugee application documents should also be available in languages other than Korean and English. Finally, the Government should provide basic living support or grant the right to work to asylum-seekers.
38. Detention of migrants: Since the Immigration Control Act does not limit the duration of detention, the indefinite detention of asylum-seekers and refugees is possible even without periodic judicial review. Even minors are subject to prolonged detention without adequate protection and support for child welfare. Persons deemed “inadmissible” to the ROK territory, some of whom are asylum-seekers, are detained in transit zones for an unspecified, unforeseeable length of time under inhuman conditions. The Government should end arbitrary, prolonged immigration detention, especially for asylum-seekers and refugees. The immigrants in detention should be provided with adequate access to information on the asylum application procedures, and alternatives to detention for asylum applicants should be established. The basic living conditions in transit zones should be improved to meet humanitarian standards, and access to legal and social assistance should be made available.
39. Stateless persons: The Government should institute effective and accessible procedures that identify stateless person in order to fulfil its obligations under the Convention relating to the Status of Stateless Persons.
I. Women and Children
40. Birth registration and protection of adopted children: In the ROK, the number of actual domestic adoptions is always higher than the official figure. “Secret” adoptions, which cause the discrepancy, are made possible by ROK’s inadequate birth registration system, which takes place at the local administrative office, and not at the hospital. In a secret adoption, the child is registered as the biological child of the adopting parents, instead of as an adopted child born to an unwed mother. As a result, the adoption is not recorded, leaving open the possibility of child-selling. The Government should ensure and verify that the birth registration accurately indicates the biological parents of the child by modifying the existing system to require a birth certificate issued by the hospital or the attending physician or midwife. Also, the Government should work in partnership with civil society, especially in deciding how the Korea Central Adoption Resources Agency (KCARE) should be organized and operated.
41. Support for unwed mothers: Each year, about 90% of international adoptees and 85% of domestic adoptees are born of unwed mothers . Unwed mothers are often forced to relinquish their children due to social stigma and financial difficulties resulting from the prejudice. The Government should provide adequate support to unwed mothers so that the support is socially and financially incentivized as the best form of childcare. Both the Single-Parent Family Welfare Act and the National Basic Livelihood Security Act should be amended in a way to provide universal single-parent benefits to unmarried mothers such as a basic living subsidy for all unmarried mothers until the child reaches a certain age, regardless of the mother’s employment status or wage level and whether or not the unmarried mother has a person with a legal duty to support her.
42. Rights of women workers: The difference in the proportion of non-regular employees between women and men has gradually been increasing. Moreover, the wage discrepancy between women and men by types of employment is also widening. Women are generally concentrated in low-wage, poorly-conditioned jobs in small-to-mid-sized workplaces. The employment rate of women in general is also very low, and the maternity leave system for giving birth or caring for children is also very under-used. On a related note, few men take advantage of the parental leave system. The Government should address the gender discrepancy problem of wage and increase the proportion of regular employment for women in the labour force. Also, the Labour Standards Act should be revised to eliminate the measure which excludes a worker who is hired for domestic works from the definition of employee. The Government should take active steps to protect women’s right to work during pregnancy and child-rearing periods and encourage men to take up parental leave.
