1 Rights of Woman and Child in Korea -focused on Multicultural Family by Migration

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Rights of Woman and Child in Korea-focused on Multicultural Family by Migration

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General Human Rights Status in Korea -focusing on Gender PerspectiveIntroduction

Historical Background

Korea survived from decades of Japanese Colonial Era, Korean War, severe military dictatorial regimes and have achieved economic success and democratic transition since the 6.29 Declaration in 1987

Member of 7 core International Treaties

ICCPR, ICESCR, ICERD, CEDAW, CAT, CRC

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General Human Rights Status in Korea -focusing on Gender PerspectiveRole of Constitutional Court in Korea

-Review the constitutionality of provisions of individual laws and individual complaints in case of an infringement of basic human rights beyond the limitation stipulated in the Constitution

-Article 6(1) of Constitution declares the ratified international treaties have same effect as the domestic laws

-Constitutional Court refers international human rights treaties as supporting rational and acknowledge foreigners' subjectivity of fundamental rights (Domestic court refer international human rights treaties are scarce)

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General Human Rights Status in Korea -focusing on Gender PerspectiveRole of National Human Rights Commission in Korea

-Recommendations for improvement of policies, laws practices of the state authorities, and expressing views on current human rights issues

-Drafting and proposing recommendations on the National Action Plan for the Promotion and Protection of Human Rights (NAP)

-Wide-range of investigations on human rights conditions

- Human rights education and awareness raising

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General Human Rights Status in Korea -focusing on Gender PerspectiveGender Mainstreaming Effort

-Enactment of Framework Act on Women’s Development (1995)

-Establishment of the Ministry of Gender Equality (2001) which planning and coordinating women's policy for enhancement of women's rights

-5 year Plan for the Woman Managers in Public Positions above directors and deputy director level (Rank 4)

-Equal Employment Initiative for Gender (Minimum target rate of one gender to at least 30%) from 2003 to 2012

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General Human Rights Status in Korea -focusing on Gender PerspectiveGender Mainstreaming Effort (continues)

-Civil Act revision in 2005 including major changes such as

(1) Abolishment of the Family Head System by allowing the Family Relationship Registration which ensures the equal status of men and women in families and society

(2) Elimination of the gender-based discrimination on the legal age for marriage by making the legal age 18 years for both men and women

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General Human Rights Status in Korea -focusing on Gender PerspectiveHuman Rights Issues related with Migration

-Along with global neo-liberalism and freedom of movement of international capital and labor, influx of the migrant workers and foreign spouses into Korea has greatly increased

-Among the 1.2 million foreigners residing here, total of 174,049 or 14.4 percent of Foreigners in Korea were staying illegally (as of the end of June 2010)

-Undocumented Foreigners are subject to disadvantageous working situations and control and deportation by MOJ

-Foreign spouses face various problems domestic violence and etc

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Application of International Human Rights Standard in Korea

Ratified International Treaties and Reservations

- ROK ratified the 7 core international human rights treaties

- Reservation on Article 22 of ICCPR (the freedom of association; e.g. the right to organize labor unions) still remained

-Withdrawal of reservations on (1)Article 14 Item 5 (the right to have trials by a higher tribunal), (2)Article 23 Item 4 (equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution) and (3)Article 14 Item 7 (the prohibition of double jeopardy) of ICCPR

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Application of International Human Rights Standard in Korea

Domestic Application Mechanism of International Treaties

-Constitution Article 6(1) stipulates that both signed treaties and widely approved international laws will be applied with the same legitimacy as domestic and ‘municipal’ law in the ROK

-No comprehensive Human Rights Act nor anti-discrimination Act

-Only one Supreme Court decision referring ICCPR and ICESCR held that Article 13-2 of the Old Labor Dispute Mediation Act was not in violation of Article 19 of the ICCPR nor Article 8 of the ICESCR

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Migration Related Laws and Problems Reflected on

Gender PerspectiveLaws related with Migration

-The Nationality Act: Basically Lex Sanguinis

-The Act on the Immigration and Legal Status of Overseas Koreans

-The Act on the Employment of Foreign Workers: Employment Permit System is stipulated under this law

- The Immigration Control Act

-The Basic Act on the Treatment for the Foreigners Residing in Korea, etc

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Gender PerspectiveForeigner’s Entitlement of Fundamental Rights reflected on the Constitutional Court Decision

-The Constitutional Court acknowledged foreigners' subjectivity of fundamental rights, declaring a "foreigner" has status similar to that of a "national," and therefore, a foreigner is entitled to the basic rights in principle

- A foreigner's right to equality can only be limited subject to the nature of the right concerned, such as the right to political participation or the principle of reciprocity (99Hunma494).

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Gender PerspectiveProblems with the Residency Requirement under the Nationality Act

-Simple Naturalization by Marriage (the Article 6 of the Nationality Act): 2 years of residency requirement for married immigrants

- Married immigrants shall reside almost 4 years with the status of a foreigner: 1-2 years to receive final approval for naturalization after application

-Renewal of residency term and validity of personal guarantee of F-2 visa and foreigners’ registration are dependent on the Korean spouses

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Gender PerspectiveRight to Health for Migrant Women: National Health Insurance Act, Medical Care Act

-Article 63(Special case for Foreigners) of the National Health Insurance Act provides benefit from the national health insurance to foreigners and overseas Koreans and all of their dependents as policy holders

-Medical Care Act which provides national medical services to the underprivileged class allows refugees and the marriage immigrants to have medical care services

-Both Acts excludes undocumented migrants and their children from the benefits

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Gender PerspectiveMigrant Women’s Right to Reproduce

-The revised Single Parent Support Act stipulate that the foreign spouses who married Koreans and are raising Korean children under 18 years born to a Korean can benefit from the single parent support

-Under the Employment Permit System, most migrant working women cannot expect the support for pregnancy and child birth

-Serious infringements to the reproductive rights of migrant women workers and discriminations against married immigrants and migrant women workers during pregnancy and child delivery

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Gender PerspectiveEducation Rights of Migrant Children

-In Aug. 2010, the Ministry of Education put on public notice a revision bill of the education law ordinance to ease the middle school entrance process for unregistered foreign students in order to guarantee the children's basic rights to education, as stated in the Article 28 of the CRC

-The Ministry of Justice, in charge of immigration control, has also agreed not to enforce raids within school walls although the present Immigration Control Act states that a civil servant is to immediately report to the authorities upon detecting a case of illicit stay

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Gender PerspectiveMinimum Standard of Living

- Article 5-2 of the National Basic Living Security Act (the special provision for the foreigner) provides assistance to eligible foreigners but limits the scope of eligible beneficiaries to married immigrants who gave birth to or raising Korean children

-As for the victims of domestic violence who file for simple naturalization and extension of stay even after the dissolution of marriage under the revised Nationality Act, they are not provided with the 3-4 years of the minimum living expenses unless they give birth to or raise Korean children

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Multicultural Family Support Act

Background for Enactment of Multicultural Family Support Act

-In 2008, the Multicultural Family Support Act was passed in order to help multicultural families adjust to Korean society

-The Minister of Gender Equality and Family can designate a ‘multicultural family support center’ with special personnel and facilities to help multicultural families and the said center shall provide education, counseling service, promotion of the multicultural family support service, cooperation with other institutions or entities which perform multicultural family support services, and other necessary services

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Key provisions under the Multicultural Family Support Act

-Fact-finding survey and announcement of the results regarding the status of multicultural families every 3 years (Article 4)

-Preventive measures within multicultural families, a shelter for married immigrant domestic violence victims, foreign language and translation services, legal counseling and administrative support regarding dissolution of marriage (Article 8)

-Nutrition and health education, dispatching a childcare helper after childbirth, medical checkups, and translation services for married immigrants (Article9)

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Key provisions under the Multicultural Family Support Act (continues)

-As for the child education of multicultural families, (1) non discriminatory education from state and local government, (2) state and local governments’ education support policy promoting fast adaptation, and (3) preschool education and Korean language education for language development (Article 10)

-Multiple language services (Article 11)

-Designation of the Multicultural Family Support Center to perform educational services, counseling, information service, and promotion of multicultural family support (Article 13)

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Remaining Challenges under the Act

-The scope of the application of this Act is limited to the family members with married immigrants and naturalized citizens and therefore, it excludes migrant workers who are under the Employment Permit System and their children, foreign students and their families, and undocumented foreigners and their families

-The legal residency status of the foreigner is required in order to benefit from the service under this Act, but fundamental human rights should be enjoyed regardless of legal status

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Problems with International Marriage Matchmaking Service

Status related with International Marriage in Korea

-According to the 2009 marriage statistics in Korea, 33,300 cases of international marriages approximates that 10.8% of the total cases of marriage occurred in 2009

-International marriages are more common in rural areas of which ratio amount to 12.9% while the international marriage rate in city areas amount to 7.2%

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Problems related with International Marriage in Korea

-The commercialized nature of international marriage matchmaking service industry in Korea causes many problems due to their practices of recruiting, controlling, moving and providing residences and food for the foreign spouse candidates

-These practices resemble traits associated with human trafficking and may have been in violation of Article 6 and 16 of the CEDAW which forbids human trafficking and declares the freedom of marriage under equality of rights

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The Enactment of Act on the Control of Marriage Matchmaking Service and its Key Provisions

-Pursuant to the final conclusion from the CERD and the CEDAW in 2007, the Act on the Control of Marriage Matchmaking Service was introduced in 2008

-The key provisions of the Act includes

(1) The domestic matchmaking service is to file a “report” while the international matchmaking service shall file “registration” to the relevant authorities

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The Enactment of Act on the Control of Marriage Matchmaking Service and its Key Provisions (Continues)

-The requirements for matchmaking service business includes (1) posting a final acceptance of the report (Article 8),(2) prohibition of lending the business name (Article 9), (3) explanation of terms and conditions and drafting of a model contract (Article 10), (4) abiding by foreign laws and regulations (Article 11), (5) prohibition of false or exaggerated promotion or providing false information (Article 12), and (6) protection of personal information (Article 13)

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Amendment of Act on the Control of Marriage Matchmaking Service in 2010

-Dangers of human trafficking lying in the current practices of some Korean international marriage matchmaking services

-Need to ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime take place in Korea

-Need to introduce domestic legislation based on the Protocol

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Amendment of Act on the Control of Marriage Matchmaking Service in 2010

-Due to serious incidents related to the insufficient disclosure of information regarding the matchmaking parties, the Control of Marriage Matchmaking Service Act was amended in 2010

- Major changes includes (1) Mandatory Disclosure of Significant Information of Parties of International Marriage Matchmaking Services to the other parties, (2) Mandatory Translation Services, (3) Abolishment of Deposit, (4) Business Report and Registration shall be concentrated to Municipal Governments

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Conclusion

Remaining Challenges

-Current migrants support are mostly declaratory and applying the hierarchical standard to migrants for determining the beneficiaries according to their legal residency, working status, marital status with Koreans, delivery of Korean children and etc

-The most needy people including undocumented migrant children, foreign spouses as the victims of domestic violence or victims of human trafficking, undocumented migrant who are liable for raising Korean children, migrant women workers are excluded from benefit

Documents

1 Rights of Woman and Child in Korea -focused on Multicultural Family by Migration