Human Rights for Whom?: National Identity and Its Impact on Divergent Human Rights Protection of Ethnic and Cultural Minorities in South Korea

Author:Min Kyung Lee
Position:Columbia University School of Law
Pages:733-767
SUMMARY

In the era of globalization, the concept of multiculturalism is gaining significance in many countries around the globe. With the recent demographical changes, South Korea, too, is starting to engage in the debate on multiculturalism. Despite an increasing number of foreigners residing in Korea, its traditional concept of danilminjok, roughly translated as one-ethnicity, is presenting unique challenges to the protection of human rights of ethnic and cultural... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2014 e Institute for Migrant Rights Press
rst published online 7 July 2014
733
HUMAN RIGHTS FOR WHOM?
NATIONAL IDENTITY AND ITS IMPACT ON DIVERGENT HUMAN RIGHTS
PROTECTION OF ETHNIC AND CULTURAL MINORITIES IN SOUTH KOREA
MIN KYUNG LEE
Columbia University School of Law
E-mail: ml3278@columbia.edu
In the era of globalization, the concept of multiculturalism is gaining signicance
in many countries around the globe. With the recent demographical changes,
South Korea, too, is starting to engage in the debate on multiculturalism. Despite
an increasing number of foreigners residing in Korea, its traditional concept of
danilminjok, roughly translated as one-ethnicity, is presenting unique challenges to
the protection of human rights of ethnic and cultural minorities.
is article examines dierent legal strategies employed by South Korea when
dealing with four minority groups, namely, migrant workers, hwagyo (Chinese-
Korean), North Korean refugees, and interracial children. Recent legal developments
that deal with human rights of migrant workers display a strong segregation
strategy which is especially evident in the recent Constitutional Court decisions on
the prohibition on a transfer of workplaces for migrant workers. Human rights of
hwagyo are dealt with a more complicated strategy which can be best described as a
mixture of segregation and marginalization. is ambivalent strategy is exemplied
by the asymmetry of benets and obligations that hwagyo face in Korean society. Laws
dealing with human rights of North Korean refugees have shifted from a mixture of
integration and assimilation strategies to an assimilation strategy. e case study
of family law exceptions for North Korean refugees indicates a clear assimilation
strategy recently employed by the South Korean judiciaries. Lastly, human rights of
interracial children are dealt with assimilation policies which are especially evident
in the case study of the abolition of military duty exemption.
is article attempts to answer the question on what caused this divergent legal
treatment of these four ethnic and cultural minority groups. It nds the answer in
The Indonesian Journal of International & Comparative Law Volume I Issue 3 (2014) at 733–767
Min Kyung Lee
734
Anderson’s concept of imagined community. It argues that because these four groups
have a dierent place in the imagined Korean national identity due to factors like
historical experience and blood lineage, these four groups’ human rights are treated
dierently. is article concludes with implications for human rights organizations
and legislatures in South Korea on how to improve human rights protections of
minority groups through recognizing this inconsistency.
Keywords: Aliens’ Rights, Citizenship, Human Rights, Immigration, Law and Society,
Minorities Rights, Racial Discrimination, Multiculturalism.
I. INTRODUCTION
In the era of globalization, many countries are struggling with the novel
concept of a multi-cultural society.1 In Korea specically, multiculturalism
has been at the heart of modern political and social debate following the
recent demographical changes. According to statistics published by the
Ministry of Public Administration and Security, foreigners comprise
2.8% of Korea’s population.2 ere has been an 11% increase in total
foreign-born residents in Korea from 2011 to 2012, and 10.5% of married
couples are in some form of an international marriage.3
ese demographical changes are especially signicant because
Korea has had a long belief in homogeneity. e idea of danilminjok
(roughly translated as “one ethnic group and one blood”) has long been
embedded in the Korean national identity.4 Some scholars criticize this
belief in homogeneity, arguing that following the Korean War, the myth
of danilminjok was created to solidify the power in a newly divided
nation.5 ese critics point out that the concept of “one blood” and
1. See Young-Suk Kim & Jeong-han Woo, Damoonhwa gajung e shiltae wa
jiwonjungchek gesun bangan e dehan gochal [A Study on the Actual Conditions and
the Improvement of Policy Supports for Multicultural Families], 13 D
C Y [M C R.] 69, 70 (2012) (S. Kor.).
2. Id. at 71.
3. Id.
4. See id. at 72.
5. See Kang-min Choi, Danilminjoke Shinhwa wa Honhyulin [e Myth of Unity
Nation and a Racial Mixture Man], 35 E N [J. L 
L] 287, 288 (2006) (S. Kor.).
Min Kyung Lee
HUMAN RIGHTS FOR WHOM?: NATIONAL IDENTITY AND ITS IMPACT ON HUMAN RIGHTS PROTECTION MINORITIES IN SOUTH KOREA
735
“one brotherhood” has been constantly recycled to rebuild the nation
during the dicult times, and consequently reshaped the memory of
our history.6 With the recent demographical changes and discourses on
multiculturalism, however, the concept of danilminjok is facing signicant
challenges.7
e belief in danilminjok creates barriers to certain minority groups
who seek human rights protections in Korea. Article 6(1) of the Korean
Constitution states that “treaties duly concluded and promulgated under
the Constitution and the generally recognized rules of international law
have the same eect as the domestic laws of the Republic of Korea.8
e Korean Congress ratied the UN Declaration on the Human Rights
of Individuals Who are not Nationals of the country in which ey
Live (1985) and the Declaration Concerning the Aims and Purposes
of the ILO (Declaration of Philadelphia) (1944), both of which aim to
establish international standards of human rights protection for foreign-
born residents.9 Despite these protections, the National Human Rights
Commission of Korea (“NHRC”) argues that human rights of certain
ethnic/cultural minority groups are being grossly violated in South
Korea. For instance, according to a study conducted by the NHRC,
migrant workers suer such human rights violations as detrimental
working conditions, lack of guarantees for rightful payment, physical
violence, conscation of identication documents, sexual violence,
racial discrimination, and harassment by the governmental authorities.10
Further, hwagyo (dened as Chinese-descendant residing in Korea)
6. See generally Mi-Young Oh, Honhyulin edehan Nakin Yungu [A Study on the Stigma
of Mixed-Race: Factors Aecting Stigma on Mixed-Race and Stigma Eect], 61
H S [K J. S. W] 215, 221 (2009) (S. Kor.);
Choi, supra note 6, at 287–289.
7. See Young-Mee Hwang, Hangook Damoonhwa Gajok TV Dramae Teukseung Yungu
[A Study on TV Dramas Featuring the Life of Multicultural Families in Korea], 31
H M B Y [K. C C R.] 295, 297
(2010) (S. Kor.); Jong-Yoon Lee, Hangooke Damoonhwa Jungchek Gwanryunbube
Gwanhan Il Gochal [A Study of the Multicultural Policy in the Republic of Korea],
4 D C Y [M C R.] 163, 165
(2010) (S. Kor.).
8. D H [H] [C] Art. 6(1) (S. Kor.).
9. N’ H. R C’ K, W G G
I G S W Y [S  
N H R P P  F] 9 (2004) (S. Kor.)
10. Id. at 24–27.

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