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

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

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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

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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.