Mandatory HIV/AIDS and Drug Testing Violates Rights to Privacy & Equal Protection

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Credit: Tom Page via Wikimedia Commons

During its 123rd Session, the United Nations Human Rights Committee issued its first decision on the privacy and equal protection implications of mandatory HIV/AIDS and drug testing for individuals seeking a visa extension. See Human Rights Committee, Vandom v. Republic of Korea, Communication No. 2273/2013, Views of 12 July 2018, UN Doc. CCPR/C/123/D/2273/2013. The case concerned an American English teacher, working in the Republic of Korea, whose application to renew her teaching visa was denied after she refused to submit to a mandatory HIV/AIDS and drug test. See id. at paras. 1-2.8. The Human Rights Committee held that the Republic of Korea’s policy of requiring mandatory drug and HIV tests from individuals who were not nationals of the State or of Korean ethnicity and who were seeking to obtain teaching visas constituted a violation of the right to equal protection and the right to privacy under the International Covenant on Civil and Political Rights (ICCPR). See id. at paras. 8.5, 8.9. While this is the first case in which the Human Rights Committee has reviewed mandatory drug and HIV testing policies, another treaty body, the UN Committee on the Elimination of Racial Discrimination (CERD), issued a decision in 2015 on the Republic of Korea’s mandatory testing policy. [IJRC] The CERD found that the policy amounted to racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The case before CERD did not discuss the right to privacy. [IJRC]

Background Facts

The applicant, Andrea Vandom, is an American national who was hired in 2006 to teach English at a university in Anseong, a city in the Republic of Korea. See Human Rights Committee, Vandom v. Republic of Korea, paras. 1, 2.1. Vandom entered the Republic of Korea on an E-2 visa, which is a visa specifically for foreign language teachers. See id. at para. 2.2. However, in 2007, after Vandom had taught at the university for more than a year, the Korean Ministry of Justice implemented a policy that required all E-2 visa holders to submit health records from a government-designated hospital showing that the visa-holder is drug-free and HIV/AIDS-negative. See id. Those who failed the HIV/AIDS or drug tests lost their visas and faced deportation from the country. See id. The policy, however, exempted all foreigners of Korean ethnicity. See id. at para. 2.3.

Vandom, an E-2 visa-holder, refused to submit to the testing on the grounds that she found the test discriminatory and an invasion of her privacy. See id. at para. 2.5. Immigration officials refused to renew Vandom’s visa, at which point Vandom left the country. See id. at paras. 2.6-2.8. After unsuccessfully challenging the mandatory testing policy in domestic courts, Vandom submitted a complaint to the Human Rights Committee, alleging that the Republic of Korea’s mandatory testing policy constituted a violation of her right to non-discriminatory treatment, right to privacy, and right to equal protection under the ICCPR. See id. at paras. 2.8, 3.1.

The Committee’s Decision on the Merits

The Human Rights Committee considered whether the Republic of Korea’s mandatory testing violates the rights to non-discrimination and equal protection of the laws under articles 2(1) and 26 and the right to privacy under Article 17 of the ICCPR. See id. at para. 8.2.

Article 26: The Right to Equal Protection

In the present case, the Committee found that the Republic of Korea’s mandatory testing requirements amount to a difference in treatment on the basis of nationality and ethnicity in violation of Article 26 (right to equal protection of the laws). See id. at para. 8.4. The Committee reaffirmed the principle that Article 26 of the ICCPR prohibits “any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.” See id. at para. 8.4. The Committee clarified, however, that certain differences in treatment are permitted and do not violate Article 26 if the differences in treatment are compatible with the Covenant and are “based on objective and reasonable grounds.” See id. at para. 8.5.

The Committee found that there are no objective and reasonable grounds for requiring HIV and drug testing based on individuals’ ethnicity or nationality. See id. at para. 8.5. The Committee pointed to the State’s inability to provide evidence that language instructors who are not nationals of the State or who are not of Korean ethnicity pose a greater risk of spreading HIV/AIDS or of drug use, than other similarly situated individuals of Korean ethnicity; accordingly, the Committee found that imposing the testing requirement on those of non-Korean ethnicity only could not be in furtherance of the protection of public health and order, as the State claimed. See id. In making this conclusion, the Committee consulted relevant statements, findings and decisions, and instruments from international experts, including the findings of the UN Programme on HIV/AIDS’ International Task Team on HIV-related Travel Restrictions, which concluded that States that have enacted HIV related travel restrictions have not been able to demonstrate that those restrictions are justified and rational, as well as the International Guidelines on HIV/AIDS and Human Rights. See id. The Committee also cited to the CERD’s decision in L.G. v. the Republic of Korea, which found that the mandatory testing requirement constituted a violation of the right to nondiscrimination under the ICERD. See id. The Committee thus concluded that the visa conditions constitute a violation of Article 26 of the Covenant. See id.

Article 17: The Right to Privacy

Despite finding that the State’s testing practices violate Article 26, the Committee further considered whether the mandatory drug and HIV/AIDS testing policy violates the right to privacy under Article 17 of the ICCPR. See id. at para. 8.6. The Committee recalled its General Comment No. 16 on the right to privacy and reaffirmed its prior holdings that a State may only interfere with the right to privacy when the interference is provided for by law and necessary and proportionate to serve a legitimate end. See id. at paras. 8.7-8.9.

The Committee first determined that mandatory testing constitutes an interference with Vandom’s privacy, before holding that the interference is unlawful. The Committee found that (1) because the policy requires Vandom to disclose her HIV status to the State, (2) because the testing constitutes a search of Vandom’s body, and (3) because the State threatened to revoke Vandom’s visa if she did not comply, the testing policy constituted an interference with Vandom’s privacy. See id. at para. 8.6. The Committee then concluded that the mandatory testing is provided by law as an official policy.

The Committee, however, found that the policy is not necessary and proportionate to achieve the State’s purported interest in maintaining public health and public order. See id. at paras. 8.7-8.9. Again, the Committee cited to the findings of the International Task Team on HIV-related Travel Restrictions that there is no evidence that travel-related restrictions on the basis of HIV status protects public health or public order and there is evidence that such restrictions may negatively impact public health. See id. at para. 8.9. The Committee also noted that there is no reasonable justification for singling out the specific group of non-nationals for testing, given the exemption for teachers of Korean ethnicity and nationality. See id. The Committee thus concluded that the mandatory testing policy violates the right to privacy under Article 17 of the Covenant. See id.

The Committee’s Recommendations

The Committee made two recommendations to the Republic of Korea. The first was that the State should provide Vandom with an effective remedy, which should include adequate compensation. See id. at para. 10. The second was that the State should take steps to avoid similar violations in the future, which would include reviewing its legislation to ensure conformity with the ICCPR. See id. The Committee specifically observed that the State should end all “mandatory and other coercive forms of HIV/AIDS and drug testing” and ensure that these types of policies are not reintroduced. See id.

Additional Information

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