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nathanrutledge
Joined: 01 May 2008
Location: Marakesh
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 Posted: Thu Dec 08, 2011 8:57 pm Post subject: Re: No foriegners allowed in Busan sauna - I was refused ent |
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| Woden wrote: |
| CentralCali wrote: |
| Woden wrote: |
| Is the domestic legislation strong enough to push a prosecution through a court of law? Open to debate. |
As noted in the case of the naturalized Koreean citizen, there is no domestic legislation. That is a failing on the part of Korea's parliament. |
Yes, I mentioned that earlier, too. The argument the Korean government makes is that equality is enshrined by Article 11 of the Constitution, so technically equality is protected by law to everyone, so there is no need for racial discrimination legislation. It sounds a weak case, but the Korean government actually do make this argument to the UN. I have no idea if anyone has attempted to push through a prosecution under Article 11. That would be interesting.
Article 11 [Equality]
(1) All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status.
(2) No privileged caste shall be recognized or ever established in any form.
(3) The awarding of decorations or distinctions of honor in any form shall be effective only for recipients, and no privileges ensue therefrom. |
And here is where your argument falls apart.
The constitution uses the word CITIZEN. The naturalized citizen who was turned away has a case - anyone else does not. If you read the constitution there are other references in there to both citizens and people - two different and distinct groups. If they wanted to extend protections to everyone, they would have used the word people, not citizen.
Also, international law don't mean squat. Who are you going to call, the international police? It's only useful insofar as the local government will enforce it. SURE, they claim to be a monistic state, but only to the point where it becomes inconvenient to them. |
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Mr. Peabody
Joined: 24 Sep 2010
Location: here
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| Posted: Thu Dec 08, 2011 8:59 pm Post subject: |
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| Woden wrote: |
| The Floating World wrote: |
I merely said that this jimjilbang /sauna exludes based on race and I don't agree with it. |
How on earth could only allowing one race access to a sauna NOT be exclusion based on race? |
This is discrimination based on nationality, not race. You're confusing the two.
If you need further explanation, it won't come from me.  |
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Woden
Joined: 08 Mar 2007
Location: Eurasia
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| Posted: Thu Dec 08, 2011 10:01 pm Post subject: Re: No foriegners allowed in Busan sauna - I was refused ent |
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| nathanrutledge wrote: |
| Woden wrote: |
| CentralCali wrote: |
| Woden wrote: |
| Is the domestic legislation strong enough to push a prosecution through a court of law? Open to debate. |
As noted in the case of the naturalized Koreean citizen, there is no domestic legislation. That is a failing on the part of Korea's parliament. |
Yes, I mentioned that earlier, too. The argument the Korean government makes is that equality is enshrined by Article 11 of the Constitution, so technically equality is protected by law to everyone, so there is no need for racial discrimination legislation. It sounds a weak case, but the Korean government actually do make this argument to the UN. I have no idea if anyone has attempted to push through a prosecution under Article 11. That would be interesting.
Article 11 [Equality]
(1) All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status.
(2) No privileged caste shall be recognized or ever established in any form.
(3) The awarding of decorations or distinctions of honor in any form shall be effective only for recipients, and no privileges ensue therefrom. |
And here is where your argument falls apart.
The constitution uses the word CITIZEN. The naturalized citizen who was turned away has a case - anyone else does not. If you read the constitution there are other references in there to both citizens and people - two different and distinct groups. If they wanted to extend protections to everyone, they would have used the word people, not citizen.
Also, international law don't mean squat. Who are you going to call, the international police? It's only useful insofar as the local government will enforce it. SURE, they claim to be a monistic state, but only to the point where it becomes inconvenient to them. |
You have a problem with comprehension. Firstly, it is not my argument, it is the argument of the KOREAN GOVERNMENT. They argue that equality is guaranteed by that Article, not me.
International Law does mean a lot:
"Article 6: Treaties duly concluded and promulgated under the Constitution and generally recognized rules of international law shall have the same force and effect of law as domestic laws of the Republic of Korea.
Status of aliens shall be guaranteed in accordance with international laws and treaties."
It is also law that an international treaty cannot be overridden by domestic law, therefore CERD takes precedence. This is legal custom, the international treaty overrides domestic law. Yes, there are problems in implementation, but only an idiot would use that as a reason to support discrimination. This is a cut and dry case so I can only think you are a racist yourself or you enjoy being shown to be wrong.
International law has evolved to the point that it extends freedoms beyond those outlined in the Korean Constitution of 1948. Despite this, the Korean government refuse to extend explicit legal provisions. Crucially, they do not argue for the invalidity of international law, they just claim that the Constitution is sufficient to guarantee it. There is even an Act in Parliament which would outlaw exclusion of foreigners from saunas, but I suppose it is no surprise that there is no rush to push it through.
Are you up to speed now?
**Edit** You cannot use the argument that discrimination is fine just because there is no law to outlaw it, or that the law that there is, is not enforceable. I think it may help you to familiarise yourself with the National Human Rights Committee of Korea as they have very clear views on this. http://www.humanrights.go.kr/english/index.jsp **
Last edited by Woden on Thu Dec 08, 2011 10:11 pm; edited 2 times in total |
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Woden
Joined: 08 Mar 2007
Location: Eurasia
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| Posted: Thu Dec 08, 2011 10:01 pm Post subject: |
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| Mr. Peabody wrote: |
| Woden wrote: |
| The Floating World wrote: |
I merely said that this jimjilbang /sauna exludes based on race and I don't agree with it. |
How on earth could only allowing one race access to a sauna NOT be exclusion based on race? |
This is discrimination based on nationality, not race. You're confusing the two.
If you need further explanation, it won't come from me. |
The case in Busan was a Korean citizen and she proved this to the sauna owner. In addition to that, discrimination on the basis of nationality is just as illegal as discrimination on the basis of race. Thanks for your help, but I shan't need it.
**before it is claimed that citizens have more rights than non-citizens, it would be better to understand what amounts to discrimination, as that is the key point. Discrimination is:
"any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."
Whether the rights are enforceable is a moot point. Article 5 is below. I am only posting this to try to force home that discrimination is not 'fine' in this country. I am not saying that these are easily enforceable laws.
Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks. |
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CentralCali
Joined: 17 May 2007
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| Posted: Thu Dec 08, 2011 11:07 pm Post subject: Re: No foriegners allowed in Busan sauna - I was refused ent |
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| nathanrutledge wrote: |
And here is where your argument falls apart.
The constitution uses the word CITIZEN. |
Actually, Korean judges have declared time and again that constitutional protections are applicable to foreigners here.
And international law does mean something when the constitution you just quoted states that international treaties to which South Korea is a party are Korean law. The prosecutor is who you will call. Or, as in the case of the naturalized citizen mentioned earlier, you will contact the (toothless) human rights office. |
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nathanrutledge
Joined: 01 May 2008
Location: Marakesh
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| Posted: Fri Dec 09, 2011 9:07 am Post subject: Re: No foriegners allowed in Busan sauna - I was refused ent |
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| CentralCali wrote: |
| nathanrutledge wrote: |
And here is where your argument falls apart.
The constitution uses the word CITIZEN. |
Actually, Korean judges have declared time and again that constitutional protections are applicable to foreigners here.
And international law does mean something when the constitution you just quoted states that international treaties to which South Korea is a party are Korean law. The prosecutor is who you will call. Or, as in the case of the naturalized citizen mentioned earlier, you will contact the (toothless) human rights office. |
Constitutional protections doesn't mean that foreigners are citizens. Article 8 allows political parties to be formed, but foreigners are forbidden from engaging in political activities unless it is allowed by their visa status.
Article 14 says citizens can move at will. Foreigners must register their moves.
Article 15 says citizens enjoy freedom of occupation. Foreigners must have permission to work.
Article 21 guarantees freedom of assembly, yet foreigners are not allowed to engage in political activities. I.E. they are not free to attend union organizing rallies, political meetings, etc.
The constitution is full of references to two classes of people - citizens and people. If you read article 12 in particular, it uses both terms - CITIZENS enjoy personal liberty, which by definition, cannot be enjoyed by foreigners as liberty involves the ability to engage in whatever activity a person wants, and as I've cited before, this is not the case. BUT, it refers to PEOPLE for the portions that cover human/civil rights protections. "Any PERSON who is detained, no PERSON may be arrested without..." etc
Also, international law doesn't mean squat when the constitution says GENERALLY RECOGNIZED rule of international law. What does that even mean, generally recognized? Besides, as I pointed out, if a JUDGE refuses to rule it legal, it isn't legal. China is a signatory to the UN convention on refugees, yet they still send North Koreans back to their death. The "generally recognized" international standard is not to kill whales but the Japanese slaughter them by the boatload (literally, BOATLOADS!  ) So here we have Korea which is a signatory to all these different UN conventions, many from the Rhee, Park, or Chun regimes, different governments, different constitutions, etc, BUT if there isn't a judge who is going to say it's the law, then it doesn't matter.
So, I'm NOT disagreeing with you - I believe that the constitution here DOES apply to foreigners, BUT the caveat is that a foreigner is either a foreigner, or a person (both listed in the constitution) but NOT a citizen, so those parts that apply to citizens are NOT protections afforded to foreigners.
If they were applied to foreigners, then TWF would have been able to enjoy his prostituteless jimjilbang. |
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CentralCali
Joined: 17 May 2007
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| Posted: Fri Dec 09, 2011 10:57 am Post subject: |
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| Where did I say, or even imply, that foreigners are Korean citizens? Point out specifically where I did that. |
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Woden
Joined: 08 Mar 2007
Location: Eurasia
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| Posted: Fri Dec 09, 2011 2:45 pm Post subject: Re: No foriegners allowed in Busan sauna - I was refused ent |
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| nathanrutledge wrote: |
| China is a signatory to the UN convention on refugees, yet they still send North Koreans back to their death.. |
So, does that make Chinese actions 'fine'? Of course not. They are illegal under international law. China has been continually called before the UNHCR regarding its treatment of North Koreans. I assume you go onto Chinese forums arguing that China has every right to send North Koreans to their deaths because the law can't be enforced.
I'm confused as to what point you are trying to make. Yes, the law is poorly implemented, we know that. That doesn't mean Korea is not bound by it. The Korean government recognises it must honour the treaties it has signed, you are the only person who is arguing that they mean 'squat'. If you are trying to say that the Korean government should do more and you disagree with their actions then I could understand your point. But, you seem to be disagreeing with the Korean government, the UN, the Human Rights Commission and numerous others in arguing that Korea has every right to discriminate against non-citizens.
Domestic law is always subordinate to international treaties. Therefore, the Korean government is bound to ensure that foreigners have all the freedoms afforded to them in accordance with the treaties it has signed. Again, whether this is effectively implemented is another matter.
| nathanrutledge wrote: |
| So here we have Korea which is a signatory to all these different UN conventions, many from the Rhee, Park, or Chun regimes, different governments, different constitutions, etc,. |
Wrong. They were mostly ratified post-democratisation. Interestingly, North Korea ratified the major treaties before South Korea in the 1980s; the South ratified in the 1990s, on the whole. It is also makes zero difference which administration ratified an international treaty, it is still binding for all other administrations. Why do you think the FTA was resisted so bitterly? Because unless you can prove that the legal process was flawed, you will find it very hard to nullify.
| nathanrutledge wrote: |
So, I'm NOT disagreeing with you - I believe that the constitution here DOES apply to foreigners, BUT the caveat is that a foreigner is either a foreigner, or a person (both listed in the constitution) but NOT a citizen, so those parts that apply to citizens are NOT protections afforded to foreigners.
. |
You have become confused about what we are talking about. The law does not say they are the same. We know that.
The biggest flaw in your argument is this: the Korean government disagrees with you. It argues that there is equality in Korea and that the rights in the Constitution extend to non-citizens. Read their reports to the CERD for evidence. The problem lies in their willingness to strengthen the legislation and enforce this legal equality.
Do you continue to support the claim that discrimination in Korea is 'fine' because there are problems in prosecuting it? Your logic really does have some quite horrific, but logical consequences for your ethical behaviour.
Last edited by Woden on Fri Dec 09, 2011 7:42 pm; edited 2 times in total |
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nathanrutledge
Joined: 01 May 2008
Location: Marakesh
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| Posted: Fri Dec 09, 2011 8:28 pm Post subject: |
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| CentralCali wrote: |
| Where did I say, or even imply, that foreigners are Korean citizens? Point out specifically where I did that. |
You said that Korean judges have said the constitution applies to foreigners. I'm pointing out that while yes, it does, the key sections on discrimination use the word citizen, not person, and thus don't apply to non citizens. If you have a Constitutional Court case to cite where the court ruled that the words citizen and person are interchangeable, I'm interested. I agree with you that the constitution applies to all people in Korea, but I disagree with you on the clauses that includes.
Woden, lose the attitude man. I haven't been snide with you, so don't do it to me.
International law is imaginary. There is no international police force to enforce these international laws. The ICC can only operate insofar as you commit genocide or war crimes, so for this discussion, there is no international court.
So tell me, how does one invoke international law? If the courts of the country you're in don't recognize it or accept it or enforce it, what does it mean?
Also, what part of the constitution says that international law is the overriding law? Article 6 says that treaties and international law that is ratified is given the same force as domestic law, but there is nothing that says it is overriding, or has the same force as the constitution. Where does it say that Korean domestic law cannot override it? The whole KORUS FTA agreement highlights this issue. The US passed the FTA as a separate implementation law, NOT as a direct treaty as outlined in the US Constitution. By doing so, the US bill says that any part of the treaty that runs contrary to US law is null and void. The Korean government passed it as a treaty. Lots of the protestors here have said that the US can ignore the treaty because of how they signed it, but the government here pointed out that it was a difference in systems - that Korea had the same rights, i.e. to implement their own laws OVER the provisions of the treaty, the same as the US. The difference was the US CANNOT do that to a treaty, but they can do it to a bill. Korea doesn't have that restriction. See the Hankyoreh op ed last week for a piece on this if you're interested.
CERD was ratified in 1978 - Park Chung-hee. North Korea never signed it. This fact alone - you don't know when it was signed or by whom - really reveals a lot.
More so, Korea signed addendum to the CERD in 1997 and 2000 that simply say that they recognize the right for people in Korea to file grievances with the board against the government. It says nothing about the government strengthening laws or enforcing legislation. It simply says that they recognize people's right to complain about treatment.
Which brings all of this back to another point - the CERD is about governments discriminating against people. It's not about people discriminating against people. What part of the CERD allows the government to interfere in private business? If you read the United States' signing statement on the agreement, it clearly points out that the US has significant protections against discrimination that the CERD does not include, and that the US refused to support certain sections of the CERD as a result - it didn't want to weaken it's own laws in this regard. So, the ROK is a signer, but they made no such statement regarding action in the private sphere. Why did the US feel compelled to make it known that it would enforce its own discrimination laws, but Korea did not? Because Korea doesn't have discrimination laws on the same level as the US does. A foreigner makes a claim of discrimination in the US, it gets dealt with. It happens here, it doesn't. Why? It's not illegal in the same way it is in the west.
Long story short - the Korean constitution protects citizens from a lot more than it does foreigners. The CERD is all about protection from the government. A private business has the right to discriminate, however odious we may find it.
http://english.hani.co.kr/arti/english_edition/e_opinion/501947.html
http://www2.ohchr.org/english/law/cerd.htm
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en |
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Woden
Joined: 08 Mar 2007
Location: Eurasia
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| Posted: Fri Dec 09, 2011 8:50 pm Post subject: |
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If you feel I have attitude I am sorry. I am only picking at the bones of your argument. IF that is offensive I am sorry.
You seem to be making a number of claims, some of which you have stuck to and others which you have dropped. I am going to deal with them one by one.
1) Domestic law does not outlaw racial discrimination
Ironically given your stance, CERD agrees with you here. However, the Korean government disagrees with you. The Korean government have repeatedly stated that Article 11 guarantees equality in law. Again, this is a very weak argument, however, the Korean government does not argue that individuals should be free to discriminate, such as you are. It argues that mechanisms are already in place to prevent it. It has also pledged to strengthen this legislation, providing further legal weight to the argument.
2) International law is irrelevant
The Constitution, however, is a moot point for our discussion. Not only does the Constitution recognise (look up what this means legally as you seem to be unsure) international law, international custom clearly states the primacy of international treaties.
Vienna Convention on the Law of Treaties Article 27
"A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46."
This is common sense, as what would be the point of a treaty if a state were not legally bound by it. This means the freedoms from discrimination in the CERD must be upheld by the Korean state.
3) International law is unenforceable
It is to an extent. The Committee created by CERD reports periodically on how states honour the treaty. The Korean government has never tried to argue that CERD is not valid under its jurisdiction, such as you are. If a state wants to be taken seriously as one that upholds law it will honour the treaties it signs. Korea has made progress in legally protecting foreigners since it ratified CERD, indicating that the treaty is recognised, albeit incrementally.
4) International law is binding on states, not private individuals
Every government has a duty to uphold the rights of the people within its jurisdiction - citizen and non-citizen. Therefore the rights enshrined in CERD are to be upheld by the government and this includes it doing all it can to provide de facto and de jure protection.
If a state is not providing adequate protection, it is breaking international law. The Korean government has never argued that businesses should be free to discriminate, such as you are. If a government fails to legally protect individuals within its jurisdiction then it risks violating the treaty.
5) As the enforcement mechanisms are weak, private individuals are free to do as they please
This is a surprising claim to make, as the logical consequence would be to argue that Israeli settlements in the Occupied Territories are fine, as is Chinese refoulement of North Koreans. Clearly these acts are abhorrent whether or not enforcement is effective.
This is left as your only argument - that discrimination is fine as enforcement is weak. This is a very worrying ethical stance to take and it flies in the face of the Korean government's own position and hundreds of years of international legal practice.
If you want to fall back on the weak enforceability of the CERD, then it is also irrelevant from an ethical and legal perspective. In practice business are able to discriminate, but does that make it okay? Of course not. I can engage in drug running if I please - and maybe get away with it - but that is not a strong ethical or legal argument to carry it out.
So, if your argument is legal your argument is fatally flawed, as Korea is bound by CERD. If your argument is ethical, then I would argue it is fatally flawed as it would seem to justify any number of crimes.
The only argument left for you is that the law is weak and therefore discrimination is de facto permissible in Korea, and therefore morally acceptable to you.
Last edited by Woden on Sat Dec 10, 2011 6:32 pm; edited 2 times in total |
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Woden
Joined: 08 Mar 2007
Location: Eurasia
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| Posted: Fri Dec 09, 2011 8:53 pm Post subject: |
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| nathanrutledge wrote: |
CERD was ratified in 1978 - Park Chung-hee. North Korea never signed it. This fact alone - you don't know when it was signed or by whom - really reveals a lot.
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That was my mistake. I did say 'mostly' rather than all, as you referred to treaties in the plural. The ICCPR and CESCR were both ratified in the 1990s and that is why I made that statement. I was thinking of these. |
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joesp
Joined: 16 Jan 2008
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| Posted: Wed Dec 14, 2011 5:09 am Post subject: |
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Woden, I don't think Nathan Rutledge is trying to make any point at all. I think he is simply describing the situation as it is. Your approach is trying to be more persuasive, like a lawyer arguing to achieve a goal. You both agree on your facts, and I thank you for them as it created very interesting reading.
To the OP I can suggest the 국가인권위원회 (the National Human Rights Council) at www.humanrights.go.kr. This is the same place that Woden told you to go in the first page. There is a link for 외국인. They say you can do what is called 진정which is an explanation of the situation surrounding the event.
http://www.humanrights.go.kr/subject/common/body01_4.jsp?cate=107&seq=112&maincate=51&menuid=1
The above link is a link to a page that describes your options for reporting (phone call, email, going in person).
It does say that they will investigate claims of racial discrimination involving private companies.
The list of what they deal with is long and actually includes "discrimination" (인종) so I would be interested if you could update if you do follow this route, on the outcome of your reporting. Foreigners do have rights under the laws. It would be interesting to hear how far you get once you make your complaint, which is clear-as-day a violation, and see what happens.
In this thread, you had one link to a newspaper by the Korean Times about a woman who was denied entry to a sauna, and a commentary by a director of a local migrant worker group (not the Human Rights Council !!) saying that they had petitioned the council but had not heard back from them yet.
http://www.koreatimes.co.kr/www/news/biz/2011/10/117_96613.html
In the article, they only report the opinions of the victim of discrimination and of the Director of the Gyeongnam Migrant Community Service Center as he offers his interpretation of the law. However, his words are merely his opinion and do not reflect what the Council will decide. The result is not mentioned. In other words, the article is nothing but sensationalism, published by a "newspaper" whose "articles" do not usually even deserve to be classified as journalism.
What would be helpful to you, however, espeically with the language, is the fact that the petitioner did not directly appeal to the Human Rights Council but got the MIgrant Worker Center to petition on her behalf. Find one of those in Pusan and explain your situation. Print out that article. Tell them you want to do the same thing. That is exactly the kind of assistance and friends you need.
I really am sick of people hearing of one story and concluding that it is hopeless. It is not hopeless until you have personally tried and exhausted all options. Don't believe everything you hear.
You could just end up being the first black school teacher in Alabama, there, son. |
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The Floating World
Joined: 01 Oct 2011
Location: Here
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| Posted: Wed Dec 14, 2011 6:10 am Post subject: |
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| So, did Malislamusrex ever go check it out? |
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PatrickGHBusan
Joined: 24 Jun 2008
Location: Busan (1997-2008) Canada 2008 -
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| Posted: Wed Dec 14, 2011 8:06 am Post subject: |
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| The Floating World wrote: |
| So, did Malislamusrex ever go check it out? |
Good question.
However, on a hunch and just for fun I asked my friend Dave who lives near 사하 (Saha) station to visit the spa you were turned away from. He is an average caucasian american male in his late 30s. Been in Busan for 6 years now.
Anyway, he said if he had time he would check it out, camera in hand.
Well he showed up there last weekend, paid the fee, used the facilities and left.
Maybe your rebuff led to some consequences and the staff was warned or something?
Anyway, interesting and I am curious to see if others are willing to visit the place and see what happens. |
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Malislamusrex
Joined: 01 Feb 2010
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| Posted: Wed Dec 14, 2011 3:44 pm Post subject: |
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Yes I did, I went there with my wife, apparently homosexual Russians went there and used it as a meeting place to abuse each others anuses. A foreigner went there and some Russian guys tried to make sweet love to him and he walked out to tell the manager, when the manager came in he caught a bunch of Russian guys brown handed. I would rather not think what they were doing, but I feel like I should go to church and pray.
| PatrickGHBusan wrote: |
| The Floating World wrote: |
| So, did Malislamusrex ever go check it out? |
Good question.
However, on a hunch and just for fun I asked my friend Dave who lives near 사하 (Saha) station to visit the spa you were turned away from. He is an average caucasian american male in his late 30s. Been in Busan for 6 years now.
Anyway, he said if he had time he would check it out, camera in hand.
Well he showed up there last weekend, paid the fee, used the facilities and left.
Maybe your rebuff led to some consequences and the staff was warned or something?
Anyway, interesting and I am curious to see if others are willing to visit the place and see what happens. |
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