FOCUS

Focus
Asia-PacificNewsletter of the Asia-Pacific Human Rights Information Center (HURIGHTS OSAKA)

March 2017 Vol. 87

Editorial

Contents
Central Asia: Human Rights Issues
This is a discussion of the human rights
situation in Kazakhstan, Uzbekistan,
Kyrgyztan, Tajikistan and Turkmenistan as
highlighted in the Concluding Observationsof United Nations treaty monitoring bodies.
- HURIGHTS OSAKA
Page 2An Assessment of China’s Legal Framework
on Combating Trafficking in Person
This is a study of laws in China that relate totrafficking with reference to theinternational human rights standards.
- Zhang Wei
Page 7
Hate Speech in South Korea
This is a discussion on the situation of hatespeech in South Korea.
- Joo-Young Lee
Page 10
Law Against Buraku Discrimination
This is an introduction of the basic contentsof the anti-Buraku discrimination law thatwas enacted last 9 December 2016.
- HURIGHTS OSAKA
Page 13
Business, Human Rights and Access toJusticeThis is a brief report on the business andhuman rights workshop in the Philippines
with participants from several Asian
countries.
- HURIGHTS OSAKA

Addressing Human Rights Issues
The United Nations has developed a comprehensive set ofpolicy and practical guides designed to address issues andsituations affecting human rights in its member-states. These
policy and practical guides are bases of recommendations ofUnited Nations human rights bodies to member-states toimprove human rights situations. And yet, there seems to beresistance by member-states to employing these guides at thenational level.
Some member-states in Asia adopted weak laws on human rights
because of their limited scope (in terms of situations andmeasures covered). There are also laws that provide governments
the legal excuse for undertaking measures that could potentiallyviolate human rights (including restrictions on freedom of
expression to address national security issues, and limited
definition of prohibited acts such as torture and illegal
detention). Accountability for human rights violations does notappear to be important in these legal instruments.
There seems to be a trend of rewriting the meaning of humanrights by adopting policy and other measures that do not adhere
to international human rights standards. By overly emphasizing
certain concerns (national security and even national
development), the negative impact of these measures on humanrights is disregarded.

Page 15

1

FOCUS ASIA-PACIFC

MARCH 2017 VOLUME 87

Central Asia: Human Rights Issues
HURIGHTS OSAKAKa z a k h s t a n , Ta j i k i s t a n ,Turkmenistan, Uzbekistan
and Kyrgyzstan comprise thesubregion of Central Asia. They
are all member-states of theUnited Nations, and have
ratified or acceded to a numberof human rights treaties asshown in Table 1.
The United Nations humanrights treaty monitoring bodies
examined the reports of the fivecountries during the 2015-2016
period. Below are some issues
ra i s e d i n t h e C o n c l u d i n g
Observations issued by thehuman rights treaty monitoring
bodies.

Kazakhstan
The Human Rights Committee(HRC)
issued in 2016 its
Concluding Observations on
the reports of Kazakhstan. 3
Following are some of the issues
raised by the HRC.
On counterterrorism, the HRC
was concerned about the broad
formulation of the concepts of“extremism”, “inciting social orclass hatred” and “religious
hatred or enmity” underK a z a k h s t a n ’s c r i m i n a llegislation and the use of such
legislation on extremism tounduly restrict freedoms of

religion, expression, assembly
and association.
The HRC was also concerned
about the closely related issueof freedom of expression. It
noted the “laws and practices
that violate freedom of opinionand expression, including: (a)the extensive application of
criminal law provisions to
individuals exercising their rightto freedom of expression,
including provisions on the
broadly formulated offence ofincitement to ‘social, national,
clan, class or religious discord’,
defamation, insult, public insult
or other encroachment on the

Table 1. Ratified/Acceded to Human Rights Treaties1
Human Rights Treaties2

Kazakhstan

Tajikistan

Turkmenistan

Uzbekistan

Kyrgystan

1. CAT

A

A

A

A

A

2. CAT-OP

R

—-

—-

—-

A

3. CCPR

R

A

A

A

A

4. CCPR-OP2-DP

—-

—-

A

A

A

5. CED

A

—-

—-

—-

—-

6. CEDAW

A

A

A

A

A

7. CERD

A

A

A

A

A

8. CESCR

R

A

A

A

A

9. CMW

—-

R

—-

—-

A

10. CRC

R

A

A

A

A

11. CRC-OP-AC

R

A

A

A

A

12. CRC-OP-SC

R

A

A

A

A

13. CRPD

R—-

A

SignedSignedNote: R – ratification; A – accession

2

FOCUS ASIA-PACIFIC
honour and dignity of the
President of Kazakhstan, public
insult of a State official by themass media or information
communication networks, anddissemination of information
known to be false; (b) theblocking of social media, blogs,
news sites and other Internetbased resources on national
security grounds, including byusing Law No. 200-V of 23
April 2014, which entrusts theProsecutor General or his
deputies with the ability to shut
down or suspend a network ormeans of communication andaccess to Internet resources
without a court order; (c)interference with professional
journalistic activity and the
shutting down of independent
newspapers and magazines,
television channels and news
websites for reportedly minor
irregularities or on extremismrelated charges.”
On death penalty, the HRC,
while noting the moratorium on
executions in force since 2003
and the objective of gradually
reducing the grounds forimposition of the death penalty,
was concerned that the new
Criminal Code enacted on 1
January 2015 maintained thedeath penalty for seventeen
types of crime.
On prisons and torture, the HRC
noted thea. high number of “suicides
and deaths in prisons,remand centres andtemporary holding
facilities;”b. exclusion of acts of torturecommitted by “all persons
a c t i n g i n a n o f fi c i a lcapacity” in the coverage of

MARCH 2017 VOLUME 87
the law on torture and thenon-recognition of the“ p hy s i c a l a n d m e n t a lsuffering caused as a resultof ‘legal actions’ of civil
servants;”

thus the discussion below refers
only to the CAT report.

c. “high rate of torture and thehigh number of claims of
torture dismissed atthreshold due to theallegedly excessive
evidentiary standard
required to pursue an
investigation under the new
Criminal Procedure Code;”a. “consistent allegations ofwidespread torture and illtreatment, including severe
beatings, of persons
deprived of their liberty,
especially at the moment ofapprehension and during
pretrial detention, mainly inordertoextract
confessions.” CAT noted thelack of cases against thosealleged to have committed
torture;d. “reported unduly prolonged
duration of investigations
into allegations of torture
and/or ill-treatment;”e. “very low rate of effective
prosecution, the mild
punishments imposed andthe involvement ofinterested law enforcement
agencies in investigating
allegations of torture or illtreatment;”
f. practice of automaticallycharging unsuccessful
complainants of torture or
ill-treatment with the crimeof “false reporting of acrime;” andg. failure to provide full
reparation to victims of
torture or ill- treatment.
Turkmenistan
The United Nations Committee
on the Elimination of Racial
Discrimination (CERD) andCommittee against Torture (CAT)reviewed the reports of
Turkmenistan in 2016. Below
are some of the issues raised in
the Concluding Observations of
CAT.4 The report of CERD could
not be accessed at the moment,

3

CAT raised concern on many
issues regarding detention or
imprisonment:

b. “long-term incommunicado
detention, a practice thatamounts to enforced
disappearance and violates
the Convention” for anumber of people(including Boris andKonstantin Shikhmuradov,
Batyr Berdyev and Rustam
Dzhumayev);
c. “ s e r i o u s
actsofintimidation, reprisals,
threats and arbitrary arrestsand imprisonment of
human rights defenders andjournalists in retaliation for
their work, and of theirrelatives, as well as
numerous reports that such
persons have been
subjected to torture and illtreatment while indetention;”d. “deaths in custody owing totorture and about the State
party’s failure to ensure
independent forensic
examinations of suchdeaths;”FOCUS ASIA-PACIFC
e. “persons deprived of theirliberty [were not enjoying]in practice … allfundamental legal
safeguards against torturefrom the moment of theirapprehension;”f. “use of solitary confinement
and the reduced regime for
persons placed in solitaryconfinement, which has
resulted in mental healthproblems and suicides;”g. “inadequate material andhygienic conditions inplaces of deprivation ofliberty, including continued
severe overcrowding,inadequate bathing andtoilet facilities, lack ofaccess to an adequate
quantity and quality offood, natural and artificial
lighting, proper ventilationand health care, lack ofo u t d o o r a c t iv i t i e s a n dunnecessary restrictions onfamily visits continued
during the period underr e v i e w,” a n d t h a t t h e“supervision of conditionsof detention in detention
facilities [was] not within
the remit of judicial
bodies;”h. “ p h y s i c a l a b u s e a n d
psychological pressure
against detainees by prison
staff, including ill-treatment,collective punishment andsexual violence, including
rape, which have resulted inseveral suicides;” andi. “prevalence of violenceagainst women in the Statep a r t y, i n c l u d i n g i npenitentiary facilities, and at
the low number ofcomplaints, investigations

MARCH 2017 VOLUME 87
and prosecutions in thisregard.”Uzbekistan
The Human Rights Committee(HRC) issued its Concluding
Observations on the fourth
periodic report of Uzbekistan
on 17 August 2015. The HRC
noted the issues regarding
women:
a. lack of progress in adopting
a law on equal rights andopportunities for womenand men;b. violence against women,
including domestic
violence, continued to be
regarded as a family matter;
there was no law
criminalizing domestic
violence and marital rape;and law enforcemento f fi c e r s l a c k e d d u e
diligence in registering andinvestigating suchcomplaints and owing to
the absence of adequate
and sufficient protection
measures and support
services for victims,
including medical, social
and legal services, as wellas accommodation or
shelters; andc. continued practice of forced
and early marriage andbride abductions, especiallyin rural areas, andpersistence of de facto
polygamy, despite the legal
prohibition against suchpractices.
Th e H R C n o t e d t h a t t h edefinition of torture containedin the criminal legislation,
including Article 235 of the
Criminal Code, did not meet therequirements of Article 7 of the

4International Covenant on Civil
and Political Rights, as it waslimited to illegal acts committedwith the purpose of coercing
testimony and therefore inpractice was restricted to acts of
torture committed only by aperson carrying out an initialinquiry or pretrial investigation,a procurator or other employee
of a law enforcement agency,
and results in impunity for otherpersons, including detainees
and prisoners. The HRC wasalso concerned that Uzbekistan
continued to grant amnesties topersons who had been
convicted of torture or illtreatment under Article 235 of
the Criminal Code.
It also noted the numerous
reports of abuses, including
beatings by prison guards andother prisoners, poor conditionsof detention, inadequate
medical care and imposition oflong and physically demanding
working
hours,
disproportionately affecting
human rights defenders,
government critics andindividuals convicted ofmembership in Islamist parties
and groups. The HRC was also
concerned about the lack of anational independent
mechanism mandated toregularly monitor and inspect
all places of detention without
prior notice, and about
obstacles to the proper
functioning of independent
national and international
human rights and humanitarianorganizations.
Tajikistan
The Committee on Economic,
Social and Cultural Rights(CESCR) in reviewing theTajikistan reports during the firstFOCUS ASIA-PACIFICMARCH 2017 VOLUME 87

quarter of 2015 raised a number
of issues regarding therealization of economic, socialand cultural rights.5

protection of their rights underthe International Covenant on
Economic, Social and Cultural
Rights (Articles 7 and 8).

CESCR lauded the existence of anumber of laws on somepressing issues, such as thefollowing:

It noted that domestic violence
had not been criminalized andremained prevalent in the
country. It was concerned about
underreporting of cases ofdomestic violence, while thosereported were not adequately
investigated, and perpetrators
often avoided punishment.

a. L aw o n P r e ve n t i o n o f
Domestic Violence (2013);
b. Amendments to the Refugee
Law (2013);
c. S o c i a l P r o t e c t i o n f o r
Persons with Disabilities Act(2010); andd. Commissioner for Human
Rights Act (2008).
However, CESCR also observedthat other issues lacked or had
inadequate laws. It noted thelack of comprehensive antidiscrimination law and thepartial and fragmented characterof existing legal provisions; andthe lack of legal protection of
women against all forms of
direct and indirectdiscrimination and harassment.
CESCR pointed out that the2010 Law on Social Protectionof Persons with Disabilities did
not provide a clear definition of
persons with disabilities andt h a t t h e c l a s s i fi c a t i o n o fdisability, based on the degreeof lost ability to work, has led to
exclusion from employment of
persons with disabilities. It citedthe lack of a clear definition inlegislation of the informal
economy, which accounts for avery large portion of the total
workforce in Tajikistan, making
it difficult to assess the situationof workers in the informale c o n o my a n d t o d e ve l o p
effective policies to ensure theOn children, the CESCR pointed
out several concerns:
a. Large number of children(approximately 200,000),
mostly from single-parent
families and migrant worker
families, were involved inchild labor, 13 per cent ofthem were working in
dangerous conditions and
10 per cent never attended
school;b. L a c k o f f a m i l y - o r
community-based care forchildren with disabilities
and children withoutparental care, which
resulted in their being
placed in institutional care;c. High dropout rates among
girls and children fromfamilies in disadvantaged
situations, and about thegender disparity inenrolment and retention
rates across all levels of
education;d. Poor quality of education
due to lack of qualified
teachers and of teachingmaterials, low teachers’salaries and poor conditionof educational infrastructureand facilities; and5e. D e c r e a s i n g n u m b e r o fclasses provided in thelanguages of ethnic
minorities and of students
attending schools where theteaching is given in thelanguages of ethnic
minorities, owing to thei n s u f fi c i e n t n u m b e r o fteachers, the lack ofretraining programs forteachers and a shortage oftextbooks in minority
languages.
CESCR was also concerned
about the lack of reasonableaccommodation of persons withdisabilities, including physicalaccessibility to buildings andfacilities, particularly schools
and health-care clinics.
Kyrgyzstan
The Committee on Economic,
Social and Cultural Rights(CESR) issued in 2015 its
Concluding Observations on thereports of Kyrgyzstan.6
The CESCR was concerned thatwomen were not enjoying equal
rights in the areas of economic,
social and cultural rights
because they werea. “predominantly employedin lower-paid sectors andpositions;”b. not entitled to “all the rights
in the Family Code or from
alimony and other forms of
support in the event ofmarriage dissolution” forthe “significant number ofmarriages, particularly thoseunder religious law, [thatwere] not formallyregistered;”c. “ u n a b l e t o p r o v e
guardianship of theirFOCUS ASIA-PACIFC
children [in cases of
unregistered marriage]
without their husband’s
confirmation, which, interalia, hinders the children’s
residence registration, thus
obstructing their access tobasic services;”d. given “unequal access toproperty and inheritance;”
ande. f r e q u e n t l y d e n i e dapplication for “land plots.”
There was prevalent bride
kidnapping of “both women andunderage girls” who were “often
left with the kidnapper by theirfamilies for economic reasonsor because the bride isconsidered to be tainted.” There
was also concern about the“bride [being] considered tobelong to her husband’s family,
which had the power to hamper
her access to education andemployment.”
The CESCR raised its concern
about the high number ofhomeless people and theabsence of a plan to address
their housing needs. There werealso “disadvantaged andmarginalized individuals andgroups who face[d] an acuterisk of homelessness, especiallypersons living in poverty,
women single heads ofhouseholds, persons withdisabilities, migrants, children
who [were] leaving institutions
and former detainees.”
It also raised the issue of healthand environment due to the“high level of industrial
pollution” such as “groundcontamination resulting fromuranium tailings, toxic waste
dumps and burial sites forpesticides that are persistent

MARCH 2017 VOLUME 87
organic pollutants;” “continuing
import of obsolete, prohibitedor poor-quality pesticides;” andthe proximity of a residential
area to the place where cattle
which died of anthrax wereb u r i e d . Th e l ow l e ve l o fawareness about this issuecomplicated the situation.
Final Note
The Concluding Observations
raised many more human rights
issues on the five countries ofCentral Asia. The discussion
above illustrates what theUnited Nations human rights
b o d i e s h av e b e e n u r g i n gm e m b e r- s t a t e s t o g ive
appropriate attention to incompliance with their
obligation under the humanrights treaties that they have
ratified or acceded to. Theseissues, among many otherissues, are certainly not limited
to these Central Asian countries.
For further information, pleasecontact HURIGHTS OSAKA.

Endnotes
1 Ratification/accession status
taken from United Nations
Human Rights, http://
tbinternet.ohchr.org/_layouts/
Tr e a t y B o dy E x t e r n a l /Treaty.aspx.
2 Terms used:
CAT - Convention against
Torture and Other Cruel,
Inhuman or Degrading
Treatment or Punishment
CAT-OP - Optional Protocol of
the Convention against Torture
CCPR - International Covenant
on Civil and Political Rights
CCPR-OP2-DP - Second
Optional Protocol to theInternational Covenant on

6

Civil and Political Rights
aiming at the abolition of thedeath penalty
CED - Convention for theProtection of All Persons from
Enforced Disappearance
CEDAW - Convention on the
Elimination of All Forms ofDiscrimination Against
Women
CERD - International
Convention on the Eliminationo f A l l Fo r m s o f R a c i a l
Discrimination
CESCR - International
Covenant on Economic, Social
and Cultural Rights
CMW - International
Convention on the Protectionof the Rights of All MigrantWorkers and Members of Their
Families
CRC - Convention on the
Rights of the Child
CRC-OP-AC - Optional
Protocol to the Convention on
the Rights of the Child on the
involvement of children inarmed conflict
CRC-OP-SC - Optional
Protocol to the Convention on
the Rights of the Child on thesale of children, childprostitution and childpornography
CRPD - Convention on the
R i g h t s o f Pe r s o n s w i t hDisabilities
CRC-OP-AC - Optional
Protocol to the Convention on
the Rights of the Child on the
involvement of children inarmed conflict
CRPD - Convention on the
R i g h t s o f Pe r s o n s w i t hDisabilities
3 Human Rights Committee,
Concluding observations on
the second periodic report ofKazakhstan, CCPR/C/KAZ/CO/
2, 9 August 2016.

(Continued on page 14)

FOCUS ASIA-PACIFICMARCH 2017 VOLUME 87

An Assessment of China’s Legal Framework on
Combating Trafficking in Person
Zhang WeiAs a country with the largest
population and number ofvictims of trafficking, bothactual and potential, the effortsof the People’s Republic ofChina (PRC) in contributing to amore uniform implementationof international legal norms andobligations in its current antitrafficking mechanism, primarily
through its Criminal Law, areinadequate.
Trafficking in person (TIP) under
the Trafficking Protocol1 consistsof three elements: action,means and purpose. Using thisframework, the Criminal Law of
the PRC has the following
issues:a. Failure to include males as
subjects entitled toprotection;b. Neglect of the importance ofmeans; andc. Insufficient protection for
trafficked victims, as well as
deterrence against trafficking,for purposes other thaneconomic exploitation.

The Trafficking Protocol requiresthat the means of trafficking
should enable the person
committing the act to gain
control over another person (thevictim).2 Although there is no
explicit provision on this issue
under the Criminal Law of the
PRC, case law provides traces of
its recognition as a requiredelement. The Supreme People’s
Court uses the Guizhou
Province case as a textbook
example to elaborate thestandards of offense for
consummated/accomplished or
attempted acts in trafficking
cases: the state of someone
having control over another is adeterminant factor in theaccomplishment of the offense.3
In this case, a couple from
Guizhou Province gave theirbaby to Lu under the false
impression that Lu wasinterested in the adoption of thebaby. Lu then asked anotherperson (Wang) to search for abuyer. Both Lu and Wang werecaught in a hotel waiting for thebuyer. Lu was convicted as theprincipal of the trafficking
offense and sentenced to five
years fixed-term imprisonment
with 10,000 RMB fine; Wang,
the accessory, was sentenced tot h r e e y e a r s fi x e d - t e r m
imprisonment with 6,000 RMB
fine. The offenders were caught
before the final transfer of thechild was completed, hence theintense discussion over the
standards of accomplishment oft h e c r i m e . Th e S u p r e m e
People’s Court commented thatstandards of accomplishment
vary considering the definitionof the crime and legislative
intent. The acts of abducting,kidnapping and buying aimed
at gaining control over thevictims are accomplished once7

the victims fall under thecontrol of the actors. The acts oftransporting and transferring
aimed at handing over thevictims at a designated place toa designated person areaccomplished when the victims
had been successfully relocatedto another place or handed overto the trafficker. The act ofbuying shall be deemedaccomplished once payment isdelivered. In this case, Lu took
the acts of abducting,transferring, and selling of thevictim and, during the first twostages, had control over thevictim. The selling act was notcompleted due to theintervention of the police. The
element of “having control overanother person” was thus
specified and contributed to his
conviction.
Another difference in thecriminalization of TIP between
the Criminal Law of the PRC
and the Trafficking Protocol isthe definition and scope of the
purpose. The intention to
exploit as stipulated by the
Trafficking Protocol can be
attributed to any individual orentity involved at any stage oftrafficking. The Trafficking
Protocol has a non-exhaustive
list of forms of exploitation.4 Yet,the element of purpose under
the Criminal Law of the PRC islimited to “selling.”

FOCUS ASIA-PACIFIC
A case in Guangdong Province
in 2015 indicates the danger ofoverlooking other forms of
exploitation as purposes for
trafficking. 5 A perpetrator,
convicted of false imprisonmentof another and sentenced toe l e ve n m o n t h s fi x e d - t e r m
imprisonment, was actuallytrafficking in children for the
purpose of forced labor by
p ay i n g t h e m t o g e t t h e i rconsent. The maximum penalty
for false imprisonment, threeyear fixed-term imprisonment
without aggravating
circumstances, is far lighter thanthe penalty for forced labor or
abducting and trafficking in
women and children. The
person was first charged withthe offense of forced labor but
he argued that the purpose wasto retrieve the 400 RMB agency
fee and made plea for theoffense of false imprisonment.
The purpose claimed did notcorrespond to the offense of
trafficking. Additionally, theCourt failed to distinguish thecontradictory testimonies of theoffender and the victims on theseverity of violence or coercion
inflicted upon the victims andthe length of imprisonment.
This case exemplifies theextreme vulnerability of a childboth as a victim and a witness.
A child may act in an
unanimated way whenproviding testimony due tolimited cognition of themaltreatment, 6 his/her own
legal situation (such as staying
in shelter for abused children),7
recollection of facts and fantasy;
however, the legal system ofChina lacks effective
mechanism to ensure thecredibility of witness, let alone
children. Three other similarcases were brought before the

MARCH 2017 VOLUME 87
same district court in the past
four years, where offenders
were mostly convicted ofcommitting the offense offorced labor with noaggravating circumstances. All
cases involved minor victims
who were voluntarily recruitedand transferred with thedeceptive promise of paymentso r b e n e fi t s b u t f o u n dthemselves trapped in asituation of exploitation,8 where
the defendant would be foundguilty of TIP should theTrafficking Protocol be applied.
Some Proposals
In view of the current state of
criminal legislation andjurisprudence in PRC regarding
TIP, a few proposals are offered.
There is a need to closely
adhere to the definition of TIP in
Article 3(a) of the Trafficking
Protocol and ensure that thelegal rights and interests ofmales, especially male minors,
as well as those of bisexual,
transgender, and any persons
regardless of sex, areadequately protected.
The law should also specify theelement of means of control bya person over another in orderto underscore the means of“abuse of a position ofvulnerability”9 and deception
approach.
F i n a l l y, t h e p u r p o s e o ft ra f fi ck i n g i n t h e c u r r e n tcriminal law should include
exploitation of the prostitutionof others or other forms ofsexual exploitation, forced laboror services, slavery or practices
similar to slavery, servitude,
removal of organs, or otherforms of exploitation such as

8forced or servile marriages, debt
bondage, serfdom, forced or
coerced begging, illicit conductof biomedical research on a
person, the exploitation ofchildren and adolescents in
illicit or criminal activities or inarmed conflict, and other formsof exploitation that accord withnational experience.10
Zhang Wei is a graduate of theJohns Hopkins University,
majoring in Comparative andInternational Law and has long
been participating and coaching
students in moot court
competitions in China.
For further information, pleasecontact HURIGHTS OSAKA.

Endnotes
1

Protocol to Prevent, Suppress
and Punish Trafficking in Persons, especially Women andChildren, United Nations General Assembly resolution 55/
25,8 January 2001. The definition of TIP under Article 3:(a) “Trafficking in persons”
shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of the threator use of force or otherforms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or
receiving of payments or
benefits to achieve the consent of a person having control over another person, forthe purpose of exploitation.
Exploitation shall include,
at a minimum, the exploitation of the prostitution ofothers or other forms ofsexual exploitation, forced
labour or services, slavery

FOCUS ASIA-PACIFC
or practices similar to slavery, servitude or the removal of organs;(b) The consent of a victim oftrafficking in persons to theintended exploitation set
forth in subparagraph (a) of
this article shall be irrelevant where any of themeans set forth in subparagraph (a) have been used;(c) The recruitment, transportation, transfer, harbouring or
receipt of a child for the
purpose of exploitation
shall be considered “trafficking in persons” even if
this does not involve any ofthe means set forth in subparagraph (a) of this article;(d) “Child” shall mean any person under eighteen years ofage. See full document at
www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TO
Cebook-e.pdf.
2 Ibid. In an alleged sextrafficking of minors case before
the Tokyo High Court with theassistance and supervision of
the UNODC (Tokyo High Court2009 (U) No.992, also UNODC
No: JPN001), the court upon
appeal reversed a lower court
guilty verdict due to the lack ofillegal “control over the victims”
in ways such as psychologicalpressure or physical influenceon the Chinese victims (17 and18 years old respectively) which
prevented the victims from escaping.
Also, it is noted that in times ofwar, offenses related to trafficking, such as rape, enslavement,
sexual slavery, and enforced
prostitution constitute war
crimes and crimes against humanity according to the Statuteof the International Criminal
Court, Articles 7(1)(c),8(2)(h)(xxii), 8(2)(e)(vi), UN Doc
A/CONF. 183/9. The element of“ownership” which is similar tohaving control over another, is a
critical element of enslavement

MARCH 2017 VOLUME 87

3

4

5

6

7

8

as a crime against humanity,and later redeemed part of customary international law. See
Prosecutor v. Kunarac, International Criminal Tribunal for theFormer Yugoslavia, IT-9623&23/1, Judgment, paras 539542.
The First Criminal Tribunal of
the Supreme People’s Court,
editor, Analysis and Interpretation of Classic Cases of Trafficking in Women and Children and
Selected Rules and Regulations,
Beijing: China Legal Publishing
House, 2010, pages 227-235.
Trafficking Protocol, Article 3(a).
Also see UNODC, Travaux
Préparatoires of the Negotiations for the Elaboration of theUnited Nations Convention
against Transnational Organized
Crime and the Protocols Thereto(hereinafter the “Travaux Préparatoires”), New York, 2006,
pages 343-344.
Judgment, People’s Court of
Yuexiu District, Guangzhou,
Guangdong Province. Case No.
(2015) Hui yue fa xing chu zi di952.
L. Sayfran, E.B. Mitchell, G. S.
Goodman, M. L. Eisen, and J.
Qin, “Children’s Expressed
Emotions when Disclosing Maltreatment.” Child Abuse & Neglect, Vol. 32, No. 11, 2008,
pages 1026-1036.
J. A. Quas, and M. Sumaroka,“Consequences of Legal Involvement on Child Victims of
Maltreatment” in M. E. Lamb,
D. La Rooy, C. Katz, and L. Malloy, editors, Children’s Testimony: A Handbook of Psychological Research and Forensic
Practice, second edition, 2011,
Wiley-Blackwell.
Judgment, People’s Court of
Yuexiu District, Guangzhou,
Guangdong Province, case No.
(2015) Hui yue fa xing chu zi di322; Judgment, Basic People’s
Court of Yuexiu District,
Guangzhou, Guangdong Province, case No. (2014) Hui yue
fa xing chu zi di 889; Judgment,

9

People’s Court of Yuexiu District, Guangzhou, Guangdong
Province, case No. (2014) Huiyue fa xing chu zi di 166.
9 See Interpretive Notes for the
Official Records (travaux préparatoires) of the negotiation of
the United Nations Convention
against Transnational Organized
Crime and the Protocols Thereto(“Interpretive Notes”), UN Doc.
A/33.383/Add.1, 3 November
2000, page 12, para 63; Also
UNODC, UN.GIFT. Model Law
against Trafficking in Persons(“Model Law”), 2009, page 10.
Examples can be found in thestate practice of United States
State Department Model Law toCombat Trafficking in Persons,
2003 and the Law Containing
Provisions to Combat Trafficking
in Human Beings and Child
Pornography of Belgium, Article
77 bis (1)2).
10 Interpretative Notes, page 12,
paragraph 64; See also Model
Law, pages 32, 35, 36.

FOCUS ASIA-PACIFICMARCH 2017 VOLUME 87

Hate Speech in South Korea
Joo-Young Lee

O

n 19 February 2017, theNational Human Rights
Commission of Korea (NHRCK)1
released the report entitled “Thesituation of hate speech2 andregulatory measures to combat
hate speech.”3 The report states
the prevalence of online andoffline “hate speech” targeting
women, LGBTQ (lesbian, gay,bisexual, transgender andqueer), persons with disabilities,
as well as foreign migrants. It
also mentions other people whoare subjected to hate speechbased on their origin, economic
status or religion/beliefs such as
those from Jeolla province,
people living in poverty andMuslims. Hate speech has
become a significant social
problem in South Korea sincearound 2010 when an online
community called Ilbe (Daily
Best Repository) started causing
concerns due to posts revealing
or inciting disgust and hatredagainst women, people from
Jeolla province (including thevictims of the May 18 Uprisingand their families), and people
trying to advance democracy
and peace. Evangelical
Christians’ anti-LGBTQ speech
has also become stronger,
blocking any attempt at thenational or municipal levels to
institutionalize antidiscrimination measures,
including those on sexual
orientation and identity.
The NHRCK did a survey toclarify the situation of hatespeech and identify regulatory

measures to combat it. 1,014
individuals participated in an
online survey about theirperception of and experience
with hate speech. Also, in-depth
interviews with twenty
individuals who have been
subjected to hate speech wereconducted with a view tounderstanding the likely effectsof hate speech on people.
LGBTQ people, persons withdisabilities, foreign migrants,
and women were chosen as themain respondent groups of theonline survey on the basis ofexisting research or media
reports about hate speech. Thissurvey also included twohundred six male respondents
who did not belong to any of
the groups in order to identify
their perceptions about hatespeech and counter-measures toit.
The NHRCK research team usedfour categories of expression to
analyze the situation, namely,1) discriminatory harassment, 2)
expressions either intending or
implying discrimination and/or
hatred, 3) public insults,
contempt or threats, and 4)
incitement to hatred. A
common element in all fourkinds of expression was
identified: discrimination basedon prohibited grounds, e.g.,race, ethnicity, nationality,
gender, sexual orientation andidentity, religion, and disability.
However, while these categories
are useful in identifying
measures on countering the10

different types of hate speech,
they do not necessarily coincidewith how individuals or groups
of individuals understand hatespeech. Below are examples ofcontent of hate speech either
observed or experienced by the
respondents.
Misogynistic (strongly
prejudiced against women)
expressions include thoseblaming Korean women ingeneral, such as “Kimchi-Nyeo(女)” (literally meaning Kimchi
woman) and derogatory
expressions regarding women’s
appearance, age, ability ors e x u a l i t y. Pa r t i c u l a r l y,contemptuous expressions
associating women with sexualorgans or sexual activities areoften accompanied byexpressions implying sexual
violence and have the effect ofjustifying and inciting
discrimination and violenceagainst women. Such
expressions are likely to cause
fear and anxiety about potential
sexual violence among women.
Hate speech targeted at LGBTQ
people often contains adjectives
like “dirty,”, “disgusting,” or“animal-like,” and thus portraysexual minorities as an “object”
that should be avoided and/or
rejected. Also, these expressions
often associate LGBTQ with“disease,” “mental illness,”“perverts,” and “sin,” andpromote the narrative that
LGBTQ people spread diseases,
destroy families, the church andFOCUS ASIA-PACIFC
the state, and the need to “fix”
them. Extreme expressions
include “ostracize them” or “killt h e m .” S u c h a n t i - L G B T Q
expressions have the effect of
being used to justify the denialof LGBTQ people’s existencea n d i d e n t i t y, o r i n c i t e
discrimination and violenceagainst them.
Hate speech directed at persons
with disabilities often associates
disability with “something
creepy or smelly” andfurthermore “something thatneeds to be erased.” Persons
with disabilities who participate
in social life are seen as
nuisance to “us, the citizens”
which tend to exclude themfrom being citizens of society.
Persons with mental illness are
particularly vulnerable tovilification because they areseen as dangerous and causing
harm to society, which is often
followed by arguments that they
deserve restrictions on theirrights and freedom, as well as
isolation from society.
Xenophobic expressions often
describe a particular group of
foreigners or migrants as “dirty,”“noisy,” and “smelly,” implyingthat they need to be avoided.
Adjectives such as“uncivilized,” “ignorant,” “lazy”
and “craving money” are also
used to disdain and vilify them.
Xenophobic speeches target
foreign migrant workers, foreign
women married to Koreans,children of international
marriage, Muslim people andpeople with dark skin. Extreme
forms of hate speech treat
people from particular countries
as potential “criminals” or“terrorists” and claim that theyneed to be controlled or
expelled from the country for

MARCH 2017 VOLUME 87
the protection of Korean people
and the prevention of crime.
These forms of xenophobic
expressions are in effect anincite men t t o h a t r e d a n d
discrimination.
Online hate speech is found tohave a chilling effect on thetarget groups’ participation insocial life. More than half of thefemale, persons withdisabilities, and sexual minority
respondents stated that theirexperience with hate speech
discouraged them fromuploading posts or leaving
comments online, and also
stopped them from visiting an
online community where they
were exposed to hate speech. A
high percentage of target
groups4 responded that theyfear being vilified based on theiridentity, i.e., being a woman, asexual minority, a person with adisability, or a foreign migrant.
Respondents in all groups,
including men who do notbelong to any of the minority
g r o u p s , w e r e p o s i t iv e t oregulations on hate speech,among the different modes ofregulation they were asked to
select (multiple choice).
Regulation by an antidiscrimination body is the most
preferred way of countering
hate speech by all groups.
Regulation by intermediaries
comes as second preferredcounter-measure to online hatespeech. Although criminalizing
hate speech was the least
preferred mode of regulation,
the rate of positive responses
among respondents exceeded
60 percent.
As part of the research team, I
wrote a chapter on international
standards on hate speech and11

relevant legislations from othercountries. The International
Covenant on Civil and Political
Rights (ICCPR) and theInternational Convention on the
Elimination of All Forms of
Racial Discrimination (ICERD)
require the state-parties toprohibit incitement to hatred,
discrimination and violence on
the grounds of race, ethnicity
and nationality. Provisions on
non-discrimination andequality, as well as equal
protection of the law, in majorinternational human rights
treaties mandate the stateparties to take appropriate
measures to counter other formsof hate speech that do not
amount to incitement to hatred.
In reviewing the periodic
reports of state-parties, thetreaty monitoring bodies haveincluded recommendations onhate speech in their Concluding
Observations. Countries haveadopted different approaches toaddress hate speech. The U.S.
regulates only discriminatory
harassment at work throughanti-discrimination laws.
Member-states of the European
Union (EU) criminalize
incitement to hatred relating to
the prohibited grounds of
discrimination, in most cases,
not only on race, ethnicity andnationality, but also on sexual
orientation and identity, as well
as religion. EU countries are
required to have antidiscrimination laws (humanrights laws), if they had notdone so, which mostly haveprovisions on discriminatory
harassment. Canada regulates
incitement to hatred throughcriminal law, and by antidiscrimination laws (humanrights laws) in most provinces.
Human rights laws in most of

FOCUS ASIA-PACIFIC
the Canadian provinces regulate
not only discriminatory
harassment but also expressions
that expose or tend to expose
hatred to any person or class of
persons on the basis of aprohibited ground.
Incidents and court cases ofhate speech directed at Korean
residents in Japan have beenreported in South Korea. Yasuko
Morooka’s book on hate speech
was translated into Korean.
While looking into legislationo n h a t e s p e e ch i n o t h e r
countries, I had a chance toread the Osaka City Ordinance
Against Hate Speech (2016) as
well as the law on eliminationof hate speech (2016).5 The lackof a penalty clause and specificprovision on budget for
education and consultation
measures both in the law and in
the Osaka City Ordinanceattracted criticism about theireffectiveness in deterring hatespeech and providing remedies
to victims. At the same time, it
is important to note that the law
and the ordinance, at the very
least, send a clear message tothe public that hate speech is by
no means allowed. Considering
the lack of legislation against
hate speech in South Korea, I
consider the legislative efforts inJapan a clear step forward in
responding to hate speech andracial discrimination. During
my research visit to Osaka in
February 2017, I learned about
the formation of a countermovement at the grassroots
level that effectively pressed theJapanese Diet and Osaka City
Council to pass the legislations
against hate speech. It was also
impressive to learn about theempowerment of victims incountering hate speech and thedecisions of local governments

MARCH 2017 VOLUME 87(e.g., Kawasaki city government)
and courts (e.g., Yokohama
district court) that put
restrictions on public gatheringsor demonstrations of hategroups. While trying to utilize
the existing legislation to deter
hate speech and protect
minority groups, the countermovement is preparing the next
steps, including proposing anenactment of anti-racial
discrimination law. While thes i t u a t i o n o f h a t e s p e e ch ,including its main target groups,
in Japan is rather different fromthat in South Korea, the countermovement in Japan gives
Ko r e a n c iv i l s o c i e t y a n
inspiration on how to inform
civil society of the issues andform a collective voice, “No tohate speech.”
What should be an appropriate
response to hate speech and therole of the NHRCK in this? TheNHRCK stated that it would
consider suggestions by the
research team and prepare
appropriate measures to preventthe spread of hate speech by
consulting with relevant experts
and civil society groups. Whilethe definition of hate speech
must be revisited for regulation
purposes, hate speech should
be prohibited by law, consistent
with international human rights
law. Considering the severity of
the harm caused by hate speech
and the purpose of regulation,different modes of regulation
can be devised. The first step
might be to enact acomprehensive antidiscrimination legislation andinclude provisions on hatespeech. It is never enough toemphasize the importance ofhuman rights education toempower individuals to counter
prejudice and discrimination

12

against the minorities
entrenched in society.
Joo-Young Lee, PhD, is an
Advisor at the Human Rights
C e n t e r, S e o u l N a t i o n a l
University.
For further information, pleasecontact: Joo-Young Lee, Phone:+82 2 880 2426, e-mail:jooyounglee@snu.ac.kr.

Endnotes
1 The National Human Rights
Commission of Korea wasestablished in 2001 as anational advocacy institution
for human rights protection; aresult of the Korean humanrights movements’ long-held
campaign for an independentand effective national humanrights institution. Its main
mandate includes: Developing
human rights policies throughconducting human rights
research and issuing policy
recommendations;
Investigating discriminationand human rights violation
cases and providing access toremedies; Promoting humanrights education and raisingpublic awareness of humanrights; and Promoting andmonitoring national
implementationofinternational human rights
treaties.
2 嫌惡表現 in South Korea is a
general term for various kindsof verbal and written
expressions that insult,ridicule, contempt, threaten,
or attack a person or particulargroups of people. The usage ofthis term may not be the sameas hate speech. However, hatespeech is also a loose concept(Continued on page 14)

FOCUS ASIA-PACIFC

MARCH 2017 VOLUME 87

Law Against Buraku Discrimination
HURIGHTS OSAKAT

he Japanese Diet(parliament) enacted on 9
December 2016 the first law
against discrimination of the
Burakumin. Similar to the Act
on the Promotion of Efforts to
Eliminate Unfair Discriminatory
Speech and Behavior against
Pe r s o n s O r i g i n a t i n g f r o m
Outside Japan, this law
promotes “efforts at eliminating
Buraku discrimination.” It does
not penalize acts that
discriminate against the
Burakumin.
The law, entitled Act on the
Promotion of the Elimination of
Buraku Discrimination,1obligates the national and local
governments to take measuresagainst this form of
discrimination.
Basic Principle
The law aims to make theJapanese society free fromBuraku discrimination, an
objective that upholds theconstitutional principle that “allcitizens shall be respected as
unique individuals who enjoy
fundamental human rights on
equal basis.”
The law seeks the improvementof the “understanding of eachand every citizen of the need toeliminate Buraku discrimination”
in line with the JapaneseConstitution.

Obligation of the Government
Th e n a t i o n a l a n d l o c a lgovernments are obliged to
implement measures for theelimination of Buraku
discrimination. The national
government shall guide, andalso collaborate with, the local
governments in implementing
such measures at the local level.
Anti-discrimination Measures
Th e l a w i d e n t i fi e s t h r e emeasures that should be doneby the national and local
governments, namely:a. Consolidation of advisory
mechanisms;b. Education and awarenessraising; andc. Survey of the situation of
Buraku discrimination.
Both national and local
governments are obliged toconsolidate advisory mechanismsthat can respond to requests foradvice and support concerning
Buraku discrimination. The law
does not describe the types ofexisting advisory mechanisms thatshould be consolidated, and thekind of advice and support thatsuch mechanisms should provide.
They are both obliged to work
together to undertake necessary
and appropriate [to local
conditions] awareness-raisingand educational measures inorder to eliminate Buraku
discrimination.

13

They are also both obliged tomonitor the situation on Buraku
discrimination through surveys.
The results of the surveys should
help the implementation ofother measures to eliminate
Buraku discrimination.
Supplementary Resolutions
Two supplementary resolutions
have been adopted to guide theimplementation of the law.
The first resolution provides forappropriate and careful
implementation of the law andcautions the government toconsider in the measures thevarious understanding of the
Buraku discrimination amongpeople of different generations
and the actual conditions of thelocal communities.
The second resolution, adopted
by the Committee on Judicial
Affairs of the House ofCouncillors on 8 December
2016, also provides forconsideration of the actual
conditions of the local
communities anda. The taking of steps against
obstacles to the eliminationof Buraku discrimination
given the fact that excessive
words and behavior of
people in the past and otherfactors had undermined theeliminationof
discrimination;b. T h e c o n s i d e r a t i o n o fcontent and methodologies

FOCUS ASIA-PACIFC
that would help prevent theoccurrence of new forms of
discrimination as a result of
the awareness-raising andeducational activities; andc. The consideration of scope,methodologies and otherrelevant matters in holding
the survey to prevent theoccurrence of new forms of
discrimination as a result of
the survey.

MARCH 2017 VOLUME 87
continued existence of this kindof discrimination, and of thechange in the situation of
discrimination due to increased
use of information technologies
make the law a significant
support for concrete measuresat the local community level.
For further information, pleasecontact HURIGHTS OSAKA.

Endnote
1 The English name and text of thelaw are from the unofficialtranslation of the law by theInternational Movement Against
All Forms of Discrimination andRacism (IMADR). See full text ofthe law in English in this url:
http://imadr.net/wordpress/wpcontent/uploads/2016/12/Acton-the-Promotion-of-theElimination-of-BurakuDiscrimination-2.pdf.

The recognition of Buraku
discrimination as violation of
the Japanese Constitution, of theCentral Asia: Human Rights
Issues(Continued from page 6)
4 Committee on the Eliminationof Racial Discrimination, Listof themes in relation to the
combined eighth to eleventh
periodic reports of
Turkmenistan, CERD/C/TKM/
Q/8-11, 7 October 2016 andCommittee against Torture,
Concluding observations on

Hate Speech in South Korea(Continued from page 12)

requiring separate legald e fi n i t i o n f o r r e g u l a t o r ypurposes and therefore 嫌惡表
現 is translated into hatespeech in this article.
3 This is the report on the
research conducted by a groupof academics and practitioners
in the field of human rights:
Sung Soo Hong [홍성수],Jeong-Hae Kim [김정혜], Jin-the second periodic report ofTurkmenistan, CAT/C/TKM/
CO/2, 23 January 2017.
5 Committee on Economic,
Social and Cultural Rights,
Concluding observations on
the combined second andthird periodic reports of
Tajikistan, E/C.12/TJK/CO/2-3,
25 March 2015.
6 Committee on Economic,
Social and Cultural Rights,
Concluding observations on
the combined second andthird periodic reports ofKyrgyzstan, E/C.12/KGZ/CO/
2-3, 7 July 2015.

Seok Noh [노진석], Minhee
Ryu [류민희], Seung-Hyun Lee[이승현], Seung-Mi Cho [조승미], and the author.

6 The Seoul National University
Human Rights Center was
established in 2012. Its
functions include raising theawareness of human rights andgender equality on campus
and providing a hub forh u m a n r i g h t s s t u dy a n dresearch. See website: http://
hrc.snu.ac.kr/?language=en.

4 84.7 percent of sexual
minorities, 70.5 percent of
persons with disability, 63.9
percent of women, 52.3
percent of foreign migrants.
5 Act on the Promotion of Efforts
to Eliminate Unfair
Discriminatory Speech andBehavior against Persons
Originating from Outside
Japan

14

FOCUS ASIA-PACIFICMARCH 2017 VOLUME 87

Business, Human Rights and Access to Justice
HURIGHTS OSAKAR

e p r e s e n t a t ive s o f n o n governmental organizations(NGOs), national human rights
institutions, a labor union, an
employers’ organization, andUnited Nations agencies met to
discuss the issues and initiatives
on business and human rights in
Asia, and their access to justicecomponent. They met in aworkshop held on 11-12 March2017 in Mandaluyong city thatwas jointly organized by the
Asian Consortium for Human
Rights-based Access to Justice(HRBA2J-Asia), Commission on
Human Rights of the Philippines(CHRP) and the Asia-Pacific
Human Rights Information
Center (HURIGHTS OSAKA).
The GOJUST – Human Rights
Project (through CHRP) and
HURIGHTS OSAKA financially
supported the workshop.

in pursuing the business andhuman rights initiative. Asidefrom preparing two publications(Bridging Human Rights
Principles and Business Realities
in Northeast Asia [2014] and theBusiness, Human Rights andNortheast Asia – A Facilitator’sTraining Manual [2016]),1 theyalso organized meetings linking
the refugee issues to businessand human rights held in
Makati city in January 2016 andin Seoul in June of the same
year.2 These meetings followed
the HRBA2J-Asia meeting in
Makati city in 2014 on general
discussion on business andhuman rights.

Background of the Workshop

a. Review of context of access tojustice in relation to businessand human rights – issues andpractices - in Asia;

The workshop was organized aspart of HRBA2J-Asia’s work on
the business and human rights
issue agreed upon in its Pattaya
meeting in 2012. The Northeast
Asia group of HRBA2J-Asia and
HURIGHTS OSAKA collaborated

Workshop Program
The workshop had three basic
parts:

b. D i s c u s s i o n o f c o n c r e t e
responses to the human rights
issues arising from corporate
operations in South, Southeast
and Northeast Asia;

15

c. D i s c u s s i o n o f p o s s i b l eregional platform on"Business, Human Rights andAccess to Justice."

For further information, pleasecontact HURIGHTS OSAKA.
Endnotes
1 H U R I G H T S O S A K A , “A
Facilitator's Training Manual on
Business and Human, Rights,”
FOCUS Asia-Pacific, March
2016,
volume83,
www.hurights.or.jp/archives/
focus/section3/2016/03/afacilitators-training-manual-onbusiness-and-humanrights.html.
2 See HURIGHTS OSAKA,“Business, Human Rights andRefugees,” FOCUS Asia-Pacific,
June 2016, volume 84,
www.hurights.or.jp/archives/
focus/section3/2016/06/
business-human-rights-andrefugees.html.
3 See HURIGHTS OSAKA,“Workshop on Business andHuman Rights,” FOCUS AsiaPa c i fi c , D e c e m b e r 2 0 1 4 ,volume 78, www.hurights.or.jp/
a r c h i v e s / f o c u s /section3/2014/12/
workshop-onbusiness-andh u m a n rights.html.

HURIGHTS OSAKA Calendar

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HURIGHTS OSAKA, inspired by the Charter of the United Nations and the Universal Declaration of Human Rights, formally opened in December 1994. lt has the following goals: 1) to promote human rights
in the Asia- Pacific region; 2) to convey Asia-Pacific perspectives on human rights to the international
community; 3) to ensure inclusion of human rights principles in Japanese international cooperative activities; and 4) to raise human rights awareness among the people in Japan in meeting its growing internationalization. In order to achieve these goals, HURIGHTS OSAKA has activities such as Information Handling, Research and Study, Education and Training, Publications, and Consultancy Services.
FOCUS Asia-Pacific is designed to highlight significant issues and activities relating to human rights in
the Asia-Pacific. Relevant information and articles can be sent to HURIGHTS OSAKA for inclusion in thenext editions of the newsletter.

Sender: HURIGHTS OSAKA(Asia-Pacific Human Rights Information Center)
8F, CE Nishihonmachi Bldg., 1-7-7 Nishihonmachi, Nishi-ku, Osaka 550-0005
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