Course Syllabus. Fall 2012

Transcription

1 Course Syllabus Law 520J Human Rights in Asia Fall 2012 Classes: SR4, Tuesday and Thursdays, 8:30-9:45 AM Instructor: Professor Tae-Ung Baik Office hours: Monday and Wednesday at 2:00 PM - 3:00PM, Or by appointments. Office: William S. Richardson School of Law University of Hawai i at Mānoa 2515 Dole Street, Rm. 210, Honolulu, HI (808) ; tubaik@hawaii.edu 1

2 Scope and Objectives of the Course The purpose of this course is to convey an understanding of the current situation concerning human rights in Asia, and to facilitate a chance to think about what the future may bring. Toward that end, this course will explore human rights norms, institutions and enforcement of human rights standards in the region. In the part of norms, the sources and contents of international human rights law in Asia including the question of cultural relativism, regional and sub-regional level institutional cooperative efforts, Asian contribution to the human rights regime, and the incorporation of international human rights norms into domestic legal settings will be examined. Asia is the only region that does not have a region-wide human rights court or commission, and the efforts to build regional institutions will be one of the main topics in the course. Bearing in mind that East Asia is an area that is rapidly democratizing, the class will endeavor to understand the trends of human rights developments in Asia, and the measures for transitional justice. A key aspect of human rights is the implementation of normative standards that are adopted as a form of treaties. Accordingly, continuous efforts will be made to help students to consider human rights as a concrete real-time problem in particular societies. Students' thematic or country-specific interests in the region will be encouraged. Course requirements Attendance and class participation: 30% Course paper (approximately 20 double-spaced pages in length): 70% o The topic and outline of paper due: October 18, o Final submission due: December 14, 2012 at 12:00PM. Attendance and Class Participation Class attendance and participation will count for 30% of your grade. As a part of class participation, you should give at least one in-class group presentation. There will be four presentation sessions in this course. Each member of the class should participate in a 20-minute presentation individually or jointly. The presentation will be followed by a 15-minute question and answer session. Four sub-regions in Asia and Pacific, namely, Northeast Asia, Southeast Asia, South Asia, and The Pacific will be covered by the presenters. A sign-up sheet will be posted in class so that you will choose which sub-region you will work on. Each team will choose its own presentation topic, and must submit the title and outline of the presentation to get professor s approval (the deadline for the submission: September 20, 2012). Your group presentation will be graded based on your collective and individual performance. 2

3 Course Paper A course paper will count for 70% of your grade. A proposal of your essay (approximately 500 words) should be submitted (deadline: October 18, 2012), which must include a working title, a brief description of the issues in the paper, and a preliminary bibliography. The essential goal of the course paper is to apply the knowledge and insights you have gained during the course to a real human rights issue(s) in Asia. The clarity and originality with which you address the issues, the coherence of your arguments, and the appropriate and accurate use of sources will be considered in evaluating your paper. Your paper should be approximately 20 pages in length, and double-spaced. It should have (a) a title page, (b) a table of contents, (c) numbered pages, (d) footnotes at the bottom of the page (do not use parenthetical documentation), and (e) a bibliography. Footnotes should be used to identify every direct quote, expression of opinion, and factual statement of significance (other than facts of common knowledge). An electronic copy of your paper should be submitted to the professor via attachment at the address: tubaik@hawaii.edu. (Deadline: December 14, 2012 at 12:00PM). Course Materials Textbook: Tae-Ung Baik, EMERGING REGIONAL HUMAN RIGHTS SYSTEMS IN ASIA (Cambridge University Press, 2012) Course readings assigned through the Laulima ( Additional readings if assigned in class The electronic version of the textbook and other course materials will be made available at Laulima ( and students can download the readings from the website with his or her UH id and password. 3

4 Session 1: Tuesday, August 21, 2012 Overview I. Introduction II. Methodology Session 2: Thursday, August 23, 2012 Origins of human rights Jack Donnelly, INTERNATIONAL HUMAN RIGHTS (1998) pp Universal Declaration of Human Rights ( Mary Ann Glendon, Chapter 10. The Declaration of Independence, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, (2001) pp What are human rights? The development of international human rights law Universal Declaration of Human Rights Session 3: Tuesday, August 28, 2012 What is Asia? Why Asia? Textbook PP David P. Fidler, The Asian Century: Implications for International Law, 9 SYBIL 19 (2005). Amnesty International, Amnesty International Report 2012: Asia and the Pacific (2012). The concept of Asia The classifying parameters for regional categorization The political implication of the regional approach Current situation and the future of Asian human rights Session 4: Thursday, August 30, 2012 Universalism and particularities Textbook PP

5 Randall Peerenboom, Beyond Universalism and Relativism: The Evolving Debates About 'Values in Asia', UCLA RESEARCH PAPER SERIES (2002). Handyside v. The United Kingdom, (5493/72) [1976] ECHR 5 (7 December 1976). Joseph Chan, Thick and Thin Accounts of Human Rights: Lessons from the Asian Values Debate, in HUMAN RIGHTS AND ASIAN VALUES: CONTESTING NATIONAL IDENTITIES AND CULTURAL REPRESENTATIONS IN ASIA (Jacobsen, et.al. eds., 2000) pp Universalism and cultural relativism Cross-cultural dialogue Filtering mechanism Session 5: Tuesday, September 4, 2012 Systems approach and human rights systems in development Textbook PP Jack Donnelly, International Human Rights: A Regime Analysis, 40 INT L ORG. 599, 628 (Summer, 1986). Oona A. Hathaway, Do Human Rights Treaties Make A Difference?, 111 YALE L.J ; (2002). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J (1997). Realism vs. liberalism Regime approach Origins of systems approach Elements of a human rights system III. Norms Session 6: Thursday, September 6, 2012 Constitutionalism and rule of law Textbook PP Tom Ginsburg, Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan, 27 LAW & SOC. INQUIRY 763, 798 (2002). 5

6 Tae-Ung Baik, Public Interest Litigation in Korea (2009). The development of constitutions in Asia The dynamics of constitutionalism Session 7: Tuesday, September 11, 2012 Domestic treatment of international human rights law in Asia Textbook PP Andrew P. Cortell and Susan Peterson, Altered States: Explaining Domestic Institutional Change, 29 BRITISH J. OF POL. SCI. 1 (1999). C. H. Heyns and Frans Viljoen. THE IMPACT OF THE UNITED NATIONS HUMAN RIGHTS TREATIES ON THE DOMESTIC LEVEL 1-46 (2002). Thomas Risse-Kappen et. al, THE POWER OF HUMAN RIGHTS : INTERNATIONAL NORMS AND DOMESTIC CHANGE 1-38 (1999). Sources of international law Status of international law in domestic legal system Status of international treaties in Asia Hierarchy of international HR law Reasons for treaty acceptance or non-ratification Impacts of the treaties Session 8: Thursday, September 13, 2012 Regional human rights norms Textbook PP Tae-Ung Baik, Asia, The Reality of Human Rights, in THE ESSENTIALS OF HUMAN RIGHTS (Christien van den Anker, ed., 2005). ASEAN Declaration (Bangkok Declaration), Bangkok, August 8, Summary of Bangkok NGO Declaration (1993). Vienna Declaration and Programme of Action. A/CONF.157/23 (1993). Asian human rights traditions 6

7 Negotiations in Vienna Conference, 1993 Session 9: Tuesday, September 18, 2012 Normative identity of Asia Textbook PP Asian Human Rights Charter (1998). ASEAN Charter (2007). Draft ASEAN Declaration of Human Rights (2012). The development of Asian HR norms Key elements of Asian human rights norms III. Institutions Session 10: Thursday, September 20, 2012 The UN human rights institutions and Asia Textbook PP Sian Lewis-Anthony, Chapter 3. Treaty-Based Procedures for Making Human Rights Complaints within the UN System, Hurst Hannum ed. GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE (1999). Nigel S. Rodley, Chapter 4. United Nations Non-Treaty Procedures for Dealing with Human Rights Violations, Hurst Hannum ed. GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE (1999). The UN HR system The UN Charter-based mechanism The UN Treaty-based mechanism Asian States in the UN HR systems Session 11: Tuesday, September 25, 2012 National Human Rights Institutions and APF 7

8 Textbook PP Linda C. Reif, "Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection." 13 HARV. HUM. RTS. J. 1, 1-30, (2000). Principles relating to the Status of National Institutions (The Paris Principles), adopted by General Assembly resolution 48/134, Dec. 20, Vijayashri Sripati, "India's National Human Rights Commission: A Shackled Commission." 18 B.U. INT'L L. J.1, 46 (2000). The history of NHRIs Paris principle Selected NHRIs Truth Commissions Session 12: Thursday, September 27, 2012 The role of courts 1: Criminal Textbook PP Hao Duy Phan, Reparations to Victims of Gross Human Rights Violations: The Case of Cambodia, 4 E. Asia L. Rev. 277 (2009). Application of international human rights law in domestic courts International criminal Justice Case study- Killing Field in Cambodia ICC and Asia A regional international criminal court? Session 13: Tuesday, October 2, 2012 The role of courts 2: Civil Zhaojie Li (James), The Role of Domestic Courts in the Adjudication of International Human Rights: A Survey of the Practice and Problems in China, in ENFORCING INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS. INTERNATIONAL STUDIES IN HUMAN RIGHTS (Conforti and Francioni eds., 1997). John Doe v. Unocal Corporation, 248 F. 3d 915 (2001). 8

9 Remedies for the domestic citizen s claims Use of domestic courts for transnational civil remedies Session 14: Thursday, October 4, 2012 Emerging regional human rights institutions Textbook PP Andrea Durbach et. al., A Tongue but No Teeth? : The Emergence of a Regional Human Rights Mechanism in the Asia Pacific Region, 31 Sydney L. Rev. 211 (2009). Regional HR system: Pros and Cons The efforts to establish one in Asia Session 15: Tuesday, October 9, 2012 Institution-building strategy in Asia Textbook PP ; Megan R. Williams, ASEAN: DO PROGRESS AND EFFECTIVENESS REQUIRE A JUDICIARY?, 30 Suffolk Transnat'l L. Rev. 433 (2007). Regional HR system: Pros and Cons The efforts to establish one in Asia IV. The Reality of Human Rights in Asia Session 16: Thursday, October 11, 2012 Fact-finding and reporting of human rights violations; Diane Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding, 3 HARV. HUM. RTS. J. 83, 108 (1990). Optional reading: Mahvish Rukhsana Khan, MY MY GUANTANAMO DIARY: THE DETAINEES AND THE STORIES THEY TOLD ME (2008). 9

10 Purposes of Fact-finding Credibility On-site visits or other missions How to interview the sources? Where to look at for HR documents? Writing, dissemination of reports, documentation Special considerations in Asia Session 17: Tuesday, October 16, 2012 Reality of human rights violations in Asia Human Rights Watch, World Report 2012 [Excerpts]. Human rights violations in other countries Thematic issues Session 18: Thursday, October 18, 2012 Student presentations 1 - Human Rights in Northeast Asia Student presentations 2 - Human Rights in Southeast Asia Session 19: Tuesday, October 23, 2012 Student presentations 3 - Human Rights in South Asia Student presentations 4 - Human Rights in the Pacific Region V. Implementation Session 20: Thursday, October 25, 2012 Method of enforcements: The examples of death penalty Textbook PP Eric Neumayer, Death Penalty: The Political Foundations of the Global Trend Towards Abolition, 9 Hum Rights Rev 241 (2008). Simon H. Fisherow, Follow the Leader?: Japan Should Formally Abolish the Execution of the Mentally Retarded in the Wake of Atkins V. Virginia, 14 Pac. Rim L. & Pol'y J. 455 (2005). 10

11 Martha Finnemore and Kathryn Sikkink, International Norm Dynamics and Political Change, 52 International Organization (1998). The difficulties of implementation How to abolish death penalty Session 21: Tuesday, October 30, 2012 Method of advocacy: The examples of the Comfort Women case Textbook PP ; Hwang Geum Joo v. Japan 332 F.3d 679 (C.A.D.C., 2003). Hwang Geum Joo v. Japan 172 F.Supp.2d 52, 56 (D.D.C.2001). Comfort women case Advocacy strategy Nature of the problems The future of the comfort women Session 22: Thursday, November 1, 2012 Truth and reconciliation and transitional Justice Terence Roehrig, Democratization, the Military and Transitional Justice, THE PROSECUTION OF FORMER MILITARY LEADERS IN NEWLY DEMOCRATIC NATIONS : THE CASES OF ARGENTINA, GREECE, AND SOUTH KOREA 1-29, (2002). What is transitional justice? What are the elements of the justice? What is the legal basis for transitional justice? What should be done to achieve transitional justice? Is transitional justice different in each society? Session 23: Thursday, November 8, 2012 Right to remedy Naomi Roht-Arriaza, Reparations Decisions and Dilemmas, 27 HASTINGS INT'L & COMP. L. 11

12 REV. 157, 219 (2004). Normative development of right to remedy Retributive justice and restorative justice Session 24: Tuesday, November 13, 2012 Human rights and humanitarian aid, the case of North Korea Dinah PoKempner, Tae-Ung Baik, and Mike Jendrzejczyk, Invisible Exodus, Vol. 14, No. 8 (C) (2002). Vitit Muntarbhorn, Situation of human rights in the Democratic People s Republic of Korea, A/60/306 (2005). David Hawk, The Hidden GULAG Exposing North Korea s Prison Camps (2003) Key human rights issues in North Korea Human rights system in North Korea Human rights, humanitarian aids and other issues How to improve human rights situation in North Korea Session 25: Thursday, November 15, 2012 Human rights cooperation Textbook PP Kal Raustiala, "The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law." 43 VAJIL 1,26; 70,92 (2002). How to enforce treaties: Cooperation or confrontation? Why is the cooperation important? Liberal Internationalism vs. Trans-governmental networks Multi-dimension of cooperation Session 26: Tuesday, November 20, 2012 VI. Challenges 12

13 Human rights, national security, and counter-terrorism William W. Burke-White, Human Rights and National Security: The Strategic Correlation, 17 HARV. HUM. RTS. J. 249, 280 (2004). Ioannis A. Tassopoulos, THE CONSTITUTIONAL PROBLEM OF SUBVERSIVE ADVOCACY IN THE UNITED STATES OF AMERICA AND GREECE : A COMPARISON OF THE LEGAL GUARANTEES OF POLITICAL SPEECH IN TIMES OF CRISIS (1993). What is national security? Can national security be used as a legitimate reason for restricting individual s rights? The rationale of National Security Law War against terrorism Challenges Session 27: Tuesday, November 27, 2012 Human rights and social movement David Kennedy, "The International Human Rights Movement: Part of the Problem?" 15 HARV. HUM. RTS. J. 101, 125 (2002). Rajagopal Balakrishnan, International Law and Social Movements: Challenges of Theorizing Resistance, 41 Colum.J. Transnat'l L. 397, 433 (2003). Criticisms against human rights approach Human rights approach and social movement Human rights and social movement in Asian society VII. Conclusion Session 28: Thursday, November 29, 2012 Conclusion - human rights in Asia and the future 13