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(Nhris) and Regional Human Rights Institutions HUMAN RIGHTS INSTITUTIONS AS MEDIUM: NATIONAL HUMAN RIGHTS INSTITUTIONS (NHRIS) AND REGIONAL HUMAN RIGHTS INSTITUTIONS (RHRIS) IN ASIAN HUMAN RIGHTS CONTEXT A Dissertation Presented to the Faculty of the Graduate School of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of the Science of Law by Buhm Suk Baek August 2011 © 2011 Buhm Suk Baek HUMAN RIGHTS INSTITUTIONS AS MEDIUM: NATIONAL HUMAN RIGHTS INSTITUTIONS (NHRIS) AND REGIONAL HUMAN RIGHTS INSTITUTIONS (RHRIS) IN ASIAN HUMAN RIGHTS CONTEXT Buhm Suk Baek, J.S.D. Cornell University 2011 The purpose of my dissertation is to examine whether and how national human rights institutions (NHRIs) can be a driving force for the establishment of regional human rights institutions (RHRIs) in the Asia-Pacific region, which remains the only region without such institutions in contrast to Europe, the Americas, and Africa. I first explore the issue of whether RHRIs are desirable in this region, and argue that such a system is desirable. Then I examine the reasons why RHRIs have not emerged in this region. I located these reasons in part by examining the reception of human rights in Asia and issues like the emergence of international human rights law from the Western cultural heritage, and the problematic question of what the Asian way of human rights means. The analysis of the obstacles that have hampered the creation of RHRIs leads me to focus on NHRIs. By reviewing the role that NHRIs can play in addressing the concerns and inhibitions of Asian states, while furthering the aims of international human rights law, I maintain that the way in which NHRIs collaborate demonstrates that they can be eminent actors toward the establishment of RHRIs. Further, I suggest four specific ways to realize this goal. Lastly, I explore the broader literature on the role that human rights NGOs can play in the relationship with RHRIs and NHRIs, thus illuminating their particular role in the Asian human rights context. I conclude that we need a new actor which can strengthen the human rights system at the national level, change a government’s human rights policies, and ultimately lead to the creation of RHRIs in this region. It should be a channeling institution that can mediate between the national interest and international norms, similarly to RHRIs that can work as intermediaries to reflect the regional specificity and meet international human rights standards. At the same time, this new actor should gradually raise public awareness of human rights through an active cooperation with civil society. Overall, NHRIs can play such a role as a driving force for establishing RHRIs in the Asia-Pacific region. BIOGRAPHICAL SKETCH Buhm-Suk Baek earned his LL.B. from Seoul National University in South Korea. He then obtained his M.A. in International Relations at Yonsei University, while working at Advocates Korea, a human rights NGO in Korea. His thesis “Definition of Crimes of Aggression in International Criminal Court” received the Korean Society of International Law Award. In the year 2007, Mr. Baek entered the J.S.D. program at the Cornell Law School just after obtaining his LL.M. from the same School with honored thesis “Economic Sanctions against Gross Human Rights Violations” under the supervision of Prof. Muna Ndulo. In the summer of 2009, he worked as a research fellow at the National Human Rights Commission of Korea. At Cornell, he also served as a reviewer for the Cornell Graduate Legal Conferences and was a J.S.D. editor for the Cornell International Law Journal. Mr. Baek’s areas of research and teaching interests include Public International Law, International Human Rights Law, International Criminal Law, Law and Development, International Law and International Relations, and Law and Social Change. iii To My Family Minyoung and Ethan iv ACKNOWLEDGMENTS I would like to express my gratitude to the members of my J.S.D. Dissertation Committee, Professors Muna Ndulo, Sidney Tarrow, Jens Ohlin, and Sital Kalantry. My most profound gratitude goes first to Prof. Muna Ndulo who agreed to chair the Committee without hesitation. I could not have finished my dissertation, without his invaluable generous advice and thoughtful comments. My sincere gratitude also goes to Prof. Sidney Tarrow for his very helpful advice and suggestions which broadened my vision on human rights and offered a perspective different from that of the law. I extend my gratitude to Professors Jens Ohlin and Sital Kalantry for their thorough reading and critique of my dissertation, as well. My gratitude also goes to Prof. Mitchell Lasser and the Assistant Dean Charles Cramton at the Cornell Graduate Legal Studies Program for their help and financial support that made the research and writing of this dissertation possible. On a different note, I am grateful to Prof. Mitchell Lasser for his guidance and valuable advice which was the impetus behind my project. I would like to thank deeply Prof. Antony Anghie for sharing with me his invaluable insights on international law and giving me all the encouragement that any student could want. I was extremely fortunate to take his course at Cornell and his guidance was indeed the central influence on my work. Whenever I was grappling with any issues in my work, I would always imagine the two of us sitting in his office and ask myself what questions he would pose in this case. I am also grateful to Prof. Marcia Greenberg for her invaluable comments and advice which formed the basis of my dissertation’s outline. Portions of this dissertation have been presented at the Cornell Graduate Legal Studies Annual Conference (March, 2009), the Osgoode Hall Graduate Law Students' Conference (May, 2009), the NHRI workshop at Melbourne Law School (July, 2009), the BIARI Workshop at v Brown University (June, 2010), the NY Conference on Asian Studies at Brockport University (October, 2010), and the International Conference of Asian Diversity at the University of Copenhagen (November, 2010). I am grateful to these institutions for providing a critical audience to test the arguments of my dissertation. My dissertation also owes its ideas and inspiration to my field work at the National Human Rights Commission of Korea in the summer of 2009. My gratitude goes to Prof. Ahn Kyong-Whan, and Director Lee Seong-Hoon for their help and advice, as well as for arranging institutional support to work at the NHRCK as a research fellow and attend the 2009 Asia- Pacific Forum Annual Meeting at Amman, Jordan. I am grateful to Professors Rachel Murray, Dinah Shelton, Balakrishnan Rajagopal, Dianne Otto, Vasuki Nesiah, Catherine Renshaw, Andrea Durbach, Annelise Riles, Amy Levine, Helen Stacy and Kwak No-Hyun, for their feedback and comments on my dissertation. Their own work on human rights has also been a profound source of inspiration behind my research project. I especially thank Kornelia Tancheva who provided invaluable research and editing assistance. Without her, I could not access rare materials and archival collections from the U.N. and other international human rights bodies. Most importantly, I am grateful to Professors Chung In-Seop and Kim Dae-Soon for their encouragement and tremendous support. Without them, I could not complete my dissertation. Lastly, I would like to express my heart-felt gratitude to my family. Without doubt, my parents, parents-in-law and my wife have been always my biggest supporters along the way. I will never forget their patience and prayer. None of this would have been possible without their love and sacrifice. I dedicate my dissertation to my family, especially my wife, Minyoung, and my son, Ethan, who have been a constant source of love and strength all these years. vi TABLE OF CONTENTS BIOGRAPHICAL SKETCH …………………………………………………………………………………...iii ACKNOWLEDGEMENTS ……………………………………………………………………………………..v CHAPTER 1. INTRODUCTION ……………………………………………………………………………...1 1.1. TERMINOLOGY: THE ASIA-PACIFIC REGION ...................................................................................... 1 1.2. OVERVIEW .......................................................................................................................................... 5 1.3. CHAPTER OUTLINE ............................................................................................................................ 11 CHAPTER 2. DO WE NEED REGIONAL HUMAN RIGHTS SYSTEM IN ASIA? .............................................. 24 2.1. INTRODUCTION ................................................................................................................................. 24 2.2. NECESSITY OF ESTABLISHING REGIONAL HUMAN RIGHTS INSTITUTIONS ...................................... 29 2.2.1. Regional Human Rights Institutions ..................................................................................... 29 2.2.2. Effective Tool for Implementation of International Human Rights Norms: Better Account of Regional Conditions and Peculiarities ......................................................................... 30 2.2.3. The Legitimacy of Interventions ........................................................................................... 36 2.2.4. The Neighborhood Effect ..................................................................................................... 40 2.2.5. Effective Tool for the Protection of Victims and Human Rights Defenders ........................ 41 2.3. IDEAS IN TRANSIT: DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW IN THE ASIAN HUMAN RIGHTS CONTEXT ......................................................................................................................
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