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National Human Rights Commissions and Asian Human Rights Norms

Published online by Cambridge University Press:  30 November 2012

Andrew WOLMAN
Andrew WOLMAN*
Affiliation:
Hankuk University of Foreign Studies, Republic of Koreaamw247@yahoo.com
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Abstract

Ever since the beginning of the “Asian Values” debate in the early 1990s, there have been efforts on the part of many societal actors to establish distinctively Asian human rights norms that integrate local customary values and international human rights norms. This article presents the claim that National Human Rights Commissions in Asia are well placed to play an important role in this effort to develop localized human rights norms because of their close links with local civil actors, along with their independence from government control, pluralistic make-up, and ability to address complex rights issues in detail. The article also presents a study of how the National Human Rights Commission of Korea has used its powers to prioritize and promote a particularly Korean version of the human rights of the elderly.

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Type
Articles
Information
Asian Journal of International Law , Volume 3 , Issue 1 , January 2013, pp. 77 - 99
Copyright
Copyright © Asian Journal of International Law 2012

Over the past two decades, National Human Rights Institutions (NHRIs) have become increasingly prominent actors in many Asian countries, occupying a unique position in the promotion of human rights norms within both government and civil society. Scholars have long touted the importance of these NHRIs for the acceptance and legal incorporation of universal human rights norms at the domestic level. Although the role of NHRIs in advancing the universalist human rights project is undisputed, far less attention has been paid to their possible role in localizing human rights norms by developing distinct approaches to human rights reflecting the influence of local cultural norms and values. This article will attempt to address this gap in the research by demonstrating the value that Asian NHRIs can have (and are currently exhibiting) in developing human rights norms that reflect local values, while maintaining a fundamental consistency with the general principles of the universal human rights project.

NHRIs have certain fundamental advantages in the development of localized human rights norms when compared to some of the other institutions that have previously been involved to one degree or another in proposing localized norms in the wake of the Asian Values debate, such as political leaders, academics, judges, non-governmental organizations (NGOs), and regional organizations. While past arguments in favour of human rights particularities from politicians received a great deal of public attention, these politicians were often dismissed by many as self-interested, and their claims were made at a high level of generality. Judges, academics, and NGOs have in some respects had more success in elucidating Asian human rights norms, but they are also imperfect developers of Asia-specific human rights norms for reasons that will be discussed further below, including a lack of proximity to local customs and a lack of representative legitimacy.

Asian NHRIs, on the other hand, are (at least in theory) independent, pluralistic bodies with democratic legitimacy, have a close proximity to local groups and activists, and possess the opportunity to examine complex issues in great detail. I will argue that NHRIs therefore are in a strong position to play a leading role in answering the question of what types of human rights are appropriate in Asia and elucidating the details of what localized Asian conceptions of human rights values can look like. This article will also note that in some cases NHRIs are already starting to play this role, as illustrated by a closer examination of the role of the National Human Rights Commission of Korea (NHRCK) in prioritizing the “rights of the elderly” and in developing a localized conception of such rights in its reports and judgments. This article will conclude by arguing that truly independent NHRIs are likely to contribute to the development of new types of rights that display Asian particularities while maintaining consistency with universal norms, and that these developments should therefore be welcomed rather than feared by human rights advocates.

I. Universalism Versus Cultural Relativism and the Asian Values Debate

Against the backdrop to the discussion of the development of Asian human rights norms is the question of the universal or relative nature of human rights and the Asian Values debate. There are a variety of different ways in which the terms universalism and cultural relativism have been used in the human rights debate.Footnote 1 According to one characterization, a universalist believes that “all persons, regardless of culture, citizenship and nationality have inherent rights which precede and condition political societies and institutions”.Footnote 2 Thus, according to the universalist perspective, human rights are “not contingent upon beliefs, time, institutions, cultures; rather, they are inalienable rights belonging to all human beings”.Footnote 3 The Universal Declaration of Human Rights can be seen as embodying the universalist worldview, and in fact universalism values are often seen as the theoretical prerequisite for the current global human rights system with international monitoring and enforcement mechanisms.Footnote 4

On the other hand, cultural relativists believe that “[d]ifferent civilizations or societies have different conceptions of human well-being. Hence, they have a different attitude toward human rights issues.”Footnote 5 According to cultural relativists, all points of view are equally valid, and ethical and political beliefs are related to an individual's cultural identity.Footnote 6 To many cultural relativists, the coercive imposition of one culture's norms on a foreign culture is morally illegitimate.Footnote 7 In its most absolute form, cultural relativism challenges the foundation of the international human rights system by denying the existence of universal values that transcend contextual and national boundaries.Footnote 8

Between absolute universalism and absolute relativism lies a broad middle ground, which has been occupied by numerous scholars in recent years.Footnote 9 Among the most well known of these is Jack Donnelly's embrace of what he characterizes as “relative universality”.Footnote 10 Others include Andrew Nathan's claim of “tempered universalism”,Footnote 11 and Richard Wilson's argument that human rights “are embedded in local normative orders and yet are caught within webs of power and meaning which extend beyond the local”.Footnote 12 At the international level, the 1993 Vienna Declaration has provided compromised language that proved acceptable to many, by asserting that, while international human rights are universal, “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind”.Footnote 13

Although universalism has been strongly promoted by the United Nations and most Western human rights activists, there have been a number of challenges to the universalist consensus. In the East Asian context, the most serious challenge came from so-called Asian Values advocates in the 1990s, who claimed, among other things, that “history, development and culture justified differences in the implementation of human rights” in Asia, and that this generally entailed “a greater emphasis on duties to the community as opposed to the primacy of the individual”.Footnote 14 While vocal rejections of universalism are less common now than during the 1990s, the idea that the construction and prioritization of human rights norms in Asia should be informed by Asian cultural values has maintained its appeal over the past two decades. As Peerenboom notes, the “second round” of the Asian Values debate has seen a shift in focus to the articulation of Confucian or other Asian variants of human rights and other hallmarks of modernity, rather than radical alternatives to them.Footnote 15

Over the past two decades, there have been many attempts to address this challenge on the ground by inculcating the Asian human rights regime with local values. These efforts have, however, not met with particularly strong success.Footnote 16 As Part II will argue, the identity of the individual or group attempting to develop localized norms matters, and the groups that have attempted to develop localized human rights norms in Asia have not generally been well placed to do so with a high level of credibility and effectiveness.

II. Localizing Human Rights Norms in Asia

While debates between universalists and cultural relativists will exist as long as the human rights movement does, academic attention has in recent years shifted from the realm of the conceptual to more practical and empirical examinations of how exactly human rights norms are transferred from one culture to another, under what circumstances they are accepted or rejected, and under what circumstances the new norms take on hybridized characteristics due to the influence of the receiving culture.Footnote 17 These studies, which approach the issue from diverse anthropological, legal, and political theory perspectives,Footnote 18 consistently stress the importance of the identity of the individuals or institutions responsible for developing these hybrid norms.Footnote 19

Amitav Acharya was one of the first to address the conceptual elements of the norm localization in the Asian context in 2004 with his examination of the impact of transnational norms on the Association of Southeast Asian Nations (ASEAN).Footnote 20 Acharya contrasts norm displacement, where a foreign norm displaces a local one, with localization, which he defines as “the active construction [of new norms] through discourse, framing, grafting, and cultural selection of foreign ideas by local actors, which results in the former developing significant congruence with local beliefs and practices”.Footnote 21 Acharya posits four factors favourable to localization, namely: (1) the belief by norm-takers that the new norms can enhance the legitimacy and authority of existing institutions and practices, without fundamentally altering their social identities; (2) the existence of particularly strong local norms (that are less likely to be simply replaced by a foreign norm); (3) the availability of credible local actors who can match or outperform outside norm entrepreneurs; and (4) the possession by the norm-taker of “a well-developed sense of being unique in terms of their values and interactions”.Footnote 22 Acharya also specifies that the agency role of local actors is ultimately the key aspect of localization.Footnote 23

More recently, Levitt and Merry have proposed the process of vernacularization to characterize the process whereby international human rights norms are localized. Through the vernacularization process, new ideas are framed in ways that are resonant with pre-existing ideas of justice and order, while preserving their essential attributes and potential to transform unequal or unjust local social relations and circumstances.Footnote 24 Put simply, vernacularizers “take the ideas and practices of one group and present them in terms that another group will accept”.Footnote 25 In the Asian context, Merry presents as examples of vernacularization the condemnation of domestic violence by Chinese advocates as “vestiges of feudal behaviour”, thus using Marxist terminology to further a human rights cause, while Indian domestic violence advocates use stories about powerful Hindu deities to build self-assertiveness.Footnote 26 To Merry (and many others), this process should be encouraged, as vernacularization is in fact necessary for human rights to be effective and seen as legitimate in new environments.Footnote 27

Like Acharya, Merry sees the “translators” who develop localized norms as the key actors in the vernacularization process.Footnote 28 Translators must both translate up, reframing local grievances by portraying them as human rights violations, and translate down, reframing international norms in locally relevant terms.Footnote 29 The identity of translators matters to the success or failure of their mission. Generally, they are individuals that “straddle the global and the local and act as intermediaries between these two arenas”,Footnote 30 and can include local activists, NGO staff, social movement activists, human rights lawyers, and academics.Footnote 31 Not all societal actors are equally able to act as translators, as some are institutionally or practically unable to contribute to the establishment of widely accepted norms that are viewed by the general public as legitimate.Footnote 32

In the years since the emergence of the Asian Values debate, several different types of translators (to use Merry's terminology) from Asian society have been involved in the development of human rights norms that reflect both global norms and local cultural traditions. In the early years of the Asian Values debate, the most prominent interlocutors were politicians and academics. More recently, there has been greater attention to how judges, NGOs, and regional groups can contribute to the conversation. The efforts of each of these translators will be discussed in turn below. For each one, however, there are practical and institutional reasons why efforts at localization have been relatively unsuccessful in gaining broad acceptance from the general public.

A. Political Leaders

During the early years of the Asian Values debate, political leaders played the most prominent role as gatekeepers of international human rights norms. For various reasons, their role as developers of localized human rights norms was minimal, however. For one thing, the early debate over Asian Values was characterized by a high degree of polarization, with little attempt to seriously stake out a middle ground.Footnote 33 Authoritarian political leaders from Singapore, Malaysia, China, Myanmar, and elsewhere argued for a principled rejection (or at least selective rejection) of existing international human rights norms, and especially their attempted imposition by outside parties.Footnote 34 Democratic leaders, on the other hand, advocated a full embrace of universal human rights, and while they were concerned with showing that the human rights project was not inconsistent with Asian traditions, they paid less attention to demonstrating how the human rights project could actively integrate those traditions.Footnote 35

Second, there were widespread suspicions that the political dialogue was self-serving in nature. Those authoritarian rulers who broadly rejected human rights as un-Asian were criticized both within and outside the region as biased actors who manipulated Asian traditions in order to perpetuate their own rule.Footnote 36 For example, the claim by certain authoritarian leaders that in Asian countries economic and social rights take on a higher priority than civil or political rights was seen by human rights advocates as simply a method of justifying the denial of meaningful democracy and civil rights.

Finally, to the extent that the rights discussion coming from politicians was principled and nuanced (and to a certain extent it was), it also took place at a high level of generality that was not necessarily conducive to the development of particular localized human rights norms that would be useful on the ground.Footnote 37 Thus, while these political debates produced much publicity and editorial-writing, they were relatively ineffective in generating localized human rights norms with lasting influence. In essence, the politicians failed to advance the discussion on culturally pluralistic approaches to human rights in Asia.Footnote 38

B. Academics

While most Asian politicians had moved on from the Asian Values debate by the end of the 1990s, the same cannot be said for academics.Footnote 39 Throughout the 1990s and early 2000s, a steady stream of articles and theses on all aspects of the Asian Values debate were published both in Asia and the West. Some of these attempted to elucidate what Asian (or Confucian, Korean, etc.) values exactly were.Footnote 40 For example, an early study by Hitchcock found that while the conflict between Asian and Western values is not as profound as some suggest, real differences over values do exist, with Asian respondents choosing orderly society, societal harmony, and respect for authority as important values more often than American respondents.Footnote 41 Others tried to empirically ascertain whether civil and political rights or economic and social rights were actually greater priorities to the Asian public.Footnote 42

A separate line of research took as a starting assumption that certain values were “Asian” (or Confucian, Korean, etc.), and then took the next step of attempting to set forth how human rights norms can or should reflect those values. Some important contributions in this vein can be found in Bauer and Bell's The East Asian Challenge for Human Rights. Footnote 43 Another set of studies of the same nature was compiled by the Asia-Pacific Human Rights Center from academics across Asia for their report on culture and human rights.Footnote 44 The first chapter of this report lays out succinctly the objectives of academics working in the field, concluding that “the study of the cultural values in Asia should be able to identify and examine the meaning of these values as seen through the eyes of the community and find out how they can truly be linked to human rights”.Footnote 45

Although many of the articles produced by academics on the nature of Asian human rights norms have been thought-provoking, they have not necessarily contributed significantly to the development of Asia-specific human rights values in society at large. This is perhaps unsurprising, given that academic literature in the field tends to be geared towards other academics rather than the general public. Even for those writing for the general public, however, one can make the argument that academics are not generally well placed to be translators of human rights norms. Many Asian academics were educated in the West and may be more fluent in Western political and social theories than in those of their home countries.Footnote 46 They are also a distinctly unrepresentative group; women, minorities, and the lower social classes are significantly underrepresented in Asian academia, which could lead to a lack of legitimacy for their proposed norms among the broader public.

C. Domestic Courts

Domestic courts in Asia can also play a role in developing localized human rights norms. Many Asian nations have ratified the main international human rights treaties.Footnote 47 Most have also adopted constitutions which contain broadly phrased protections of rights that are in most cases consistent with international norms.Footnote 48 These rights are open to judicial interpretation in a manner that would integrate local cultural norms, and there are some interesting instances of courts in the region producing a locally specific rights jurisprudence, albeit rarely resting explicitly on domestic cultural values and traditions.Footnote 49

However, in most countries the domestic court system has had a limited influence in developing localized human rights norms. In some countries, treaty norms are not directly applicable by domestic courts due to “dualist” legal systems where international law has no effect unless it is given effect by legislative enactment.Footnote 50 Even in more “monist” countries, where international treaties are automatically applicable and judges therefore have direct recourse to international norms, judges can be constrained by conservative judicial traditions that discourage reliance on international law in their decision-making.Footnote 51 Thus, in most Asian countries, human rights treaties are seldom relied upon or interpreted in meaningful ways (although they may be cited in passing to reinforce a decision made fundamentally on domestic law grounds).Footnote 52

Even in terms of constitutional jurisprudence, there may be limited opportunities to develop localized versions of economic rights and group rights, because these types of rights are often not justiciable in the domestic courts of Asian countries.Footnote 53 Additionally, in some countries, the legal traditions have emphasized looking abroad for jurisprudential guidance, rather than looking to domestic sources of inspiration.Footnote 54 This has been most notable in common law jurisdictions, which have frequently relied on British cases, or cases from other Commonwealth countries.Footnote 55 To the extent that comparative approaches dominate, the domestic judiciary may end up being more of a conduit for universal (or at least foreign) human rights norms rather than the development of local variants.Footnote 56

D. Non-Governmental Organizations

Much of the recent research has stressed the importance of NGOs for the development of localized human rights norms.Footnote 57 NGOs operate closer to the grass roots and can reflect local concerns and values while operating under a human rights framework. Perhaps as a defensive reaction to the Asian Values assertions of the early 1990s, many Asian NGOs have vocally embraced the universality of human rights and committed wholeheartedly to the implementation of international norms. One of the clearest examples of this full-bodied universalism is the Asian Human Rights Charter, which stated that “rights are universal, every person being entitled to them by virtue of being a human being. Cultural traditions affect the way in which a society organizes relationships within itself, but they do not detract from the universalism of rights which are primarily concerned with the relationship of citizens with the state and the inherent dignity of persons and groups.”Footnote 58

However, there have also been many NGOs that have explicitly embraced a particularly Asian interpretation of human rights norms.Footnote 59 Others may rhetorically accept universalism but still work to incorporate local values into their work at the ground level in ways that do not detract from international norms. These NGOs may have an important effect on the development of localized norms. However, the effect may be limited due to the small sizes or budgets of the NGOs. It is also worth noting that the majority of human rights NGOs in Asia are more concerned with the enforcement and implementation of existing rights rather than the development of new norms, even if they may have no objection to localization in principle. In addition, while human rights NGOs may be positioned closer to local needs and desires, they are not necessarily representative in any meaningful way, and in fact sometimes consciously position themselves in opposition to entrenched customs.Footnote 60

E. Regional Bodies

In other parts of the world, regional bodies including regional human rights courts and commissions have been instrumental in the development of regionally specific norms.Footnote 61 For example, the Inter-American Commission on Women was integral in developing a human rights based approach to the issue of violence against women.Footnote 62 The African Union has made progress in addressing the specific needs of internally displaced persons from a human rights perspective.Footnote 63 The European Court of Human Rights, in addition to developing regional norms, has also opened the way to greater recognition of national particularities through its jurisprudence on the margin of appreciation.Footnote 64

Until recently, however, the development of human rights norms by regional bodies has not been a significant factor in Asia, as it lacked a regional human rights system prior to the 2009 inauguration of the ASEAN Intergovernmental Commission of Human Rights (AICHR). The AICHR is in time likely to develop a significant role in establishing regional human rights norms. Currently, it is working on the drafting of an ASEAN Declaration of Human Rights, for instance, which will presumably reflect some of the local conceptions of human rights in ASEAN Member States.Footnote 65 At the moment, though, the AICHR is still in its infancy. It has not yet adopted any human rights treaties, and lacks the capacity to hear complaints from the public (which would allow it to make concrete applications of human rights norms to particular cases). In addition, the AICHR only involves the ten ASEAN member nations, and is therefore of little help in developing human rights norms that would resonate in other Asian countries where cultural traditions may differ significantly from those in Southeast Asia.

III. Nhris and Local HR Values

NHRIs can be defined as “independent entities which have been established by a government under constitution or by law and entrusted specific responsibilities in terms of the promotion and protection of human rights”.Footnote 66 While the mandates of NHRIs vary considerably, their tasks broadly include researching human rights issues and providing advice to the government; human rights education and promotion; human rights monitoring; investigating complaints from the public; conciliating and providing remedies; co-operating with other national and international organizations; and interacting with the judiciary, for example by filing amicus briefs or providing legal assistance.Footnote 67 This section will argue that Asian NHRIs are well positioned institutionally to play a more successful role in developing localized human rights norms than the individuals and institutions previously discussed.

Since the first Asian NHRI was established in the Philippines in 1987, the number and prominence of NHRIs in Asia have steadily increased.Footnote 68 As of August 2011, a total of twenty NHRIs in the Asia-Pacific region had been accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights.Footnote 69 Fifteen of these were classified as fully compliant with the Paris Principles; three were deemed to be not fully compliant with the Paris Principles; and two were classified as non-compliant.Footnote 70 The Paris Principles are a set of minimum standards for NHRIs that was endorsed in 1993 by the UN General Assembly, and since that time have been widely accepted in the international community.Footnote 71

One of the explicit and fundamental roles of NHRIs is to assist in the domestic adoption of international human rights norms.Footnote 72 Much of the literature on NHRIs has stressed this role, and investigated the means by which it is carried out.Footnote 73 Among other techniques, NHRIs regularly promote international norms by relying on international standards in case-handling; reviewing pending legislation for compliance with international human rights treaties; and contributing to independent reporting to treaty monitoring bodies.Footnote 74 Increasingly, their mandates refer explicitly to international human rights standards.Footnote 75 This domestication role is, at least to some, an NHRI's raison d’être.Footnote 76

While it is certainly the case that NHRIs play an important role in the domestication of international human rights norms, far less attention has been paid to the potential role of NHRIs in developing localized human rights norms.Footnote 77 However, there is nothing contradictory in the institution serving both purposes; the localization process involves translating human rights both downward and upward in a manner that can lead to the development of hybrid norms, rather than simply replicating international norms on the domestic level. As the following section will demonstrate, the development of localized human rights norms is a task that NHRIs—at least those that comply with the minimum international standards laid out in the Paris Principles, as is the case with most Asian NHRIs—are particularly well suited to undertake because of their institutional proximity to global, regional, national, and local actors; their independence; their pluralistic make-up; and their ability to delve into the details of complex jurisprudential issues.

A. Proximity to Actors Operating at Different Levels

The literature on localization has emphasized that translators must “work at various levels to negotiate between local, regional, national, and global systems of meaning”.Footnote 78 NHRIs are well placed to engage in all of these systems due to their unique position between civil society and the state.Footnote 79 Although they operate at the national level, NHRIs are less concerned with issues of state authority than other domestic governmental authorities due to their pro-human rights mandate and independent nature. NHRIs also have many well-documented links to the global human rights system through the incorporation of global norms into their mandate; their appearances before and submissions to UN organs; participation in the NHRI accreditation processes managed by the International Coordinating Council of National Human Rights Institutions; and, of course, the education of many Commissioners and staff in international human rights law. NHRIs in Asia also have strong regional ties, most notably through the Asia Pacific Forum of National Human Rights Institutions and, in Southeast Asia, the South East Asia NHRI Forum.Footnote 80

Above all, however, NHRIs can be distinguished from other power centres by their closeness to local actors. Evidently this is critical to the localization process, which implies “taking the human rights needs as formulated by local people … as the starting point both for the further interpretation and elaboration of human rights norms”.Footnote 81 Asian NHRIs generally maintain a close proximity to local actors through a number of different means. In many cases, the NHRI will open local offices in smaller cities in order to maintain a physical presence outside the capital. For example, the NHRCK has three branch offices,Footnote 82 while the Afghanistan Independent Human Rights Commission has thirteen local offices (including one in Kabul),Footnote 83 and the Philippine Commission on Human Rights has twenty regional offices and sub-offices.Footnote 84 In addition, NHRIs have implemented a variety of links with civil society organizations as mandated by the Paris Principles.Footnote 85 In some cases, this has included the establishment of formal Advisory Boards comprising representatives from NGOs and civil society to assist in establishing priorities and implementing programmes.Footnote 86 NHRIs can also interact more informally with NGOs and local activists through regular consultations, workshops, joint training programmes, temporary personnel attachments, and other means.Footnote 87 Finally, NHRIs can directly solicit the perspectives of local people through surveys, open comment periods, and other research methods. These links provide a strong connection to local perspectives and needs.

B. Independence

NHRIs are, by definition, organs that are independent from the central government. The institutional independence of NHRIs can help them to be effective localization agents by increasing both the legitimacy and credibility of their normative work.Footnote 88 While individual Commissioners may still act on political motives, an independent NHRI will be less likely to act as a regime mouthpiece, and, importantly, will also be less likely to be seen as acting as a regime mouthpiece. Thus, unlike the Asian Values claims put forth by Asian political leaders in the 1990s, the hybridized human rights norms developed by NHRIs are less likely to be both simply politically motivated excuses for authoritarianism and dismissed by the general public as such.

Ensuring that independence is real and not just theoretical, however, remains a challenge in some places. The Paris Principles promote actual independence in two main ways. First, the Principles require that NHRIs “have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding”.Footnote 89 Adequate funding is necessary to allow NHRIs the freedom to independently determine their own priorities and activities. Second, the Paris Principles state that in order to ensure that Commissioners have a stable mandate and real independence, their appointments should be effected by an official act that specifies the duration of the Commissioners’ mandate.Footnote 90 Many countries have implemented further provisions to protect the independence of individual Commissioners, for example by making it difficult for individual Commissioners to be dismissed from their position. While the details vary from country to country, in most Asian NHRIs Commissioners can only be terminated for reasons unconnected to their human rights judgments, such as criminal behaviour, incompetence, or neglect of duties.Footnote 91 Independence can also be aided by measures that reduce the temptation of Commissioners to curry favour with the government in order to be appointed for a second term. In the Philippines and Thailand this is accomplished by prohibiting reappointments, while in some other countries, the temptation is lessened through the provision of relatively long terms in office for Commissioners.Footnote 92

C. Pluralism

The pluralistic composition of Asian NHRIs is another aspect that is important for their legitimacy and the credibility of their work in localizing international human rights values. The Paris Principles pay particularly close attention to the issue of pluralism, stating that “[t]he composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights”.Footnote 93 The Paris Principles also specify the importance of the presence of representatives of schools of philosophical or religious thought.Footnote 94

In some instances, the establishing legislation of Asian NHRIs explicitly requires consideration of diversity in the appointment of Commissioners; this is the case in Malaysia,Footnote 95 Korea,Footnote 96 Sri Lanka,Footnote 97 and Thailand.Footnote 98 While the Indian National Human Rights Commission has no explicit diversity requirement, the Chairpersons of the National Commission for Minorities and National Commission for Women are deemed Commissioners ex officio, and these individuals can be expected to bring minority and female perspectives to the table.Footnote 99 Even where there are no formal diversity requirements, however, NHRIs will often include Commissioners from different backgrounds, and include both women and men.Footnote 100

The pluralistic nature of Asian NHRIs is important for its role in developing localized human rights values in two main ways. First of all, NHRIs are likely to include Commissioners such as religious leaders who are very familiar with the traditional cultural values of a society, and will therefore be in a better position to integrate those values (whether consciously or not) into their work than would a judge or politician or academic who was educated in the West. In essence, the fact that NHRIs will include in the same organization individuals with strong local sensitivities along with international lawyers and others with a more international-oriented outlook would make them effective translators, because they will be able to “move between local and global sets of cultural understandings, helping each to make sense of the other”.Footnote 101

Second, the pluralistic nature of NHRIs will increase the legitimacy of their work, and therefore increase the likelihood that the localized human rights norms that they develop will be accepted over time by society at large.Footnote 102 Detractors will be less able to downplay the relevance of the emerging norms as solely the product of elite voices.

D. Ability to Address Issues in Depth

In addition, Asian NHRIs are able to address human rights norms at a particularly high level of detail by analyzing particular norms from different perspectives in an iterative manner. While mandates may be more expansive in some countries, at a minimum, Paris Principles compliant NHRIs can develop human rights norms in three different manners. First, they can prepare “reports on the national situation with regard to human rights in general, and on more specific matters”.Footnote 103 Second, they can contribute to state reports to UN bodies and committees.Footnote 104 Third, they can “assist in the formulation of programmes for the teaching of, and research into, human rights …”.Footnote 105 In several Asian countries, NHRIs also assist with the development of National Human Rights Action Plans.Footnote 106

Most significantly, Asian NHRIs also have the power to receive and investigate human rights complaints from individuals.Footnote 107 The dispute settlement process provides exposure to local grievances, which NHRIs can then define in terms of the global rights agendas, and it also gives NHRIs the opportunity to progressively develop concrete and detailed localized norms.Footnote 108 In some countries, the number of complaints heard has been quite considerable; the National Human Rights Commission of India, for example, dealt with 388,858 cases between 1993 and 2004.Footnote 109 The NHRCK responded to 51,307 individual complaints from its inception in November 2001 until the end of 2010.Footnote 110 Given the large number of cases, Asian NHRIs can develop a human rights jurisprudence over time through the repeated engagement with real-world scenarios. With all these opportunities for NHRIs to develop their views of particular human rights norms, it is at least possible that over time a deep and detailed engagement with the issues can result.

IV. Rights of the Elderly in Korea

This section will present a closer examination of how the NHRCK has worked towards the development of human rights for the elderly in Korea. The elderly have not been singled out for strong human rights protection in the international human rights systems, or in most Western countries. In many Asian countries (including Korea), there is a strong tradition of respect for the elderly, and there are significant provisions to protect the elderly and improve their welfare. However, this has rarely (until recently) been accomplished through a human rights framework. This section will illustrate how the NHRCK has given particular priority to the rights of the elderly, and has through its jurisprudence worked to establish a locally derived right of the elderly to be respected by their juniors.

A. Rights of the Elderly at the International Level

At the global level, there has long been neglect of the issue of human rights for the elderly.Footnote 111 To date, there are no UN treaties exclusively addressing the rights of the elderly. There have been occasional discussions of human rights for the elderly at the global level, and in 2002 a Declaration of the Rights of Older Persons was proposed at the Second United Nations World Assembly on Aging.Footnote 112 However, the declaration was not adopted. More recently, the Human Rights Council Advisory Committee recommended a study in 2009 of the protection of older persons “in the context of a human rights framework”.Footnote 113 While there has not been much specific attention to human rights of the elderly at the global level, that does not mean that the elderly lack human rights protections; clearly they are covered by the major human rights treaties, including the ICCPR and ICESCR (International Covenant on Economic, Social and Cultural Rights), which apply to all human beings. Nor does it mean that issues related specifically to the elderly are entirely ignored. Rather, where elderly-specific policies are formulated, the discussion has generally been framed in terms of medical, welfare, philosophical, political, economic, or other perspectives rather than human rights (or justice and dignity).Footnote 114

At the regional level, there is also an absence of treaties dealing solely with the rights of the elderly, but there are a number of specific clauses on the issue in recent treaties. For example, the Charter of the Fundamental Rights of the European Union addresses the rights of the elderly in Article 25, which states that the EU “recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life”.Footnote 115 The African Charter on Human and Peoples’ Rights states in Article 18(4) that the “aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs”,Footnote 116 and in Article 29 ascribes the duty of the individual to “respect his parents at all times, to maintain them in case of need”.Footnote 117 The revised European Social Charter provides the most detailed protections of all the regional treaties, providing that states should adopt measures to enable the elderly to remain full members of society for as long as possible and to maintain their lifestyle and independence as long as they wish and are able, and states should guarantee appropriate support to elderly persons living in institutions.Footnote 118

B. Importance of Respect for the Elderly in Confucian Societies

Many studies over the past two decades have classified “respect” or “reverence” for the elderly as one of the core “Asian” values.Footnote 119 In Korea, respect for the elderly is generally seen as a particularly deeply rooted norm because of the strong influence of Confucianism, and in particular the Confucian principle of filial piety. Filial piety “directs the young to recognize the care and aid received from elderly relatives and to, in return, respect and care for them”.Footnote 120 Although expressions of filial piety have evolved with the modernization of Korean society, recent research has shown the continued influence of this value in attitudes towards the elderly in contemporary Korea.Footnote 121

This cultural importance of respecting the elderly has led to several East Asian countries passing laws that are particularly protective of the elderly. For example, China, Taiwan, Singapore, and Japan have passed laws that make it mandatory for children to provide monetary support to aging parents.Footnote 122 Korea, Hong Kong, and Singapore have instituted tax breaks and housing benefits to make home care of the elderly easier.Footnote 123 The welfare of the elderly is also enshrined in many constitutions, including that of Korea, which states that “[t]he State shall have the duty to implement policies for enhancing the welfare of senior citizens and the young”.Footnote 124 Past Korean governments have also introduced non-legal measures to promote respect for the elderly, for example by promoting a Respect for Elders Day, and awarding filial piety prizes to individuals who have demonstrated exemplary filial conduct.Footnote 125

It is worth stressing, however, that while there have been many policies to promote the welfare of the elderly or respect for the elderly in Korea and elsewhere, these policies have not traditionally addressed elderly issues from a human rights perspective or employed the language of human rights. In East Asia, as elsewhere in the world, it has been quite rare for policy-makers or citizens to think in terms of the human rights of the elderly. Thus, the NHRCK has to a certain extent been breaking new ground by developing a human rights discourse and human rights protections for the elderly in Korea over the past decade, as will be seen in the following sections.

C. Prioritization by the NHRCK

One way in which the NHRCK can bring a local flavour to its work is by paying particular attention to those rights that resonate most with local values. This type of prioritization is usually relatively uncontroversial, although of course the broad claim of some Asian Values proponents that economic and social rights are a higher priority for Asian societies than are civil and political rights was fiercely debated. As one might expect in a society such as Korea, which has traditionally expressed reverence for the elderly, the NHRCK has notably and explicitly prioritized the human rights of the elderly in its recent work. For example, the NHRCK established ten priority tasks for the year 2006, one of which was “to improve human rights of the elderly”.Footnote 126 More recently, the Commission has set five annual priority tasks, one of which in both 2009 and 2010 was “advancing the rights of children and the elderly”.Footnote 127 NHRCK's current president has also stated in interviews that he thinks greater attention should be given to the “everyday rights” of vulnerable groups such as the elderly.Footnote 128

The NHRCK has taken a number of actions to research, promote, and protect the rights of the elderly. In 2003, the NHRCK conducted a five-month research project with the Korea Institute for Health and Social Affairs on the human rights of the elderly.Footnote 129 In 2009, the NHRCK surveyed 806 elderly people to assess their human rights status.Footnote 130 Different Commissioners have visited old-age homes to identify human rights issues.Footnote 131 The NHRCK has also sent staff members (including a doctor, lawyer, revenue officer, and family counsellor) to provide counselling services to the elderly at a one-day event at a Seoul welfare centre.Footnote 132 The NHRCK has issued numerous opinions in response to individual petitions alleging violations of the human rights of the elderly, most of which have alleged discrimination,Footnote 133 lack of access, and lack of respect (as will be discussed below). Perhaps most significantly, for each of the past three years the NHRCK has established groups of senior citizens to monitor and report on the human rights of the elderly. These groups, called Guardians for the Protection of Human Rights of the Elderly, comprised senior citizen volunteers, most of whom were retired public servants or teachers. At the end of their tenure (which was five months for the 2011 Guardians), the NHRCK publishes a report detailing the Guardians’ findings and recommendations.Footnote 134

D. Development of Locally Specific Norms

In addition, the NHRCK has been involved in the steady development of what might be considered a culturally specific normative right for the elderly to receive respect from younger authority figures. The right to respect has been elaborated most prominently through a series of decisions in cases dealing with elderly individuals who were insulted or disrespected by younger judges or court personnel. In several of these cases, the NHRCK ruled that the elderly individuals had suffered human rights violations through this lack of respect.

In one of these cases, a younger judge was accused of verbally abusing a 66-year-old man by saying that “this complaint was written by one who does not have a knowledge of the law” and speaking arrogantly.Footnote 135 When the elderly man objected, the judge kicked the man out of the courtroom and sentenced him to ten days’ detention, saying: “Get out. Take this person out of here.”Footnote 136 In another case, a younger judge ordered an elderly individual to repeatedly sit down and stand up, while using the non-respectful form of Korean.Footnote 137 In both of these cases, the NHRCK condemned the judges’ actions and highlighted the elderly persons’ right to dignity in their discussions of the incidents.Footnote 138

Two of the NHRCK's decisions on respect for the elderly received wider publicity in Korean society. In one of these cases, a 40-year-old judge was reprimanded by the NHRCK for speaking disrespectfully to a 69-year-old in a hearing. The judge had told him: “You are acting like an undisciplined child. Behave yourself.”Footnote 139 The judge also used a non-respectful form of Korean that is customarily used with children or close friends, but would be considered insulting when used to an elderly person. The older man felt that his human rights had been violated, and filed a petition with the NHRCK. The NHRCK agreed, stating that: “It is against social norms for a younger person, whether he is a judge or not, to speak in such a condescending manner to an older person.”Footnote 140

In the other case, the judge was acting as an arbitrator in a property case, when he spoke insultingly to a 70-year-old woman, by telling her (in the non-respectful form of Korean) “Why can't you understand what I'm saying—you have bad ears.”Footnote 141 In this case, the NHRCK decided that even though the judge may have been trying to help the elderly woman make the best decision, his choice of words was insulting enough to make a 70-year-old feel humiliated in Korea's traditional culture, especially given that the woman also suffered from a disability. The NHRCK ruled that the elderly woman's rights had been violated, basing its decision on the right to human dignity in Article 10 of the Korean Constitution.Footnote 142

The NHRCK has also addressed respect as an element of filial duty through the reports of the Guardians of the Rights of the Elderly. In a number of places their reports discuss the importance of filial piety and how it has been decreasing in recent years. Some Guardians highlighted specific cases of lack of respect from public servants, similar to the cases discussed above. For example, one Guardian lamented that employees in a local community centre were ignoring elderly people, and treating them with a lack of respect.Footnote 143 Another criticized the fact that some rest-home workers used the elderly person's given name instead of the more respectful terminology for addressing an elderly person.Footnote 144 While the Guardians themselves may not have previously had a strong connection with the human rights movement, by their association with the NHRCK and their vocation as “rights-workers”, it is interesting to see how their opinions on the importance of filial piety and respect are integrated into a rights framework.

Through its jurisprudence and the work of the Guardians, the NHRCK can thus be seen as introducing an emerging right in Korea for elderly persons to be treated respectfully, at least by their juniors. It may not be a human right that has been strongly embraced elsewhere in the world, yet it is perfectly consistent with the human rights movement's concern with human dignity as well as the traditional reverence for the elderly in Korea and other Confucian societies. It is also worth stressing that while a right of respect for the elderly may be somewhat unfamiliar to Western human rights advocates, it has not been invented out of nowhere by the NHRCK. At least since the early days of the Asian Values argument, there have been voices from within civil society that have promoted the existence of Asia-specific human rights for the elderly.Footnote 145 While it is evidently too soon to tell if such a right will take firm root in Korea, it is interesting to observe the process by which the NHRCK has attempted to develop this hybrid norm that borrows both from the international human rights movement and (explicitly at times) from traditional Confucian or Korean values.

V. Conclusion

This article argues that NHRIs can and do play a role not only in internalizing global human rights norms at the domestic level, as has been widely asserted, but also in developing hybrid human rights norms that reflect local cultural traditions, and in prioritizing norms that are particularly important to those traditions. NHRIs possess the institutional attributes that would make them particularly effective translators, and the NHRCK has already embraced this role with respect to the rights of the elderly.

Is it beneficial from a human rights perspective for NHRIs to be engaged in the development of localized norms? Certainly, such norm development might not be productive in some circumstances, especially when the NHRI is not independent or Paris Principles compliant. In these circumstances, the NHRI may be apt to develop norms that are biased in favour of those in power at the expense of the individuals it should be protecting. One might also see NHRIs strategically engaging in the development of new localized rights in order to divert resources (or distract attention) from more controversial cases of rights abuse. In the Korean case, for example, it might not be overly cynical to note that the more resources spent promoting the rights of the elderly, the less are available to address politically controversial issues like free-speech restrictions, police brutality, or North Korean human rights abuses.

Where NHRIs are Paris Principles compliant, however, human rights activists should not be overly concerned to see them involved in the development of localized norms. At least in comparison with other actors that were involved in the Asian Values debate, NHRIs would seem more likely to produce hybrid norms that are broadly protective of human dignity and consistent with the general thrust of the human rights movement, due to their explicitly pro-human rights mandate and independence from the government. The development of localized norms such as the right of the elderly to respect is therefore in many cases likely to enrich the still-evolving human rights regime, while making rights concepts more accessible in a region that values its distinctive cultures and traditions.

Footnotes

*

Member of the New York State Bar. Associate Professor, Graduate School of International and Area Studies, Hankuk University of Foreign Studies, Seoul, Korea. I wish to thank the 2012 Hankuk University of Foreign Studies Research Fund for its support.

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2. BINDER, Guyora, “Cultural Relativism and Cultural Imperialism in Human Rights Law” (1999) 5 Buffalo Human Rights Law Review 211 at 212

3. TAY, Alice Ehr-Soon, “‘Asian Values’ and the Rule of Law” in Pietro COSTA and Danilo ZOLO, eds., The Rule of Law: History, Theory, and Criticism (Dordrecht: Springer, 2007), 565 at 583

4. DONOHO, Douglas Lee, “Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights” (2001) 15 Emory International Law Review 391 at 412

5. LEE Manwoo, “North Korea and the Western Notion of Human Rights” in James C. HSIUNG, ed., Human Rights in an East Asian Perspective (New York: Paragon House, 1985), 129 at 131

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8. Donnelly, supra note 1 at 294

9. Donoho, supra note 4 at 405

10. Donnelly, supra note 1

11. Andrew J. NATHAN, “Universalism: A Particularistic Account” in Lynda S. BELL, Andrew J. NATHAN, and Ilan PELEG, eds., Negotiating Culture and Human Rights (New York: Columbia University Press, 2001), 349 at 363

12. WILSON, Richard A., “Introduction: Human Rights, Culture and Context” in Richard A. WILSON, ed., Human Rights, Culture and Context: Anthropological Perspectives (London: Pluto Press, 1997), 1 at 23

13. Vienna Declaration and Programme of Action, UN Doc A/CONF.157/24 (Pt I) (1993).

14. TAY, Simon S.C. and Yen, GOH Chien, “Human Rights Revisited in the Asian Crisis” (1999) 3 Singapore Journal of International and Comparative Law 26 at 27

15. Peerenboom, supra note 1 at 5

16. This is not meant to imply that the human rights movement itself has been unsuccessful in Asia, but rather that efforts to develop localized or Asian human rights norms have not been particularly well received.

17. Peerenboom, supra note 1 at 56

Thomas RISSE and Kathryn SIKKINK, “The Socialization of International Human Rights Norms into Domestic Practices” in Thomas RISSE, Stephen ROPP, and Kathryn SIKKINK, eds., The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999), 1 at 1

18. LEVITT, Peggy and MERRY, Sally, “Vernacularization on the Ground: Local Uses of Global Women's Rights in Peru, China, India, and the United States” (2009) 9 Global Networks 441 at 443−444

19. Alastair Iain JOHNSTON, “Socialization in International Institutions: The ASEAN Way and International Relations” in John IKENBERRY and Michael MASTADUNO, eds., International Relations Theory and the Asia-Pacific (New York: Columbia University Press, 2003), 107 at 116−117

20. ACHARYA, Amitav, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism” (2004) 58 International Organization 239

21. Ibid., at 245. Acharya sees a long history of localization in Southeast Asian history and literature.

22. Ibid., at 248−50.

23. ACHARYA, Amitav, Whose Ideas Matter? Agency and Power in Asian Regionalism (New York: Cornell University Press, 2009) at 15

24. LEVITT, Peggy and MERRY, Sally Engle, “Making Women's Human Rights in the Vernacular: Navigating the Culture/Rights Divide” in Dorothy HODGSON, ed., Gender at the Limit of Rights (Philadelphia: University of Pennsylvania Press, 2010), 81 at 88

25. Levitt and Merry, supra note 18 at 446

26. MERRY, Sally Engle, Human Rights and Gender Violence (Chicago: University of Chicago Press, 2006)

27. MERRY, Sally Engle, “Human Rights and Transnational Culture: Regulating Gender Violence Through Global Law” (2006) 44 Osgoode Hall Law Journal 53 at 55

ZWINGEL, Susanne, “From Intergovernmental Negotiations to (Sub)national Change: A Transnational Perspective on the Impact of CEDAW” (2005) 7 International Feminist Journal of Politics 400 at 415

Koen de FEYTER, “Localizing Human Rights”, University of Antwerp Institute of Development Policy and Management, Discussion Paper 2006/02, January 2006, at 23

Donoho, supra note 4 at 422

28. Merry, supra note 26 at 39

29. Ibid., at 42.

30. Noha SHAWKI, “Global Norms, Local Implementation-How are Global Norms Translated into Local Practice?” (2011) Globality Studies Journal, online: 〈http://globality.cc.stonybrook.edu/?p=221〉.

31. MERRY, Sally, “Transnational Human Rights and Local Activism: Mapping the Middle” (2006) 108 American Anthropologist 38 at 42

32. Ibid., at 40.

33. Peerenboom, supra note 1 at 20−21

34. Seng, WONG Kan, “The Real World of Human Rights”, at the World Conference on Human Rights in Vienna, 16 June 1993

35. Jung, KIM Dae, “Is Culture Destiny? The Myth of Asia's Anti-Democratic Values” Foreign Affairs, November/December 1994, 1

36. KYI, Aung San SUU, Freedom from Fear, rev. ed. (Harmondsworth: Penguin Books, 1995) at 167

37. Peerenboom, supra note 1 at 51

Seung-Hwan, LEE, “‘Asian Values’ and Confucian Discourse” (2001) 41 Korea Journal 210 at 249

38. CHEN Jau-hwa, “Asia Values? Why Not, But How?” in Leena AVONIUS and Damien KINGSBURY, eds., Human Rights in Asia (Palgrave Macmillan: New York, 2008), 41 at 49

39. Peerenboom, supra note 1 at 5

40. HITCHCOCK, David, “Asian Values and the United States: How Much Conflict?” (Washington, DC: The Center for Strategic and International Studies, 1994)

41. Ibid., at 40.

42. Hong, XIAO, “Values Priority and Human Rights Policy: A Comparison Between China and Western Nations” (2005) 11 Journal of Human Values 87

43. BAUER, Joanne R. and BELL, Daniel A., eds., The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999)

44. PLANTILLA, Jefferson R. and RAK, Sebasti L., eds., Human Rights in Asian Cultures: Continuity and Change (Hurights: Osaka, 1997)

45. Center, Asia-Pacific Human Rights Information, “Introduction” in Human Rights in Asian Cultures: Continuity and Change (Hurights: Osaka, 1997), at 31

46. Peerenboom, supra note 1 at 85

DONNELLY, Jack, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989) at 120

47. There are certain exceptions, however. The International Covenant on Civil and Political Rights (ICCPR), for example, has not been ratified by China, Malaysia, Myanmar, or Singapore, while the Convention Against Torture has not been ratified by India, Laos, Vietnam, Malaysia, or Singapore.

48. GO, Julian, “Modeling the State: Postcolonial Constitutions in Africa and Asia” (2002) 39 Southeast Asian Studies 557 at 575

49. BIRCHFIELD, Lauren and CORSI, Jessica, “Between Starvation and Globalization: Realizing the Right to Food in India” (2010) 31 Michigan Journal of International Law 691 at 717−718

MAY, James and DALY, Erin, “Vindicating Fundamental Environmental Rights Worldwide” (2009) 11 Oregon Review of International Law 365 at 399−400

50. WATERS, Melissa, “Creeping Monism: The Judicial Trend Toward Interpretative Incorporation of Human Rights Treaties” (2007) 107 Columbia Law Review 628 at 635

51. Yuji, IWASAWA, International Law, Human Rights, and Japanese Law (Oxford: Clarendon Press, 1998) at 292

52. Keun-Gwan, LEE, “From Monadic Sovereignty to Civitas Maxima: A Critical Perspective on the (Lack of) Interfaces Between International Human Rights Law and National Constitutions in East Asia” (2010) 5 National Taiwan University Law Review 155

53. Randall PEERENBOOM, “An Empirical Overview of Rights Performance in Asia, France, and the USA” in Randall PEERENBOOM, Carole J. PETERSEN, and Albert H.Y. CHEN, eds., Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France, and the USA (Oxford: Routledge, 2006), 1 at 30

54. Leng, ANG Hean, “Constitutional Rights Adjudication in Asian Societies” (2011) The Law Review 229 at 258−262

55. LEE, Jack Tsen-Ta, “Interpreting Bills of Rights: The Value of a Comparative Approach” (2007) 5 International Journal of Constitutional Law 122 at 129

56. Many human rights advocates have applauded the use of comparative law by domestic courts for just this reason. See e.g. ibid., at 149 (“Domestic bills of rights are best seen as incorporating universal or transcendent norms—they are, in this sense, specific applications of general principles. Given this is the case, comparative material enables such transcendent norms shared by different bills of rights to be sought and understood.”).

57. De Feyter, supra note 27 at 14−16

Levitt and Merry, supra note 18 at 449

Merry, supra note 27 at 58

58. Asian Human Rights Charter, declared in Kwangju, Korea, 17 May 1998, at Part I, para. 2(2).

59. Franz von BENDA-BECKMANN, “Human Rights, Cultural Relativism and Legal Pluralism: Towards a Two-Dimensional Debate” in Franz von BENDA-BECKMANN, Keebet von BENDA-BECKMANN, and Anne M.O. GRIFFITHS, eds., The Power of Law in a Transnational World (Oxford: Bergahn Books, 2009), 115 at 116

60. PEERENBOOM, Randall, “Human Rights and Asian Values: The Limits of Universalism” (2000) 7 China Review International 295 at 297

61. Donoho, supra note 4 at 439

62. Mary K. MEYER, “Negotiating International Norms: The Inter-American Commission of Women and the Convention on Violence Against Women in Gender Politics in Global Governance” in Mary K. MEYER and Elisabeth PRUGL, eds., Gender Politics in Global Governance (New York: Rowman & Littlefield, 1999), 58 at 58

63. BIRGANIE, Addis Barega, “An African Initiative for the Protection of the Rights of Internally Displaced People” (2010) 10 Human Rights Law Review 179

64. GREER, Steven, “The Interpretation of the European Convention on Human Rights: Universal Principle or Margin of Appreciation” (2010) 3 UCL Human Rights Review 1

65. National representatives have been consulting with local groups over the content of the Declaration in recent months; in one such workshop, the Philippine AICHR representative agreed to include indigenous rights and provisions protective of the elderly and disabled in the Declaration in response to public demands. See Working Group for an ASEAN Human Rights Mechanism, Press Release, “Philippine AICHR Representative Dialogues with CSOs on the ASEAN Human Rights Declaration”, online: 〈http://www.aseanhrmech.org/news/phil-aichr-rep-dialogues-with-cso-of-aseanhrd.htm〉.

66. Anne GALLAGHER, “Making Human Rights Obligations a Reality: Working with New Actors and Partners” in Philip ALSTON and James CRAWFORD, eds., The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000), 201 at 202

Linda REIF, “The Shifting Boundaries of NHRI Definition in the International System” in Ryan GOODMAN and Thomas PEGRAM, eds., Human Rights, State Compliance, and Social Change (New York: Cambridge University Press, 2012)

67. BURDEKIN, Brian, National Human Rights Institutions in the Asia-Pacific Region (Leiden: Martinus Nijhoff, 2006) at 22−23

68. PEGRAM, Thomas, “Diffusion Across Political Systems: The Global Spread of National Human Rights Institutions” (2010) 32 Human Rights Quarterly 729 at 748

69. Office of the High Commission of Human Rights, “Chart of the Status of National Institutions Accredited by the International Coordinating Committee of National Institutions for the Protection and Promotion of Human Rights” (August 2011), online: 〈http://www.ohchr.org/Documents/Countries/NHRI/Chart_Status_NIs.pdf〉. This figure is likely to grow in coming years. As of September 2009, Iraq, Japan, Pakistan, Papua New Guinea, and the Solomon Islands had drafted legislation to establish NHRIs, and Bahrain, Cambodia, Nauru, Samoa, and Yemen had committed before the UN Human Rights Council to create an NHRI. Kieren FITZPATRICK and Catherine RENSHAW, “NHRIs in the Asia-Pacific Region”, Paper Presented at Workshop Jointly Organized by Harvard Law School and NYU Law School, September 2009, at 4, online: 〈http://www.ahrcentre.org/APFproject.html〉. Myanmar created an NHRI in September 2011, but it has not yet been accredited by the International Coordinating Council.

70. The NHRIs from Afghanistan, Australia, India, Indonesia, Jordan, Malaysia, Mongolia, Nepal, New Zealand, Palestine, the Philippines, Qatar, Republic of Korea, Thailand, and Timor Leste are Paris Principles compliant. Those from Bangladesh, the Maldives, and Sri Lanka are partially compliant, and the NHRIs from Hong Kong and Iran are classified as non-compliant. Office of the High Commission of Human Rights, supra note 69.

71. See Principles Relating to the Status and Functioning of National Institutions for the Promotion and Protection of Human Rights, adopted 20 December 1993, GA Res. 48/134, UN GAOR, 48th Sess., UN Doc. A/RES/48/141 (1993) [Paris Principles].

72. WHITING, Amanda, “Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission” (2003) 39 Stanford Journal of International Law 59 at 72

73. CARVER, Richard, “A New Answer to an Old Question: National Human Rights Institutions and the Domestication of International Law” (2010) 10 Human Rights Law Review 1

EVANS, Carolyn, “Human Rights Commissions and Religious Conflict in the Asia Pacific” (2004) 53 International and Comparative Law Quarterly 713

74. Carver, supra note 73

75. Ibid. This is the case with most, but not all, NHRIs in the Asia-Pacific region. Burdekin, supra note 67 at 19.

76. Sonia CARDENAS, “Adaptive States: The Proliferation of National Human Rights Institutions”, Carr Center for Human Rights Policy, Working Paper T-01-04, 2004, at 2.

77. Ryan GOODMAN and Thomas PEGRAM, “Introduction: National Human Rights Institutions, State Compliance and Social Change” in Ryan GOODMAN and Thomas PEGRAM, eds., Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions (New York: Cambridge University Press, 2012), 1 at 13−14

78. Merry, supra note 26 at 41

79. SMITH, Anne, “The Unique Position of National Human Rights Institutions: A Mixed Blessing?” (2006) 28 Human Rights Quarterly 904

80. BYRNES, Andrew, DURBACH, Andrea, and RENSHAW, Catherine, “Joining the Club: The Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the Advancement of Human Rights Protection in the Region” (2008) 14 Australian Journal of Human Rights 63

81. De Feyter, supra note 27 at 5

82. National Human Rights Commission of Korea, NHRCK Annual Report 2010 (NHRCK: Seoul, 2011) at 147−154

83. See Afghanistan Independent Human Rights Commission, Offices, online: 〈http://www.aihrc.org.af/en/offices〉.

84. See Commission on Human Rights of the Philippines: Regional Offices, online: 〈http://www.chr.gov.ph/MAIN%20PAGES/contact_us.htm〉.

85. Paris Principles, supra note 71 at art. 3(g) (NHRIs shall “[i]n view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas.”).

86. Burdekin, supra note 67 at 61

87. Ibid., at 62 (citing the 1999 Kandy Declaration on NHRI-NGO co-operation).

88. See International Council on Human Rights Policy and Office of the United Nations High Commissioner for Human Rights, “Assessing the Effectiveness of National Human Rights Institutions” (2005) at 12 (“[i]ndependence is the attribute that most clearly underpins a national institution's legitimacy and credibility, and hence its effectiveness.”).

89. Paris Principles, supra note 71 at art. 1(2).

90. Ibid., at art. 1(3).

91. Burdekin, supra note 67 at 58−59

92. Ibid., at 56. For example, in Mongolia, Commissioners serve six-year terms (except for the Chief Commissioner, who serves a three-year term). In India, Indonesia, and Nepal, Commissioners serve five-year terms.

93. Paris Principles, supra note 71 at art. 1.

94. Ibid., at art. 1(b).

95. See Human Rights Commission of Malaysia Act, No. 597, 1999 (Malaysia), art. 5(3) (“Members of the Commission shall be appointed from amongst prominent personalities including those from various religions and racial backgrounds.”).

96. See National Human Rights Commission Act, No 6481, 2001 (Korea), art. 5(5) (“Four or more of the commissioners shall be women”).

97. See Human Rights Commission Act, No. 21, 1996 (Sri Lanka), s. 2.3 (“In making recommendations … the Constitutional Council and the Prime Minister shall have regard to the necessity of the minorities being represented … [on] the Commission.”).

98. National Human Rights Commission Act, BE 2542, 1999 (Thailand), s. 6 (requiring that members be appointed from “persons having apparent knowledge or experiences in the protection of rights and liberties of the people, having regard also to the participation of men and women representatives from private organizations in the field of human rights.”).

99. Protection of Human Rights Act, No. 10, 1994 (India), art. 3(3), as amended by Protection of Human Rights (Amendment) Act, No. 43, 2006.

100. There have, however, been complaints about lack of pluralism in certain Asian NHRIs, such as the Indian NHRC and Komnas Ham in Indonesia. International Council on Human Rights Policy, “Performance and Legitimacy: National Human Rights Institutions”, 2nd ed. (2004) at 77.

101. Merry, supra note 27 at 55

102. International Council on Human Rights Policy, supra note 100 at 109.

103. Paris Principles, supra note 71, art. 3(a)(iii).

104. Ibid., art. 3(d).

105. Ibid., art. 3(f).

106. Burdekin, supra note 67 at 117

107. Ibid., at 28. This is not necessarily the case in NHRIs outside the region.

108. Donoho, supra note 4 at 440

109. ANNAND, A.S., “The Protection Role of the Indian Human Rights Commission” in Bertrand RAMCHARAN, ed., The Protection Role of National Human Rights Institutions (Leiden: Martinus Nijhoff, 2005), 87 at 92

110. National Human Rights Commission of Korea, supra note 82 at 64.

111. MÉGRET, Frédéric, “The Human Rights of Older Persons: A Growing Challenge” (2011) 11 Human Rights Law Review 37 at 37

112. Erdman PALMORE, “Human Rights of Older Persons” in Erdman PALMORE, Laurence BRANCH, and Diana HARRIS, eds., Encyclopedia of Ageism (Binghamton, NY: Haworth Press, 2005), 179 at 180

113. “The Necessity of a Human Rights Approach and Effective United Nations Mechanism for the Human Rights of the Older Person”, Working Paper prepared by Chinsung CHUNG, Member of the Human Rights Council Advisory Committee, 4 December 2009, A/HRC/AC/4/CRP.1, at para 1.

114. Mégret, supra note 111 at 38

115. Charter of Fundamental Rights of the European Union, 40 I.L.M. 266 (1999) (entered into force 7 December 2000), art. 25.

116. African Charter on Human and Peoples’ Rights, 21 I.L.M. 59 (1982) (entered into force 21 October 1986), art. 18(4).

117. Ibid., at art. 29.

118. European Social Charter (Revised), 36 I.L.M. 31 (1997) (entered into force 7 January 1999), art. 23.

119. PALLEY, Howard A., “Social Policy and the Elderly in South Korea: Confucianism, Modernization and Development” (1992) 32 Asian Survey 787 at 794

MAGNO, Carlo, PROFUGO, Dyana, and MENDOZA, Sonia, “Developing Asian Values, Self-Construal, and Resiliency, Through Family Efficacy and Parental Closeness” (2009) 1 International Journal of Research and Review 1 at 6

BELL, Daniel, “The East Asian Challenge to Human Rights: Reflections on an East-West Dialogue” (1996) 18 Human Rights Quarterly 641

120. Kyu-taik, SUNG, “Elder Respect Among Young Adults: A Cross-Cultural Study of Americans and Koreans” (2004) 18 Journal of Aging Studies 215

121. SUNG Kyu-taik, “Roots of Elder Respect: Ideals and Practices in East Asia” in SUNG Kyu-taik and KIM Han Sung, eds., Respect for the Elderly: Implications for Human Services Providers (Lanham, MD: University Press of America, 2001), 45 at 59

122. BELL, Daniel, Beyond Liberal Democracy: Political Thinking for an East Asian Context (Princeton: Princeton University Press, 2006) at 77

123. Ibid.

124. Constitution of the Republic of Korea (1948), art. 34(4).

125. Kyu-taik, SUNG, “A New Look at Filial Piety: Ideals and Practices of Family-Centered Parent Care in Korea” (1990) 30 The Gerontologist 610

126. National Human Rights Commission of Korea, “Introduction”, online: 〈http://www.humanrights.go.kr/english/about_nhrck/introduction_01.jsp#c〉.

127. Ibid.

128. Asia Pacific Forum of National Human Rights Institutions, Press Release, “Professor Byung-Chul Hyun, National Human Rights Commission of Korea”, online: 〈http://www.asiapacificforum.net/news/professor-byung-chul-hyun-national-human-rights-commission-of-korea.html〉.

129. See National Human Rights Commission of Korea, Press Release, “NHRC Conducts Research Project on Human Rights of Senior” (6 February 2003), online: 〈http://www.humanrights.go.kr/english/activities/board_list.jsp?page=82&m_id1=114&m_name2=PressReleases&m_name1=MainActivities&m_link_url=activities/board_list.jsp&query=&m_id2=124〉.

130. National Human Rights Commission of Korea, Information Submission to Office of the High Commission on Human Rights, online: 〈http://www.ohchr.org/Documents/Issues/OlderPersons/Submissions/NationalHumanRightsCommissionRepublicKorea.pdf〉.

131. See National Human Rights Commission of Korea, Press Release, “NHRCK Delegation Visits Welfare Facilities for the Elderly” (28 September 2006); National Human Rights Commission of Korea, Press Release, “Standing Commissioner Kim Ho-Joon Visits Protective Facility for the Elderly” (15 November 2007), online: 〈http://www.humanrights.go.kr/english/main/index.jsp〉.

132. See NHRCK, Press Release, “The NHRCK Provides Counseling Services for Senior Citizens” (12 October 2009), online: 〈http://www.humanrights.go.kr/english/activities/board_list.jsp?page=18&m_id1=114&m_name2=PressReleases&m_name1=MainActivities&m_link_url=activities/board_list.jsp&query=&m_id2=124〉.

133. The National Human Rights Commission Act prohibits discriminatory treatment on nineteen specified grounds, including age. Art. 2(4) of the National Human Rights Commission Act, Law No. 6481, 24 May 2001, as amended as Law No. 8435, 17 May 2007.

134. See National Human Rights Commission of Korea, 2009 Report of Guardian of the Rights of the Elderly (Seoul: NHRCK, 2010); National Human Rights Commission of Korea, 2010 Report of Guardian of the Rights of the Elderly (Seoul: NHRCK, 2011).

135. National Human Rights Commission of Korea, Human Rights Counseling Casebook 09-10 (Seoul: NHRCK, 2010) at 82.

136. Ibid.

137. Ibid.

138. Ibid.

139. OH Young-jin, “Young Judge Held in Contempt for Talking Rudely to Elderly Man” Korea Times (4 February 2010), online: 〈http://www.koreatimes.co.kr/www/news/nation/2011/04/117_60308.html〉.

140. Ibid.

141. National Human Rights Commission of Korea, supra note 135 at 83.

142. Constitution of the Republic of Korea, supra note 124 at art. 10.

143. National Human Rights Commission of Korea, 2009 Report of Guardian of the Rights of the Elderly, supra note 134 at 24 (quoting Kim Dong Ho).

144. Ibid., at 90 (quoting Chun Maeng Sul).

145. BAUER, Joanne, “International Human Rights and Asian Commitment” (1995) Human Rights Dialogue 1 at 3

* Member of the New York State Bar. Associate Professor, Graduate School of International and Area Studies, Hankuk University of Foreign Studies, Seoul, Korea. I wish to thank the 2012 Hankuk University of Foreign Studies Research Fund for its support.