Course Syllabus (2015)
Course Title: National Protection of Human Rights
Course Code:
Course Duration/credit units: one semester/2 credits
Course Level: Graduate
Instruction Medium: English
Prerequisites:
Venue:
Class Time: Wednesday, 6-9pm
Instructor: Professor Michael C. Davis
Course Type: Research Seminar
Course Description:
The seminar on National Protection of Human Rights offers an opportunity to explore human rights in the national context, with a special emphasis on our Asian region. Students will explore the important themes of human rights in Asia, with particular attention to domestic constitutional questions such as democracy, human rights and the rule of law. Asia is a region that houses nearly two-thirds of the world’s population and includes a wide range of cultures and developmental contexts. In thinking about human rights in the domestic context we encounter a common observation that human rights practice is ultimately local. While the human rights movement has made extraordinary efforts in the post-World War II era to develop global standards and institutions it has been plagued by weak implementation. Significant regional human rights treaties and institutions in Europe, Africa and the Americas have sought to address this deficiency on a regional level with mixed success. As the only region without a comprehensive regional human rights regime, Asia has relied more completely on domestic constitutionalism and local institutional practices to articulate and implement human rights commitments. This has made the human rights debate more seriously a matter of local politics and legal culture. In this respect, Asia has had a noteworthy engagement with some of the central themes in the human rights debate, relating human rights to culture, to the political economy of development, democratization, autonomy, and development of civil society. The seminar will explore these rich Asian themes and efforts. For the basic content to be addressed each week see the course schedule below.
Course Learning Outcomes:
As a seminar, at the end of this course students will be able to:
1. Understand historical challenges in the founding of constitutional systems;
2. Appreciate constitutional development and human rights challenges in developmental contexts, especially in Asia;
3. Describe and evaluate the working of national human rights institutions and associated laws in variable national contexts with reference to Asia;
4. Achieve a basic understanding of comparative political, economic and cultural values debates confronting human rights in various developmental contexts; and
5. Research, write, present and critically analyze human rights issues in the national context.
Weekly Learning Activities:
Activity In Class Preparation
Lecture (with discussion) 2 hours 3-6 hours
Response paper/discussion 1 hour (average) 1 hour averaged over term
Research Paper Presentation 15 minutes (once) 1 hour averaged over term
Research Paper N/A as required
Course Methodology and Aims:
Because constitutionalism, democracy and human rights are constantly under renovation in Asia, the topic of national protection of human rights lends itself well to the seminar format where exploration and debate may challenge students to think outside the box. Because of the work-in-progress nature of the topic some of the initial foundation readings take a global perspective, laying a comparative theoretical foundation for Asia-focused discussions in subsequent weeks and for the student’s own exploration of specific Asian contexts and issues. The first 9 weeks of the seminar will explore a range of foundation and area specific issues, with special emphasis on the constitutional processes that situate domestic human rights debates. This will be followed in the last three weeks with student presentations and discussions of their own research papers on an approved topic. Because this is a seminar students will be expected to play a more substantial role in the discussion of assigned class readings and provide critical reaction to their classmates’ efforts. This will involve short response papers on two assigned weeks for each student. The logistics of this will be discussed in class. The seminar research paper will usually be a country specific comparative examination of a significant constitutional and/or human rights question, chosen by the student with the instructor’s approval. The goal is to locate the student in the local Asian constitutionalism and human rights discourse, while affording an opportunity to explore more general themes in a substantive area of the student’s interest. Because the most substantial assignment is a research paper, the students will also enjoy a chance to develop and present a substantial writing sample that may be of use in future applications.
Assessment Scheme:
The course grade will have three components:
Response Papers—two response papers (500 words each) and discussion 10%,
Present Research Paper (15 minutes) 20%
Research Paper—5,000-6,000 words including footnotes 70%
The course marking guidelines are attached. Attendance at lectures is mandatory. Students who fail to be present for at least 70 percent of the lectures will not be permitted to submit their final research paper.
Research papers must reflect original work and must fully credit all resources by proper citation. Strict compliance with university policy on plagiarism is required.
Learning Resources—Assigned Texts:
Required readings include articles and select chapters, as indicated in the weekly assignments below. There are also some optional (not required) readings indicated for each week. Articles will be made available through the course online materials. The following books are available in the library reserve, though they are not all among the required readings.
Alexander Bickel, The Least Dangerous Branch, The Supreme Court at the Bar of Politics, 2nd Edition (New Haven: Yale University Press, 1986).
Mauro Cappelletti, Judicial Review in the Contemporary World (Indianapolis: The Bobbs –Merrill Company, 1971).
-
Tom Ginsburg, Judicial Review in New Democracies, Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003).
Atul Kohli, ed., The Success of India’s Democracy (Cambridge: Cambridge University Press, 2001).
Lee C. Bollinger, The Tolerant Society, Freedom of Speech and Extremist Speech in America (Oxford: Oxford University Press, 1986).
Larry Diamond, Marc F. Plattner, and Philip J. Costopoulos, World Religions and Democracy (Baltimore: Johns Hopkins University Press, 2005).
Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders (Cornell: Cornell University Press, 1998).
Course Outline and Assignments:. The seminar essentially comes in three parts: after an introductory session that considers the global human rights movement, the first part (three weeks) will consider fundamental constitutions theories and institutions that shape the human rights environment; the second part (five weeks) will lay special emphasis on practices and problems in Asia; the third part offers an opportunity to discuss specific question presented by members of the class on topics addressed in their research papers.
Week Topic
1. Introduction
In this first session we will discuss the basic expectations and logistics of the course and introduce the topic of national protection of human rights, with emphasis on the Asian context. This will include a brief overview of the syllabus, focusing on the difficulties the Asian region has experienced in developing constitutional democracy and the challenges posed by the human rights movement. Because the first week will be introductory I will use the extra time available to briefly introduce the broader global human rights movement as background for our course. This will offer a refresher for students who have taken a general international human rights course and a first introduction for students who have not yet done so. Students may begin to consider possible specific interests for their research topic.
2. Constitutional Theory: A Primer on Constitutional Discourse.
Our substantive exploration begins with the leading classic theoretical book, situated in the US context, on constitutionalism and its theory. The aim is to introduce a discursive theory of constitutionalism we may consider for comparative application. The fundamental role of constitutional judicial review is considered. The US example is particularly instructive because of the role of the US in the birth of constitutionalism, its robust application of constitutional judicial review and in its level of constitutional development. We will then consider the role of constitutional judicial review in domestic implementation of human rights in the several Asian contexts addressed by Ginsburg, Yeh and Chang. How well does constitutionalism and the rule of law travel? What are the motivations of East Asian leaders in adopting and using institutions of constitutional judicial review?
Alexander Bickel, The Least Dangerous Branch, The Supreme Court at the Bar of
Politics, 2nd Edition (New Haven: Yale University Press, 1986). Chapters 1 and 4.
Tom Ginsburg, Judicial Review in New Democracies, Constitutional Courts in Asian
Cases (Cambridge: Cambridge University Press, 2003). Chapters 1, 2, and 3
J.R. Yeh and W.C. Chang, “The Emergence of East Asia Constitutionalism: Features and Comparison,” ASLI Working Paper Series No. 006 (2009).
Additional Optional Readings:
Albert Chen, Pathways of Western Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations, International Journal of Constitutional Law, Vol. 8, No. 4, pp. 849-884 (2010).
Ran Hirschl, Towards Juristocracy, The Origins and Consequences of the New
Constitutionalism (Cambridge: Harvard University Press, 2004)
Randall Peerenboom, ed., Asian Discourses of Rule of Law: Theories and
Implementation of Rule of Law in Twelve Asian Countries, France and the U.S.
(New York: Routledge, 2004).
Fareed Zakaria, The Future of Freedom, Illiberal Democracy at Home and Abroad
(New York: W.W. Norton and Company, 2003).
Richard Bellamy, Political Constitutionalism: A Republican Defense of the
Constitutionality of Democracy (Cambridge: Cambridge Univ. Press, 2007).
3. The Institutional Processes of Constitutionalism.
Here we expand our foundation horizon, considering basic practices in civil and common law traditions as a prelude to considering (in the following weeks) how such institutions and underlying issues have been imported into the Asian context. As with Bickel, the object in reading the classic Cappelletti book is to understand and recognize the basic constitutional institutions used to implement the rule of law and human rights components of a modern democracy. Horowitz moves us forward to more recent comparative developments. Are there effective substitutes? Do such institutions work well?
Mauro Cappelletti, Judicial Review in the Contemporary World (Indianapolis: The
Bobbs –Merrill Company, 1971). (a thin book—you may skim all)
Donald L. Horowitz, “Constitutional Courts: A Primer for Decision Makers,” Journal of Democracy, Vol. 17, pp. 125-137 (2006).
Tom Ginsburg and Yan Lin, “Constitutional Interpretation in Law-Making: China’s Invisible Constitutional Enforcement Mechanism,” (August, 2014) http://works.bepress.com/tom_ginsburg/54/
Logistics— finalize materials discussion duties.
Additional Optional Readings:
Mark Tushnet, Weak Courts, Strong Rights, Judicial Review and Social Welfare
Rights in Comparative Constitutional Law (Princeton: Princeton Univ. Press,
2008).
Dawood I. Ahmed and Thomas Ginsburg, “Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions,” Virginia Journal of International Law, Vol. 54, p. 615 (2015)*
4. Freedom: Looking at Freedom of Expression in a Constitutional Context
Another foundational aspect of a discursive theory of a liberal constitution is the notion of freedom, especially freedom of expression. Enlightened theory of democracy presumed the role of the people in governance. This in turn presumed an enlightened citizenry with freedom of expression to engage the public debate. What are the boundaries of freedom of speech and what role does it play in constitutional governance?
Lee C. Bollinger, The Tolerant Society, Freedom of Speech and Extremist Speech in America (Oxford: Oxford University Press, 1986). Chapters 2-4.
Logistics: finalize research paper topics and titles in open class discussion.
Additional Optional Readings:
David Kelly and Anthony Reid, eds. Asian Freedoms, The Idea of Freedom in East
and Southeast Asia (Cambridge: Cambridge University Press, 1998).
5. National Human Rights Institutions (NHRI)
This week we complete our exploration of foundational institutions by discussing those institutions that are often used to connect the broader constitutional and human rights commitments to the people through affordable access and oversight: NHRIs. With constitutional judicial review often too costly and out of reach, human rights commissions and associated institutions aim to provide the oversight thought necessary to domestic implementation of human rights, especially in the face of poverty and poor governance. In the face of poverty, bad governance and corruption are NHRIs enough?
Richard Carver, “A New Answer to an Old Questions: NHRIs and the Domestication of International Law,” Human Rights Law Review, Vol. 10, pp. 1-32 (2010).
Burdekin, National Human Rights Institutions in the Asia-Pacific Region, Chs. 1, 6, and 7 (2007).
Catherine Renshaw, Andrew Byrnes, Andrea Durbach, Human Rights Protection in the Pacific: The Emerging Role of National Human Rights Institutions in the Region, N.Z. J. Pub. & Int’l L., Vol. 8, p. 117 (2010).
Carole J. Petersen, “Bridging the Gap?: The Role of Regional and National Human Rights Institutions in the Asia Pacific” (2011-12) 13 APLPJ 174-209.
Principles Relating to the Status of National Institutions (Paris Principles) http://www2.ohchr.org/english/law/parisprinciples.htm
AI’s Recommendations on Effective Protection and Promotion of Human Rights.
ICHR, Assessing the Effectiveness of NHRIs (2005) (Excerpts)
Alistair D.B. Cook,“Roadmap for the Responsibility to Protect in Asia: Personalities, Institutions and Processes” NTS Perspectives, Issue No. 8 (February 2012).
Skim the Following Country Reports:
Renshaw, Byrnes, & Durbach, “Implementing Human Rights in the Pacific Through NHRIs: The Experience of Fiji,” Victoria U. of Wellington L. Rev. (2009).
Dyah, Fernida, & Ardianto, Indonesia: Legacy and Challenges (2008).
Vincent P. Yambao, Jr., The Philippines: A Hamstrung Commission (2008).
ICC Report on country ratings. www.asiapacificforum.net/working-with-others/icc/sub-committee-on-accreditation/downloads/accreditation-status/NHRI_Accreditation_Status_Jan_2010.pdf
6. East Asia—The Asian Values Debate: Political Culture, Religion, Human Rights and Development.
Here students confront arguments that Western notions of human rights are inappropriate for Asian societies. These argument challenge claims about the universality of human rights and the role of liberal constitutional institutions in the development process. Are human rights appropriate to East Asia? Beyond the debate over Confucianism and democratization in East Asia other more specifically religious traditions will be considered.
Michael C. Davis, “The Political Economy and Culture of Human Rights in East Asia,” in Sarah Joseph and Adam McBeth, eds., Research Handbook on International Human Rights Law (London: Edward Elgar Publishers, 2010) pp. 414-439.