Yongho Kim

Author: Yongho Kim 김용호

  • ICCPR Mechanism

    CH, JM. Discussion Group 7

    What kinds of complaints are brought before the ICCPR? How does it differ from other treaty regimes?

    One of the components of the ICCPR Human Rights Committee is an optional protocol (ratified by 95 of the 144 states as of March 2000), with a critical provision stating that communications must be ‘from individuals…who claim to be victims of a violation’ by a state party to the Protocol ‘of any rights set forth in the Covenant’. The Committee then evaluates these individual communications, granted that the matter is ‘not being examined under another procedure of international investigation or settlement’, in closed meetings that take all written information available into account. These proceedings are a) meant to be distinct from any current judicial proceedings in the state where the dispute originated, b) do not need to address systematic violations of human rights, c) are written only, d) are closed to the public, and e) the ‘views’ agreed upon, which are ultimately made available to each party involved, are not binding.

    While the Committee often comes to the conclusion that specific human rights have been violated, and sometimes provides recommendations to the parties committing violations, the Committee has no binding legal jurisdiction. And while the Committee urges the State party to submit ‘information about the measures taken to give effect to the Committee’s view’ within ninety days after the ‘view’ is disclosed, the Protocol does not enforce this wish. Only about thirty percent of the replies received are considered satisfactory, and many states do not even submit information. Therefore, the case can be considered closed as soon as the report has been forwarded to the parties. The Committee also faces an increasing number of caseloads (due to rising public awareness of the procedure and more state parties involved) and dwindling resources. Thus, the committee can unfortunately only formulate about thirty ‘views’ per year.

    Does the Committee seem to be effective? Some things to consider: 1) The fact that the concentration of complaints among states seems paradoxical, since aside from Uruguay and Jamaica (which comprise half of the cases about which the Committee submitted ‘views’) the states that the Committee is examining most often are also the states whose citizens seem to enjoy freedom under the rule of law and the protection of human rights. This discrepancy may be attributed to a citizen’s fear to submit information to the committee, a general lack of awareness of the existence of the Committee in some states, insufficient resources (a citizen in some states may not be able to contact or pay for a lawyer), or perhaps because the person thinks that submitting a report to the ICCPR Committee would be useless given the state of the government in which he/she lives. 2) The fact that some decisions are made by a process of consensus (which can maintain a cooperative approach and anonymity of decision, but can also limit and undermine separate opinions). 3) The fact that the monitoring of human rights violations through the Protocol becomes a secondary function, and that therefore a better alternative may be to build and strengthen regional complaints systems. 4) The nature of the Committee as a nonbinding international organization often means that the Committee’s desires are not meant. Some states, such as Sierra Leone and the United States (in the Breard case) have not responded to requests of the Committee, by not postpone sentences of capital punishment.

    Many issues have arisen as to how the Committee should function. The second section details several of these issues of procedure. One of these concerns is centered on the issue of hate speech and the difficult choice between the right to freedom of speech and the right to not be threatened by this hate speech. This issue was brought up in the case of a Danish reporter who did a television program on white supremacist groups that included an interview with several members of an organization that expounded these views. The much-edited interview played on TV, and inspired wrath in the groups attacked by the views that were expressed. Does the media have the right to report on offensive groups and ideas or should it edit out hateful content? Is there a middle ground (i.e. a statement saying that these views are not socially acceptable or valid)? Does this middle ground take away from the media’s ability to be unbiased and non-judgmental? A case was also made that hate speech in the media is dangerous and should not be carefully guarded against by looking at Rwandan propaganda efforts by the media during the Rwandan genocide. This argument stated that the Rwandan media’s efforts led peasant Hutus to slaughter Tutsis. Does the extreme power and control of the expression of opinion possessed by the media make more stringent controls on hate speech necessary?

    A second issue raised is the issue of the committee’s ability to challenge standards between different countries. The conflict portrayed was between the governments of the U.S. and Canada. Canada was asked by the U.S. to extradite a man who had committed a series of murders in California so that he could be tried and, if found guilty, possibly be put to death in the gas chamber. Canada does not have the institution of capital punishment, but interpreted the ICCPR as saying that unless death by gas asphyxiation had been declared a human rights offense by the international community, it was okay to extradite the man. The man challenged this choice, claiming that gas asphyxiation was a cruel form of capital punishment, so Canada could not extradite him. This raises issues of the ability of the committee to enforce standards on a very precise and contentious issue within various cultural and legal frameworks. Should the committee be allowed to decide what constitutes a humane form of capital punishment in a country that has democratically established criteria for what is humane and what is inhumane? Should an authoritarian-style government be treated differently?

    The second section of the reading concludes with an opinion about the proper role of the Committee. The authors argue that the most important role for the committee is to provide an area of dialogue for the various actors in the human rights system rather than actually impose judgments on certain cases. To this end, the authors argue that the Committee’s procedures should be more open, with accessible, easy-to-read decisions and a discretionary jurisdiction (similar to the U.S. Supreme Court) rather than a mandatory jurisdiction. They feel this would allow the court to do a better job of solving the more contentious issues rather than focusing on individual cases. This raises a few simple questions. What should the role of the Committee be? Is a mandatory jurisdiction or discretionary jurisdiction better?

    In addition to the ICCPR Committee, five other treaty bodies have been formed to implement the treaty or monitor state conduct. They are the Committee on Economic, Social and Cultural Rights, The Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, and the Committee on the Rights of the Child.
    Primary activity is the consideration of states reports (many of these treaties function similarly, with similar rules to the ICCPR treaty)

    The third section of the reading deals with the reporting and complaints structures of the various international human rights treaties. One of the major forms of this is the states’ reports. States have to file reports within the first two years of becoming party to a treaty and then every 5 years after that. These reports have caused certain problems to arise, which have effected certain reforms. One such reform is the practice of allowing states to send representatives to work with the Committee in processing the report. A second is the procedure of examining states who don’t file reports to make sure that the treaties are being followed. A third reform is the growing NGO involvement in the process, as they attempt to monitor governments. However, certain problems remain pressing to this day. For example, Non-reporting is still rampant, as is the practice of superficial reporting. Countries have also increasingly had problems with the many treaty bodies, finding it difficult to satisfy the many different criteria of each treaty body. Some possible solutions to this include reducing the number of treaty committees, filing a single report to all committees or breaking up the report process into individual reporting on specific issues. Are there any other solutions to these problems?

    A second institution is that of on-site visits. The Convention against Torture provides a way in which the committee can ask for reports or even visit a country on a specific issue that has raised some concern outside of the normal report schedule. Other treaties include similar provisions for a more intrusive monitoring of participating countries. Do these visits conflict with national sovereignty? How so?

    A third sections deals with the outdated practice of interstate complaints. This was originally intended to allow states to file complaints against other states that violated international norms. However, this process has never been used, and thus is not an important piece of the international human rights reporting procedures.

    The reading also talks about individual complaints against a country. This allows individuals within countries a way to ensure that states do not break rules set by treaties. These complaints play an important part in ensuring that countries do not secretly break rules because individual citizens can make the international community aware of these violations.

  • Thought piece on International Roundtable: Ngũgĩ wa Thiong’o

    Yongho Kim
    INTL245 Introduction to Human Rights
    October 20, 2003

    Thought piece on International Roundtable: Ngũgĩ wa Thiong’o

    Ngugi asserts in his paper, When the Margin Becomes the Center: African Identities in a Global Context, that political and economic remedies are not enough in addressing the internal problems in African societies, and that linguistic and ethnic approaches should be emphasized.

    First, he explains that ethnic boundaries shared among nations may be used to consolidate unity and fraternity; the Maasai people link Kenya with Tanzania, while Somali people link Kenya, Somalia and Ethiopia. Following a similar spirit of the African Charter on Human and People’s Rights, he encourages cooperation, not competition, among African states.

    Second, Ngugi claims that a fostered development of the native languages can be true source of empowerment for the African people and culture. The basic premise here is that the current “national” languages, most notably French, English and Portuguese, are a heritage of the colonial domination of Europe in Africa and that Africa can never extricate itself from the shadows of colonialism if the language of every day and scholarly use itself is not replaced with autochthonous languages.
    Ngugi’s main argument is his second one, and it is interesting because of its resemblance to issue raised in the Minorities Schools in Albania case, with the difference that the ruling government is not a foreign one but one from the main ethnic group in the nation itself. A better parallel may be whether the Czech Republic should adopt the german language because (hypothetically) it is already under the influence and monopolist dominance of Germany – which is not similar enough because of the unprecedented scale of European pre- and post-colonial influence in Africa.

    He acknowledges that the enormous amount of languages being used in local form in Kenya alone may make the implementation of this change of mind difficult, but he also calls for hope since there are already several languages used in regionally, such as Kiswahili in Eastern Africa. Parker attacks this weakness further, first pointing out that the distinction between “European” or “Foreign” and “African” is rather thin, since for instance Kiswahili is the result of extensive commercial and political exchange with the Arab world and thus may be equally regarded as a colonial language. Furthermore, she recognizes the problem of establishing one official local language, since it may override other minority languages in lieu of the dominant ethnic group (Gikuyu in the case of Kenya, the group to which Ngugi belongs).
    Will minority regimes be an option for Kenya? In such diversely mixed societies as the Kenyan ones, determining one official language becomes a delicate issue. Should “native” British populations (who lived in Kenya for more than a hundred years) be allowed to establish their own English schools? Will students from such English schools hold more influence than, say, a students from a Luo language school? Ngugi has already declared that he will only write in the Gikuyu languages, putting his words into practice. Hesbon, a Kisii co-worker at my workplace expressed concern that such influential writers as Ngugi should not confine themselves into one ethnic language, since by doing so he is privileging only one group. He is concerned that the literate Kisii population, barely comprising five hundred people, will never get access to a written material besides the bible. Ngugi’s reply is that this is precisely the reason why writing in local languages should be encouraged, so that the available written material will increase, thereby encouraging the increase of the literate population. (Arguably, a number of people do not learn the language simply because there is nothing to read in it.) Can the gradual process of linguistic extinction be reversed, as Ngugi argues?

    Even if we agree on the main conceptual tenets, implementation becomes another concern. Moore points out that European languages are already the de facto languages in Africa and elsewhere in the world, and that efforts should be placed to localize the language and use it as a tool in fighting back the cultural and economic domination of Europe. Does the use of European languages constitute a violation of Article 2 of the ICESCR, namely, that language, among other elements, should not constitute a basis for discrimination? Does language equal culture, or can language be re-appropriated by the oppressed people? During the closing lunch with professor Ngugi, a Macalester student from the Kiisi group expressed his need for these ideas to be implemented at the government level. “He should be one of those people closely advising the new president”, he said. I disagree; the state will be all the more likely to fall into violations of cultural and social rights by enforcing a specific form of cultural ideology into public schools and (possibly) government offices. I believe that if these initiatives should take place, it should be a gradual process, flexible enough to modify its aims and means by consensus and public input in the nation.

    These are challenges that arise in addressing Ngugi’s proposal. I hope that with the ongoing discussion will further conceptualize and clarify the issue of language in previously colonized countries, since this is not an issue that concerns solely Kenya, or Africa, but a growing number of states that are falling into an international minority in terms of economic and cultural power.

  • ICCPR

    CH, HM, AP. Group 6 Response

    The UN currently has 6 treaty organs, which are distinguished from Charter organs in that they are not created under the UN charter, but are mandated by the 6 universal human rights treaties.

    The ICCPR Human Rights Committee is a treaty organ created by Articles 28-45 of the International Covenant on Civil and Political Rights (1976). It has 3 dominant functions: 1. States submit reports to the ICCPR Committee on measures taken and progress made in meeting the rights stipulated by the Covenant, 2. The Committee must ‘transmit such general comments as it may consider appropriate’ back to these states, 3. The Committee is also authorized to receive communications from individuals claiming to be victims of violations by state parties, and to forward its views about these communications to the individuals and the states concerned.
    The functions outlined for the Committee in the ICCPR Covenant took a long time to agree upon, particularly in light of the Cold War ideological conflicts and debates about protecting state sovereignty. The result is a compromise between those States who favored strong international measures and those who emphasized the primacy of national sovereignty, and therefore many issues about the functioning of the Committee were left unresolved by Covenant. Some recent developments in the Committee’s approach to reports are that the Committee may now request certain states to issue ‘emergency’ reports about a newly developed situations (eg Iraq, Yugoslavia), it now supports the suggestion that human rights bodies be able to bring violations directly to the attention of the Security Council, and finally, it may be possible for the Committee to send a ‘mission’ to certain states in cases where the Committee was unable to obtain required information.

    The Committee is composed of 18 members, who must have ‘high moral character and recognized competence in the field of human rights’, and who represent an equitable geographical distribution. Most have some form of legal experience, and they are elected to serve in their personal capacity as experts, as opposed to as state ambassadors. The Committee meets 3 times a year, for 3 weeks each time. Most meetings are public, however only a few outsiders and representatives of NGOs tend to come. Decisions taken by the Committee should be by majority vote, but all decisions to date have actually been taken by consensus.

    Two questions arise as a consequence of the structure of the Committee. First is the issue of to what extent the ‘experts’ really act independently of their government’s interests, considering that some come from authoritarian, single-party states, and most must continue to hold part-time jobs, often for their governments. Second, does the practice of decision by consensus cause undue compromise, blunting of positions and failure to take bold steps. Another more pressing problem is that of the reports: They are supposed to be presented by states every five years, to be prepared following Committee guidelines. However, the greatest weakness of the system, according to Thomas Buergenthal, is the failure of certain states to submit their reports on time. Furthermore, if all the states did submit their reports, the Committee would not have time to process them during their 3 yearly meetings. What are the benefits and liabilities of reporting systems?

    The Concluding Observations of the Committee examine positive aspects, factors and difficulties affecting implementation of the Covenant, and principal areas of concern and recommendations for each country. In particular, the chapter examines Chile, Iraq, Israel, Japan, Poland, Senegal, Sudan and the United States of America, wherein it praises states which have eliminated the death penalty, and disapproves states which criminalize abortions and homosexual relations, discriminate against groups on the basis of religion, gender or ethnicity, operate under a government that lacks transparency and accountability, or permit torture, death penalty and police brutality.

    What legal action can be taken to pressure states to follow recommendations? How much authority does the Committee hold? Despite sanctions, the committee expects Iraq to implement obligations under the Covenant, but Are there circumstances where might a state be excused from such obligations because of sanctions? If so, what other measures could be taken? States like the U.S. and Japan legally forbid discrimination but, in practice, gender and racial inequalities are very prevalent. The Covenant has only vague recommendations of “eliminating discriminatory attitudes.” What steps, beyond legal action, can be taken to eliminate discrimination, and is the state accountable for this?

    Article 40 of the ICCPR states under section 4 that the Committee shall study states reports and “transmit its reports, and such general comments as it may consider appropriate, to the States Parties” (1389). This vague wording allows for various understandings of the purposes of the General Comments, and the Comments have so far taken on two distinct types. The first has the intention of chastising vague reports and outlining proper ways to report state’s steps towards fulfilling the requirements of the ICCPR. The second is concerned with clarifying the meanings of certain articles and providing detailed interpretations of the types of rights involved and corresponding government responsibilities. In an extreme case, a General Comment attempted to create a new article in the bold statement, advocating, “The production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity” (735). It is obvious that General Comments are more specifically prescriptive than the original covenant. In this way the comments attempt to remedy the ambiguous nature of the ICCPR and lay down officially sanctioned interpretations and requirements. Do you feel that the more explicit nature of the Comments is a reasonable and effective method for increasing accountability? Do the Comments overstep their boundaries?

  • Obituaries

    Yongho Kim
    Anthropology (248) of Religion
    October 15, 2003

    Choose any issue of the St. Paul Pioneer Press or the Minneapolis Star Tribune newspaper and read the Obituary Section. Describe any consistencies/commonalities that you observe across the majority of the obituaries. If there are any significant differences in one or more of the obituaries, describe these as well.

    I examined the Tuesday, October 14th edition of Saint Paul Pioneer Press, in the Obituary Section, Local News 4B and 5B. There was a shared format and regularity as discussed in class, but there were other patterns that arose based in age and economic class.

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  • Proposal: Self-image among Masaai youth

    Yongho Kim
    Anth258: African Societies

    Paper topic proposal: Self-image among Masaai youth

    The Masaai are a pastoral and patrilineal people who live mostly in southern Kenya but also in northern regions of Tanzania, constituting roughly 5% of the Kenyan population. Their means of subsistence has been cattle, goat and sheep herding. Social hierarchy is strictly divided among waves of age sets that first become active warriors and then pass into elderhood. I first learned of the Masaai while reading a science magazine in the 1995s, in which the Masaai were described as extremely tall people in central Africa who hunted down lions. (Or so I remember)

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  • UN Security Council

    AG, RR, EO.

    Thematic Mechanisms

    Thematic Mechanisms have been in use since 1980. They were originally created in response to disappearances in Argentina. In order to preserve national integrity, avoid political embarrassment, and protect economic issues, they were created on an international level as opposed to an individual country level. The Commission used a ‘thematic’ mechanism to avoid a “country-specific inquiry”. They are only allowed to make ‘opinions’ not decisions and are allowed to make recommendations to the Commission. Different techniques include requests to governments for information that is case specific, and that the government take “immediate action” to remedy the situation, as well as on-site visits. How do thematic mechanisms interact with 1503 and 1235 procedures?

    United Nations Security Council

    The UNSC is comprised of 15 member states, 5 permanent members (US, UK, France, Russia, and China) and 10 rotating members elected by the GA every two years. Each member has one vote and the 5 permanent members have a “veto-power”. In order for a resolution or a substantive decision to be passed, it must have 9 affirmatives and all 5 members states must vote affirmative, if one abstains or dissents, that is the veto power and the resolution is not passed. The primary responsibility of the UNSC is to maintain international peace and security under the collective security system provided for in the UN Charter. They are empowered to investigate disputes and make recommendations regarding appropriate procedures such as sanctions or military intervention. The Security Council is arguably the most powerful UN organ with a “monopoly over the use of force”.

    SC Humanitarian Intervention

    Humanitarian intervention is the use of force justified by reference to an overriding humanitarian emergency, ranging from small scale relief operations to long-term military engagement. Its use requires consensus among the members of the Security Council, and within the discourse of intervention, the question of protecting sovereignty (from intervention) is raised time and time again by those who would seek to delay or to stop intervention. The Security Council thereby intervenes within a State in order to stop or prevent gross violations of human rights. Secondly, human rights themselves are used as a justification for intervention itself. Nonetheless, how do we justify intervening in the domestic affairs of a sovereign State when scholars like Michael Ignatieff argue that the sovereignty of the State is “the best guarantee of human rights that there is” (pg. 657).

    Sanctions range from comprehensive embargos, to a more limited embargoes which freeze assets and halt arms trade. Multilateral sanctions would include the economic embargo against Iraq (prior to the War), freezing of assets of the Taliban, and unilateral US sanctions against Cuba and North Korea. They can be seen as either a violation of human rights or a form of humanitarian intervention. Sanctions almost always impact the rights outlined in the ICESCR by diminishing the ability of the impacted State to provide for their populations. If we follow Ignatieff’s argument, then how do we justify the imposition of economic sanctions against any State?

    In the response to Kofi Annan’s speech on the events in Kosovo (pgs. 658 – 659), we are faced with the notion that the common interest so necessary for humanitarian intervention can itself be questioned. Who defines the common interest? Who should defend the common interest? How should the common interest be defended? With the events described in Kosovo, and the most recent events in Iraq, can the common interest be defined solely by any one State power, or a coalition of State powers, or is there some other mechanism by which the common interest can be defined?