Legal Reform in Korea (Routledge Advances in Korean Studies)

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Min, Hyon-ku. Kim-Renaud, Young-Key, ed. Washington, D. Cho, Hein. Kim, Sung Moon. Setton, Mark. Yi, Tae-Jin. Chi, Sung-jong. Han, U-gun. Kim, Yong-mo. Yi, I-hwa. Yi, T'ae-jin. Lecture — Opening of Korea and its Relations with the West. Choi, Chang-kyu. Chun, Hae-jong. Kim, Han-shik. Choi, Mun-hyung. Shin, Yong-ha.

Dudden, Alexis. Synn, Seung Kwon. Kim, Ki-Jung. Hori, Kazuo. Kang, Man-gil. Kang, Thomas Hosuck. Kim, Chang Rok. Kim, Dal Choong. Kim, Sang-ki. Lee, Ho-jeh. Lee, Ki-tak. Nam, Chang-Hee. Park, Choong-seok. Park, Kwan-Sup. Kajimura, Hideki. Ku, Daeyeol. Lecture — Korean Nationalism and the Movement for Independence. Kim, Jung-hak. Hyung Il Pai and Timothy R. Tangherlini, eds. Nationalism and the Construction of Korean Identity. Yun, Pyong-sok. Ahn, Wae-soon. Cha, Pi-yok. Chang, Ul-byong. Juhn, Daniel S. Kim, Chun-yop. Lee, Chong-sik. Chandra, Vipan.

Cho, Chi-hun. Lee, Joung-sik. Paek, Rin. Ch'oe, Tong-hui. Kim, Choon Sung.

INTRODUCTION

Kim, Yong Choon. Lee, Young-ho. Mok, Chong-gyun. Shin, Il-ch'ol. Shin, Susan S. Baldwin, Frank. Kim, Jun-yop. Pak, Ch'an-Sung. Seattle: University of Washington Press, Ban, Sung Hwan. Seoul: Korea Development Institute, Chung, Young-iob. Ishiyama, Kenkichi. Jung, Tae-hern. Kim, Kirk Y. Kim, Tae-jun. Kohli, Atul. McNamara, Dennis L. Zo, Ki-zun. United States. Chay, John. Hong, Soohn-ho. Laurent Cremazy. Kim, Hyung-chan.

Korea Policy Oliver, Robert T. Ryu, Hong Ryol. Hamilton, A. Hoare, James E. Fendler, Karoly.

The USC Korean Studies Institute

Kang, Sung-Hack. Seoul: Yuk Phub Sa, Chang, Byung-nim. Han, Yung-Chul. Hwang, In Soo. Kim, Bong-jin. McCune, George M. Im, Pang-hyon. Yang, Sung Chul. Princeton University Press, , Gupta, Karunakar. Warner, Geoffrey. Suk, Chin-ha and James Morrison. Stueck, William. Steinberg, Blema S. Chee, Choung-Il. Cheong, Sung-hwa. Ishiguro, Yoshiaki. Kim, German. Lee, Chai-Mun. Lee, Jeanyoung. Lee, Jean-young. Zabrovskaia, Larisa V. Cheung, Sung-hwa. Chung, Chin-Wee. Han, Ki-shik. Han, Sung-joo. Hong, Song-jik. Kang, Chi-Won.

Minn, Byong-tae. Mitchell, C. Seo, Joong-Seok. Shin, B. Whang, In-joung. Mason, Edward, et al. Woo, Jung-en. New York: Columbia University Press, Shin, Gi-Wook. Cho, Soon. Kim, Eun Mee. Kuk, Minho. Kuznets, Paul W. Skip to main content. D Thesis M. Course Outline for Modern History of Korea. Readings: Students should try to complete all required readings before each class. Articles Ahn, Byung-ook. Lecture- 9 Palhae Kingdom Song, Ki-ho. Lecture — 10 Koryo Kingdom Lee, Ki-baik.

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Taoism Byun, Kyu-yong. Shamanism Cho, Hung-yoon. Shilhak Kalton, Michael C. Britain Choi, Mun-hyung. Russia and Eastern Europe Fendler, Karoly. Career Research Intranet. Admission Current Event History. New Mehrauli Road, New Delhi The structure of the book Chapter 1 overviews the evolution of international human rights in order to show that North Korean rights thinking is not completely at odds with the overall devel- opment of international human rights, although it is incompatible with Western liberal rights thinking.

Chapter 2 analyses rights approaches in Korean traditional thinking, notably Confucianism, Sirhak practical learning , and Tonghak eastern learning , to show how contemporary North Korean rights thinking is based on these traditional Korean philosophies. Juche provides the major ideational approaches for the formation of North Korean human rights: post-colonial nationalism, Marxism, traditional Korean thoughts, notably Confucianism in addition to some religious aspects.

Notes 1 Constructivism is a social theory of international politics that focuses on an ideational and holistic understanding of international relations and an inter-subjective explanation of the interplay between agents and structures in constituting and reconstituting identi- ties and interests. Others who did not participate in the process of renaming former North Koreans, including the Committee for North Korean Democracy whose head is Hwang Jang-yup a former International Secretary of the KWP and President of Kim Il Sung University who defected from the North to the South in , strongly rejected the new name since it gives a negative impression that North Koreans are only seeking food like homeless people.

I aim to show that, far from being at odds with the overall development of human rights internationally, North Korean rights thinking has much in common with international ideas, although it may not ultimately be compatible with individual- istic and liberal Western ideas of human rights. Some of the critics of individualistic Western concepts of rights have a broad overlap with the rights perspectives of the DPRK: communitarian, culturally sensitive, or social-contract type of approaches to rights.

A number of themes, as aptly pointed out by Jeremy Waldron 3 , tend to arise repeatedly in modern rights theories: abstract universalism, the individualism of rights, the tension between rights and the demands of community, the use of social contract models in the theory of politics, and the troublesome idea of natural law.

Obviously, the DPRK takes the latter approach in each set of human rights debates. A historical overview of Western ideas on human rights There are two important periods for understanding the language of rights in Western political thought. A study of the key European philosophers in these periods will facilitate a better understanding of Western conceptions of human rights.

Based on passages in the Bible and the religious teachings of St. Augustine — , St. Aristotelian concepts of justice, virtue and natural rights have had a profound impact on the development of Judeo—Christian and Islamic political traditions. An Aristotelian legacy may still be felt in Orthodox Christian theology, especially within the Catholic tradition shaped by scholasticism. Aquinas was very unusual for his time in being able to grasp the idea of natural law, formulat- ing the consistent doctrine of eternal, natural, human and divine laws plainly and clearly in his most famous work, Summa Theologiae.

Aquinas distinguished four kinds of law: eternal, natural, human, and divine. Divine law is the law revealed in religious texts. He was notorious among his Protestant contemporaries for making his atheistic character too obvious. The list of Western philosophers and political leaders who make use of Christian concepts in their writings and speeches is considerable. Grotius treated liberty as a piece of property, being led by this comparison to believe that slavery and abso- lutism should be defended.

To these theorists, an individual had no right to resist the magistrate Tuck To Hobbes, there was no private property in the absence of sovereignty; the Leviathan4 and private property are necessarily concomitant Lopata Locke set out his philosophy in response to the divine right of kings and more generally to all theories of the natural ordination of political authority. In other words, rulers had a general duty not to harm their subjects.

Social contract theory was associated with the belief that existing political relationships were founded on an original agreement among people living in a given territory to establish institutions and procedures for the better protection of rights. His ideas have laid the groundwork for the principles of French revolutionary thought, notably the formulation of the French Declaration of the Rights of Man and the Citizen Waldron The wider sense of right is generally considered as righteousness or justice. What requires special attention here is his narrower sense of right, a right proper, which is similar to contemporary concepts of human rights.

In this sense, merit commonly employs the rule of proportion. However, like other conservatives, he could not entirely pull himself away from totalitarian tenets such as support for absolutism and the idea that the right to self-defence is void before an absolute sovereign ruler. Critics of natural rights The theory of natural rights met with strong criticism from various political thinkers during the eighteenth and the nineteenth centuries.

Burke rejected the idea that rights were universal and instead believed that real rights were relative to the particular socio-political structure of each community — a view which can be seen as contemporary cultural relativism. He opposed the revolutionary character of the rights of man envisioned in the French Declaration.

His utilitarianism further held that the demand for rights was disruptive to the political and legal order. Mill was less critical of natural rights than Bentham and developed his own ideas on utility, although he was educated by his Benthamite father, James Mill. Despite being an ardent advocate of liberty, Mill rejected the idea of natural rights and proclaimed that rights are founded on utility.

Marx strongly opposed the idea of natural rights as well as other normative terms such as justice. Many remain critical of the idea of natural rights. Most cultural relativists, including third world developmentalists or communitarians, are reluctant to accept the universal and liberal language of natural rights ideas in their various formulations. North Korea is a central part of this group, as I will explain later in Chapters 5 and 6. This critique even exists in some neo-liberal circles within the Western liberal tradition. Ian Shapiro, for example, suggests several reasons for the tenacity of the liberal conception of natural rights.

Shapiro —5, points out the Cartesian perception of liberal philosophers especially Hobbes, Locke, Nozick, and Rawls on the subject of rights, criticising them for focusing too much on the individual as the sole founding agent of human knowledge and action. Another use of right is to denote that one person is not subject to the power of another person.

In other words, the person is not to be deprived of his liberty or property without due process of law, and is not to be exempted from legal power, i. On egalitarian moral grounds, Gregory Vlastos believes that human rights emanate from human beings having an equal moral worth. Human merit is the collection of all traits according to which agents can be evaluated, such as intel- ligence, technical skill, generosity, or courage, whereas human worth is the value all people obtain simply by virtue of being human. Therefore, while humans are unequal for a variety of reasons in the former respect, they nonetheless possess a minimum and inalienable value of human rights by virtue of being human.

Similarly, H. In a rather dramatic and somewhat idealistic formulation, Ronald Dworkin — states that rights func- tion as trumps over collective goals. All of these concepts are relevant in the context of the relationship between an individual and the state. Another notable phenomenon found in contemporary Western human rights discourse is a multidisciplinary or interdisciplinary approach.

A growing number of normative philosophers, such as Robert Nozick , John Rawls , Michael Ignatieff b , Richard Falk , or Thomas Pogge , discuss human rights in line with global justice. Pogge, for example, demonstrates that a complex and internationally acceptable core criterion of basic justice might best be formulated in the language of human rights. Ronald Dworkin and Louis Henkin have pushed for a legal approach to human rights, and have been followed by Henry Steiner and Philip Alston All four study constitutional and other legal arrangements of coun- tries with regards to human rights.

Steiner and Alston , in particular, deal extensively with national, regional and international human rights treaties, institu- tions, as well as with various case laws of national courts and regional and inter- national courts of human rights. In practice, human rights lawyers and activists use human rights treaties or case law for the purpose of campaigning against abusive regimes. In theories of international politics, one of the most interesting developments in the wake of the Cold War has been the rise of social constructivism. Nowadays, many contemporary human rights scholars take the view that the concept of human rights is an evolving one Donnelly 49—50; Finnemore a; Katzenstein ; Keohane However, on other occasions, he seemed to embrace the meaningful application of the role of rights in society, for example, the rights of workers to equal pay for equal work.

In this way, abolishing the capitalist mode of production, which is based on the bour- geois exploitation of the proletariat, is a prerequisite for the full enjoyment of human rights. His historicism, on the other hand, suggested that rights would be transcended, not transformed, in a higher phase of communism and indeed the need for the protection of human rights would become obsolete and eventually disappear when a superior mode of production, presumably communist, came into being Buchanan In other words, he rejected all talk of rights under capitalist society; he chose some of them tactically under revolutionary and post-revolutionary proc- esses the so-called pre-communist society ; and he predicted there would be no need for a system of human rights in a communist society.

Marx believed that abstract terms like liberty, freedom, justice, and fairness were employed as a political tool by the ruling class in capitalist society Nordahl In other words, rights, for Marx, were inherently illusionary language used in capitalist society and served to protect the social relations of the existing class order Lukes Marx was particularly hostile to the notion of the rights of man, distinguished from the notion of the rights of the citizen, stipulated in the French Declaration.

This suggested that he was not genuinely interested in this kind of normative language although he then acknowledged certain roles that the language of rights and justice could play during the revolutionary period. As Donald C. The DPRK, on the contrary, recognises the normative role of human rights in its revolutionary period.

The government later insists that its Twenty-Point Party Platform was originated from the Ten-Point Platform, which was, in fact, largely copied from the Soviet model. The nature of rights in post-revolutionary society is also needs-focused. The second need essential to personal autonomy and freedom could be reformulated as civil and political rights such as a right to vote, and the freedom of speech, press, or assembly. The third need implies the so-called third-generation collective solidarity rights such as a right to a clean environment or a right to self-determination.

More concretely, Marx stressed socio-economic rights in post-revolutionary society. Both were socio-economic rights closely related to human needs. Other domestic legislation in post-revolutionary North Korea included gender equality, labour rights, and social insurance. The second concrete right Marx also recognised was universal suffrage in post- revolutionary society. The vote had been restricted to those males having adequate property and wealth. The lengthy list of human rights in the post-revolutionary period of North Korea included both socio-economic rights and political rights.

The right to vote and stand for election were two of the major human rights newly given to Korean people who had been politically repressed under Japanese colonisation. What is distinctive in North Korea was that these measures were suggested not only in a post-revolutionary but also in a post-colonial context, dominating the entire Korean population in —8, and which will be described in Chapter 3.

Rights, according to Marx, could be possessed not only by individuals, but also by communities, institutions, and groups Nordahl This collective perception of the nature of man has been seriously undertaken later in Marxist states as a totalitarian means to foster economic development and to repress individual demands. Marx himself did not specify the idea of collective rights, but his concept of the social being has been used by Marxist practitioners to stress collective rights. Kim Il Sung also said that human beings are social beings as we will see in Chapter 5.

Collectiv- ism is one of the most important features in North Korean rights thinking. Through various ways of imple- menting socialist practices in the DPRK, collective mentality has penetrated deeply into North Korean society. This will be explained in Chapter 4. Even though some participatory rights for members of the prole- tariat may be valuable during the transition from capitalism to communism, Buchanan 65—6 concludes that both the rights of man and the citizen will have no value and hence no place under communism.

According to Marx, since the revolution would abolish this defective system of capitalist society and the proletariat government would implement all the necessary steps to make societies classless, there was no need for a state or a system of human rights in communist society: human rights would have been fully implemented and realised at this stage.

It deleted communism from its economic structure while still maintaining socialism Article Therefore, the system of human rights did not disappear in North Korea and is still being actively imple- mented since its Socialist Constitution. In other words, upon the establishment of Marxist governments, most post-revolutionary countries were confronted with mass poverty and an urgent need to establish a strong state for rapid economic development.

The rest of this section will describe four distinctive features of human rights in Marxist states, notably the former Soviet Union and the PRC. Weatherley and Song explain that the denial of rights to the bourgeoisie is part of a much wider struggle to eliminate all remaining remnants of bourgeois power from post-revolutionary society and facilitate the victory of the proletariat over their previous oppressors. The Marxist principle of class struggle provides a legitimate reason for the exclusionary char- acteristic of rights in post-revolutionary states, namely that the full entitlement of rights would only be granted to the proletariat while the government can legiti- mately deprive the enemies of the working People, the bourgeoisie and imperial- ists, of the previous rights they enjoyed.

Unger 36—7. Weatherley 10—13, 91, points out that the interconnectedness of class status to the entitlement of right remains an integral part of rights thinking in China, long after the proletarian revolution. During the Anti-Rightist Campaign and the Cultural Revolution —9 , intellectuals lost their membership of the People and consequently their entitlement to political rights while their rights were partly recovered after the death of Mao Zedong. Collective interests over individual rights The second characteristic of rights in Marxist states is the prioritisation of collec- tive interests over individual human rights.

The idea of collective rights is in con- trast to Western liberal thinking that is based on a belief that each individual is entitled to the protection of human rights. Consequently, in Marxist states, the interest of a nation as a collective sovereign entity took priority over individual concerns.

Any right considered harmful to the collective interests of society can be immediately withdrawn. All constitutions of Marxist states clearly stipulate the collective principle over individual interests. Unger The interests of both coincide completely. In other words, individual rights should be subordinate to the higher interests of the party, the class, and the society.

The DPRK constitution also explicitly stipulates the collective principle. Citizens shall cherish their organization and collective and work devotedly for the good of society and the people. The public are encouraged to learn from and imitate this behaviour in an effort to create a genuinely socialist society Weatherley and Song The PRC has utilised the languages of collective rights and economic development and created a new theme in the international human rights discourse, the right of a nation to development. Chinese scholars perceive national rights to be human rights in the sense that they are a necessary prerequisite to the full enjoyment of human rights so that the rights of each member of society can be guaranteed once the right of the nation is protected.

The govern- ment does not explore the concept of the right to development very much since survival is more an emerging issue for North Korea than development. The DPRK adamantly supports collective rights ahead of individual human rights. The generation of emphasis on collective rights in the DPRK is a continuum of thought and identities about self and others in society. Socio-economic rights The third formative characteristic of human rights in Marxist states is its prioriti- sation of socio-economic rights over civil and political rights.

In the PRC, a Marxist commitment to the welfare of society meets with tradi- tional Confucian thought, reinforcing the priority of the right to subsistence and more recently the right to development. The constitutional guarantee of socio- economic rights followed in China. The PRC constitution includes the right to work, the right to rest, and the right to material assistance in old age and in case of illness or disability, all in Article All rights are converged, and indeed subordinated, to security and sovereignty in the end.

After the revolution, the party leadership in Marxist states perceived that the party mechanism in the system of the proletariat dictatorship could secure its leading position only under the condition of monolithic unity Markovic —9. The dictatorship of the proletariat turned out to be incompatible with democracy.

As a result, duties prevailed over rights, prohibitions and sanctions over liberties. Articles —34 of the Soviet constitution listed the duties of citizens. Article stated the obligation of every citizen to be honestly concerned with public duties and to respect the rules of socialist community life. Article stipulated the duty to safeguard public socialist property and Article to do military service. Nine articles of the constitution dealt with the duty to undertake socially useful work Article 60 , the duty to preserve and strengthen socialist ownership Article 61 , and the duty to safeguard the interests of the Soviet state Article 62 A.

It is the honourable obligation of citizens to perform military service according to law. Here, the duty provisions are placed after rights and include the duty to safeguard the unity of the country and the unity of all its nationalities Article 52 , the duty to keep state secrets, protect public property, observe public order, and respect social ethics Article 53 , the duty to safeguard the security of the motherland Article 54 , the sacred obligation to defend the motherland and perform military service Article 55 , and the duty to pay taxes Article Articles 42 and 46 state that to work and to receive education are both the duty and the right of citizens of the PRC, respectively.

North Korea also explicitly states the duties of citizens in its constitutions. Subsequently, Chapter V of the , , and amended Constitutions contains seven Articles 80—86 and six Articles 81—86 for duties, respectively. Duties stated in the Socialist Constitution, for example, are abiding by socialist laws Article 67 , respect for collectivism Article 68 , the duty to work Article 69 , preservation of public assets Article 70 , the protection of national secrets Article 71 , and national defence Article Detailed constitutional changes in rights and duties of citizens in the DPRK will be explained in Chapter 6.

Universalism versus cultural relativism The debate of universalism and cultural relativism needs to be understood compre- hensively since the DPRK generally takes the cultural relativistic view. The North Korean government also tends to refer to universality and the divine concept of human rights when counterattacking the human rights situations in the US, Japan, or South Korea.

The universality of human rights is a belief that the value of inalienable human rights is shared in every country and therefore they ought to be safeguarded with appropriate domestic legislation and practice. On the other hand, cultural relativism supports the view that every culture and society, according to their own circumstances, has different views and priorities in relation to human rights and consequently, that there is no shared value of human rights.

In other words, if a social theory of human rights puts one foot on cultural relativism and the other on anti-foundationalism, it would be communitarian pragmatism; however, if one foot is on cultural relativism but the other on foundationalism, then it would be traditional communitarianism. Liberal natural rights The approach presented as liberal natural rights is actually a combination of onto- logical universalism and epistemological foudationalism. In other words, scholars in this group deem that human rights are ontologically universal and hence, should be universally applicable to every society.

Each liberal natural rights theorist, despite being in the same group, tends to have distinct ideas and theories. David Forsythe shares the same view Forsythe Similarly, most Western liberal scholars are caught in an ideological bind, arguing contradictorily that human rights are universal, but that human rights are indigenous only to the West. By so swiftly dismissing other value systems that might successfully be incorporated into an international concept of human rights, such scholars are working against the very universality that they want to achieve.

This type of fallacy is also found in criticism made against North Korean human rights. However, these groups often dismiss the important signs and meaningful changes that have taken place inside North Korea. In my introduction, I have already addressed the prob- lems presented by this culturally and historically insensitive approach to North Korean rights thinking. She argues that the concept of human rights is not universal although it might be universally applicable , since it is Western in origin.

Howard argues that all societies have an underlying conception of human dignity and social justice, but that these are different from human rights. Therefore, the concept of human rights is not universal and cannot be located in most other societies Howard Micheline R.

Ishay ; is categorised in the same lower left corner cell as Howard. She makes a historical and anthropological observation of the develop- ment of the Western concepts of human rights from old religious, philosophical and political texts, arguing that the human rights legacy of the socialist tradition is today widely dismissed.

Her argument is less convincing once one considers the welfare system in Scandinavian countries, in which socialism or social democracy prevails. In fact, the great religious ages were notable for their indifference to human rights in the contem- porary sense. Religion enshrined and vindicated hierarchy, authority and inequality. While I would by no means denounce the Judeo—Christian tradition, what we perceive today as human rights is undoubtedly different from ancient religious morality. Therefore, to say that contemporary ideas of human rights spring from Judaism is neither a well- balanced nor a well-informed opinion and can even, at worst, be seen as a pro- vocative attack upon other religious cultures.

Adamantia Pollis and Peter Schwab are keen expo- nents of this position. They 8 focus on the post development of human rights and believe that the current concepts of human rights in interna- tional legal documents, especially the UDHR, are Western in nature, and they accuse the West of cultural imperialism.

The only difference between Pollis and Schwab as traditional communitarians and Howard and Ishay as exponents of liberal natural rights is that the former emphasise that ideas about human rights do exist in traditional societies. However, each of them denies the universality of human rights. Pollis and Schwab have failed to recognise that the UDHR and other international human rights conven- tions are no longer solely the ideational possession of the West. Some authoritarian political leaders adopt the traditional communitarian position. This does not mean that all Asian governments deny human rights.

Democracy is. There are a growing number of national institutions that protect human rights and equal opportunity and grassroots civil society organisations are clamouring to be heard.

Japan's South Korea predicament | International Affairs | Oxford Academic

The DPRK takes a cultural relativistic stance on the universality of human rights. The DPRK authority maintains this position in response to external allegations of human rights violations. Communitarian pragmatists Like other anti-foundationalists, communitarian pragmatists do not believe that there is any solid and static concept of human rights and therefore assert that uni- versal human rights do not exist. Chris Brown is the best-known Western scholar representing communitarian pragmatists. According to Brown —27 , the existence of the human rights standard is itself the problem. Rights are a conse- quence of the civilised practices of liberal politics and not the cause of these practices.

Brown, therefore, does not argue for a universalist position, and instead seeks to go beyond the debate between relativists and universalists. He argues that the problem with both relativist and universalist positions is their dependence upon epistemological foundationalism.

While this sounds like an interesting theory, if true, the anti-foundationalist approach to human rights is itself no more than a myth. Cosmopolitan pragmatists Cosmopolitan pragmatists similarly do not believe in a solid and static concept of human rights, but, unlike communitarian pragmatists, they advocate that univer- sal consensus can be made through constructive and cross-cultural dialogue between different cultures and value systems. Bhikhu Parekh falls squarely within the category of cosmopolitan pragmatism. Parekh —59 believes that universal values are possible but have to be decided through argumentation.

This view is shared by many contemporary human rights scholars, especially among those elites who, despite being non-Western born, have obtained a Western education. This can be attributed to the fact that the international human rights regime, by operating through a system of naming and shaming, manages to make states increasingly sensitive to reputational concerns.

By this she means that no superiority or inferiority exists when judging different cultural practices. Elvin Hatch 12, noted that cultural relativism was charged with neutralising moral judge- ment and thereby impairing action against injustice. Furthermore, the problem with the early cultural relativists, according to Alison D.

Renteln 9, 11 believes that it is possible to create a universal concept of human rights through a cross-cultural approach, which, to some extent, requires cultural relativism. The presumption of univer- sality, a common Western conjecture, must be shed and then, Renteln —40 concludes, the way will be clear to discover cross-cultural universals. This equally applies to understanding North Korean rights thinking. More recent cultural rela- tivists emphasise a cross-cultural approach, an approach that I share when dealing with North Korean human rights issues.

In so doing, one can avoid the all too sim- plistic view that the West implies universal, individualistic, civil, and political rights and that the non-West prefers non-universal, collective, social, and economic rights. However, one should not be overly optimistic about the cross-cultural approach and open-endedness of culture.

Culture is the key to understanding contemporary international relations. Consider the December case of a British schoolteacher who, with good intentions, went to teach in Sudan and named the class teddy bear Mohammed. As a result of this action, she was sentenced to 15 days in jail and some Sudanese even gathered to demand that she be put to death. There has been an absence of constructive cross-cultural dialogue with the DPRK in regard to human rights issues.

I, therefore, seek to resolve this lack of cultural sensitivity by explaining multi-faced factors that have, over time, impacted upon the constitution and reconstitution of human rights ideas in the DPRK. Their concepts were then later taken on by continental social theorists, Marxists, idealists, communitarians traditional and liberal alike , and critics of conventional liberalism.

Western countries have implemented certain collective rights. Another example is the Australian Human Rights and Equal Opportunity Commission that operates a separate bureau for the protection of the rights of the aboriginal people. Furthermore, in England, the Immigration Removal Centre treats a family of illegal migrants as one unit with one family representative, normally the father. If it is decided to deport the family, this happens collectively without considering the individual case of each family member.

The North Korean government uses various concepts that are related to collec- tivity: the collective spirit, the collective principle, or collectivism. While these are different from group rights, they are rather similar to the right of self-determination. While this was perceived as a collective entity, it excluded pro-Japanese collaborators. This can be seen as the same post-colonial right to self-determination as claimed in other post-colonial states. Under Marxism, class rights formed the basis for collective rights: rights were only given to the working class, not to enemies of the working class.

He then further developed this concept into the right of the state. The result of this development was the replacement of group rights by state sovereignty. In recent years, the DPRK government has actively developed group rights, such as rights of disabled persons, mothers, and children as I will explain in Chapter 6. These groups are categorically entitled to special attention, and pro- tected by government welfare rights. Group rights within a given territory of a state, such as minority rights, are human rights.

Proponents of collective rights According to Yael Tamir —80 , two types of groups favour collective rights liberal social thinkers and leaders of traditional communities. I would add a third group — the communitarian idealists. Thomas H. Green , a leading exponent of British idealism in the late nineteenth century, rejects the existence of any rights prior to and against society. This approach is strikingly similar to the collective characteristic of human rights in post- revolutionary Marxist states, including North Korea.

He argues that no one can acquire a right, except as a member of a society in which some common good is recognised by all members. Another British idealist, Francis H. Bradley, also rejects the concept of individual rights, and instead emphasises community. Shapiro —8 asserts that liberal writers have held misleading accounts of the concept of a right. Legal philosopher and positivist Herbert L. Hart 77 supports the argument that the philosophy of government in England and America has indeed been based on a widely accepted and outdated faith in utilitarianism.

Similarly, Richard Flathman 87, insists that the practice of rights has intrinsic individu- alistic aspects. However, they are not atomistic, as some critics have suggested, since they involve deliberate participation in patterned interrelationships and interdependencies among people. Flathman particularly focuses on the communitarian nature in the practice of rights, arguing that rights provide an individual with some elements of place, identity, and role in the social milieu.

The practice of rights therefore produces social relationships and arrangements, quali- ties that traditional communitarians have valued. He insists that peoples or nations can enjoy human rights, citing various cases of recognition of collective rights historic- ally and internationally.

The notion of collective rights is also popular amongst Chinese rights- theorists, especially in relation to the right of a nation. This is based on the argument that the right of a nation as a collective entity is a necessary prerequisite to the full enjoyment of human rights, as the rights of each individual can only be guaranteed once the right of a nation is protected by a strong party and a state from foreign invasion or the previously ruling bourgeoi- sie.

It is on these grounds that collective rights of a nation are prioritised over individual rights in Chinese thinking as well as that of the DPRK. North Korea extensively uses a collective language of rights. In non-Western countries, the implementation of collective rights is generally considered more important. It has been deeply embedded in pre-modern traditional values such as the Confucian virtue of harmony and unity, which will be covered in the next chapter.

Furthermore, the pre-modern communal virtues have been trans- formed into the post-colonial right of the nation or a right to self-determination described in Chapter 3, and the Marxist antagonism against egoistic individualism explained in Chapter 4. This will be further outlined in Chapters 5 and 6, respectively. The combination of all of these factors has reinforced the collective characteristic.

Critics of collective rights There are many Western critics of the idea of collective interests and collective rights. Dworkin believes that collective rights have negative implications. Individual human rights cannot be subsumed by the needs and interests of the collective society. Donnelly is even more adamant. Donnelly 25 rejects any form of col- lective rights, insisting that human rights can only be applied to the rights of individuals since only individual people are human beings. According to him, collective entities can have rights, but these are not and cannot be human rights.

Howard 97—8 points out that there is a potential incompatibility between human and collective rights. Since collective rights give precedence to the collec- tive entity such as the nation, community or family, they are radically at odds with the idea of individual human rights. She warns that a danger exists in assuming that collective rights are compatible with individual rights because the former can so easily become exclusive. She also mentions Nazism, which she regards as an extreme example, as proof of the non-inclusive character of collective rights.

Collective rights can potentially contain fascist elements if they are too heavily focused on the nation, especially a superiority of one particular nation over others. Nazism was the tragic outcome of a complex mixture of geopolitical calculations, territorial obsession, ethnic bias, and political para- noia.

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The theory of collective rights, on the other hand, emerged largely after the end of World War II and was a product of decolonisation in third world countries. North Korea experiences this danger to some extent. It is probable that the government wanted to use this theory publicly in order to unite all Korean people, North and South as well as those residing overseas. However it has raised unnecessary hostility toward the regime from foreigners and has had even more serious consequences as the regime was subsequently accused of being fascist and anti-foreign.

All are critical of the individualist and property- oriented approach of Western liberalism, while also rejecting Marxist collectivism. Unger —39 proposed four kinds of rights to support his personalist ideal of empowered democracy: market rights,22 immunity rights,23 destabilisation rights,24 and solidarity rights. Unger —9. Furthermore, he consolidated property rights as an indispensable condition of freedom. Collective, communitarian, or personalist approaches have long existed in Western philosophy and have been implemented with real political impacts in Western countries.

Most of these problems can be closely connected to and understood within a collective rights perspective. Classical liberal ideology, based on eighteenth century Enlightenment philosophy, emphasises the freedom of individuals and personal property rights. Western Marxism, on the other hand, stresses a socio-economic foundation to guarantee the rights of citi- zens and the socialist approach, more generally, believes that human needs are the basis for rights and that rights are to be viewed as instruments in order to satisfy those needs Nordahl — These two ideologies have occupied centre stage in discussions of human rights in the West, each discussion prioritising one or the other.

First-generation human rights refer to civil and political rights including liberty and participation in political life. They fundamentally serve to protect an indi- vidual citizen from arbitrary state intervention. Second-generation human rights, on the other hand, deal with equality and socio-economic rights. They include the right to self-determination, the right to development, the right to a common heritage of mankind, the right to peace, the right to a healthy environment, and the right to humanitarian relief.

The standard view of positive rights holds that a state has a moral and legal obligation to provide basic subsistence for its citizens, which necessi- tates extensive and costly governmental action on their behalf. These have culminated in the twentieth-century European welfare society. For example, the French Declaration, whose ideas were partially adopted as the Preamble to the French Constitution, enshrined economic and social rights.

However, the inclu- sion of socio-economic rights has been criticised by many in the West as lacking logical and philosophical coherence. Although it contains primarily civil and political rights, it includes provisions for economic, social, and cultural rights Articles 22—7. The main reason for the dominance of civil and political rights in the UDHR was that by the time it was promulgated, the membership of the drafting committee of the UDHR, the Commission on Human Rights, and the UN as a whole were predominantly Western.

It was not until the s that anti- colonialism prevailed, leading to the formation of new African and Asian states. The Soviets and their socialist allies opposed the preponderance of Western civil liberties and pushed to include socio-economic rights. The former Soviet Union pushed adamantly for more insertion of socio-economic rights and even proposed aboli- tion of the death penalty, which was opposed by Western countries.

Alan Gewirth and Raymond Plant support welfare rights that, they believe, are grounded in our basic human morality just like civil-political rights. Christian Bay 67 and Reginald H. Green 55 also hold this position, saying that needs establish human rights. Stanley I. Benn sees human rights as statements of basic needs and interests. Jeremy Waldron insists that material needs generate moral imperatives. They include rights to unpolluted air and water, adequate food, clothing, and shelter, and minimal preventive public health care.

Shue is indeed one of the few Western scholars who support socio-economic rights as a basic right, and his theory on subsistence rights is a compatible Western counterpart to the Chinese or North Korean preference for subsistence rights. The current use of subsistence rights by the DPRK government indicates that subsist- ence rights take priority over civil-political rights as the former mean existence, survival, or subsistence saengjon in the Korean language. It was one of the third generation of solidarity rights illustrated by Vasak 3 along with the right to peace, the right to a clean environment, the right to the ownership of the common heritage of mankind, and the right to communicate.

First of all, as Dworkin mentions above, individual rights cannot be subsumed in the needs or interests of the collective right to development. North Korea does not often employ this terminology, unlike China, since a more important emerging issue for North Korea, under the current domestic and international environment, is survival rather than development per se.

Consider- ing the near-collapse situation of the DPRK in the mids, what is more important to it is subsistence and national security. Consequently, it is the rights to food and national survival that are more urgent than the right to development. The right to self-determination and the right to development are supported by a number of third-world developing and Eastern European counties Alston Georges M.

Abi-Saab29 distinguishes two approaches to the right to development: one as the aggregate of the social, economic, and cultural rights of all individuals constituting collectivity, and the other as the economic dimension of the right of self-determination. The latter right to self-determination was largely recognised by the international community and enclosed in both of the international covenants as an outgrowth of post-colonialism.

It includes the right of a nation to freely choose its own political, economic and cultural system. According to Abi-Saab, the right to development is a necessary precondition for the material satisfaction of any individual rights. Cranston 40, 54 offers three human rights criteria for the inappropriateness of socio-economic rights as true rights: practi- cality, universality, and paramount importance. The evolution of international human rights 47 Donnelly 28—33 criticises Cranston for a different reason. Donnelly insists that ease of implementation is irrelevant to determining moral paramountcy.

More fundamentally, he argues, the conventional dichotomy between negative and positive rights should be abandoned so that one can see their manifold interrela- tionship. However, although he stresses the interrelationship between the two types of rights, his implicit prioritisation of civil and political rights is apparent. His main explanation for the violations of economic and social rights is the collusion of elite-controlled political mechanisms. Therefore, to him, poverty is a political phenomenon. The distinction of these two types of rights helps understand the concrete characteristics of different types of rights.

However, this discussion is meaningless when it comes to the real pro- tection and realisation of human rights since these two types of rights are closely interrelated and indivisible. There are two types of duties. One is the term used for correlative duties in response to rights claimed. For example, under the UK Disability Discrimination Act , a disabled person has a right not to be discriminated against, and the corresponding employer therefore has a duty to make adjustments for the dis- abled.

Citizens have a duty to pay taxes and in some countries everyone has to do national service. Bradley , W. Ross , S. Benn and R. Peters , and Richard B. Brandt In other words, that a person has a right to have social services protected is to imply that a government agency has a duty to guarantee and protect his right to social services. This means the same action of protecting social services is described in a passive and active voice, respectively. Many classic scholars use the language of duties instead of rights.

As an alternative to the confrontational distinction between negative and positive rights, Shue 53 suggests the categorisation of duties into three: those that avoid depriving people corresponding to negative rights , those that protect people from being deprived, and those that aid the deprived corresponding to positive rights. This traditional view that rights can be explained entirely in terms of duties has been rejected by a number of Western scholars. David Lyons 54—5 , for example, insists that the right of free speech or the right of a California motorist to turn right on a red light which he does not have in New York State has no clear duty associated with it.


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McClosky points out that the right of the conscientious objector imposes no corresponding duty on the part of others. Feinberg argues that charitable duties can go without correlative rights. Hart 93 implies that our duty not to mistreat animals and babies involve no rights against us.

Hugo A. Bedau says a duty to rescue a person in danger does not indi- cate that the person has a correlative right to the rescuer. Morally and philosophically, there cannot be any objection to supporting the ethical duties of people to one another. A state must be a prime duty-bearer to protect the human rights of its citizens.

The DPRK uses the concept of duties as the offspring of rights widely in its constitutions as well as in various policies. In their view, if the agencies of government are to protect rights and advance the common good, then citizens must stand by their undertak- ing to support them.

Laski viewed the nature of rights as social conditions, given to the individual as a member of society. To him, human rights are social because they never exist without the emergence of society. Most impor- tantly, rights go along with duties and, in fact, duties are superior to rights and the exercise of rights implies the exercise of duties. Modern Western political leaders have explicitly employed duty-language, varying in degree from Soviet or East Asian contexts.

Kennedy —63 and Barack H. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man. Western governments also recognise the wider responsibilities of citizens and respect for others as a central notion of citizenship. New studies on citizenship and human rights have to be examined empirically, in much greater detail, as the subject is becoming more and more important socially and politically as a result of globalisation and migration.

I have shown that there were some conservatives in the West who were critical of the normative language of the rights of man. Contemporary critical theorists and liberal communitarians are also in favour of a communitarian approach to human rights. Other Western political philosophers such as Shue and Pogge support welfare rights and believe that needs establish human rights. Now, we can move onto the Korean side and examine what kinds of philosophies dominated Korean society, starting long before Korean division from the seventeenth century late Chosun dynasty.

For more on this topic, see J. Sommerville The millet concept has a similarity to the concept of autonomous territories that has long been the European norm for dealing with minority groups. The millet system has a long history in the Middle East, and is closely linked to Islamic rules on the treatment of non-Muslim minorities.

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According to Virginia A. The primary respond- ents to the citizens of this right are non-governmental organisations or individuals who are legally competent to reconstruct the objectionable arrangements. Abi-Saab is an Egyptian born international law specialist and Honorary Professor of International Law at the Graduate Institute of International Studies in Geneva, having taught there from to However, no matter how westernised they are epistemologi- cally, they can hardly be named as Western because of their ontological backgrounds.

On paramountcy, he says most socio-economic rights are less important than other political rights. On practical- ity, socio-economic rights can rarely be secured by legislation only, and realising these rights is utterly impossible and enormously costly. This chapter explains some of the Chosun philosophies, namely Con- fucianism, Sirhak, and Tonghak, and extracts their conceptualisation relating to human rights. First, the Kabo reform was enacted in by the Japanese during colonisation.

Its ideas resembled contemporary liberal rights ideas closely but failed to survive in the DPRK after national liberation. Both Kim and Cho were widely respected and admired by the general masses in Korea, but both were assassinated after the former by the South and the latter by the North.

Chosun Confucianism and human rights Confucianism is a central part of Korean cultural identity. The neo-Confucian thought of the Song dynasty China — , epitomised in the writings of Zhu Xi, became the basis of ritual practice, family organisation, and ethical values as well as of the civil service examination system for Korean society. The colonial experience divided Korean society. Among Confucian scholars, some adamantly opposed Japanese-style modernisation and developed more nation- alistic views of Confucianism. Both in South and North Korea, many people still live under this kind of historical conception and emotion of victimhood, blaming the causes of tragedies in Korean history on foreign aggression.

This is also a prevalent world-view of the DPRK in its public discourse. In the Confucian system, each individual in social rela- tions has different roles and responsibilities: the husband has his responsibilities and the wife hers, for example. Each member of society has multiple relationships within society and, within these multiple relationships, one is supposed to act upon their social status and subsequently attached obligations to other members of society.

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Rites were principles that came from human relationships and formed part of the entire normative socio-political order. The principle of role-based relational ethics and social harmony leads to other characteristics of Confucianism. Weatherley concludes that the dominant ideas and practices of Confucianism were incompatible with a notion of rights, especially Western liberal rights, since people were unequal in terms of their moral status in the Confucian social and familial hierarchy. Critics of Confucianism such as Kenneth Christie and Denny Roy also consider the role-based normative social structure as highly hierarchical so that Confucian tradition cannot be compatible with the egalitarian idea of contem- porary human rights.

David Hall and Roger Ames suggest that Confucian heritage is inherently authoritarian and prone to hierarchy and elite control with an empha- sis on the rights of society over those of the individual Hall and Ames Some representatives of Asian civil society also strongly assert that authori- tarian political leaders in Asia have tried to use Confucian values in order to legitimise their corrupt regimes Asian Cultural Forum on Development Role-based Confucian culture does not automatically lead to repressive and abusive governments and corrupt regimes.

In contrast, the Confucian tradition can put moral and political pressure on those who are in higher positions in social relations so that they can take good care of other members within their respective social relations. The role-based Confucian understanding of what should be pro- tected by the virtuous ruler is dealt with in the following section.

The Record of Rites, one of the Five Classics of Chinese Confucian literature, makes far greater demands on the ruler than the ruled. Confucian teachings for kings particularly encouraged civility, humane concern, mutual respect, and benevolence Henkin ; J. Kang This has not taken place in North Korea either since the near-collapse stage of famine and malnutrition in the mids. For example, the eldest person in a group is normally given responsibility to take care of other members.


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