Jurisdiction under the Rome Statute is automatic: a state party to the treaty accepts the court's jurisdiction over all crimes within its scope. However, the ICC is not a substitute for national systems, but may only act where national systems do not themselves investigate or prosecute, or where they are "unable' or "unwilling" to do so adequately, as defined in the statute.
Private actors, such as NGOs and Civil society actors, also play an increasingly important role in the global human rights regime.11 They embrace almost every aspects of human rights regime:
thus they do research, outreach education, advocacy, and norm promotion, agenda setting, lobbying governments and intergovernmental organizations, implementing programs, and delivering services, and humanitarian assistance, monitoring implementations, and direct action.
Some NGOs are also presented on official delegations for human rights discussions. The best known international human rights NGOs include Amnesty International (AI), Human Rights Watch (HRW), and International Commission of Jurists. NGOs, within and along side with the UN system, became an active contributor, with such position as "Consultative Status" in the ECOSOC under the Article 71 of the UN Charter.
Of course, states are probably the most important actor in the human rights field. In fact, states set standards and monitor violations, but states are also the primary violators and the target of enforcement efforts. Thus, states become a party in human rights issues, positively or negatively. In the protection and promotion of human rights, especially some states, like many Northern European states, have been active participants and implementers in human rights norms and principles. On the other hand, many other states, including several East Asian states, have been subject of UN resolutions of mandate on human rights.
Regional human rights systems have emerged over the years, drawing inspiration from the human rights provisions of the UN Charter and the Universal Declaration of Human Rights. They were further stimulated by a variety of historical and political factors in each region. Examples of the regional systems include four major ones: the Council of Europe, the Organization of American States (OAS), the Organization of African Unity (OAU) or AU (African Unity) and the Arab League.12
Why there are several regional human rights regimes, besides the global regime? And, what are the advantages of having regional human rights regime, as now existed? In short, the regional system will be easier to make consensus in norm-setting, accessibility, and implementation.13 Specifically, the regional arrangements, with fewer states, are easier to draft and administer texts on human rights, to make a geographical, linguistic access for implementation, or to enforce the decisions of the regional bodies.
Thus, for example, the European human rights system, which had been developed with the creation of the Council of Europe, adopted the European Convention on Human Rights (ECHR) in 1950. Furthermore the European system was the first to create both an international court, the European Court of Human Rights, and a procedure for individual complaints. It also has the European Commissioner on Human Rights,
In inter-American system, the OAS Charter proclaimed the "fundamental rights of the individual" as a founding principle, with the earlier adoption of 1948 American Declaration on the Rights and Duties of Man. In 1959, the OAS created a seven-member Inter-American Commission on Human Rights, which expanded its power subsequently to include the power to receive complaints from victims. The American Convention of Human Rights, signed in 1969, and entered into effect in 1978, created also Inter-American Court of Human Rights.
For Africa, the African Charter on Human and Peoples' Rights (African Charter) was adopted in 1981. The Charter differs from others in its inclusion of "people's rights". The African Charter (or
12 thers include CIS (Commonwealth of Independent States) of 12 former Soviet republics (with Convention on Human Rights and Fundamental Freedoms, 1995)
13 Rhona K. M. Smith, ibid. op.81-82
Banjul Charter) establishes the African Commission on Human and Peoples' Rights. In June 1998, the OAU adopted a Protocol to the Banjul Charter, approving the creation of an African human rights court. Meanwhile, the League of Arab States approved an Arab Charter on Human Rights in September 1994. The Arab Charter requires periodic reporting by states and implies that Arab League Human Rights Committee may request a report. However, the Charter specifies yet no other promotion or protection functions for the committee.
In contrast to these developments, however, East Asia as a whole has not developed a regional human rights system. Despite the efforts by NGOs and the United Nations, East Asia, or Asia-Pacific region remains the only area without regional human rights regime or system in the world. In 1993, more than a hundred Asia-Pacific NGOs adopted an Asia Pacific Declaration of Human Rights supporting the creation of a regional system. In 1997, some Asian NGOs adopted Asian Human Rights Charter. In East Asia, the ASEAN possesses a human rights commission, and the APEC forum has the Human Resources Developing working group. Nonetheless, the calls for the establishment of a regional human rights regime were not realized yet. At a 1996 UN-sponsored workshop, in fact, the thirty participating governments concluded that "it was premature, at the current stage, to discuss specific arrangements relating to the setting up of a formal human rights mechanism in the Asian and Pacific region".
There are several reasons and backgrounds why East Asian, or the Asia-Pacific region, has not developed or could not develop a human rights regime. First of all, in spite of some solidarity and increasing interactions, most of the nations in the region do not share a common identity as
"Asian-ness". There is a far greater diversity of language, culture, legal systems, religious traditions, and history, compared to other regions of the world.
Second, many of Asian nations have "strong" governments, claiming state sovereignty as a sacred principle of international relations. Regardless of whether authoritarian, socialist, or liberal democracy, Asian nations have a tendency to preserve their sovereign prerogatives against other nations, as well as vis-a-vis civil society.
Third, the governments in the region are often reluctant to criticize other governments for human rights violations. Many have been unwilling to ratify human rights instruments, fearing their own human rights policies and records. Fourth, China, as a dominant regional power, as well as a permanent member in UN Security Council, exercises considerable, mostly negative, influence over the discussion of human rights issues. Despite economic success with open economy, as well as improving living standards, China as a whole maintains authoritarian regime with one party system, not allowing further political freedom and democracy.
Lastly, there are fundamentally serious philosophical differences of opinion on the issue of human rights between the East and the West. In principle, Asian nations tend to cherish "Asian value", which in general includes such elements as belief in strong government, obedience to authority, and respect for the community.14 Thus the debates in this regard have progressed in two specific aspects, especially with the notion of "Asian Value." The first debate concerns the subject matter and definition of human rights: whether focusing upon the political rights of the individual or the socio-economic rights of the collective group. The second debate has to do with the question of whether human rights is a relative or universal concept.15
On the first question, the Western nations in general insisted that the individual is the most important component of any political system and an individual rights must be protected from encroached by the state. China, Malaysia and many Asian states reject this notion of human rights, arguing that collective rights had to come first. On the second question, the west in general advocates the universality of human rights, applicable to all peoples, in all states, religions and culture. But, many Asian states have argued that human rights is relative, taking into consideration of different culture, history, and traditions. They have criticized that the West was unjustifiably using the notion of universality interfering in the domestic affairs with its own interpretation of human rights. Accordingly, East Asia, in spite of a generally high standard of human rights, still
14 For a critical analysis of the notion of Asian values, Jack Donnelly, International Human Rights ibid., pp.131-135
15 or discussion of the debates on individual rights vs. collective rights, and universalism vs.
relativism in human rights, see Jack Donnelly, ibid., pp.32-35
lags behind in developing stronger human rights regime or governance, comparing to other regions of the world.
2-2. Major Human Rights Issues in East Asia
East Asia, like other regions of the world, has a variety of human rights issues in national, or regional context. The issues range from North Korean prison camps and refugees to China's repression on separatist movement, to Myanmar's military rule, to the remnants of the serious human rights violations in East Timor and Cambodia.