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Human Rights Education in Asian Schools Volume II

Harmonizing International Human Rights Norms and East Asian Cultural Values

Byung-Sun Oh

The United Nations Decade for Human Rights Education (1995-2004) is a clear expression of the unanimity among states on the value of human rights education (HRE). Governments in Asia have been voicing support for it almost as much as the nongovernmental organizations engaged in HRE programs. HURIGHTS OSAKA, for example, launched a research project on cultural values and human rights in early 1996, in response to the growing interest in culture and human rights in the region.

The project's goal is to examine the relationship between culture and human rights. It assumes the existence of a substantial number of positive elements in the region's cultures that directly relate to human rights. It also believes that certain human rights elements can strengthen existing cultural values. The project hopes to achieve the following:

  • identify key cultural values in some Asian countries that safeguard and promote personal and community well-being;
  • analyze how these cultural values relate to international human rights norms;
  • identify national laws, policies and programs which relate to these cultural values;
  • identify means of incorporating these human-rights-related cultural values into government and nongovernmental educational policies and programs; and
  • document the findings of the study and disseminate them to interested groups in the region.

However, several obstacles to fostering a human rights culture in Asia can be identified:

  • religious, cultural and social diversities among Asian states and the consequent difficulty in finding common standards of human rights protection;
  • strong cultural relativism and the consequent denial that international human rights norms are universally applicable; and
  • the prevalence of economic development goals over human rights concerns.

In order to overcome the above barriers to nurturing a human rights culture, they should be critically examined. We can re-evaluate phenomena concerning human rights issues in Asia, develop a new understanding of those phenomena and change people's attitudes.

We maintain the following:

  • Divergent religious and value systems are not necessarily negative factors in promoting a human rights culture, as European and American history shows us.

  • Cultural relativist arguments, raised mostly by Asian political elites to preserve the social hierarchy and authoritarian regimes, are anachronistic considering the recent sharp increase of litigation in dispute settlement in Asia.
  • The pragmatic approach adopted by former colonized states, such as Singapore and Malaysia, stressing economic development and unique Asian values to the detriment of universal standards of international human rights norms is inappropriate. The Republic of Korea and Taiwan, for example, have policies enhancing human rights standards not dissimilar to international standards.

It is necessary to link human rights and cultural values by reinterpreting current debates concerning universalism versus relativism, universal standards versus Asian values, rights-oriented individualism versus duty-oriented communitarianism, and so on. It is useful to examine some fundamental concepts and ideas in the Asian human rights debate:

  • the relativist conception of human rights;
  • the Asian-values argument; and
  • reconciling the universality of human rights with the particularity of cultures.

First, the argument that human rights are relative concepts is based on the premise that they reflect the culture of the Western powers, who were the major authors of human rights instruments starting with the United Nation's Universal Declaration of Human Rights. Thus, it cannot be assumed that human rights are applicable to other regions.

Second, some governments—especially of China, Malaysia and Singapore—maintain that there are common Asian values antithetical to Western values, such as placing society above the self and upholding the family as the building block of society; resolving issues through consensus instead of contention; placing duty as a counterpoint to rights; and taking care of the community's less advantaged members. The opposing view argues that cultural diversity is based on profound differences in values. Thus, the attempt to identify concrete examples of "Asian" values is likely to lead to a degree of selectivity and subjectivity. The opposing view also maintains that values perceived as "Asian" are not much dissimilar to values in other regions. It is thus questionable, to say the least, to assert that there are uniquely "Asian" values.

Third, a number of authors believe that there is a common ground where ideas about human rights from the West, East or other regions can be reconciled. While there is no comprehensive agreement on all aspects of culture, all cultures have basic elements that sustain a common understanding of human existence. One author states that "human rights do rely on the idea of human dignity which can also be found in various cultural and religious traditions. Thus, although human rights do not derive immediately from religious traditions, they are not alien to those traditions that have recognized the idea of human dignity. Hence, with reference to human dignity, a critical reconciliation between competing requirements of particular religious traditions and modern international human rights standards might be conceivable" (Heiner Bielefeldt, "Muslim Voices in the Human Rights Debate," Human Rights Quarterly 1995: 501). There is also a striking cross-cultural consensus on many values that we seek to protect by promoting human rights, especially those expressed in general terms. Examples are life, social order, the family, protection from arbitrary rule, prohibition of inhuman and degrading treatment, the guarantee of a place in the life of the community and access to an equitable share of the means of subsistence—all of which are moral aspirations in nearly all cultures.

I suspect we may be able to agree with Yash Ghai's view that "the development and understanding of rights are contingent on a variety of factors, moral ideas as well as material conditions, and that differences in the perception of human rights are attributable to these ideas and conditions rather than to any inherent notion of culture or community. This approach does indeed provide a basis for reconciling the so-called Western and Eastern perceptions of human rights" (Yash Ghai, "Human Rights and Governance: The Asia Debate" in Center for Asian and Pacific Affairs Occasional Papers, San Francisco: The Asia Foundation, 1994: 12).

II

The Vienna Declaration (1993) states: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms" (Section 5, Part 1).

This is the latest consensus among states on the issue of universality and culture. It embodies a compromise on the diverging views of states on the nature of human rights and the cultural peculiarities (among other differences) of societies. It reaffirms the universality of human rights and at the same time takes account of the actual realities obtaining within each state.

In a recent regional conference, several Asia-Pacific countries declared their support for human rights education that draws "...on the rich cultural heritage and diversity in the region, including appropriate recognition of family and community values." The same declaration states that "... human rights education must affirm not only rights and freedoms but also responsibilities"; "...promote the values and practices of healing, reconciliation and conflict resolution"; and "...cultivate participative values of governance, consensus building and accountability" (Conference-Workshop on Asia-Pacific Human Rights Education for Development, Manila, 1995).

III

The Korean Example

Legislating for Human Rights

While the concept of human rights has become internationalized, it needs to be more firmly grounded in domestic soil through a synthesis with indigenous cultures. The degree of commonality and difference between the concept of human rights and the concept of human dignity is rather subtle. But if we assume that human rights are a more legalized concept than human dignity, then Korean history and culture may be considered relatively "underdeveloped" compared to Western countries. Culture as well as history affect human rights today.

The idea of human rights inhering in each person was not part of pre-modern Korean legal culture; but one had duties according to one's place in the sociopolitical hierarchy, and within that context one's sense of duty might well carry with it, even in relations with superiors, a modest expectation that the other recognized a duty to reciprocate, if not in equal kind, at least with humane condescension. Thus, within the Confucian hierarchy of carefully differentiated stations in society, there existed to some degree a "reciprocal-duty consciousness" which, in effect, and in perspective, functioned as a type of qualified individual-rights consciousness. Irresponsibility was not an accepted principle of government or social rule, however often manifested by some elites.

Traditional Values in Korean Law

Nowadays, the harmonious integration of values stressing cooperation and competition among members of an organization appears to be crucial for Korean society's continuous development. The communal spirit-oriented new Confucian ethics, which stress duty-consciousness, opposed to the individual-oriented Protestant ethics, which emphasize rights-consciousness. For many Confucian-value-oriented Koreans, the development of the concept of basic human rights, especially in connection with private property, private interest and individual privacy, presents a challenge. This is so, in part, because the new Confucian ethics stress one's duty to a larger entity over individualism.

Status and Legal Rights of Women

The Korean Constitution stipulates that the value of marriage and family life is based on and maintained by the individual person's dignity and gender equality (Article 36:1). This may be interpreted as a reflection of the traditional value of stressing the integrity of the family system, although it is expressed in the contemporary rights-based language of human dignity and equality.

Discrimination against Women in the Labor Market

The Korean government, in pace with the worldwide trend of legislating the prohibition of gender discrimination in employment, introduced the Gender-Equal Employment Act of 1987 (revised in 1989) to promote gender equality of opportunity and treatment, institution of child-care leave and prevention of disadvantages for females in case of marriage and pregnancy. However, gender discrimination in the labor market continues due to the ineffectiveness of the legal system to prevent the continuance of unreasonable customs. A wide range of discrimination against female workers exists in recruitment and employment, wages, retirement age, promotion, job placement and assignment, education and training.

Since the early 1960s, Korea has achieved rapid industrialization mainly by relying on its abundant supply of cheap labor, especially that of females. According to government statistics, the rate of female labor force participation increased from 36.3 percent in 1963, to 39.6 percent in 1975, and to 45 percent in 1987. As a consequence, the female share in the labor force also changed from 34.9 percent in 1963, to 36.7 percent in 1975, and to 40.4 percent in 1987. Among the factors responsible for the rise in female labor force participation are modern education, with its emphasis on the equality of the sexes, and changes in the norms of sex-role differentiation.

In spite of the increased size and weight of the female labor force, however, sex discrimination still prevails in society as a whole, as well as within the labor market. Sex discrimination within the labor market refers to employment discrimination and wage discrimination. Employment discrimination can be classified into occupational discrimination and discrimination in internal employment practice. Occupational discrimination denotes employment of a woman in lower-paid, routine and more menial positions than a male counterpart despite her having the same educational and career background. Discrimination in employment practice denotes solely gender-based deliberate, unfair treatment in the workplace in terms of location, training and promotion. Wage discrimination denotes the implementation of a wage system differentiated by sex even when males and females are working on the same job.

There are several theoretical perspectives on sex discrimination in the labor market (Park 1992:50). The conservative perspective sees it as based on the inferior status of female human capital in terms of education and skills-training: it is proper that a female worker be inferior in terms of wage, position and work conditions. But before we accept this perspective and apply it to the Korean labor market, we have to consider the reason why the human capital of female workers is considered inferior to that of male workers in Korea.

The answer to this question is most likely to be found in the traditional sex-related norms of Korea. Traditionally, Korean people have a strong predisposition to favor boys due to the influence of Confucianism. As a consequence, a number of social norms stipulate that the female's role should be confined to household chores. However, such traditional norms are now changing slowly and investments in female education are increasing. Thus, when we handle the problem of sex discrimination in the labor market, we should not stick to female workers' inferior status in terms of human capital but should instead shift our attention to "sheer sex discrimination"—that is, why the status of female workers is not improving even though their educational level is on an upward trend.

Improving the Status and Legal Rights of Women

The Gender-Equal Employment Act prohibits employers from discriminating against women in hiring, dismissal or retirement. It guarantees special protection for pregnant women and mothers, with provisions for one-year child-care leave as well as 60 days of paid maternity leave. It also requires employers to provide child-care facilities in the workplace. It has contributed significantly to abolishing discrimination against women.

From 1980 to 1990, economically active women increased by 38.1 percent to a total of 7.5 million, while the number of men increased by 22.1 percent. The increase is due to the social approval of working women, the need for additional income for increased consumer appetites, a decline in the birth rate, and the use of new home appliances that free women from housework. A mere increase in the number of employed women does not automatically enhance their social status, however, as most of them are engaged in unskilled jobs. Many are employed in small-scale industries which are not protected by the Labor Standard Law, and their employment status tends to be unstable. A considerable number are temporary employees or daily workers. However, the increase in number of professional women means a rise in social status because they have opportunities to participate in decision making. Women now constitute 16 percent of doctors, about half of all pharmacists and 14.4 percent of journalists.

Legal status reflects political, economic and social status. Since the 1970s and 1980s, Korean women have come to develop an increased understanding of women's legal rights. As a result, the revised Family Law was passed in 1989 and hailed as the most outstanding victory of women's political groups. Women also participated actively in the enactment of the Equal Employment Law and drafted the Mother-Child Care Law and the Prevention of Prostitution Act.

The Family Law reflects tradition and custom as it deals with marriage and family life. First, the revised law amended the head-of-the-family inheritance and the succession system, thus weakening the patriarchal system somewhat; the head-of-the-family system, however, remains. Second, it broadened the scope of relatives, including the mother's and wife's relatives along with those of the father and husband. Third, the old law's provision permitting a husband to register a child born out of wedlock without the consent of his wife was abolished. Fourth, a new provision permits equal parental authority over the children; (the old law recognized only the father's authority). Fifth, the law concerning marital age was strengthened in favor of the wife. When a couple divorce, they must discuss who is responsible for rearing the children. A property-claim division was established for divorce cases. If a couple do not reach an agreement, the case is brought to the family court. Sixth, men and women are given equal rights to inheritance. Thus, it can be said that the Family Law enhances women's rights (Kim 1995: 12).

Due to the continuous efforts to improve women's legal and social positions, Koreans are changing their attitudes and perceptions of gender roles. The government recently established a new personnel recruitment policy introducing a quota system for women who apply for a government post. This affirmative treatment policy for women will have a tremendous impact on local government and private business sectors (K.N.C.W 1996).

IV

This paper has looked at the relationship of human rights and cultural values, and the nature of domestic law to see how well they can accommodate prescriptions of international human rights covenants. It has highlighted the role played by customary social norms and cultural values in formulating the law and cautions that this influence is susceptible to varying interpretations as an infringement on human rights or as a promotion of traditional society. Second, the paper has argued that domestic law must not only be strengthened so as to further guarantee the equality of all, but also to ensure that law can shape a more just society and stand up for the rights of the underprivileged. The combination of customary law, positive law and law as an agent of social change is typical of East Asian nations today. If they are to fully realize human rights as defined internationally, the role of each element in the combination must be taken into account.


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