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FOCUS December 1997 Volume 10

Regional Protection of Human Rights in Asia

Vitit Muntanbhorn

(This is the first of the two-part excerpt of the Summary of Lectures delivered by Prof. Munthanbhorn at the International Institute of Human Rights, Strasbourg, France in July 1997 - Editor's note.)

Asia is a region of vast contrasts. It is the birthplace of the two most populous counties of the world. Yet, there is a myriad of smaller countries which are part of the huge tapestry of cultures and traditions in the region.

In the past few decades, the region has been admired for its "economic miracle", particularly the impressive growth rate of various East Asian countries. Some of these "tigers" have enjoyed over ten per cent GDP growth per annum in recent years. The 1996 United Nations Human Development report compliments the region as follows:

"The experience of the fast growing Asian economies - Hong Kong, The Republic of Korea, Singapore and Taiwan (province of China) - shows how sustained long-term growth can expand employment (by 2-6% a year), reduce unemployment (down to less than 2.5%), and raise productivity and wages. This, in turn, reduced inequality and poverty. Such growth was led by small scale agriculture in Taiwan (province of China) and by labour intensive export-oriented manufacturing in Hong Kong, the Republic of Korea and Singapore".

However, the region is faced with much ambivalence on various fronts. There is no automatic link between economic growth and human development in the sense that national wealth leads necessarily to a fairer share of benefits among all groups. In some countries which have enjoyed a high economic growth rate, income distribution has actually worsened, creating an even bigger gap between the rich and the poor. There is thus increasing inequity in a number of settings.

While Asia contains some of the richest countries in the world, it also houses some of the world's poorest. Both rich and poor spend an inordinate amount on arms purchases. For instance, in 1994 South Asia spent 14 billion dollars on military matters, while 562 million people were languishing in absolute poverty, according to United Nations statistics.

On the political front, while much progress has been made towards democracy and democratization in several countries, there is the well-established fact that Asia is also the cradle of a number of authoritarian scenarios and armed conflicts. Political repression, discrimination, violence and civil strife compound the illegitimacy of various regimes.

It is in this setting that one is tempted to ask: How is the protection of human rights in the Asian region? Is there an inter-governmental system or machinery for such protection? If not, what are some of the possibilities for the future? In addition, how are the members of the civil society, including non-governmental organizations, acting and reacting in the face of massive human rights violations? What are the scenarios for human rights protection at present and in the future?

A) Regional Level

It is a well-known fact that there is no inter-governmental system for the protection of human rights in Asia, despite sporadic suggestions from various quarters to have such a system. This is in marked contrast with Europe, the Americas and Africa, all of which have, to a greater or lesser extent, some form of inter-governmental system in this field.

The almost natural reaction to this fact is to advocate immediately that the region needs a human rights system parallel to the other regions of the globe. Is such a reaction simplistic? There are a number of complexities which should be borne in mind in reflecting on the issue.

i) Concerns

First, there is the inescapable fact that at present, there is little or no political will to establish a system along the lines of those found in other continents. The current concern in governmental circles in Asia is less to do with this matter, but more to do with how to prevent developed countries from linking human rights implementation with the grant of aid or trade and related privileges, namely, "social clauses" or human rights conditionality which are now proposed by some regions in their discourse with Asia.

Second, the Asian region itself may be somewhat too vast or heterogeneous for a unitary human rights system. This leads to the question whether one should explore projects at other levels, such as the sub-regional and the national, which may organically grow and ultimately provide the confidence and the rationale for a regional system.

Third, there is still a paucity of accessions by Asian countries to many human rights instruments, in particular the 1966 Covenants on Civil and Political Rights and Economic, Social and Cultural Rights. This has been attenuated in recent years by more widespread accession to some human rights instruments of a more specific nature, in particular the Convention on the Rights of the Child to which nearly all Asian counties are now parties. However, the general hesitation towards international human rights instruments which transcend the state and override national sovereignty affects the attitude towards the possibility of a regional human rights instrument and/or machinery. An equally important message is that even where there have been accessions to international human rights instruments, implementation is often weak.

Fourth, the region is in the midst of the debate whereby a number of Asian countries are lambasting human rights (or at least the individual-oriented notion of human rights with political and other entitlements) as a Western concept and the international human rights system as Eurocentric. These Asian governments claim that there are various Asian values which provide the background for a more Asian perception of human rights. Such Asian values, according to those who espouse them, include the need for a strong government, deference to authority, respect for the community, and emphasis on economic development first (and perhaps political development later). The stand is one which rejects or limits human rights in so far as they pertain to individuals, and justifies "bread/rice" before "ballots", while ensuring that individuals have "duties" rather than "rights" in the face of the community.

An offshoot of this argument is that while human rights are universal in principle, they should bear in mind and may have to bend to regional and national "particularities". This viewpoint was propounded by the 1993 Bangkok Governmental Declaration on Human Rights, representing the governments of the Asia-Pacific region, which preceded the World Conference on Human Rights held in the same year in Vienna (although it was rejected by the 1993 Bangkok Non-Governmental Declaration on Human Rights and the World Conference Declaration itself).

Of course, one should not be naive about the Asian values argument. It is highly political in nature, and it has become "instrumentalized" by various governments which are less-than-liberal partly, if not mainly, to legitimize themselves. Given the volatile nature of the debate, much energy in the Asian region is spent upon rhetoric and invective rather than seriously examining the possibilities for better improvement of human rights in the region in a comprehensive manner through a regional machinery. However, Asian countries are correct to decry the double standards which exist worldwide, including among developed countries.

Fifth, to be fair to Asian countries, it should be noted that all are in favor of economic rights in the sense that these call for economic development and a restructuring of the international economic and financial system to reflect the concerns of developing countries. In recent years, they have also been espousing the right to development as part of this process. Regional developments for the promotion and protection of human rights are acceptable to them along this line. Directly or indirectly, this is taking place in some regional settings such as the Economic and Social Commission for Asia and the Pacific (ESCAP).

It is also interesting to note the growth of inter-regional economic cooperation which will have impact on human rights directly or indirectly. The rise of the Asia-Pacific Economic Cooperation (APEC) forum as a loose consultative grouping of Asia-Pacific countries exemplifies this. Although it is targeted to the liberalization of trade and commerce, inevitably it will have impact on at least on the economic aspects of human rights. However, this type of grouping with its economistic emphasis based upon consensus-building is unlikely to broach the whole range of human rights issues comprehensively.

Sixth, it should be noted that Asian governments are willing to accept, at least in principle, "core human rights" such as the right to life, freedom from torture, and freedom from slavery which converge with what are known as "non-derogable" or absolute rights in international jargon (even though they might in fact violate these core human rights). However, most of these governments are reluctant to advance a regional system which provides room for the comprehensive promotion and protection of the whole gamut of international standards on human rights in the civil, political, economic, social and cultural spheres. They are particularly reticent about freedom of expression and freedom of association, multi-party system and elections, limits on "national security", self-determination as linked with minorities and indigenous communities, and the role of human rights non-governmental organizations. Their fear of a regional human rights machinery is based upon fear of transparency, accountability and responsibility in the face of the universality and indivisibility of human rights.

Seventh, Asian governments often claim that they favor a non-confrontational approach and that this is part of the culture of the region. They tend to view much of the international protection of human rights as confrontational - a scenario which they would prefer to avoid.

This is linked with the fact that many view human rights violations as merely the internal affairs of a state and that this is not an area where the international community should exercise its protective mandate on behalf of the victims if this would lead to "sticks" such as sanctions rather than "carrots". Of course, such a view is inconsistent with the international advocacy of human rights which takes the position that human rights violations are of international concern and cannot merely be classified as the internal affairs of a state. However, the former view helps to explain why the process towards a regional system is slow.

Many Asian governments prefer "regional pragmatism" and quiet diplomacy rather than the potential of a regional system for the protection of human rights which would provide room for accountability, confrontation and reprimand, even if such pragmatism may be contrary to international law and human rights.

ii) Projects

Although there is no inter-governmental human rights machinery at the regional level in Asia, in recent years there have been various dialogues under the auspices of the United Nations to promote a step-by-step approach towards the possibility of a regional system. The approach is based upon consensus building, as well as fostering O`building blocksO' such as national initiatives (for instance, National Human Rights Commissions) which may lead to regional networking, interchanges, discourses, and gradually the steps toward a regional system. Confidence-building is part and parcel of this process.

The United Nations' Human Rights Centre sponsored this series of workshops (Manila 1990, Jakarta 1993, Seoul 1994, Kathmandu 1996, and Amman 1997). From these workshops, the message is: at the inter-governmental level, a formal regional system for the protection of human rights is not yet feasible. However, various activities can be undertaken to improve understanding, education, networking, and capacity-building. On the one hand cynic may underline that these workshops have been little more than talkfest. On the otherhand, there may be constructive avenues for the promotion of human rights through activities such as training which may ultimately help to prevent human rights violations.

From the perspective of non-governmental organizations, it may be noted that they have enjoyed a great deal of networking in recent years to highlight and counter human rights violations in Asia. There is a myriad of non-governmental organizations operating in Asia; several have regional coverage. Some encompass a broad range of human rights issues. This is exemplified by the work of the Asian Human Rights Commission based in Hong Kong and Forum Asia based in Bangkok. Some target more specific issues, such as child rights. Child Rights Asianet is an example of the latter. Others deal with broader concerns than human rights but may have a section that covers human rights. LAWASIA falls into this category. It deals with many legal issues but has a committee on human rights. Others are global movements which have a presence in Asia, e.g. the Global Alliance against Traffic in Women.

B) Sub-regional Level

There does not exist at the sub-regional level an inter-governmental system for the protection of human rights. However, various sub-regional organizations have emerged in Asia in recent decades to promote close economic ties. The two prime examples are the Association of Southeast Asian Nations (ASEAN) and the South Asian Association for Regional Cooperation (SAARC). The following analysis will focus on the former as a case study.

ASEAN has been at the forefront of economic growth in Southeast Asia. It has broadened its emphasis on economics, trade and commerce to regional security issues. In this pursuit, the ASEAN Regional Forum was established recently to provide for a dialogue forum between the seven members of ASEAN (Brunei, Indonesia, Malaysia, Singapore, Thailand, the Philippines and Vietnam) and outside powers.

Although some of the work of ASEAN touch upon human rights issues, this juncture is indirect rather than direct. For instance, ASEAN's existing programs concerning women's development, anti-drugs trade, and environmental cooperation are, to a greater or lesser extent, related to human rights issues, but they tend to be classified as "development" programs rather than human rights programs per se. Moreover, there is great hesitation in governmental circles to address the political aspects of human rights. Often, those aspects are shunned.

i) Concerns

The various concerns expressed in the earlier section on the regional level also apply, to a great extent, to the sub-regional level. For instance, the Asian values argument finds its most vocal proponents from some of the members of ASEAN, and the sub-region is totally against human rights conditionality or "social clauses". The paucity of accession to key international human rights instruments is another common trait in the sub-region. While the region has grown well in economic terms and democracy has blossomed in some countries, the region is also rife with a variety of human rights violations.

Of particular concern is ASEAN's reticence to put pressure on the junta in neighboring Burma to abide by international human rights standards and to cede power to those who were democratically elected in 1990 and their leader Aung San Suu Kyi who was until recently kept under house arrest by the junta. The so-called "Constructive Engagement" policy of ASEAN behind this approach towards Burma has meant, in practice, the casting of a blind eye to the egregious human rights violations in Burma which have been well documented by the United Nations. The policy is based upon the hope that gradual dialogue and economic ties will render the junta more malleable "step-by-step". It is a policy which opts for the primacy of economic and commercial ties with Burma, while marginalizing the human rights concerns which have been voiced internationally.

The current pre-occupation of ASEAN is to enlarge itself to become the "Southeast Asian Ten" incorporating the present seven members of ASEAN and three newcomers, namely Laos, Cambodia and Burma. The determinants for entry into the "club" do not, regrettably, include respect for human rights. If Burma manages to gain admission soon, it is not unlikely that the junta will use ASEAN as a bastion to protect itself against outside influence and reprimand.

The attitude towards Burma exemplifies a trait already noted earlier in the section concerning the regional level: there is a tendency among governmental circles to classify human rights violations (at least in the region or sub-region) as internal matters. This contradicts the international position which classifies them as matters of international concern.

It also exemplifies a measure of political expediency or pragmatism based upon self-interest. It is a well-known fact, for example, that a key member of ASEAN has, for many years, illegally occupied East Timor in breach of United Nations resolutions. While it is politically expedient for that country to classify the East Timor issue as an internal matter, this obviously flies in the face of international law and human rights and conflicts with the international jurisdiction that legitimately seeks to protect the rights of the Timorese people.

On another front, there is a variety of cross-border issues, especially cross-border crimes increasing in scope and complexity, with various human rights implications for the sub-region which governments and other sectors of society will have to tackle, often with much room for convergent action, whether or not one classifies them formally and directly as human rights concerns. They include the following:

- drug trafficking and related money laundering;
- human trafficking, including the trade in women and children for sexual and labor purposes;
- migrant workers, most disconcertingly the large number of illegals who cross frontiers;
- refugees and displaced persons;
- pollution, deforestation and other environmental damage; and
- resource conflicts, especially petroleum and fisheries.

ii) Projects

Although there is no sub-regional intergovernmental system for the protection of human rights, as noted earlier, several programs touch upon human rights concerns, even though not necessarily classified as human rights programs. The various cross-border issues noted above also call for more action together at the sub-regional level to address problems which cannot be solved by one party alone.

Have there been any statements from the sub-region on human rights which may indicate the types of "projects" which could help to promote and protect human rights?

It is worth remembering that in 1993 ASEAN governments, together with other Asia-Pacific governments, adopted the Bangkok Governmental Declaration on Human Rights with its homage to national and regional particularities rather than unqualified acceptance of the universality of human rights. The message was and is relatively clear: while the sub-region accepts that human rights are universal by nature, they may have to bend to various conditions in the sub-region. Taken to the extreme, this could mean lowering the universal standards to fit into the sub-region's governmental agenda.

It should be noted that every year, ASEAN foreign ministers meet at their annual conferences and issue statements of their positions. These have been supplemented by more frequent summits between the heads of government. In the early 1990s, at one of the ministerial sessions, there was a brief reference in its statement that it would explore the possibility of a human rights machinery for the sub-region. However, this has not borne fruit to date. On the other hand, what has grown is the number of national institutions, in particular National Rights Commissions and similar committees, in the ASEAN region.

En passant, it should be note that in 1993, the ASEAN Inter-Parliamentary Organization (AIPO) adopted the Human Rights Declaration of AIPO which reflected and still reflects, to a large extent, the attitude of ASEAN Governments towards human rights, with the following features:

  1. It advocates that human rights should be seen in the light of regional and national "particularities".
  2. Its principles begin with advocacy of human responsibilities/duties rather than rights.
  3. The text recognizes a short listing of fundamental rights, e.g. the right to life, freedom of thought, the right to property, which would be found in international human rights instruments. It then has a section on "Basic Rights and Duties of Citizens and States" including non-discrimination, freedom of expression, freedom of association, and the right to development.
  4. The text provides for the possibility of a human rights mechanism.

On analysis, the Human Rights Declaration of AIPO provides for several channels to lower rather than elevate international human rights standards. The emphasis on human "duties" is potentially restrictive of the rights of individuals. The attention paid to sub-regional particularities is similar in effect, and will dilute international standards where there is a conflict between the international framework and regional and national "realities and value systems". Likewise the mention of "national stability" in the text converges with the common practice among some countries which justify human rights restrictions on the basis of national stability and national security, even if the government itself is illegitimate. The presumptuous approach of the text is clearest in its use of "the peoples of ASEAN" when the majority of the peoples in ASEAN have not been consulted on the text. "We the Peoples:, in this context, inevitably means "We the Governments" or "We who are close to the Governments" as part of the ruling elite seeking to legitimize their approach and rule which may not be people-centered or participatory at all.

(To be continued)