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Australian Journal of Human Rights |
In 1997 the Joint Standing Committee on Foreign Affairs, Defence and Trade referred to its Human Rights Subcommittee a reference on the Asia-Pacific Regional Dialogue on Human Rights. The reference arose from concerns expressed in the Subcommittee's 1994 report to Parliament, A Review of Australia's Efforts to Promote and Protect Human Rights. The Human Rights Subcommittee is to inquire into and report on:
This submission addresses two aspects of the Subcommittee's terms of reference: (1) the current debate on the interpretation of human rights in the Asia-Pacific region; and (2) the role of non-government institutions and the means by which these might be improved.
With the demise of the Cold War, some Asian voices have challenged the cross-cultural applicability of `universal' human rights. These voices have suggested that there are distinct Western and Asian perceptions of human rights. For example, an official in the Singaporean Government, B Kausikan, has referred to `the deep scepticism with which many Asian countries regard Western posturing on human rights'. Kausikan claims that:
The myth of the universality of all human rights is harmful if it masks the real gap that exists between Asian and Western perceptions of human rights. The gap will not be bridged if it is denied.[1]
Such voices are not without their supporters in Australia. In The Weekend Australian in April 1966 John Hirst argued that:
Our neighbours to the north do not believe these values are appropriate to them. They are increasingly resentful of Western lecturing and hectoring and have developed a full-blown counter ideology of order, discipline and the Confucian way ... Before Asians have forgotten the old White Australia Policy, we should not revive it in another form.[2]
It is in our submission necessary to qualify any suggestion that amongst Asian governments there is one view of human rights and that this view is implacably opposed to the traditions of individual human rights first developed in the West. The invocation of arguments about Asian values is not monolithic. Nor is the approach of Asian governments to human rights always consistent. In Asia, as elsewhere, a constant movement in human rights policy derives from pressures for change from within and without societies. Perceptions of human rights are transient and differ from government to government, as well as within governments. It would be surprising if there were one perspective, since neither Asian culture nor Asian realities are homogenous throughout the continent.[3]
Thus, on the one hand, the Malaysian Prime Minister Mahathir Mohamad has sharply criticised Western advocacy of human rights, in particular:
[I]ndividuals in some developed countries [who] consider it their right to tell us how to rule our country ... These people latch on to various causes such as human rights and the environment in order to reimpose colonial rule on us ... Hegemony by democratic powers is no less oppressive than hegemony by totalitarian States.[4]
At the same time, the Deputy Prime Minister of Malaysia, Anwar Ibrahim, has commented:
If we in Asia wish to speak credibly of Asian values, we too must be prepared to champion those ideals which are universal and belong to humanity as a whole. It is altogether shameful, if ingenious, to cite Asian values as an excuse for autocratic practices and denial of basic rights and civil liberties. To say that freedom is Western or un-Asian is to offend our own traditions as well as our forefathers who gave their lives in the struggle against tyranny and injustices. It is true that Asians place greater emphasis on order and societal stability. But it is certainly wrong to regard society as a kind of false god upon whose altar the individual must constantly be sacrificed. No Asian tradition can be cited to support the proposition that in Asia the individual must melt into the faceless community. If Confucianism is cited as an exception, Professor Tu Wei-ming, a contemporary Confucian scholar and thinker, would certainly resent that ... We can equally cite other Asian thinkers, Muslims, Hindus or other, expressing a similar position.[5]
Moreover, Asian governments do not brush aside criticism of their human rights records lightly, but seek to respond seriously, asserting or attempting to demonstrate adherence to international human rights norms.[6] Despite its continued invocation of Article 2(7) of the UN Charter to argue that human rights are essentially within the domestic jurisdiction of states, the Chinese Government is at pains to affirm its formal commitment to human rights. The White Paper on Human Rights in China of October 1991 claims that:
China recognises and respects the purpose and principle of the Charter of the United Nations related to protection and promotion of human rights. It appreciates and supports the efforts of the UN in promoting universal respect for human rights and fundamental freedoms and takes an active part in UN activities in the human rights field.[7]
The Chinese White Paper not only affirms the importance of economic and social rights, the foremost of which is the right to subsistence, but also addresses civil and political rights. Thus, `the Chinese people have gained extensive political rights' and `China attaches great importance to human rights protection in the administration of justice'. According to the White Paper:
The Constitution provides for a whole range of political rights to citizens. In addition to the right to vote and to be elected ... citizens also enjoy freedoms of speech, the press, assembly, association, procession and demonstration ...
In every link of the work of public security and judicial organs and in the judicial procedure, China's law provides definite and strict stipulations to protect and guarantee human rights in an effective way.[8]
Thus, despite assertions of `Asian values' there is a formal commitment to human rights throughout the region. While some governments dissociate themselves from the `Western' human rights agenda, participation in UN human rights treaty regimes has increased. Indonesia, for example, has ratified the Convention on the Rights of the Child (CROC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and signed the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Malaysia and Singapore have ratified CEDAW and CROC; China CEDAW, the Convention on the Elimination of All Forms of Racial Discrimination and CAT; Myanmar (Burma) CROC. In recent years, an intra-regional and inter-governmental dialogue on Asia-Pacific regional human rights arrangements has begun. To suggest that self-interest and Western pressure alone account for a more active approach to human rights in East and Southeast Asia is, as Kausikan has noted, insufficient and condescendingly ethnocentric Western.[9]
It is also clear that within the region many non-governmental voices -- mostly scholars and non-governmental organisations (NGOs) -- take issue with the suggestion that respect for culture and social and economic context must lead to a rejection of international human rights norms. While calling for greater recognition of contextual diversity and cultural specificity in the international practice of human rights, they suggest that it is inaccurate and ahistorical to posit distinct Asian and Western notions of human rights.
Yash Ghai has argued that the well-modulated voices of these NGOs provide a consistent and coherent alternative view of human rights.[10] These voices urge the inclusion of cultural values and perceptions in discourse about human rights, but do not allow culture to trump universally applicable standards nor to deny the indivisibility of human rights (civil, cultural, economic, political and social). Asian human rights and development NGOs have recognised the value of human rights in their complex local struggles. They have drawn attention to reliance on arguments about Asian values by regimes and elites in order to legitimise oppression and exploitation. Coinciding with a preparatory meeting of regional governments prior to the 1993 World Conference on Human Rights, representatives of more than 110 human rights and development NGOs from 26 Asia-Pacific countries met in Bangkok. On 29 March 1993 they adopted the Bangkok NGO Declaration on Human Rights, which states:
There is emerging a new understanding of universalism encompassing the richness and wisdom of Asia-Pacific cultures. As human rights are of universal concern and are universal in value, the advocacy of human rights can not be considered to be an encroachment upon national sovereignty. We affirm our commitment to the indivisibility and interdependence of human rights, be they economic, social and cultural, or civil and political rights. There must be a holistic and integrated approach to human rights. One set of rights cannot be used to bargain for another. We emphasise the need for balanced and sustainable development, bearing in mind maximisation of people's development, integrated approaches on civil, political, economic, social and cultural rights; equity and social justice; income distribution and fair resource allocation.[11]
A Hong Kong based NGO, the Asian Human Rights Commission, has recently finalised an Asian Charter of Human Rights.[12] Like the Bangkok NGO Declaration, this initiative rejects a simple dichotomy between unrealistic universalism and paralysing relativism. Thus, while the views of the most forceful advocates of `Asian values' more often receive international attention, it is evident that other voices in Asia employ language of universal human rights to articulate a variety of concerns. Despite differences of emphasis and approach, there is an increasing convergence of human rights perceptions within non-governmental constituencies in Asia and in the West.
These conclusions are supported by the experience of the Diplomacy Training Program (DTP) in providing human rights training to individuals and organisations from almost all countries across the region, including Australia, Bangladesh, Cambodia, East Timor, India, Indonesia, Fiji, Malaysia, Myanmar (Burma), Nauru, Nepal, New Zealand (Aoteoroa), Papua New Guinea, the Philippines, Sri Lanka, Thailand and Tonga. They were affirmed by a meeting of human rights educators and representatives of human rights NGOs from Bangladesh, Burma, East Timor, Hong Kong, India, Indonesia, Nepal, Pakistan, the Philippines, Papua New Guinea, Sri Lanka and Thailand, as well as Australia, held in Sydney in August 1996, to discuss the main tasks of the UN Decade for Human Rights Education (1995-2004) in the Asia-Pacific region. The participants affirmed that:
The protection and promotion of human rights are a matter of legitimate international concern and the advocacy of human rights can not be considered an encroachment upon national sovereignty. As affirmed in the 1993 Bangkok NGO Declaration, there is emerging new understanding of universalism encompassing the richness and wisdom of Asia-Pacific cultures. Historical conjunctures and cultural and religious traditions are relevant in the implementation of international human rights norms. Human rights education efforts should address and respect the real-life struggles and experiences of learners and engage different cultural and religious traditions.
All human rights are indivisible and interdependent. They are essential for the survival and development of humankind. In human rights education, there must be a holistic and integrated approach to all human rights (civil, cultural, economic, political and social) both individual and collective.
Participants also noted that:
A number of governments in the Asia-Pacific region refer to distinct `Asian values' and challenge the legitimacy of international action for the promotion of human rights. The prevailing trend in the Asian media is similarly to champion Asian values. The extreme understanding of Asian values as a unique set of preferences found only in Asia is untenable. Whilst there must be recognition of contextual diversity and cultural specificity in the implementation of human rights, it is incorrect to posit distinct Asian human rights notions.
What conclusions can be drawn for the regional dialogue on human rights? In our submission the regional dialogue must engage differences and demonstrate openness to the diversity of cultural and contextual realities which condition customs and practices. At the same time we take issue with the suggestion that respect for context and culture must lead to a rejection of universally applicable human rights norms. It is our submission that most of the disagreement is over the implementation of human rights, rather than the norms themselves.[13]
To overcome the antagonism between unrealistic universalism and immobilising relativism, there is a need to depart from a level of extreme abstraction and generality and to address issues of practice. Human rights judgments require skill in evaluating how, in particular instances, historical conjunctures and cultural and religious traditions produce a particular conception of right and wrong. In turn, such judgments can assist the development by Australia of effective context-specific policy and strategies which can enhance the protection of human rights in the region.
Moreover Australia's dialogue on human rights must address real concerns about selectivity and a lack of self-reflexivity in the foreign policy of Western governments. A number of governments in the region see human rights as related to the project of western global hegemony and an instrument of economic competition.[14]
We strongly reject the view that human rights must not be allowed to jeopardise Australia's share in the region's economic future. It is our submission that Australia's interests are most likely to be served if our foreign policy is perceived to reflect the values of Australian society. This does not mean that Australia should sanctimoniously preach to regimes which fail to respect human rights. In pursuing human rights objectives, Australia must display an understanding of different cultural contexts and political systems and of how these factors create different perspectives.
While no government is a model of consistency in its human rights diplomacy, Australia must seek to maximise consistency in relation to human rights in its foreign policy. Human rights policy must be pursued on a genuinely non-selective, non-discriminatory basis. While in particular bilateral relationships, differentiated, results-oriented approaches will be most appropriate, human rights should not be downplayed in deference to other objectives.[15]
Further, while Australia must not be apologetic or reticent in advocating international human rights standards, neither must it disregard its own record. A reluctance to acknowledge serious abuses in the past and present, in particular the much unfinished business in relation to Aboriginal and Torres Strait Islander peoples, seriously undermines Australia's regional credibility on human rights. A precondition to any serious cross-cultural dialogue is criticism of one's own human rights policies and practice.
Finally, in the pursuit of human rights objectives in Australian policy in the region, a significant proportion of development assistance funds must be earmarked for programs concerned with promoting human rights. Both the UN Committee on Economic, Social and Cultural Rights and the Working Group on the Right to Development have challenged the view that development assistance and the promotion of human rights are distinct enterprises and that human rights have at best a marginal role in development planning.
In the context of overseas development assistance, much discussion of the relationship between human rights and development has focused on the issue of conditionality; that is, the linking of the provision of aid to the human rights performance of the recipient government. Recipient governments have challenged the legitimacy of the conditionality approach. They refer to a tendency of donors to use human rights criteria selectively, a lack of coherence and an inconsistency with respect to different recipients. It is our submission that Australia should emphasise a promotional role for human rights in regional, indeed all, aid policy and programs. All facets of development should be addressed from the human rights viewpoint, not just political prisoners and electoral irregularities but social infrastructure, such as health, education and social security as well. A promotional approach would further enhance non-selectivity, consistency and transparency in Australian foreign policy.
In particular, we submit that the regional human rights dialogue would be facilitated by education efforts aimed at increasing awareness of the role of human rights in development co-operation. As the August 1996 Sydney Workshop of Human Rights Educators affirmed:
Within the region, there is a particular need for increased awareness of the role of human rights in development co-operation and of the human right to development. Support for human rights education efforts should be provided through development assistance. Officials involved in development co-operation, in both donor and recipient countries, must ensure transparency and participation in the development process. All development co-operation should be imbued by human rights education.
It is also our submission that through the provision of human rights education, non-government institutions have a critical role to play in enhancing the debate about the interpretation of human rights in the region. It is our experience that non-governmental actors in the Asia-Pacific region are best placed to provide training, to convene fora and organise other activities designed to promote a continuing dialogue which affirms the universality and indivisibility of human rights.
The Australian Government, through support of regional organisations which provide human rights education, can make a significant contribution to promoting the objectives of the UN Decade for Human Rights Education in the Asia-Pacific region. As the August 1996 Sydney Workshop of Human Rights Educators affirmed, in order to promote the objectives of the UN Decade for Human Rights Education in the Asia-Pacific region, it will be essential to respect the autonomy and strengthen the capacity of NGOs and civil society institutions to play a central role in the provision of human rights education. It is fundamental to the philosophy of the DTP that appropriate and effective strategies for human rights education should emphasise popular and participatory education. Human rights education must be rooted in the lives of learners, especially those most marginalised and vulnerable. Educational processes should be inclusive, action-oriented and empower people and the civil society to improve their quality of life and build a culture of peace based on democracy, development, mutual understanding and respect.
Finally, it is our submission that there is an urgent need for improved human rights infrastructure within Australia. Nationally, capacities for human rights documentation, education and information are virtually non-existent. Few bodies are equipped to provide human rights education and training, or have access to primary human rights documentation or information about human rights instruments and supervisory procedures. Australian human rights NGOs and centres such as the Australian Human Rights Centre experience considerable if not insuperable difficulties in raising funds for their activities. While modest funds are available for off-shore activities, neither Australian nor overseas funding agencies appear interested in developing human rights capacities and infrastructure within Australia.
[*] On 1 August 1997 Sarah Pritchard, Director of the Australian Human Rights Centre, and Jane Corpuz-Brock, Director of the Diplomacy Training Program, made a written submission to the Subcommittee. On 4 February 1998 they gave evidence before a public hearing in Sydney. The Diplomacy Training Program (DTP), a non-governmental organisation founded by Dr Jose Ramos-Horta and affiliated with the Faculty of Law at the University of New South Wales, is one of the main catalysts of regional human rights training and education activities. It works with local trainers and organisations to raise the level of understanding of human rights throughout the region. The DTP participants are committed to an understanding of human rights as universal and indivisible. The DTP collaborates in aspects of its work with the Australian Human Rights Centre (AHRC). In August 1996, for example, AHRC and the DTP convened a workshop on Asia-Pacific human rights education to discuss tasks for the UN Decade for Human Rights Education (1995-2004) in the region.
[1] Kausikan B `Asia's Different Standard' (1993) 92 Foreign Policy 24. See generally Pritchard S `"Asian Values" and Human Rights' in (1996) Proceeding of the Fourth Annual Meeting of the Australian New Zealand Society of International Law 153-177.
[2] Hirst J `In Defence of Appeasement', Weekend Australian, 13 April 1996, p 25.
[3] Ghai Y `Human Rights and Governance', (1994) 15 Australian Yearbook of International \tLaw 1, at 6.
[4] Statement by H E Dato Seri Dr Mahathir Mohamad, Prime Minister of Malaysia, at the Plenary of the Forty-Sixth Session of the United Nations General Assembly, New York, \t24 September 1991; cited in van Ness P `Australia's Human Rights Delegation to China, 1991: A Case Study', Russell P / van Ness P/B-H Chua, Australia's Human Rights Diplomacy, (Australian Foreign Policy Papers: Canberra 1992) 49, at 76.
[5] Ibrahim A `Media and Society in Asia', Keynote Speech by Anwar Ibrahim, Deputy Prime Minister of Malaysia, Asian Press Forum, Hong Kong, 2 December 1994, pp 4-5.
[6] Kausikan, 1993, at 24.
[7] Information Office of the State Council, Human Rights in China, Beijing 1991.
[8] Ibid.
[9] Kausikan, 1993, at 25.
[10] Ghai Y `The Asian Perspective on Human Rights', Asian Human Rights Commission Newsletter, Vol 5, October 1993, 11 at 11.
[11] Regional Meetings: Report by the Secretariat: Bangkok NGO Declaration on Human Rights, UN Doc A/CONF 157/PC/83, at 2.
[12] Reproduced Human Rights Defender, June 1997, vol 6, no 2.
[13] Bauer J `Human Rights in the Post-Cold War Era: Policy Options for Asia', (1994) 4 Human Rights Forum 3, at 25; also Australian-Asian Perceptions Project, Perceiving `Human Rights', 1993, at 28.
[14] Kausikan, 1993, at 27-28.
[15] In a 1989 report, Australia and the Northeast Asian Ascendancy: Report to the Prime Minister and the Minister for Foreign Affairs and Trade (AGPS: Canberra 1989), Ross Garnaut advocates that human rights be de-emphasised in general and, in particular, that human rights representations be made more selectively in our relations with Northeast Asian countries. See I Russell `Australia's Human Rights Policy: From Evatt to Evans', in Russell P/van Ness P/B-H Chua Australia's Human Rights Diplomacy (Australian Foreign Policy Papers: Canberra 1992) 3 at 42, 47.
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URL: http://www.austlii.edu.au/au/journals/AUJlHRights/1999/9.html