Asian human rights still an enigma

The following article is excerpted from a paper presented at a human rights conference in Seoul recently.

By T. Mulya Lubis

SEOUL: It is no mistake to argue that human rights implementation in the Asian region is likely to encounter some basic problems -- not peculiarly Asian -- that might hamper it.

Obviously, there are a series of unanswered questions lending urgency to any dialog. For example: What is the appropriate place for human rights in any given country? Are human rights universal or culturally determined? What is the relationship between human rights and economic development?

There are other questions but the ones above indicate that continuing an open and spirited dialog is a condition sine qua non.

What are the problems found in the Asian region that might hamper or negate the implementation of human rights as stipulated in various international human rights instruments?

1. Limited acceptance of universality: From the outset it seems that every country in the Asian region adheres to the universality of human rights, but if one reads all the statements made by the Asian leaders carefully, it is obvious that human rights has never been viewed as universal.

The fact that implementation of human rights falls under what is called "national jurisdiction" may undermine and negate the universal character of human rights. It must be taken into consideration that in some Asian countries a kind of indigenous concept of human rights seems to be re-emerging, and this might in some respects opposes the universal character of human rights.

It is undoubtedly true that human beings live in a variety of different societies with distinct social and cultural values. This, however, does not necessarily mean that human rights are local and particular.

Above all this diversity in social life, human beings are human beings with all basic human rights attached to them for being human. If the adjective "human" is taken seriously, the idea of human rights must be the idea that there are certain rights which whether or not they are recognized, belong to all human beings at all times and in all places.

(2) Limited acceptance of indivisibility: From various statements made by the Asian leaders, we can read that many Asian countries adhere to the notion of indivisibility of rights meaning that there are on one hand, an economic and social rights, and on the other hand, cultural rights.

The two most recent human rights declarations produced in the Asian regions, namely, the Bangkok Declaration and the Jakarta Message, seem to underline the principle of indivisibility. However, if we carefully read the entirety of those statements it can be concluded that promotion and protection of human rights can only be facilitated by economic development that serves as the key or the prerequisite to the promotion and protection of civil and political rights.

It does not, of course, follow that economic development is always in line with the implementation of economic, social and cultural rights. However, it is not totally wrong to conclude that emphasizing, or overemphasizing economic development, will inevitably lead to the negation of indivisibility of rights. This is the translation of the trade-off theory in which one category of rights, in this case civil and political rights, can be temporarily suspended and perhaps violated in the name of the "economic development ideology" that seems to be strongly adhered by many Asian governments.

(3) Primacy of collective rights: There have been many statements criticizing that the UN Declaration gives special emphasis to individual rights. It has been argued that if any individual demands individual rights as absolute rights, then various conflicts will arise and that this would be very dangerous for diverse and complex societies.

This is because human beings are not just individual, they are particular individuals belonging to a particular family, an ethnic group and a country. It is in this regard that many Asian leaders argue that collective rights (group and communal) are far more important than individual rights since they help maintain the stability of the community and country.

The primacy of collective rights over individual rights in the Asian tradition goes well beyond the spirit and letter of exception to individual rights recognized by the Western liberal tradition.

This view seems to be widely shared by many Asian leaders. To a certain extent that concern is legitimate, however, in the last 45 years of international human rights discourse, the distinction between individual rights and collective rights has become blurred.

Both individual and collective rights have their own place in every society. The right to development, the right to peace, the right to a healthy environment, the right to religion are clearly the right of every individual, as well as human beings collectively. They are interrelated and interdependent.

In conclusion one can say that collective rights are recognized and respected together with individual rights. However, it is wrong to conclude that collective rights are far more important than individual rights. One should not make unnecessary conflicts between those two categories. (4) Primacy of duties: There has been criticism over the concept of rights from the point of view which argues the importance of a person's duty toward both state and society. The concept of dharma, meaning duty or devotion (such as widely held in India), has been used to explain the philosophy behind the significance of duty.

Although not very well elaborated, the concept of duty, then, is not totally unaccounted for in human rights discourse. In fact, rights have always been corollary related to duties. It has been argued that implementation of human rights and obligation of individuals toward their community are a single entity.

To deny the relationship might lead to instability and disharmony, and it would be dangerous for the future of individuals and community. To a certain extent it is undeniably true, however, one should not stresses the important of duties too much, especially in countries where democracy and Rule of Law are not that strongly observed.

The inevitable outcome of overemphasizing duties over rights is the reinforcing of the continuity of strong (and repressive) states.

(5) Outright rejection of conditionalities: This is indeed a very controversial issue in human rights. Many Asian governments out rightly reject the idea of linking any economic assistance to the improvement of human rights conditions. Both the Jakarta Message and the Bangkok Declaration reiterate such a rejection.

In strong words the Jakarta Message says that "no country should issue its power to dictate its concept of democracy and human rights or to impose conditionalities on others". The Bangkok Declaration says that any attempt to use human rights as a conditionality for extending development assistance should be discouraged.

Perhaps this is not a peculiarly Asian attitude. Other developing countries in Africa and Latin American may have a similar attitude. Whether this is true or not, the stance actually constitutes a kind of double standard attitude on the part of many Asian governments.

On one hand most Asia governments encourage foreign investments with various incentives attached, while on the other hand they reject conditionalities. It should be kept in mind that every foreign investment bring "values" which might be new or alien, but those "values" are needed and function as logical consequences of foreign investments.

Foreign investment is not merely looking for opportunity and stability. In the long run, foreign investment requires a strong judiciary, the rule of law, human rights guarantees and democracy. This is the long term safety belt for foreign investment.

Therefore, if no foreign investment and foreign economic assistance is needed, then there would be no problem at all. But, if foreign investment and foreign economic assistance are needed, reasonable conditionalities cannot be avoided. Like it or not, these conditionalities will always be there, whether implied or publicly declared.

Conditionalities may not be accepted, but it should be understood in the sense that they constitute a hard fact of international relationships. After all, there is no free lunch, and it is always legitimate if donor countries want to be assured that their economic assistance will not be used to finance human rights violations.

Dr. Mulya Lubis is a law consultant based in Jakarta and a noted human rights activist.

Window A: Collective rights are recognized and respected together with individual rights.

Window B: In the long run, foreign investment requires a strong judiciary, the rule of law, human rights guarantees and democracy.