Coming full circle revisiting concepts, debunking myths and assessing situational complexities in the quest for a regional system

Moreover, the Asian states’ rigid stance on cultural relativism, trenchant opposition to “ideological imperialism” in the international human rights project, and the insistence on the ri

Chapter 1: Updating the human rights institutionalisation process in the ASEAN region

1.1: Introduction

It is generally deemed a disappointment to the universality of human rights that Asia does not have a regional human rights mechanism;1 unlike the Americas, Europe, and Africa, notwithstanding the varying standards of efficacy these bodies possess.2 As such, there have been unabated calls to correct this anomaly This was most volubly witnessed in the “Asian values” debate of the 1990s.3

Frankly speaking, however, an Asia that spans from the Middle East to Japan is geographically, politically and culturally too diverse for human rights to be managed effectively by a single overarching mechanism Enthusiasm for Asia to have a system of human rights protection must recognise the disparate political structures that range from communism like in China and Vietnam; the “semi-

1 Virginia A Leary, The Asian Region and the International Human Rights Movement, in Claude

E Welch and Virginia A Leary (eds.), Asian Perspectives on Human Rights (Boulder, San

Francisco, Oxford: Westview Press, 1990), p.13-4

2 It is recognised that there exist counter-arguments to the school of thought which holds regional human rights bodies as “satellites” of the UN system Critics of the latter school hold that

regionalism, and the opportunity for cultural adaptation and justification, can lead to a dilution of the universal values of human rights I would generally agree with Schreuer that although

variations do exist among the regional systems, “the basic unity of human rights as a universal set

of standards has prevailed over cultural relativism and regional fragmentation.” For a general

discussion of universalism versus regionalism, see Christoph Schreuer, Regionalism v

Universalism, 6(3) EJIL (1995) 477-499, at 485

3 See for instance, Ralph Wilde, NGO Proposals for an Asia-Pacific Human Rights System, 1 Yale

Human Rights and Development L.J (1998) 137 This has also been noted by Prof Vitit

Muntarbhorn in his lecture entitled “Regional Protection of Human Rights in Asia” at the

International Institute of Human Rights, Strasbourg, France in July 1997, at

http://www.hurights.or.jp/asia-pacific/no_10/no10_protection.htm (last accessed 2 April 2007)

authoritarianism” of Singapore and Malaysia; to full democracies such as India, the Philippines, South Korea and Japan Moreover, cultural traditions, social practices and different environments result in particular needs for each country even while universal human rights take centre-stage

The insistence on cultural particularism had earlier resulted in the cacophony of Asian voices stressing each state’s individual priorities in the Regional Meeting for Asia of the World Conference on Human Rights held in Bangkok in 1993 This meeting was intended to coalesce the regional perspective on human rights

so that they could be tabled at the subsequent World Conference on Human Rights held later that year in Vienna to re-affirm the universality of international human rights However, the wide range of opinions pertaining to the different socio-political contexts of the participating states at the Bangkok meeting made it extremely difficult to agree on the terms of the Final Declaration of the Conference (hereinafter the “Bangkok Declaration”) Moreover, the Asian states’ rigid stance on cultural relativism, trenchant opposition to “ideological imperialism” in the international human rights project, and the insistence on the right to development and the pre-eminence of socio-economic priorities caused the international community anxiety that the Bangkok Declaration would “hijack” the Vienna Conference’s aim of concluding universal principles of human rights for the world community. 4

Amid such a background, therefore, even if a general Asian human rights mechanism is possible in the future, present circumstances do not permit such a structure, let alone the ambitious plan of having an institution that spans the Asia-Pacific Asia does not possess a regional political organisation like the African Union or Organisation of American States that can help to spearhead human rights efforts The states also do not share a common objective borne out of catastrophic experiences to sustain the institution of an independent human rights mechanism as seen in the establishment of the European Commission and Court

of Human Rights after the Second World War It is thus unsurprising that proposals for a pan-Asian human rights institution did not progress past the 1980s and 1990s.5

If human rights mechanisms are to be successfully established in Asia, regions need to be delineated from the larger Asian context such that sub-regions

countries of the North and the developing countries of the South… This depiction is not only erroneous but also unwarranted and therefore counterproductive.”

5 Since 1982, the UN has organised workshops on regional human rights arrangements in the

Asian and Pacific region with the aim of establishing a regional mechanism See Regional

arrangements for the promotion and protection of human rights in the Asian and Pacific region at

http://www.unhchr.ch/html/menu6/apw.htm (last accessed 3 April 2007) On the

non-governmental level, the Asian Human Rights Commission convened a conference to declare an

Asian Human Rights Charter –A People’s Charter to further the movement towards a

state-sponsored human rights charter for the whole continent, at

http://www.ahrchk.net/charter/mainfile.php/declaration/ (last accessed 20 November 2005) The

Law Association for Asia and the Western Pacific (Lawasia) also organised a Seminar on

national, local and regional arrangements for the promotion and protection of human rights in the Asian region in 1982 to discuss the need for a regional human rights structure See Human rights

in the Asian region: Recent trends in human rights, Vol II, Colombo, 21 June-2 July1982

(Sydney: Lawasia, 1982); and Wilde, above f.5 Not much has resulted from these initiatives

can be built first.6 While some may think that this is inefficient and that Asia should follow the prototype of a continent-based human rights system, the benefits arising from such smaller groupings are likely to outweigh such disadvantages –not least that there being more interest generated at this level, especially in Southeast Asia.7

Bearing this in mind, I have chosen to study the prospects of the establishment of

a human rights mechanism for Southeast Asia under the auspices of its regional organisation, the Association of Southeast Asian Nations (ASEAN)

Sub-regional systems can count on some shared history, closer intra-state relations and a smaller geographical area which would facilitate the system’s manageability

8 This is especially so as ASEAN has concretely stated in its landmark Charter of November 2007 that it will build a regional human rights mechanism.9 ASEAN states intend that the Charter be a regional pact that serves “as a legal and institutional framework of ASEAN to support the realisation of its goals and objectives” through the codification of “all ASEAN norms, rules, and values”.10

6 The prospect of an East Asian mechanism was considered initially However, given the nature of East Asia relations, there has not been much enthusiasm for a system solely limited to this sub- region as the mechanism would be most likely hit many political hurdles For an overview of East

Asian human rights, see Hidetoshi Hashimoto, The prospects for a regional human rights

mechanism in East Asia (New York: Routledge, 2004)

This builds upon the series of annual announcements and action plans since the

7

Gains in sub-regional initiatives have been recognised in the “Conclusions of the 11th Workshop

on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region”, Pakistan, 25-27 February 2003, para.16 At

http://www.unhchr.ch/html/menu6/islamabad.htm (last accessed 16 June 2007)

8

For convenience, I shall use “Southeast Asia” and the “ASEAN region” as synonymous, even though Timor Leste is considered a part of Southeast Asia but is not a member of ASEAN

9 Article 14(1) of the 2007 ASEAN Charter states “In conformity with the purposes and principles

of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body

10

Kuala Lumpur Declaration on the Establishment of the ASEAN Charter, 12 December 2005, at

http://www.aseansec.org/18030.htm (last accessed 16 June 2007)

early 2000s that human rights be instituted as a key component in the building of

a more cohesive ASEAN Community based on security, economics and cultural pillars If and when human rights are codified within the ASEAN operative rules, the promotion and protection of human rights would definitely have higher priority and more credence than its present status

socio-The thesis will leave aside the circuitous arguments of the “Asian values” debate

to concentrate on actual measures that have been taken to improve the receptivity

of human rights in the ASEAN region This is especially important, I feel, as although the “Asian values” debate of the 1990s was promptly quashed by the Asian Financial Crisis in 1997 and examined thoroughly by many academics,11concepts of “universalism versus particularism”, “Asian or Confucian notions of rights and duties”, “cultural differences”, “communitarianism versus individualism”, “socio-economic and development rights preceding civil-political liberties” unfortunately continue to pervade many discussions on human rights in Asia, and in particular, Southeast Asia.12

11 This is a selection of the voluminous literature on the said debate For an overview, see for

example, Victor Mallet, The trouble with tigers: The rise and fall of South-East Asia (London: HarperCollins Publishers, 1999); Michael Jacobsen and Ole Bruun (eds.), Human rights and Asian values: Contesting national identities and cultural representations in Asia (Surrey: Curzon, 2000); Lucian W Pye, “Asian Values”: From Dynamos to Dominoes?, in Samuel P Huntington &

Lawrence E Harrison (eds.), Culture matters: How values shape human progress (New York: Basic Books, 2000); Joanne R Bauer & Daniel A Bell (eds.), The East Asian challenge for

human rights, Cambridge and New York: Cambridge University Press, 1999; Onuma Yasuaki, In Quest of Intercivilizational Human Rights: “Universal” vs “Relative” Human Rights Viewed from an Asian Perspective, Asia Foundation’s Center for Asian Pacific Affairs Occasional Paper

2, March 1996; Yash Ghai, Asian Perspectives on Human Rights, 23(3) Human Rights Quarterly (1993) 342; Daniel A Bell, The East Asian Challenge to Human Rights: Reflections on an East

West Dialogue, 18 Human Rights Quarterly (1996) 641; and Dato’ Param Cumaraswamy, The Universal Declaration of Human Rights: Is it Universal?, 18 Human Rights Law Journal (1997)

476

Furthermore, Southeast Asia has often

12

“Asian values” are often tabled at the conferences I have attended on human rights –the

ASEAN-ISIS Colloquium on Human Rights (AICOHR) 2005 and 2006 Moreover, politicians

been subsumed under East Asia in the debate such that over-generalisation has often happened.13

Although much has since been written to unveil these common misconceptions,

This has resulted in the overlooking of the crucial details particular to Southeast Asia, not to mention the diverse backgrounds of its component states, including the obvious fact that societies such as Malaysia, Indonesia and the Philippines are distinctly non-Confucian, while even for Singapore it remains an artificial construct

14they unfortunately continue to plague scholarship on human rights in Southeast Asia.15 While this is slowly changing, “Asian values” blinkers must be cast off in examining the present case of human rights in Southeast Asia as that episode was unfortunately more political wrangling than a real debate on human rights.16

have not appeared to change their minds about democracy and human rights in relation to Asian

societies See for instance, Prosperity, democracy linked? History says no, Straits Times, 27

August 2004

13 See for instance, Mahathir Mohamad, Democracy, human rights, EAEC and Asian values: selected speeches, Hashim Makaruddin (ed.) (Selangor: Pelanduk Publications for the Prime Minister's Office of Malaysia, 1995; 2000 printing); Fareed Zakaria, Culture Is Destiny; A

Conversation with Lee Kuan Yew, Foreign Affairs March/April 1994, at

http://www.fareedzakaria.com/articles/other/culture.html (last accessed 20 November 2005); and

Bilahari Kausikan, An East Asian approach to human rights, 2(2) Buffalo Journal of International

Law (1995-6) 263-83

14

Simon Tay S.C., Human Rights, Culture, and the Singapore Example, 41 McGill Law Journal

(1996) 743; Jack Donnelly, Human Rights and Asian Values: A Defense of “Western”

Universalism in Joanne R Bauer & Daniel A Bell (eds.), The East Asian challenge for human rights (Cambridge, UK ; New York : Cambridge University Press, 1999), p.60-87; Amartya Sen,

Human Rights and Economic Achievements in Bauer and Bell, p.88-102; Onuma Yasuaki,

Toward an Intercivilizational Approach to Human Rights, in Bauer and Bell, p.102-123; and

William Theodore de Bary, Asian Values and Human Rights: A Confucian Communitarian

Perspective (Cambridge: Harvard University Press, 1998), p.3-5

Given that these ASEAN plans have at certain junctures suggested that the institution of a regional human rights mechanism could begin with the initial participation by three or four member states with the remaining members only to join when they are ready, I have chosen to concentrate on studying the five member states of Indonesia, Malaysia, the Philippines, Singapore and Thailand as

they are the ones most likely to be the initial members It is felt that the political structures of the other five ASEAN states – Cambodia, Laos, Myanmar, Vietnam and Brunei – are at present not likely to acquiesce to being held to account by others on their human rights records.17

Strict supporters of the ideal of universal human rights may criticise this approach

as acceding to and prolonging authoritarian rule in the countries which arguably need human rights most Conversely, it is precisely because the establishment of a human rights system has to be handled with utmost sensitivity that I have borne in mind the real and practical considerations and have avoided considering the issue

in absolute terms For instance, even if the Burmese junta now acquiesces to participate in the regional human rights initiative but remains adamant about keeping to the national “brand” of human rights, this would defeat the whole purpose of having an ASEAN human rights mechanism in order to push national standards in alignment with the rest of the world’s

18

17

Strictly speaking, ASEAN is a loose association of states without supranational powers

However, given the intrusive nature of human rights, it will be inevitable that some form of

bilateral and multilateral scrutiny will occur when human rights are enshrined within the ASEAN framework This human rights divide has also been noted by Prof Tommy Koh who was involved

in the negotiations for the ASEAN Charter has noted in the 7th Workshop for an ASEAN human rights mechanism that Indonesia, Malaysia, Philippines and Thailand are enthusiastic about

ASEAN and human rights, while Cambodia, Laos, Myanmar and Vietnam are markedly less so The middle-liners are Singapore and Brunei See ASEAN’s human rights divide, Today, 13 June

2008

It is hoped that regard for human rights will grow within ASEAN and that in time all ASEAN members will agree to adhere to human rights in creed and action

18

See Myanmar government, Political Situation of Myanmar and its Role in the Region, p.21-36,

at http://www.myanmar-information.net/political/english.pdf (last accessed 22 November 2005)

Going on to the substantive aspects of establishing a regional system, several components must be present if an ASEAN human rights body is to materialise First, a steady and persistent effort in engaging and encouraging ASEAN officials

to undertake the regional institutionalisation of human rights is needed As will be seen in the following chapters, previous attempts to convince the ASEAN states

to institute a formal human rights regime in the region through philosophical justification or international legalisms have not borne fruit Declarations of the universality of human rights based on humankind’s inherent dignity and shared brotherhood, and the parallels drawn with various religions to show the roots of inalienable human rights during the “Asian values” debate, did little to convince Asian states, including the ASEAN region.19

Second, even if they are becoming more congenial to the idea of human rights, ASEAN states have voiced that they prefer a systematic and “step-by-step” approach with proper consultation and consensus in building a regional human

Even if these theories were indubitable, truth often does not prevail over realism or “hard cases” in international politics Given the continuing emphasis on sovereignty, ASEAN states cannot and will not be made to do anything against their will Moreover, even if all the states accept that human rights emanate from human nature, the liberal conceptualisation of human rights and democracy in the international sphere are not ideals that Southeast Asian societies are naturally familiar with or whose governments are anxious to promote wholesale

19

For a concise discussion, see Hilary Charlesworth, The Challenges of Human Rights Law for

Religious Traditions, in Mark W Janis & Carolyn Evans (eds.), Religion and International Law

(The Hague: Kluwer Law International, 1999), p.401-15

rights mechanism.20

Third, timing, sufficient resources, and a citizenry that understands how the mechanism works and governmental support are indispensable to its proper functioning The instant establishment of a regional human rights mechanism cannot be held as an immutable good It is impossible to set up a regional human rights mechanism and expect it to work merely because of its overriding merit Arbitrary imposition of a mechanism that both states and people are unfamiliar with and do not know how to utilise will become an empty shell It is doubtless that many things need to be changed in the ASEAN region, but that cannot be successfully achieved at the expense of the necessary period of internalisation and

“enculturalisation” The UN and European systems of human rights took decades

of progress and are still adapting, while the Inter-American and African systems are similarly in the adjustment process Even if it is arguable that Indonesia, Malaysia, the Philippines, Singapore and Thailand still do not possess the

It is obvious that attempting to strong-arm them into instituting such a mechanism by merit of their promises made in international declarations have not worked While this does signal continuing hesitancy on the

part of ASEAN states, I feel that there is merit to this stand –the process of

increasing and improving human rights in Southeast Asia is as important as the

goal of establishing a regional human rights mechanism Although the advantages

of having a regional system imbued with universal norms are undeniable and should be striven towards, this must be done in manageable stages by putting the necessary infrastructure and fundamental institutions in place

20 ASEAN works on catalysts for human rights mechanism, Bernama, 24 July 2006

unwavering political will to go ahead to form the ASEAN human rights mechanism, and they are not adequately equipped to do so, I believe they are better placed now to initiate concrete action than they were a decade ago

1.3: Chapter outlines

It is important to note that the sea-change in ASEAN’s attitude towards human rights has only gained pace in the 2000s Hence, there is little, if any, recent analysis of regional human rights movement and the number of critical studies on this topic is few and far between.21

Even today, despite the significant (if incremental) successes, it would be all too easy to write off the human rights situation as stagnant This is because even if collective agreement has been made at the ASEAN level to improve the standing

In large part, this is understandable as Southeast Asia does not lend itself easily to scrutiny Not only is information difficult to obtain due to official restrictions or otherwise, the language and technological barriers within the region are also obstacles For instance, regional human rights websites –whether the states’ or civil society groups’ – can be notoriously difficult to access due to technological problems Scholars may be further deterred by the reticence shown by the states towards moving the human rights process forward

21 For more recent analyses, see Maznah Mohamed, Towards a human rights regime in Southeast Asia: Charting the course of state commitment, 24(2) Contemporary Southeast Asia (2002) 230; Thio Li-ann, Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to

Go before I Sleep, 2 Yale Human Rights & Development Law Journal (1999) 1- 86; Philip J Eldridge, The politics of human rights in Southeast Asia (London: Routledge, 2002)

of human rights regionally, the individual states alone can portray very different attitudes For instance, the Philippines, Indonesia and Thailand are avid supporters of the human rights movement while Singapore and Malaysia prefer a

“wait-and-see” attitude.22 It is hence often good to take a practical and guarded view of such developments Given the capricious nature of state behaviour, one cannot underestimate when the compulsion for state sovereignty will rear its head, given the entrenched preference for the “ASEAN way”, thereby negating any success on the human right front.23

Additionally, in the evolutionary fashion of human rights, I have noticed that while ASEAN states are more accepting of international norms, the converse also holds true While Southeast Asia no longer stridently proclaims the precedence of

“Asian values”, there are fewer clamours from international quarters that civil and political rights should precede the economic, social, cultural and developmental Instead, the emphasis on the shared equality of the right to development and economic, social and cultural rights has come to the forefront International human rights have thus come full circle in translating into real action what has always been professed the moment the International Bill of Rights came into being –the indivisibility of civil-political and socio-economic and cultural rights This recognition is all the more significant as, not only does it vindicate the ideals erstwhile championed by the developing world (including the ASEAN states), it also justifies their socio-economic and developmental claims This is reinforced

through the Millennium Development Goals as the international community tries

to eradicate poverty and raise living standards.24 Moreover, regard for social justice and the right to development would give renewed impetus to the stalled Doha talks due to disagreement over abolition of quotas and the guarantee of fair trading grounds.25 ASEAN states, alongside other developing nations, have been repeatedly calling for the resumption of the Doha trade discussions.26

It is such complexities that are enmeshed within the potential establishment of an ASEAN human rights mechanism which necessitates revisiting concepts and debunking myths that surround regional human rights A stock-taking assessment

of the practical difficulties that may impede progress, as well as the consideration

of the “new” socio-economic and developmental aspects of human rights in the

On another note, however, while socio-economic and developmental rights have consistently been emphasised in the context of the establishment of an ASEAN human rights mechanism, there has never been any concrete enunciation of how they are to be formulated It is therefore timely to introduce a new dimension to this process by incorporating the latest developments at the level of international human rights into the consciousness of the rights movement in Southeast Asia

24 The UN Millennium Development Goals can be found at http://www.un.org/millenniumgoals/ (last accessed 3 April 2007)

25 Doha Development Agenda: Negotiations, implementation and development, at

http://www.wto.org/english/tratop_e/dda_e/dda_e.htm (last accessed 3 April 2007)

26

ASEAN Statement on the WTO Doha Negotiations, at http://www.aseansec.org/18695.htm (last accessed 3 April 2007)

ASEAN context, is thus timely and necessary if the ASEAN human rights body is

to ever materialise

To begin, therefore, Chapter 2 will provide the background to the beginnings of human rights in Southeast Asia by tracing how the international rights movement arose in the French and American Declarations through to the present UN system and regional regimes It will be seen that many of the recurring contentions that Southeast Asian (and other developing) states hold against international human rights have their roots in the formation of the Bill of Rights after the Second World War

For one, the international institution of human rights that encompasses civil, political, economic, social, cultural and developmental aspects, and vested in the

UN as guardian of its norms, is really a post-war construct with strong Western liberal democracy influences.27

Shestack, The Philosophical Foundations of Human Rights, in Janusz Symonides (eds.), Human rights: Concept and standards (England; Vermont: Ashgate/ Paris: UNESCO, 2000); and Stephen Hall, The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism,

12(2) European Journal of International Law (2001) 269

Contrary to the popular portrayal that the

“inalienable”, “inherent” and “universal” qualities of human rights emanate from the natural dignity of humanity, the modern international human rights institution

is a product of post-war politics It is not as commonly believed, to come from philosophy or religion or any other belief system This was apparent when

attempts to append ideological or philosophical meaning to human rights in the preparatory phases of the Universal Declaration of Human Rights (UDHR) were reduced to simple generalisations that were meant to be all-inclusive.28Unsurprisingly, this vagueness (and perhaps parochialism) caused a lot of tension when different value-systems subsequently tried to justify the case for and against human rights such as in the 1990s “Asian values” debate, or whether Confucian or Islamic tenets could be squared with international human rights.29

Another myth due to realpolitik was that of civil-political rights being of a higher status than the socio-economic, flagrantly breaching the ideal of equality and indivisibility of all the substantive human rights enshrined in the UDHR This false schism ensued from the United States (US)-Soviet Union rivalry after the Second World War With the Western bloc supporting the former and Socialist bloc, newly-decolonised, poor and developing states the latter, the argument continued through the 1990s This bias is only now diminishing with the gradual recognition of the importance of socio-economic and developmental aspects of human rights This is seen in the expansion of the field of development and more

along the lines of Thomistic and Finnisian thought See for e.g John Finnis, Natural law and natural rights (Oxford: Clarendon Press; New York: Oxford University Press, 1980); and Saint Thomas Aquinas (William P Baumgarth & Richard J Regan eds.), On law, morality, and politics

(Indianapolis: Hackett, 1988)

recently, the global effort to eradicate poverty in the Millennium Development Goals (MDGs)

In addition, the advent of the “twin package” of human rights and democracy will

be looked at During the Cold War, democracy began to be seen as concomitant with human rights When developed nations started to make aid to developing nations conditional upon political freedom, they incurred great animosity from the developing world This tying of aid to democratisation and human rights continues to be a sore point with Asian and other developing states Moreover, the role of small states in the formation of human rights during the post-war and independence-movement period will also help to explain the stance taken by Southeast Asian states regarding self-determination, racism, decolonisation and national development discussed in the later chapters

After the Cold War, the human rights movement accelerated as the UN Security Council broke free of its US-Soviet deadlock to be able to tackle international crises, like those in Iraq and the former Yugoslavia.30 Concern for human rights and humanitarian standards thus increased as atrocities reached new heights.31

30 For discussion on international humanitarian law and the laws on the use of force, see Simon

Chesterman, Just war or just peace?: Humanitarian intervention and international law (New York: Oxford University Press, 2001); and Christine Gray, International law and the use of force

(Oxford: Oxford University Press, 2000)

Criminal Court.32 The international crackdown on Islamic fundamentalism and terrorism after the September 11, 2001 bombings also raised human rights concerns.33 To all these developments in international human rights, Southeast Asian states have sometimes remained ambivalent, or else are selective in the areas where they choose to make a stand It will be illustrated that on top of their national priorities, the way these states react to the changing geopolitics in their attitudes and practices of human rights depends in large part on balancing domestic exigencies with the need to satisfy hegemonic (the US) demands.34

32

Karin N Calvo-Goller, The trial proceedings of the International Criminal Court: ICTY and

ICTR precedents (Leiden; Boston: Martinus Nijhoff Publishers, 2006); and Geoffrey Robertson, Crimes against humanity: The struggle for global justice (New York: New Press, 2006, 3rd ed.)

33 Giuseppe Nesi (ed.), International cooperation in counter-terrorism: The United Nations and

regional organizations in the fight against terrorism (Aldershot, England; Burlington, VT:

Ashgate, 2006)

34 Simon S C Tay, Asia and the United States after 9/11: Primacy and Partnership in the Pacific, 28(1) Fletcher Forum of World Affairs (Winter 2004) 113; & L.R Penna, Response of Southeast and East Asia to the International Criminal Court, Presentation at the International Committee of

the Red Cross Regional Delegation Symposium on Contemporary Issues of International

Humanitarian Law in Kuala Lumpur, Malaysia, 8 to 10 December 2004

Chapter 3 goes deeper into how Southeast Asian discontent stemming from the bias against the developing nations in international relations has impacted on the region’s substantive human rights practices Case-studies of Indonesia, the Philippines, Thailand, Malaysia and Singapore will illustrate state behaviour where human rights clashes with national priorities In particular, an understanding of how these five states democratised will help illuminate their standing human rights attitudes

Summarily, all except Thailand have experienced decolonisation Severe discrimination during colonial rule caused the general citizenry to rally behind the local leaders who fought for the right to self-determination However, once that was achieved, and despite national constitutions explicitly safeguarding the

selfsame rights as those stipulated in the UDHR, de facto adherence was

superseded by the zeal for the consolidation of power and national building in what were very volatile and poor post-colonial societies Inevitably, years of chafing under strong governments, growing disenchantment, as well as a growing educated middle-class that fuelled civil society growth, have led to a more active citizenry calling for rights that corresponded to their particular needs

In the more extreme examples, “people power” toppled the Marcos dictatorship in the Philippines;35 Suharto was ousted from office in Indonesia during the 1990s;36while the Thai public demanded an end to military rule in 1992.37 Milder forms of calling for more autonomy are evidenced by the constant demands for media freedom in Thailand during the former Thaksin administration and military rule headed by coup leader General Sonthi Boonyaratglin and its interim government led by Prime Minister Surayud Chulanont.38

38 THAILAND: Govt panel to control 'inappropriate' media, Bangkok Post, 29 March 2007

The Thai and Filipino peoples have

also tried to impeach Thaksin and Philippine President Gloria Arroyo.39 In Malaysia, racial equality and the freedom of religion are again being championed against the government, while the provision of jobs, prices of basic goods and a stable socio-economic climate were what the Indonesian voters wanted (and still demand) from endorsing President Susilo Bambang Yudhoyono

Macapagal-as their president.40 In Singapore, socio-economic demands have also been made

of the government and Prime Minister Lee Hsien Loong has declared that Singapore will continue to grow into an “open” society.41

These public demands have taken on differing degrees of intensity –such as those states with a history of public demonstrations against the state such as Thailand, Indonesia and the Philippines, and the milder forms of public discontent witnessed in Singapore and Malaysia Whatever the case may be and no matter how strong these states are, domestic demands for greater rights and empowerment have to be carefully heeded Parochialism and an attitude of “the state knows what is best for the people” seldom sits well with the citizenry Moreover, the states which have domestic mechanisms like the National Human Rights Institutions (NHRIs) in Indonesia, Malaysia, the Philippines and Thailand, which monitor human rights compliance, tend to have an active civil society and

39 Pankaj K Jha, Thailand's Political Crisis, IDSA Strategic Comments, 21 September 2006, Institute for Defence Studies and Analyses, New Delhi; and Arroyo escapes impeachment bid,

BBC News, 6 September 2005

40 Malaysia's melting pot on the boil, Asia Times Online, 24 March 2007; Race, religion and a

“rough” time – Malaysia’s domestic woes, Seapsnet, 1 February 2007 On Indonesia, see Michael Vatikiotis, Indonesia’s Elections and the Ordinary Voter, in Tay and Yeo, above f.16, p.36

41

PM Lee Hsien Loong, National Day Message 2006, at

http://sg2.mofcom.gov.cn/aarticle/chinanews/200608/20060802857382.html (last accessed 3 April 2007)

vocal parliament which enable the rights movement to grow Increasingly, it will

be observed that beyond a certain point – whether or not the governments are supportive – the human rights movement takes on a life of its own, such as the increasing number of civil society groups that have arisen to deal with social challenges These internal changes have helped to foster more governmental openness (albeit within certain limits) to social expectations and political views

An interesting point to note is that the states with domestic mechanisms for human rights tend to be the most enthusiastic for a regional mechanism Yet, ironically, these are the same states which are guilty of widespread violations like extrajudicial killings by the security forces and brutality, endemic corruption exacerbating poverty and socio-economic problems For instance, the Philippines’ reputation for freedom of speech is undermined by the killings of journalists.42

42 RP lives up to status of killing fields of media men, Manila Mail, 2 April 2007

Conversely, Singapore (though often criticised for its lack of freedoms and openness) arguably maintains a generally clean human rights record but is comparatively reticent about having a regional mechanism Another curious occurrence is that the popular demands refer more to constitutional rights or to their expectations of the government than the international human rights standards that the states have signed up to This may be partly due to the lack of public education and human rights promotion or a general attitude of lip-service to international norms

Building upon the five states’ human rights experiences, Chapter 4 details ASEAN’s attempts at regionalism and why Singapore, Malaysia, Indonesia, Thailand and the Philippines are most likely to be the founding members of an ASEAN human rights body if not all ten can come onboard simultaneously As is commonly understood, ASEAN abides by the “ASEAN Way” epitomised by mutual respect and strict non-interference in the domestic affairs of the other member states.43 With this close guard over sovereignty, it is no surprise that the numerous calls for an establishment of a regional system of human rights fell on deaf ears for many years, even though its members were party to various major human rights treaties Even the suggestion by Thailand in the late 1990s that domestic issues of ASEAN member states with bilateral or multilateral ramifications –like the haze or trans-border migration –should be tabled at the regional level for discussion was met with fierce opposition as many member states opposed interference in its domestic affairs.44 Gradually however democratic transitions, the rise of NHRIs and the engagement of civil society with ASEAN, all helped to pierce these intractable barriers Human rights began to be mentioned in ASEAN documentation and most significantly, were incorporated

into the ASEAN Security Community Plan of Action (ASCPOA) – a high-priority

regional agenda to enhance relations and safeguard regional stability.45

43 For a detailed exposition of the “ASEAN Way”, see e.g Jürgen Haacke, ASEAN's diplomatic

and security culture: origins, development and prospects (London: RoutledgeCurzon, 2003); and

Amitav Acharya, Constructing a security community in Southeast Asia : ASEAN and the problem

of regional order (New York : Routledge, 2000)

44 For more on “participatory regionalism”, see Amitav Acharya, Democratisation and the

prospects for participatory regionalism in Southeast Asia, 24(2) Third World Quarterly (2003)

Presently, the ASCPOA includes suggestions such as “establishing a network among existing human rights mechanisms; protecting vulnerable groups including women, children, people with disabilities, and migrant workers; and promoting education and public awareness on human rights”.46 These uncannily borrow almost word-for-word the proposals the Working Group had time and again tabled before the ASEAN states The Working Group has gained substantial goodwill through regular engagement with the ASEAN officials at a pace that is comfortable for each member state, as well as scaling back the suggestions that did not garner a favourable response –such as the proposal for an adversarial system of regional human rights monitoring through a supranational institution It

is significant that an NGO has gained this degree of acceptance at the ASEAN governmental level such that it has conducted workshops in cooperation with the foreign affairs ministries of Indonesia, Philippines, Malaysia, Thailand and, most recently, Singapore.47

Even while ASEAN omitted any official mention of human rights in its regional meetings and declarations, human rights-related concerns were not overlooked These were generally tabled under human security issues such as drug and human trafficking, the protection of vulnerable groups such as children, women and migrant workers, transnational crime and environmental problems such as the

46 Ibid

47

7th Workshop on Human Rights Mechanism for ASEAN at

http://www.siiaonline.org/?q=events/7th-workshop-human-rights-mechanism-asean (last accessed

9 July 2008)

haze.48 While the language, operation and modes of redress differ between human security and human rights – most notably the lack of claims by rights-holders from those in positions of responsibility, the similarities in scope and subject matter must have enabled ASEAN to grow more conscious of the human security and rights concerns in the region, thereby making the member states more amenable to the suggestion of having a regional human rights system Additionally, apart from the cooperation between the Working Group and ASEAN member states and the human security angle, there have been other avenues by which human rights are initiated in the region such as through the

ASEAN-ISIS think-tank network which organises the ASEAN-ISIS Colloquium on

Human Rights (AICOHR), and the ASEAN People's Assembly (APA), though

these are lower in profile and are less well-recorded.49

All in all, the ASEAN region is no stranger to human rights However, this being ASEAN, a region fraught with undercurrents of rivalry and at times strained relations, one should probably keep an open mind regarding when a regional system would be set up It is a common complaint that Article 14 of the ASEAN Charter does not indicate a timeframe within which the human rights mechanism

be set up Regional relations can be very fluid and an extended wait is all the

http://www.aseansec.org/8558.htm (last accessed 3 April 2007)

49 For some records of these meetings, see AICOHR at

http://www.kas.de/proj/home/events/73/2/year-2006/month-5/veranstaltung_id-18867/index.html (documentation of meetings on hand with author) and for APA, at http://www.asean-isis-

aseanpeoplesassembly.net (both last accessed 3 April 2007)

more likely if ASEAN is said to have only a “thirty percent record of keeping to its regional commitments”.50

Beyond ASEAN machinations, Chapter 5 compares ASEAN developments on human rights with what has been moving at the UN level It is surprising to see that both ASEAN and UN meetings voice parallel paths in the quest for regional human rights systems As early as 1994, the UN meeting for regional arrangements for the promotion and protection of human rights in the Asian and Pacific region held in Tehran saw the participating states stating certain points they wanted to hold immutable in the process of realising a regional mechanism.51

As will be seen, they – including the “step-by-step, building blocks” approach – are coincidentally similar to what has been expressed at the ASEAN-Working Group level.52

This a profound acknowledgement on the part of the international community of Asian and, implicitly, ASEAN concerns Instead of condemnation, impatience and recrimination, there is growing acceptance of the methodology by which the Asian states are comfortable in the implementation of human rights, the pace at which they are willing to progress, and their need for regular and precise consultation before action is taken However welcome this narrowing gap is, it

50 Tommy Koh, Walter Woon, Andrew Tan, and Chan Sze-Wei, The ASEAN Charter, 33A PacNet

(6 September 2007), Pacific Forum CSIS at http://www.csis.org/media/csis/pubs/pac0733a.pdf (last accessed 10 July 2008)

nonetheless remains on the theoretical level A more understanding international stance towards the Asian way of constructing human rights institutions is of little consequence if ASEAN states themselves do not put their aspirations into practice After all, UN amiability and consideration for a “step-by-step” and

“building blocks” approach do not equate to condoning tardiness in the establishment of a regional human rights system

What then are the practical steps ASEAN (or at least its more proactive members) needs to take next, having already tabled the primitive blueprints of such a mechanism in its meetings with the Working Group over the past decade, as well

as in ASEAN documents? Chapter 5’s other main task –apart from showing how the UN drew closer to Asia-Pacific ideals in the establishment of regional human rights systems – is to scrutinise the viability of the various suggestions that have

resulted from such meetings, especially the First Regional Conference on

Building Networks to Strengthen ASEAN Human Rights Cooperation hosted by

the Philippines Commission on Human Rights, in partnership with the European Commission and the Philippine Working Group in April 2006.53

In particular, current international advancements in the areas of sharing, NHRIs and human rights education will be considered in a manner that

The feasibility, attractiveness to ASEAN (especially the targeted five core state-players), and the measures needed to enable these recommendations to take substantive form, will

be among the questions analysed

53 Summary of proceedings on hand with author

can help update and improve ASEAN regional human rights practices – both domestically and regionally We shall find that there is a dearth of information exchange that is lamented by those working in the human rights field Enhanced information networks enable best practices to be shared and the pitfalls of human rights implementation to be avoided Currently, however, neighbouring states are seldom privy to bilateral information even if rights violations have trans-national ramifications Additionally, the prospects of having thematic commissions for the protection of women’s and children’s as a precursor of a more general regional rights body will also be looked into In addition, having the major players of ASEAN –Indonesia, Malaysia, the Philippines, Singapore and Thailand – readied for regional scrutiny is not an insubstantial feat However, it must cautioned that such closer discussion is only a first step and there is no telling how the states will then move this process forward to install a regional human rights system Therefore the problem of the scarcity of resources, shifting political will and other possible impediments will also be looked into

Having looked at the issues pertaining to the prevailing socio-political atmosphere surrounding human rights in the ASEAN region, Chapter 6 will explore the two major issues –the right to development and socio-economic rights –that are now claiming their rightful importance on the international plane These two rights have been the priority of ASEAN and other developing countries all this while, and if not properly considered and catered for in the establishment of an ASEAN regional mechanism, will skew the balance of human rights

Now that the international community is pushing for concerted action through the Millennium Development Goals (MDGs) of poverty eradication and ensuring better quality of human life through higher standards of sanitation, provision of clean water, education, tackling gender bias, fair trade and developmental aid, it appears as if human rights have come full circle What was originally mooted in the drafting of the UDHR and intended to be a single Covenant of universal and indivisible human rights, torn apart by Cold War politics, is now overcoming the longstanding bias to be recognised as real human rights and being actively promoted by the UN.54

However, things are not so simple The coming together of the traditionally discrete disciplines of human rights and development studies is fraught with tension and opposing methodologies, even if the subject matter overlaps For instance, while there is the general idea of human well-being in the MDGs and that human rights protection is implied, there is seldom express mention of how the MDGs are indeed forms of human rights given that there are no avenues for

“rights-claims” against duty-holders It is thus definitely too early to rejoice that the age of “third generation” rights – the right to development – has arrived, while the international community is still trying to rework the boundaries of human rights and development Hence Chapter 6 will also explain the difference between the growing human rights-development nexus and the right to development,

54

Human rights in development, UN initiatives at http://www.unhchr.ch/development/ (last

accessed 3 April 2007)

thereby showing why the latter is still work-in-progress, dependent somewhat on the former

Theoretical exposition aside, the chapter analyses how human rights and development manifested in the global project of the MDGs affect ASEAN, particularly Indonesia, Malaysia, the Philippines, Singapore and Thailand More starkly, however, while development and socio-economic rights have been priorities for the ASEAN states, none of the human rights discussions has integrated this new dimension Be that as it may, it is timely to look at the potential impact of the MDGs, the growing human rights-development institution

as well as the plethora of “rights-based” approaches that seem to accompany this phenomenon Their attainment of the MDGs will be assessed and the measures needed to improve performance – the domestic economic profile as well as fiscal measures, foreign debt, aid and trade – will similarly be examined

As constitutionalism factors like good governance, rule of law and anti-corruption are increasingly recognised for their role in ensuring good standards of human rights, global studies from the World Bank will be used to illustrate empirically the importance of such factors to international human rights standards.55

55

World Bank initiatives at

This approach is novel two ways First, it attempts to quantify what was previously deemed impossible –providing objective indicators of human rights achievement Second, it makes tangible the relationship between good governance and human

http://www.worldbank.org/html/extdr/rights/ (last accessed 3 April 2007)

rights – that both are usually mutually reinforcing Third, the link between the enjoyment of human rights and the rule of law will be clarified While the impact

of human rights-development discipline remains unclear, the components of constitutionalism will aid human rights development in the five ASEAN states Additionally, those in the public and civil society sectors must be aware that the complex dimension of third generational rights needs to be incorporated into the proposed ASEAN human rights mechanism in the future

In the concluding chapter, Chapter 7 rounds up the thesis and offers several possibilities of the trajectory of the ASEAN human rights mechanism Several potential obstacles in the substantive translation of the human rights that are slated

to be enshrined in the Terms of Reference for the human rights body enunciated

in the ASEAN Charter will also be elaborated These include the difficulties in squaring the different versions of human rights according to culture and political ideology.56

56

For instance, Myanmar has expounded on its view of human rights For Myanmar, see Myanmar

government, Political Situation of Myanmar and its Role in the Region, p.21-36, at

If there is to be a movement towards the ultimate establishment of a regional mechanism, there needs to be certain set standards and methodologies in line with internationally-agreed benchmarks of human rights justice There cannot

be a dilution of international human rights standards in favour of subjective regional preferences, although it is recognised that pertinent regional and national particularities are justifiable within a margin of appreciation At this juncture, it is difficult to predict if the ASEAN human rights body indeed will be set up as the Charter remains to be fully ratified by all ASEAN members, and there is no

http://www.myanmar-information.net/political/english.pdf

definitive timeline set for its establishment It is quite likely in view of the history

of human rights in the ASEAN region, however, that a regional mechanism if established will not have substantial powers

In sum, only by looking at things in the proper context, can we avoid piecemeal understanding of human rights in Southeast Asia and jumping to conclusions There is definitely more to the topic of human rights in Southeast Asia than the

“Asian values” debate The only way advances in human rights in the region –both within the domestic sphere and as regional body –can be achieved is by having a real and practical understanding of the political and historical background of human rights in the respective Southeast Asian states, such that policies can be tailored to match the crucial socio-political foundational factors of civil society, governance and civil institutions In addition, an educated population, the people’s receptivity towards having a human rights mechanism, effective resource allocation and the presence of national human rights institutions are also indispensable stepping stones towards the aspired end With contextual understanding of the issues concerning human rights in the past and present, and a healthy respect for political and cultural limitations, one is better placed to assess what further steps and modes of implementation can be taken to better institute human rights in Southeast Asia both nationally and regionally, progressing toward the goal of the eventual establishment of an ASEAN human rights mechanism

Chapter 2: Enough of “Asian values” What are the plausible reasons for the ASEAN states’ reticence towards international human rights?

2.1: Introduction

Almost every analysis of human rights referring to Asia invariably deals with the issue of “Asian values” Southeast Asia is no exception Vestiges of this longstanding misconception tend to persist in academic discussion despite the fact that justifications of “Asian values” were quite thoroughly demolished with the onset of the financial meltdown of 1997.1 Given that a number of jurists such as Thio and Peerenboom have clearly demonstrated the differences between genuine cultural concerns and knee-jerk defences during the “Asian values” debate and that the political furore has died down thus allowing for actual “rights and culture” dialectic to get underway, there is no need to prolong discussion of the minutiae of “Asian values” in Southeast Asia.2

Foreign Policy (1993) 42 On post-“Asian values” analyses of human rights, see Thio Li-ann,

Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go before I Sleep, 2 Yale Human Rights & Development Law Journal (1999) 1- 86; Karen Engle, Culture and Human Rights: The Asian Values Debate in Context, 32 International Law and Politics (2000) 291; Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca and London: Cornell

University Press, 2003, 2nd ed.), p.107-23, and 186-203; Hatla Thelle, Limits to Universality:

Questions from Asia, in Kirsten Hastrup (ed.), Human Rights on Common Grounds: The Quest for Universality (The Hague, London and New York: Kluwer Law International, 2001), p.157-75;

Vitit Muntarbhorn, Asia and Human Rights at the Crossroads of the New Millennium: Between

the Universalist and the Particularist, in R.G Patman (ed.), Universal Human Rights? (New York:

St Martin's Press, 2000), p.81-95; and Randall Peerenboom, Show Me the Money: The Dominance

of Wealth in Determining Rights Performance in Asia, 15 Duke Journal of Comparative &

International Law (2004) 75

However even if “Asian values” are debunked, Southeast Asian states remain hesitant in participating in the international human rights system more comprehensively They continue to insist on a fully consultative and gradual approach to establishing a regional mechanism There must be other reasons therefore underlying this tentative adoption of international human rights standards It is my aim to uncover the reasons behind this immutable posture so that suitable action may be taken to enhance the states’ receptivity towards human rights This would hopefully lead to the eventual construction of a human rights mechanism within the Association of Southeast Asian Nations (ASEAN) as indicated in the ASEAN Charter.3

Historical and geopolitical factors within the international order have indubitably contributed to the defensive and cautious attitude the ASEAN states display when faced with external pressures on human rights This chapter traces how the international human rights system in the recognisable form that exists today began

to arise from the concerns of certain powerful states, how it continued to grow and spread throughout the world community, and the subsequent establishment in its present form within the United Nations framework and regional set-ups Comparisons between the international and regional systems with the human rights norms accepted and practised in Southeast Asia will enable a better understanding of the latter’s notion of human rights, as well as illustrate how it

3

ASEAN Charter at http://www.aseansec.org/ASEAN-Charter.pdf (last accessed 23 February 2008)

developed from the international framework while simultaneously putting in place measures to differentiate itself from the global system in order to emphasise its different priorities

As will be seen in the subsequent chapters, each Southeast Asian state has its own level of acceptance for international human rights The “Asian values” argument was hence only one particularly voluble manifestation of a longstanding grudge against perceived undermining of the South by the richer and more powerful states of the North The acceptance of international human rights by Southeast Asian states remains fairly ambivalent on the domestic level because of other contending national interests and the need to maintain amicable foreign relations Nonetheless, there has been increasing tacit support for human rights through state actions like the ratification of treaties and in multilateral fora such that few would now denounce human rights as “nonsense upon stilts” – even if a former statesman like Singapore’s Minister Mentor Lee Kuan Yew continues to uphold his “development before democracy” beliefs.4

To begin, the first section will briefly describe the pre-modern foundations of human rights from its beginnings in the protection of aliens and minority groups The second section will illustrate the tension between the rise of international human rights and state reluctance to diminish the powers of sovereignty in the drafting of the United Nations Charter and the Bill of Rights It will be seen that

although universal characteristics can be attributed to human rights, the modern institution of human rights arose primarily as a Western liberal construct in which states subscribing to other ideologies had little say, except in the particular matters of decolonisation and self-determination This was all the more true with regard to the Southeast Asian nations as their voice was relatively muted as newly independent, poor and developing states It was also within this period that the roots of resentment against “human rights as cultural imperialism” were formed due to political double-standards in favour of the developed states of the Northern hemisphere against the developing nations of the South

The third part goes on to examine the human rights amid the Cold War right up to the present Within this timeframe, there was the rise of unilateral human rights promotion in the 1970s where developed nations began to make foreign aid packages conditional upon respect for civil liberties and democratic reforms This intensified the developing countries’ resentment and in Asia, culminated in the backlash seen in the Bangkok Declaration and the “Asian values” debate where tied aid was denounced and preferences for socio-economic development were strongly advocated At the Southeast Asian level, these sentiments were reiterated

in no uncertain terms in the ASEAN Inter-Parliamentary Organisation (AIPO)

Declaration on Human Rights signed in Kuala Lumpur in October 1993 (also

known as the Kuala Lumpur Declaration 1993).5

of each country was stressed and the duties of citizens – such as in the freedom of expression – were carefully enumerated.6

Where the three sections above attempt to briefly illustrate how human rights are inextricable from the compounded effect of history, politics and realism, the fourth section goes on to analyse Southeast Asian reactions to these political and legal developments in the international order with respect to human rights Here, the causes of Southeast Asian aversion to the rights discourse and its tepidity in organising a regional rights system will be unravelled At a more general level, it also puts forth the proposition that the longstanding Southeast Asian reticence is not novel It merely reflects the attitude of Western states when human rights were first broached after the Second World War Southeast Asian states’

In addition, the end of the Cold War brought about greater activity within the UN Security Council in democratic ventures as well as the foray into international criminal justice with the Rwanda and Yugoslavia tribunals Human rights, international humanitarian law and international criminal justice began to grow an even closer nexus The post-September 11, 2001 “war on terrorism” also brought with it serious complications to the protection of human rights amid the need to uphold international peace and security as counter-terror measures have often been criticised as “illegitimate” tools against human rights To add to the complexity, the vested interests of big powers have had to be considered on top of the tension between human rights and security

6 Ibid., Arts 4, and 11-22

behaviour and preference for sovereignty follow quite closely the traditional liberal realpolitik model of international relations

2.2: Pre-modern foundations of international human rights

The 17th and 18th century documents like the British Bill of Rights 1689, French

Declaration of the Rights of Man and Citizen 1789, and the American Declaration

of Independence 1776 have often been credited as the first human rights

instruments.7 These domestic charters have contributed principles that are familiar

to modern day international human rights norms These include the possession of inherent rights by virtue of a person’s status as a human being (as opposed to being conferred as a “privilege” by the ruler), the limitation of the rights of the state and monarch, and the non-deprivation and non-interference of these

“freedoms” by the state Above all, the rule of law was expected to prevail in all situations and all were subject to it for nobody was to be above the law and procedural fairness was strongly imposed.8 These “primitive” precursors of international human rights were confined to the civil-political variety and applicable only in the domestic sphere.9

Sarah Joseph, Jenny Schutz and Melissa Castan, The International Covenant on Civil and

Political Rights: Cases, Materials and Commentary (New York: Oxford University Press, 2004,

2nd ed.), p.4-5

However, these protections gradually advanced onto the international domain through discrete socio-political causes such as the protection of aliens, humanitarian intervention, anti-slavery movement, and laws of war.10 In particular, the doctrine of the protection of aliens was vital to expanding the scope

of “primitive” human rights among the society of nations In the traditional international order, state sovereignty was paramount –only states had legal personality, thus international law regulated the relations solely between state actors.11 Considered as state subjects, individual human persons had neither status nor claim on the international plane except through their national state.12Moreover, the treatment of nationals was entirely an internal affair as obligations owed by states to individuals were taken to be obligations owed to the corresponding state by virtue of his/her nationality If a state mistreated its own people, the matter was within territorial jurisdiction and other states were not privy to interfere.13 This formed an anomalous situation whereupon the domestic abuse of nationals was an internal affair, while the same states would be offended

if their own nationals suffered under foreign governments because of the perceived injury to the state personality vested in their citizens

10 Louis Henkin, The Age of Rights (New York, Oxford: Columbia University Press, 1990),

p.13-5

11 See for e.g Mark W Janis, Sovereignty and International Law: Hobbes and Grotius, and Louis

Henkin, The Mythology of Sovereignty, in Ronald St John Macdonald (ed.), Essays in honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), p 391-400, and 351-8

12

See nationality of claims in Malcolm N Shaw, International Law (Cambridge: Cambridge

University Press, 1997, 4th ed.), p.562; and the treatment of aliens in Rebecca M.M Wallace,

International Law (London: Sweet and Maxwell, 1997, 3rd ed.), p.180

13 Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim's international law, Vol 1 (UK:

Longman Group UK Ltd., 1992, 9th ed.), p.16-7, 847-9 Also, Thomas Buergenthal, International Human Rights in a Nutshell (Minnesota: West Publishing Co., 1995, 2nd ed.), p.2-3; and Henkin (1990), above f.10, p.14

Without legal protections for nationals and alarmed by the egregious abuse by states against their minority populations, support for humanitarian intervention grew in the 19th century This limited exception to absolute sovereignty was invoked largely against the Ottoman Empire in the 1800s and culminated in

treaties such as the Treaty of Paris (1856) and Treaty of Berlin (1878) for the

protection of Christian minorities against massacres by Ottoman armies.14 The

regime of minorities’ protection continued and culminated in the Minority

Treaties that were concluded by the League of Nations after the First World War

to protect the rights of linguistic and ethnic minorities within the newly-created states like Albania, Czechoslovakia, Hungary and Rumania.15 Similarly, as the colonies of those who lost the First World War passed into the hands of the

victors, the Mandates System of the League of Nations was set up to ensure that

the new administrators would govern these lands fairly so “that the well-being and development of peoples [formed] a sacred trust of civilisation”.16

At the same time, the dignity of human labour was gaining credence The Treaty

of Versailles established the International Labour Organisation (ILO) to improve

14

Paul Sieghart, The International Law of Human Rights (Oxford: Oxford University Press, 1983),

p.11-13 These agreements on minority protection were also an extension of the freedom of

religion and religious toleration hammered out in earlier centuries such as those that guaranteed the rights of Catholics in the Treaties of Ghent (1713) and Paris (1763) when the French colonies

of Acadia and Quebec were ceded to the Protestant British crown In the Final Act of the Congress

of Vienna, Prussia, Russia and Austria undertook to respect Polish rights within their territories Other treaties involved the Ottoman Empire and its successor states for the protection of certain

minorities See John Humphrey, No distant millennium: The international law of human rights

the working conditions of men, women and children.17 Also, the anti-slavery movement that had begun in the early 19th century by the British government and

saw a breakthrough in 1885 when the General Act of the Berlin Conference on

Central Africa forbade slave trading under international law and the General Act

of Brussels was signed by a significant number of states in 1890, was continued

by the League of Nations This led to the 1926 Slavery Convention which proclaimed the abolition of slavery Unfortunately, unlike the General Act of

Brussels 1890, this lacked provisions for implementation and enforcement to be

truly effective.18

Human rights also found their way onto the battlefield

19 The vicious fighting in the Napoleonic, Crimean and Franco-Austrian Wars of the 19th century had caused widespread devastation across Europe Henri Dunant thus initiated the

International Committee of the Red Cross (ICRC) in a bid to reduce human

suffering during warfare.20

17 Lee Swepston, The International Labour Organization and Human Rights Access to the ILO, in

Gudmundur Alfredsson [et al] (eds.), International human rights monitoring mechanisms: Essays

in honour of Jakob Th Möller (The Hague : Martinus Nijhoff, 2001), p.486-7

18

Sieghart, above f.14, p.13-4; and Humphrey, above f.14, p.27-31 The 1926 treaty was amended

by a protocol in 1953 to put it under the authority of the UN The 1948 UDHR prohibited slavery and the slave trade ‘in all its forms’ as well as both the 1966 Covenants, and the ECHR By then,

slavery would seem to be outlawed by customary international law Most importantly, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery prohibited all sorts of practices similar to slavery such as debt

bondage, serfdom, etc

19

Although humanitarian law or the law of armed conflicts is not technically “human rights law”, its evolution does portray the “humanisation of international law” and is increasingly considered

as “the human rights component of the laws of war” See an excellent exposition on this topic by

Theodor Meron, The humanization of humanitarian law, 94(2) American Journal of International

Law (2000) 239-278

The Swiss government followed up with the 1864

Geneva Convention on the Amelioration of the Condition of the Wounded on the

20

For the history of the ICRC, see http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/57JNVQ (last accessed 19 June 2007)

Field of Battle which sought to alleviate the suffering caused by war and to

regulate the treatment of prisoners of war.21 This first treaty bound the state parties to respect the immunity of military hospitals and medical staff, to care for the sick and wounded, and to respect the emblem of the Red Cross Such protections were extended to maritime warfare at the First and Second Hague Peace Conferences in 1899 and 1907.22 Most of their provisions have since been recognised as customary international law and superseded by the four Geneva Conventions of 1949 and their protocols of 1977 where these international humanitarian principles help to regulate armed conflict.23

As seen above, the human rights consciousness which began in the 17th and 18thcenturies, and extending gradually into the anti-slavery and labour movements, minority protection, and humanitarian standards in armed conflict all helped to protect certain groups of people from abuses Yet, they remained confined to specific causes with a distinct gender and racial bias Coloured peoples like the Asians and Africans, and women remained out of its protective ambit At this juncture, this version of human rights could not be considered truly

“international” as only certain states were party to these treaties Moreover, the idea of universally-applicable human rights and notions of equality had not emerged given that colonialism continued to persist Most importantly, the principle of sovereignty remained immutable such that the sole subject of

21 For the beginnings of international humanitarian law and the ICRC’s role, see

http://www.icrc.org/web/eng/siteeng0.nsf/html/57JNVP (last accessed 19 June 2007)