Mario Soccorro I. Diokno

The right and responsibility of individuals and associations to protect and promote human rights and fundamental freedoms was recognized by the United nations Commission on Human Rights as early--or as late--as 1980.1 Citing the International Bill of Human Rights,2 and cognizant of numerous instances of abuse against human rights advocates, the Commission eventually decided to elaborate the principles governing their right in a declaration3 and created an open-ended working group for this purpose in 1985.4

To date, the Working Group has been unable to produce a draft text of the declaration that would be acceptable to most countries. Despite 8 years of deliberation and study, the working group has produced only a "First Reading Text of the `Declaration On the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,'"5 together with proposals from various countries on contentious and/or controversial matters contained in the "first reading text."

The "first reading text" outlines the essential elements of the right to promote and protect human rights, which include, among other, the rights to: know, be informed about, and make known, human rights and fundamental freedoms;6 seek, obtain, receive and hold information, and publish and impart and disseminate freely;7 study, discuss and form opinions on whether the rights and freedoms are observed both in law and in practice;8

develop and discuss new human rights ideas and principles and advocate their universal adoption;9 form, join and participate in non-governmental organizations, associations or groups and communicate with non-governmental or intergovernmental organizations;10 have effective access to participation in government and in the conduct of public affairs;11 be protected while reacting against or opposing activities and acts carried out by the State;12 solicit, receive and utilize voluntary financial or other contributions;13 draw public attention to violations of human rights and complain about policies and actions of officials of the State by petitions or other means in a public hearing decided by independent, impartial and competent authority without undue delay; attend hearings of proceedings; offer and provide assistance, including professionally qualified legal assistance; unhindered access and communication with international bodies.14

That the right to promote and protect human rights has been recognized at least in principle is perhaps the most relevant step the United Nations has taken towards the full realization of human rights. Yet 24 years have passed before the United Nations 24 could even articulate the principles and essential components of this right, some of which remain contentious to date. The excessive delay in the adoption of this right by way of a declaration indicates the degree of difficulty most states encounter in recognizing such a right. This difficulty is perhaps most felt by government in Asia, which generally do not recognize the right to promote and protect human rights and fundamental freedoms both in law and in practice.

In fact, "governments have used a wide range of tactics and strategies in an effort to suppress human rights organizations and their leaders. These have ranged from the detention and incarceration of activists in prisons and psychiatric institutions, usually without trial or in kangaroo trials; disappearances or extra-legal executions through surrogates of death squads, paramilitary and vigilantes; death threats; labeling such groups as subversive and denying them the right to register or banning them after they have been established; censoring what they can say or what the media can say about them; denying them access to newsprint or broadcast media, harassing them with legal proceedings, with unwarranted searches and seizures, and oppressive surveillance of the activists or members of their families; cutting off their access to domestic and especially foreign funding; interfering with tie mail and depriving them of their passports--the list is limited only by the imagination of the oppressors."15

The government of Burma does not allow the existence of any domestic human rights organization; while the government of Vietnam does not permit open criticism of its human rights record by its own citizens. In 1992, in Cambodia, Sri Lanka and Thailand, human rights activists received death treats, were repeatedly harassed, and were placed under surveillance. In the same year, in Cambodia, China, India and Indonesia, human rights advocates were arrested and detained, often without charges. In India and in the Philippines, human rights workers were assassinated by state agents or their surrogates; rarely are the perpetrators brought before the bar of justice. In India, human rights advocates have also involuntarily disappeared, their whereabouts and conditions unknown to date.16

Why is the right to protect and promote human rights and fundamental freedoms denied throughout Asia? Primarily because most governments in the region have adopted their own perspective which differs from the customary understanding of human rights. While there is a general acceptance of the legitimacy of many international human rights norm, there do, however, exist disagreements which countries in Asia tended to interpret rather than reject.

Most Asian governments believe that the Asian environment conditions Asian perceptions of human rights and that the diversity of cultural traditions, political structures and levels of development make it difficult to define a distinctive and coherent human rights model. In reality, however, Asian perceptions are remarkably shared by Asian countries, reflecting a common disquiet with a purely northern interpretation of human rights.

For Asian countries, the issue of human rights became predominantly contentious when industrialized nations sought to make aid, assistance and economic relations contingent upon the observance of human rights and democracy. The debate over how to address human rights heightened, fueled by two major factors: the increased visibility of Asian NGOs and the growing economic power of East Asia.

According to Asian governments, the rights and freedoms recognized in international human rights law provide an overlap with economic concerns and the opportunity to deploy human rights as an instrument of economic competition. They recognize the temptation to deploy the rhetoric of human rights as a substitute of resources or attention.

Most Asian governments believe that since the end of World War II, human rights were not only subordinated to, but were also deployed as an ideological instrument of the East-West struggle. During the Cold War, they posit, the promotion of human rights was shaped by the structure of global power. With the end of the Cold War, most Asian governments believe that the human rights dialogue between industrialized nations and Asian is still influenced by the power structure and dynamics of the more regionalized world. Some Asian governments also believe that the pressure on them to improve human rights is connected with the project of global hegemony, through the universalization of values and aspirations of industrialized nations, and through the disorientation of Asian states and political systems.

Essentially, Asian governments' perspectives differ from the general understanding of human rights in five ways. First, while Asian governments agree that human rights are universally applicable, they do, however, believe that the implementation of human rights is relative or dependent on national variations:

"[We] Recognize that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds."17

"Owing to tremendous differences in historical background, social system, cultural tradition and economic development, countries differ in their understanding and practice of human rights."18 Consequently, most Asian governments believe that certain rights can be restricted in the national interest.

Some Asian governments view the pressure on them to respect human rights and move towards democracy as a clamor for "good government: for effective, efficient and honest administrations able to provide security and basic needs with good opportunities for an improving standard of living. x x x [And] good government may well require, among other things, detention without trial to deal with military rebels or religious and other extremists, curbs on press freedoms to avoid fanning social divisions and draconian laws to break the power of entrenched interests..."19

Second, most Asian governments believe that human rights are of domestic concern and that other states may not interfere in the human rights concerns of other. This is because Asian states firmly believe that human rights must be subordinate to state sovereignty; "Despite its international aspect, the issue of human rights falls by and large within the sovereignty of each state."20 This view is reiterated by Asian governments:

"[We] Emphasize the principle of respect for national sovereignty and territorial integrity as well as non-interference in the internal affairs of States(and the non-use of human rights as an instrument of political pressure)."21

Asian governments have taken even stronger positions over attempts by industrialized nations to link aid, economic assistance and trade to human rights. In two recent documents, Asian states have repeatedly and firmly stated:

"[We] Discourage any attempt to use human rights as a conditionality for extending development assistance."22

"No country, however, should use its power to dictate its concept of democracy and human rights of to impose conditionalities on others."23

Thus, external pressures over human rights and political reforms towards democracy are perceived by most Asian governments as attempts to subvert and undermine their societies--and as breaches of their sovereignty.

Third, most Asian governments reject the concept of individual rights, reaffirming, instead, the primacy of the community over the individual. Singapore's national Ideology, entitled Shared Values, perhaps best expresses this perspective.

"Putting the interests of society ahead of individual interest has become a major factor in our success. ...

Most Asian governments believe that "human rights defined as individual rights of a person is a Western concept, and the West has either a sinister or naive motive in including the concept in this foreign public agenda. ..."24 "The notion of individual rights against the state which is at the heart of many human rights as presently defined has so far failed to kindle the kind of concern in [Asian societies] which it has been able to in Western societies especially. Both the ideas of the individual as the overwhelmingly important factor in society and of the State as an enemy or a potential enemy whose powers have to be sharply delineated, while generally accepted and given formal and legal expression in the Constitution etc., have as yet to be fully accepted. Communitarian values are strong and highly cherished and the State is generally seen not in potentially antagonistic terms but rather as a generally benevolent entity dedicates essentially to the protection and promotion of the welfare of the individual and the community."25

Obviously, by stressing communitarian over individual interests and duties over rights, and by highlighting respect and submission to authority, Asian societies find themselves more susceptible to authoritarianism, even in democratic systems. In addition, the communitarian view towards human rights is fatally flawed because, in most cases, Asian government or state is the "community." Thus, they misinterpret their own perspective by propagating the conviction that the rights of individuals are subordinate to the interests of government.

Fourth, most Asian governments believe that a certain level of economic development must first be achieved before human rights can be guaranteed.

The economic backwardness of Asia has often been used to establish primacy of economic development over human rights. Asian governments believe that order and stability are preconditions for economic growth, which, in turn, is the essential foundation for human rights. Thus Asian governments are "convince[d] that economic and social progress facilitates the growing trend towards democracy and the promotion and protection of human rights."26

Thus, for most Asian societies, "the only liberation force is economic development. It `shakes up' societies and value system. It paves the way for progress. It unleashes popular demands for participation. The West must help Asian in its economic development if it really wants to change Asian values systems and improve Asian standards of human rights."27

Unfortunately, Asian governments fail to comprehend that the lack of economic progress or backward development can never justify violations of fundamental human rights and freedoms. Neither do Asian states recognize that human rights and development are complementary, not antagonistic, principles, and that one cannot--and should not--be sacrificed in favor of the other. This defeats the very purpose of both.

Fifth, most Asian governments view their role as "benevolent leaders" who decree that list of human rights that can be enjoyed or restricted.

Most Asian states claim that traditional Asian cultures and thought system have no notion of natural rights of the individual against the state. Rather, they claim that traditional views on the relationshps between individuals and state are based on the duties of individuals to the state and not on rights against the state. The focus, they posit, is on a harmonious society where individuals work for the common good rather than upon the individual whose rights have to be ensured and protected from authority. Thus, they believe that rulers have to be--and, in fact, are--wise, humane, just and moral.

Thus, the Singapore government proclaimed "The concept of government by honorable men who have a duty to do right for the people, and who have the trust and respect of the population, fits us better that the Western idea that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise."28

This view is, unfortunately widely shared throughout Asia, and perhaps best explains the predisposition of most Asian governments towards the establishment of authoritarian regimes.

The perspective towards human rights aggressively pursued by Asian states also clearly explains why the right and responsibility to protect and promote human rights and fundamental freedoms is not recognized in fact and in law in Asia.

In societies with serious competing models of political organization, faced with disparities in wealth and power, vested interests and entrenched authorities predisposed towards authoritarian rule, massive militerization, unparalleled graft and corruption, predatory domestic and international capital and cartels, where fundamental rights and responsibility to promote them--are a constant challenge to the existing order. Hence human rights advocates in the region will often find themselves prey to state whims, control, restraint, and even repression. regrettably, not much protection is available to human rights activists in Asia (or elsewhere throughout the world).

The function of human rights--and discourse on the--in Asia is largely transformative: it is a struggle for empowerment and for ideas of civil and humane society.

May 5, 1994.

1 United Nations Commission on Human rights Resolution 23(XXXVI) adopted at the 1563rd meeting on 29 February 1980, without a vote.

2 Universal Declaration of Human Rights; International Covenant on Economic and Cultural Rights; and International Covenant on Civil and Political Rights.

3 United Nations Commission on Human Rights Resolution 1982/30 adopted at the 59th meeting on 11 March 1982, without a vote.

4 United Nations Commission on Human Rights decision 1985/112 of 14 march 1985.

5 E/CN.4/1993/64, 1 March 1993.

6 Article 1, Chapter II, First Reading Text

7 Article 2, Chapter II, First Reading Text

8 Article 3, Chapter II, First Reading Text

9 Article 4, Chapter II, First Reading Text

10 Article 1, Chapter III, First Reading Text

11 Article 2, Chapter III, First Reading Text

12 Article 3, Chapter III, First Reading Text

13 Article 4, Chapter III, First Reading Text

14 Article 1, Chapter IV, First Reading Text

15 Laurie S. Wiseberg, Protecting Human Rights Defenders and Human Rights NGOs: What Can Be Done Beyond What is Being Done?, in K. P. Saksena, ed., Human Rights Perspective and Challenges, D. K. Fine Art Press (P) Ltd., New Delhi, India.

16 Human Rights Watch World Report 1993/1994, at p. 488.

17 Paragraph 8, The Bangkok Declaration, adopted at the Asia Intergovernmental Meeting at Bangkok, Thailand, from March 29 to April 2, 1993.

18 White Paper Human Rights In China, issued by the Chinese government in 1991.

19 Bilahari Kausikan, East and Southeast Asian and the Post-Cold War International Politics of Human Rights, 1993.

20 White Paper Human Rights in China, issued by the Chinese government in 1991.

21 Paragraph 5, The Bangkok Declaration, adopted at the Asia Intergovernmental Meeting at Bangkok, Thailand, from March 29 to April 2, 1993.

22 Paragraph 4, The Bangkok Declaration, adopted at the Asia Intergovernmental Meeting at Bangkok, Thailand, from March 29 to April 2, 1993.

23 Paragraph 18, The Jakarta Message: A Call for Collective Action and the Democratization of International Relations, adopted at the Tenth Conference of Heads of States or Governments of Non-Aligned Countries at Jakarta, Indonesia, from September 1 to 6, 1992.

24 Melanie Chew, Human Rights in Singapore: Perceptions and Problems, 1994

25 Mohamed Jawhar, Perspectives on Human Rights in Malaysia, 1994

26 Fourteenth Paragraph, Preamble, The Bangkok Declaration, adopted at the Asia Intergovernmental Meeting at Bangkok, Thailand, from March 29 to April 2, 1993.

27 Kishore Mahbubani, "An Asian Perspective on Human Rights and Freedom of the Press," 1993, in Melanie Chew, Human Rights in Singapore: Perceptions and Problems, 1994.

28 White Paper on Shred Values, issued by the government of Singapore in 1991