Prof. Yash Ghai

[Ed. Note: The author is Sir Y. K. Pao Professor of Law at Hong Kong University. Because of urgent matters overseas, his presentation was made by John Joseph Clancey, chairperson of the board of directors of the Asian Human Rights Commission (AHRC).]

Regional conventions on human rights play an increasingly important role in the protection of rights. They establish values and practices of human rights which are broadly acceptable to the peoples and governments of the region. Without detracting from the universality of human rights, regional schemes can respond to local conceptions of and realities about human dignity and the balance between the rights of individuals and the claims of the community. They can also adopt enforcement procedures which are likely to be more effective in the region. Some cultures place more reliance on quiet diplomacy or gentle pressure instead of litigation or sanctions. This preference can be reflected in the regional procedures.

A regional scheme also enables the peoples and governments of the region to deal with gross violations of rights committed in a member country, at least in the first instance. In this way, international intervention, not fully sensitive to local conditions, can be kept out. It was the failure of regional initiatives in East Timor that further internationalised the problem and brought in outside powers to restore order and protect the East Timorese.

Regional schemes also provide additional security for the enjoyment of human rights; they supplement national and international protection. Regional institutions are more accessible than international institutions, and they frequently have greater powers of enforcement. They can also be the basis for networks of scholars, human rights activists and governments to study human rights and to seek ways for their more effective protection. European regional institutions, for example, have promoted many such networks and were able to develop new norms of minority protection when ethnic conflicts raged in many countries with the break up of the Soviet Union and the former Yugoslavia. These norms helped to moderate conflicts and provide security to minorities. European regional institutions were also able to intervene in these conflicts in a number of ways: mediation, reconciliation, persuasion and ultimately, if necessary, through the positioning of armed personnel between combatants.

Therefore, regional schemes can play an important role in ensuring regional peace and stability. In South Asia, for example, many conflicts around the violation of human rights have an interstate dimension, as in Kashmir or Sri Lanka, as minorities often are linked historically or by cultural or religious traditions to neighbouring countries.

These advantages of the regional protection of human rights have led to the establishment of conventions and the supporting procedures and institutions in all the major regions of the world except for Asia. As governments in the Asian region have shown no interest in regional arrangements for the protection of rights, a number of non-governmental organisations (NGOs) and scholars have discussed the possibilities for lobbying governments to do so or to take other initiatives which might in time lead to a regional scheme. Some years ago the Asian Human Rights Commission (AHRC) discussed how it could contribute to the development of a regional instrument and the supporting machinery and decided to draft an Asian Charter of Human Rights which might be adopted by governments. It decided to hold a series of consultative meetings in the region in collaboration with other NGOs, scholars and legal practitioners. A large number of individuals and organisations were involved in these discussions. The results of these deliberations were placed before a drafting committee consisting of leading Asian judges, practitioners, activists and scholars. The draft they produced was discussed further with these groups and was adopted at a historic meeting in May 1998 in Kwangju in Korea. The site was significant, for it was at this place that the infamous massacre of human rights activists took place on May 18, 1980. Since then, the charter has been translated into several Asian languages and has been widely debated in the region and used for teaching purposes. It has also been the subject of various commentators in learned journals.

It was the view of AHRC and of the drafting committee, which I had the honour to chair, that the time was not ripe for the initiatives of governments towards a regional instrument. Given the hostility to rights of some governments, at best, we would end up with a low common denominator. It seemed that the priority at this time was to engage the public in discussions on the form and shape of a regional scheme. It was necessary to build a popular regional consensus on the need for a regional scheme and the principles on which it should be grounded. In particular, it was important to discuss how universal norms could be adapted to Asian realities and aspirations.

Many parts of Asia have suffered, and some still suffer, from armed conflict that is often due to ethnic hostilities. The people of Asia deeply yearn for peace. There is also in many parts of Asia great poverty which denies possibilities for living life with dignity. We considered that it was important that the framework of human rights should be used to alleviate poverty, and consequently, the right to development and the promotion of social and economic rights would be a priority in any Asian regime of human rights. We examined the implications of globalisation for human rights and the need for greater accountability of corporations for the observance of human rights. We also focussed on particularly vulnerable groups in Asia, including children and child workers, women, workers and migrants and differentially abled people.

These decisions also had implications for the form of the charter. If the charter was to be used to develop an Asian consensus on the protection of rights within a regional scheme and if it was to be used to educate and mobilise people, it was imperative that it be written in simple and clear language, avoiding the jargon and technical terms of lawyers. This is what we have attempted to do.

The next steps must be to begin lobbying governments and subregional associations to place a regional instrument and machinery on their agenda. Perhaps AHRC can take the initiative, in conjunction with Asian law societies, judges, NGOs and scholars, in formulating an instrument for the consideration of governments and regional associations. In this way, we can build on the groundwork accomplished through the charter.

It is a matter of great gratification that the charter has now been translated into Chinese, the language spoken by the largest number of people in Asia. We hope that it will promote discussions on rights in Hong Kong, Macau, Taiwan and the mainland as well as the various Asian countries with a Chinese diaspora.

I would like to congratulate Basil Fernando and his colleagues at AHRC for their initiative in promoting this project and for the energy and enthusiasm they have put into it. I greatly regret that I am not able to be with you on this important occasion due to urgent business in Kenya. However, I am in spirit with you and look forward on my return to working with you to promote respect for human rights.