From Phoney Debate to Unholy Alliance

Asia Europe People's Forum I
29 February 1996


Asia Europe People's Forum I,
Bangkok, Thailand, February 27-29, 1996

Yash Ghai, University of Hong Kong
Paper presented at the conference Beyond Geo-politics and Geo-economics: Towards a New Relationship Between Asia and Europe, Bangkok, 27-29 February 1996
Published in ASEM Trading New Silk Routes. Beyond Geo-politics and Geo-economics. Towards a New Relationship Between Asia and Europe

There has been a remarkable turn about in the relations between the European Union and Asian states on the question of human rights and democracy. In the early 90s, particularly in the run up to the Vienna Conference on Human Rights, they seemed to be locked in a bitter conflict, with the west criticizing the record of Asian states on human rights and democracy, and the latter responding with denials of the universality and inalienability of rights. Today the west, bewitched by the economic success of Asia, and anxious to share in it, pays homage to 'Asian values' supposedly the secret of that success. It now seems to accept that human rights are after all cultural specific, and we must all understand and respect Asian culture - and its functionality for stable social order and the market. There was always a great deal of hypocrisy and posturing in the older debates, hiding the identity of interests. The new consensus has been consolidated around the acceptance of the virtues of the market - but the market also constitutes the basis of competition, and thus differences of interests around the management of the market. This consensus has clear implications for rights and democracy, particularly in Asia - which need to be watched carefully.

The Framework of the Phoney Debate

1. Discussions of the current east-west debate on human rights is based on certain assumptions. It would be useful as a preliminary to my comments to try to sketch out these assumptions.

2. The scenario goes something like this. The west and the east (Asia) are engaged in an intense debate about the importance and role of human rights. The west regards these rights as essential to good and fair government and the social and economic development of Asian countries. The west is insisting on the adoption by Asia of human right standards, as codified in or developed by international conventions. It uses conditionalities on trade or aid as a means towards the imposition of these standards. Asian countries resist this pressure and offer an alternative view of human rights. They regard human rights, based on a theory of individualism, as inappropriate to Asia - for a variety of reasons.

(a) They are inconsistent with Asian values which place a high priority on the community; the community always comes before the individual. Therefore the notion of duty, particularly obedience to government, is more important than the notion of rights.

(b) The version of rights favoured by the west, i.e., political and civil rights, are inappropriate because the principal need in Asia is for economic development. Civil and political rights threaten political stability and thereby retard economic development which requires a stable environment. The economic success of East Asia countries shows that economic development is best secured through 'soft' authoritarianism, associated with Confucianism. Asian political systems are consensual and not adversarial - they associate adversarial procedures with the assertion of human rights.

Connected with the previous point, social and economic rights are more important in Asia, and must enjoy a higher priority than political rights - which may have to be postponed.

3. These factors suggest that human rights are not universal of indivisible. They are culture specific and depend on social and economic circumstances of a country.

4. A related point is that questions of human rights are matters within the domestic jurisdiction of every country. Each state must define for itself what rights are relevant and appropriate to itself. It is no business of the international community of foreign states to interfere in that process.

5. Asian states claims that western attempts to impose human rights on Asia are motivated by its desire to establish hegemony over the rest of the world. Some ascribe even baser motives: that the real purpose of the west is to destabilise Asian societies to slow down its economic progress, as it feels threatened by economic competition as well as by the growing political power of Asia, particularly China.

6. The debate therefore concerns fundamental matters of values and policies, with serious practical consequences.

Criticism of the East-West Debate

7. It is my contention that there is no such debate. I do not mean of course that the west has not suggested that Asia countries should follow human rights standards. Indeed the US attempts to link the renewal of the MFN status for China to its human rights record is evidence of western pressure. And conditionalities on financial assistance, particularly so as to the restructuring of economies are well known. But it is not true that the west has made any sustained effort to promote human rights in Asia (vied Burma and Indonesia). The principal consideration in foreign policies of western states has been the specific economic and political interests of the particular state. Human rights are merely a part of that wider set of issues, and generally subsidiary. This is well illustrated by Clinton's reversal of the conditions for the renewal of China's MFN status. The British sale of arms to Malaysia through offers of financial assistance to build the Peragu dam (and to bribe senior officials of the Malaysian government) and the clandestine and illegal sale of arms to Iraq shows that shallowness of western commitment to human rights - in Asia or at home.

8. There is a close identity of economic and political interests between the west and Asian states, particularly those which have been most outspoken in their views on western 'imposition' (Singapore and Malaysia). Like the west, they believe in the primacy of market economies, and welcome investments by western corporations, with whom Asian elites have developed a close and often corrupt relationship. They rely heavily on western technologies and markets. They also depend on western military power, although this dependence may be less important with the end of the cold war, but fear of Chinese expansionism still suggests to them the value of a US defence umbrella. They are among the principal purchasers of western arms and 'defence' equipment. The image of some kind of mortal combat between the east and west is therefore totally misleading. That is why I call this a phoney debate.

9. Why then do the west and Asian governments engage in the debate? I cannot offer a brief answer, and it would be speculative anyway. We would need to identify audiences at whom the debate is aimed - whether they are domestic of international, etc.

10. The debate is phoney also in the nature of the arguments used.

(a) Asian countries claim to be preserving Asian culture, yet all their economic and administrative practices are contrary to and destructive of that culture. Development, which they claim to be pursuing, is as much a foreign concept as human rights of democracy. The market, as the matrix of economic organisation, is deeply anti-thetical to the values and practices of the community.

(b) The community is no longer the overriding value or concern in view of the high priority given to the market and its forces. There is a massive exploitation implicit in capitalism in Asia. The overriding consideration becomes the profit motive, turning communal resources into private property, and depriving the community of its sustainability, through the depletion of its resources and the weakening of its authority and structures. There could be few more potent sources of attach on tradition and culture than China's 'one child' policy.

© There is a subtle conflation of the state with the community. The allegiance that should be paid to the community is now claimed for the state. But the state relies on coercion, while the community relied on consent. The community is fairly participatory, but the state is authoritarian, at least exclusionary. Even if in traditional cultures there was respect for communal authority, etc., there is no logical reason why this should be transferred to the state or government. Respect or otherwise for the state should be based on its policies, procedures, etc., not something that can be decreed. Rights serve a different function in state from that in a community. The community has its own mechanisms for accountability - and values for the exercise of authority. These cannot control state authorities, whose powers are immense. Rights provide the framework for the relationship of citizens to the state, and ensure a proper balance between individual interests and the public interest.

(d) In most parts of Asia, the community is not the consensual entity which operates with justice and fairness. Those who suffer under it (outcastes, women, etc.) are often unable to express their opposition to it. It would be wrong to regard the absence of open resistance as evidence of respect and obedience.

(e) Claims about the priority of social and economic interests are hollow in the face of the massive exploitation of workers, women and children, and is manifest in the opposition to 'social clauses'. Industrial safety standards are low, putting at risk numerous life - numerous accident in China free economic zones, industrial disasters in Korea are recent examples of the consequences of the disregard for worker and public safety. China issued its official views on human rights, celebrating the abolition of hunger, unemployment and homelessness at about the same time that it embraced capitalism with its disregard of these goals; predictably general poverty has increased, with consequent declines in employment, health and nutritional standards.

(f) There is no reason to believe that Asia's economic prosperity is due to authoritarianism. Japan has become the world's leading economic power without its benefit, and many countries have failed to achieve economic progress despite decades of authoritarianism (China itself until recently, and the Philippines under Marcos).

(g) The debate revolves around false comparisons, unsustainable stereotyping. The west does care for the community, and shows this in the way its provides for its nurture and the respect for the right of association. Its courts regularly balance the interests of the individual with those of the community and the state. It provides an extensive set of social, cultural and economic rights.

(h) The debate is not only phoney, it is also misleading. Additionally, it is impoverished - it has for too long been in the custody of politicians, diplomats and bureaucrats. It is long on rhetoric and short on analysis.

An Alternative Framework

1. Consequently there would appear to be little point in taking this `debate' as the point of departure. It is necessary to change the nature and scope of the debate. Following are some pointers towards a new framework.

(a) There are diverse views on human rights in both the east and west 'Asian' type attacks on individually oriented rights have long been rehearsed in the west, from Marxist, social democracy, and other perspectives. Similarly in the east there are groups who believe in the universality and indivisibility of rights (and have paid and are willing to continue to pay a heavy price for their beliefs and practices). Not everyone in the west favours conditionalities, nor does everyone in Asia opposes it (indeed many of them find that pressures from the west are more effective than their own activities since the political systems are often not genuinely representative, responsive or accountable). This diversity and richness of views must be explored.

(b) The phoney east-west debate must be replaced by a genuine national debates in Asian countries themselves. The transformative potential of human rights must be fully explored. The perpetuation of east-west debate serves merely to 'legitimise' the views of political and economic elites who have a vested interest in obscuring the true nature of human rights.

© The specificity of the Asian human rights must be explored. The western framework does not help to understand either the role of human rights, priority among rights, or measure to implement them. The perception of the validity and value of rights is heavily influenced by one's class position and the possibility of their implementation is dependent on underlying economic and social realities. This approach does not detract from the notion of universality, but it does suggest differences in strategies and priorities. For research to be useful and effective, it must uncover these underlying realities. The present east-west debate merely obscures these fundamental questions and approaches.

(d) Supporters of universalism do not need to deny that there may well be national or regional differences in terms of priorities and strategies. Nor it is to deny that the consequences of the implementation of rights may vary from place to place. In the west rights serve the function of 'fine tuning' the system of government and administration; in Asia they have a huge transformative potential (and for that reason are feared by those in authority). One problem with the present international system is that the predicaments of the west may unduly influence rights thinking elsewhere as well. Instead of arguing the case for 'cultural specificity' we should be focusing on the objective material conditions that locate the role of rights in the Asian context. Certainly poverty is one of them - it is perhaps the most serious cause of the violation of rights (it frequently leads to the alienation of supposedly inalienable rights, even in one's own body, and the sale of children, etc.). Another primary cause of violations is connected with ethnic violence (though not in East Asia) which leads to the brutalization of civil society and the state. A third factor is that civil society is itself the site of many violations. The strategies to enforce rights are different as well - collective action is more important than individual. The influence of external factors is also more pervasive (and unpredictable). while in a sense all rights are inter-dependent, priorities and strategies may change from time largely used to deny universalism, rather than to examine strategies for achieving universalism.

Rights and Democracy in the context of EU-Asia Relations

12. The renewed interest in Europe-Asia relations is a reflection of the current globalization of economies and politics which has various implications for human rights that have not been adequately explored. Globalization of is not a new process (it century onwards) but such is its acceleration (and the expansion in its scope) in the last few decades that the change is almost qualitative. Globalization has both increased the areas of consensus as well as intensified conflicts in others. Globalization has brought both states and peoples closer. The organising matrix of new globalism is the market, which has given new legitimacy to transnational corporations, weakened state structures, emphasised market oriented rights, de-emphasised social rights, enormously enlarged the scale of mass communications. It is also associated with the reform of legal system and the democratisation of political orders (although the first is more important than the latter). It has also produced global institutions of governance, with the United Nations at the apex, but with considerably more power exercised by the IMF and the World Bank. what do these development imply for human rights?

13. Globalization holds the prospects of convergences of ideas and values, through mutual understanding and respect, but it also poses a challenge to diversity which is important, and the promotion of market related rights at the expense of social and economic. There are already signs that the present European-Asian dialogue has the protective grouping centring around national economic interests. The European-Asia dialogue should be examined from the perspectives mentioned below.

14. If certain governments in Asia prefer to see rights in cultural teems, the west has preferred to see them in national terms. Despite the use of expressions like 'universal', 'inalienable', 'inherent' in the western discourse of rights, western states still expect travellers and immigrants to drop many rights as they enter their borders. The close link between citizenship and rights is a response to the political context of rights, but that context has been enlarged by globalization - and has gone unacknowledged by states. The Convention on migrants Workers Rights attempts to equate the situation of migrant workers to nationals in terms of rights and entitlements, but still falls short in many important respects - and even then is unlikely to be ratified by most western (or eastern) states. Time has come to accept the notion of a global citizen, with rights and duties that are as portable as their suitcases.

15. Globalization has made of most states multi-cultural or multiethnic societies (a process set in train by decolonisation of arbitrarily assembled colonies by the west and accentuated by post-war migrations). If we accept the cultural theory of rights, the scope for 'nation' and 'state' building is severely limited. If the culture of the dominant community is to provide the matrix for national ideology or rights, large sections of the people are alienated from the state - and suffer discriminations. More universalistic notions of rights and duties provide a better basis for national integration. Perhaps this implies a clearer separation of the public and the private, with culture largely in the private domain -although this approach may run against various forms of fundamentalism as principle and ideology. The conflicts in many Asian (and other) states shows that rights have to be based on certain commonalities, not 'culture'.

16. Fortunately it should be possible to find these commonalities. Modern conception and categories of rights are secured through inter-governmental negotiations - indeed they may be said to be negotiated rights. The expansion of rights has also come about due to the need to accommodate different paradigms and priorities. The concern for individual autonomy has been supplemented by human welfare. International tribunals which interpret them are composed of judges from different legal and cultural traditions, and their judgements therefore reflect global diversities. The mutual respect for cultures, rather than the dominance of one, has increasingly dictated the pace of progress in the field of rights.

17. The convergence is facilitated by other aspects of globalization - the spread of technology, educational systems, modes of industrial and economic organisation, the rapid development of global mass entertainment, produced and spread by modern means of communications, travel and migrations, etc. If one's aspirations and expectations are influenced by one's work situation, the technologies at one's disposal, the exposure to public entertainment, etc., then globalism should produce common outlooks throughout the world - and a common notion of entitlements.

18. However, the global dominance of the market carries risks that one set of rights will be pursued at the expense of another. Property and contractual rights - and a narrow vision of the Rule of Law, will be privileged. The west prizes rights in this context because they open up markets and values democracy, or more accurately, 'good governance' because it is seen to produce more rationality in administration, reducing the patrimonialism of Asian states. The increasingly monopolisation of the media across the world will set the tone of public debates and so public values - which will be driven by profits and thus lead to a deadening homogenisation and subservience to authority. Social and economic rights (other than those of capitalists) will be down graded. This is all too obvious in cases where the World Bank and the IMF, and western governments have imposed various forms of conditionalities and structural adjustment programmes. The attrition of these rights is world wide, but hits particularly hard communities in the less developed states.

19. Globalization provides us a challenge to search for a better balance between different kinds of rights. The language of absolutism has never been part of the discourse of rights (despite claims to the contrary). Rights have always been a matter of balancing. In the past these involved - for the most part - balancing the interests of the state against the individual. Today the recognition of new rights and the multi- culturalism of our societies requires additionally the balancing of political and civic rights with social, economic and cultural rights - as well as the balance between rights and dignity of different communities. It is not necessary that all these balances must be mediated through the language of rights (many commentators indeed argue that we would imperil the notion of rights as privileged if we do mediate these balances through the discourse of rights) - except that we seem to be going that route even as new forms of public power replace the traditional state structures. Our changed materials conditions suggest fresh purposes for rights- consistent with its fundamental objectives of human dignity. Europe-Asia relations mediated by governments is unlikely to produce this outcome - here is another challenge to the peoples of these region.