[An early student attempt to synthesise so-called 'Asian' and Western approaches to human rights for a University course. We had to adopt a food metaphor!]
YOU ARE INVITED TO DINE WITH THE HUMAN RIGHTS MOVEMENT. MENU BELOW: REFLECTIONS ON THE 'INTER-CULTURAL PROBLEMATIC'
Aperitif
To my mind, solution to the Universal-Regional debate is the piece de resistance of human rights law. The capital letters are themselves a statement about the enormous power of this debate: all of the debate being in the context of the Principle of Universality, and where this is taking us (if anywhere) along the road to realising fundamental human rights and freedoms. It is time to alleviate the White Man's Burden in relation to sovereignty, and hence to adopt a global approach to human rights with respect to cross-cultural institutionalisation of human rights-norms1. Consequently, these reflections will focus on Professor Pannikar's Intercultural Problematic in light of the Asian values debate and globalization. The overarching theme of translating universal norms into regional value-systems will inform these critical frameworks. In so doing, my reflections will range across the practical footing of NGO's and indigenous self-determination and development in the context of a global human rights critique.
Entree
Professor Pannikar offers tantalizing food for thought, with respect to the generation of cross-cultural human rights scholarship, through his 'Intercultural Problematic,2. Broadly stated, the intercultural problematic signifies the uneasy relationship and, thus, ongoing tension between regional cultural particularities and universal norms in sovereign nations' approach to human rights. This is reflected in the North and the South's'
I American Anthropologic;l Society, Statement on Human Rights (1947) in S & A, P 372-74: "Doctrines of
the 'white man's burden' have be_n employed to implement economic exploitation and to deny the right to control their own affairs to millions of people..."
2 Pannikar, Is the Notion of Human Rights a Western Concept?, 120 Diogenes 75 (1982). According to Pannikar, "Translations are more delicate than heart transplants. There are no trans-national values, for the simple reason that a value exists as such only inn a given cultural context. But there may be cross-cultural values, and a cross-cultural critique is indeed possible". Cf Abdullah Ahmed An-Nairn, 'Human Rights in the Muslim World', Harv.Hum.RtsJ 13 (1990).
differing records in respect both to recognition and promotion of civil and political and economic, social and cultural rights.
A responsive critic, Pannikar proposes that international human rights norms must translate organically into regional culture and religion to make sense on a global scale. The rights to life or to participation in cultural life, for example, have to find homeomorphic equivalents in the particular contexts of Asian, African and Middle Eastern societies3. As a specific instance, Pannikar mentions that the Hindu norm of lokasamgraha enjoins a binding, cosmic obligation or correlative duty on every human being to respect and maintain the condition of the cosmic'environment4.
The 'Asian Values' Banquet
In recent decades, nevertheless, intercultural human rights cuisine has had a strongly Asian flavour to it: this has been a consequence of the Asian values controversy. Though this seems like judging the dish before sampling it, I sympathise instinctively with Yash Ghai's dismissal of the issue as a largely sham debate between sham actors5. Although regional leaders, Lee Kuan Yew and Mahathir Mohamed believe in the limited cause that they espouse - namely, the superiority of Asian industry, kinship, Confucian consensus and hierarchy to Western individualism and the West's fixation on rights - Asia's elites have claimed the bulk of unprecedented macro-economic growth6. Their discourse is limited in that it merely arrogates colonialist values by continuing thepretence of imperialist power. In solidarity with Phillip Alston, I question the utility and morality of limiting, let alone, excluding the normative application of international human rights to the 'specificity of the Asian context'?
3 ICCPR art 6(1); ICESCR art 15 (1) (a). Cf UDHR art 3, art 27 (1).
4 _
Above, n 2.
5 See generally, Yash Ghai, 'The Need for an Asian Human Rights Charter', Opening Address at the East
Asian Consultation on the Draft Asian Human Rights Charter (pM 123-26). See also, Yash Ghai, 'Human Rights and Governance: the Asia Debate' (1997) 29 Columbia
6 See, eg, Amartya Sen, Development as Freedom (1999) at 35 in S & A, P 1316-1318.
7 Phillip Alston lecture, Week 7. See also Bangkok Declaration 1993. CfWorld Conference on Human Rights 1993 (Vienna Declaration and Programme of Action) at 5, 37; on the specificity of universalism in Asia and on the 'salience' of rights, see Asian Human Rights Charter 1998, para 2.2-2.3.
2
Alternative Choice: Continental Grill
On the contrary, one can savour an aspect of the Intercultural Problematic that has hitherto been neglected. In its 1947 Statement, the American Anthropological Association asserted that human agency can be reduced to the logical determinants of culture present in the force of one's convictions8. The Association did not argue that we exercise no responsibility or choice, but rather that a fully universalized account of human rights will provide for infinite human variation in belief and practice.
Although the Association's account mayor may not be metaphysically defensible, it offers a transformative fiction of human change9. In the author's opinion, in other words, this account of rights seeks to protect the other in goodfaith. By. the latter, I mean that the promotional and customary law standards of the 'Universal Declaration of Human Rights can simultaneously afford protection to the individual qua individual and also a transparent, cognizable law of people/D. In guaranteeing these, standards, the Universal Declaration and the Human Rights Covenants sanction as well as celebrate the desire to belong.
8 American Anthropological Association, Statement on Human Rights 49 Amer. Anthropologist No.4, 539 (1947).
9 Ibid. But see Costas Douzinas' criticism of metaphysical presumptions about human rights, and his notion that rights are 'conferred', not inherited in Costas Douzinas, 'The End(s) of Human Rights' (2002) Melbourne University Law Review 23 (pM 36-42); see also Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (2000).
10 On the question of self-identification of indigenous peoples within their own distinct cultural group, see ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 169 (J 989) art 2, also arts I (a), (b), art 3; C:Cindicia of 'historical continuity', 'distinctness' and transmission of heritage in 'Report of Special Rapporteur, Jose Martinez Cobo '(1884); Though recommendatory, quaere possible norms de lege ferenda regarding iJ!digenous self-determination in Draft Declaration on the Rights of Indigenous Peoples (1993), art 3, arts 8-9, art 31; See further, ICCPR arts 2(1),26, 18, 17,23, General Recommendations re ICERD in Hopu v France (HRC 1997); Hagen v Australia (HRC Communication 26/2002); Ominayakv Canada (HRC Communication 167/1984); Lovelace v Canada (HRC Communication 24/1977); ICCPR art 27 (General Comment 23); ICCPRlICESCR common art 1, art 2. New potential has been unleashed by the Draft United Nations Declaration on the Rights of Indigenous Peoples (1993), arts 6-7.
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The Asian scenario: Seconds, anyone?
As the Asian debate makes clear, the recipe that constitutes any future human rights law will inevitably consist of globalization; that is to say, the increased scope and uniformity of global trade 1 1. Asian polemicists tend to see globalization in terms of equitable readjustment through the concretization of Western violations to social and cultural rights and the benefits of marketization 12.
Nonetheless, it should be emphasised that globalization is not a simple, irreducible component in the international human rights struggle. On the contrary, globalization is a complex phenomenon that crosses or overlaps several basic discourses: moral, political and legal. The Former High Commissioner for Human Rights, Mary Robinson, for instance, declares that we, as an international collectivity, must pursue ethical globali::;ation13. (This is the social-moral dimension of global finance and commerce). Professor Alston, moreover, points decisively to the huge disparities between privileged Asian elites and the Asian peoples throughout the immensely diverse Asian Pacific, which gap bespeaks political alienation14.
11 On the phenomenon of 'globalization', see comments of the S-G (1999) in S & A, P 1306 and CESR Statement on Globalization (1996). CfHarold Koh , US
Dept (1999)in S & A, P 1311.
12 On the specific 'concretization of rights in the Asian context', refer to Asian Human Rights Charter (1998), para.2.3. In terms of violations, 'violators' and NGO monitoring of human rights in Asia , consider Panel Discussion, Week 6: Asian Human Rights Commission (Emily Cheeseman) at http://www.ahrchk.net/index.php.
13 UN High Commissioner for Human Rights, 1997-2000, Mary Robinson, 'Making Human Rights Matter: Eleanor Roosevelt's Time Has Come', Harvard Human Rights Journal / Vol. 16, Spring 2003. Further. Mary Robinson has stated, 'It is not beyond the capacity ofthe international community to devise strategies to help to secure-economic, social and cultural rights for all and to honour the oft repeated pledges to support the right to development', Lecture Notes, Week 10, P 2.
14 Phillip Alston Lecture, above, n 7. See also, Phillip Alston, 'International Governance in the Normative Areas'in UNDP, Background Papers: Human Development Report 1999, at 15-18; Phillip Alston and Gerard Quinn, 'The Nature and Scope of States Parties' Obligations under the lCESCR', 9 Hu. Rts Q.156 (1987), at 186.
4
The Intercultural 'Delicacy ': a Delicate Approach to Human Rights
As the devastation ofthe tsunami, following on the heels ofthe Asian economic crisis made clear, there is much to be done to promote, secure and protect rights in Asia . Human rights advocates and NGO's must strive to alleviate poverty; to protect women, children and migrant workers; to ensure non-discrimination; to secure a prevalent right to development; to guarantee self-determination to indigenous peoples; to contain the spread of epidemic, meanwhile realisingprogressively the 'highest attainable standard' of mental and physical wellbeing to Asia's inhabitantsl5.
Back to the Intercultural Problematic: Dessert and Afterthought...
Through cross-cultural criticism and globalization, we have experienced an ever deepening_politicisation of the issue of governance that threatens to overwhelm our delicate human rights brew. In this respect, human rights advocates must acknowledge the massive, growing gap between rich and poor. Indeed, we may nave to speak of multiple worlds, so that we may have to address adequately two separate domains - the globalized and the globalizers, the developed and the developing world.
Finally, we must question the legal force and cross-cultural impact of globalization though the medium of the Intercultural Problematic. Suffice it to say that legal regulation through international norms - say, WTO and ILO conventions - and norm-construction of international human rights bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Commission on Human
15 Georges Abi-Saab and Mohammed Bedjaoui speak most eloquently on the collective 'bases' of a possible right to development. Where Abi-Saab discusses the interchangeability of statehood or sovereignt: with the economic dimensions of indigenous development, Bedjaoui emphasises the origins ofthe 'core right' to development in the primary 'meta-juridical foundation' of self-determination: Georges Abi-Saab, 'The Legal Formulation of a Right to Development' in Hague Academy of International Law, The Right to Development at the International Level (1980), at 163; Mohammed Bejaoui, 'The Right to Development' in M. Bedjaoui (ed.), International Law: Achievements and Prospects (1991), at 1182. Refer also to Panel Discussion, above n 12, re NGO, 'Friends ofthe Earth' in its association with Australian indigenous peoples (Adam Chernock) at http://www.foe.org.au/Moreover. the right to development has been described, aspirationally, as affirming GA Declaration on the Right to Development (1986), art 2(1): 'The human person is the central subject of development and should be the active participant and beneficiary of the ri!!ht to development'. Contra abstract 'rights' propositions: Costas Douzinas, above n 9.
Rights would need to supply the stock of world trade decisions and global processes16. In conclusion, human rights supporters must be sensitive to other cooking styles, but season human rights legal and moral discourse with an exploration of the socio-political dimensions of non- Western cultures' approach to human rights, along with legal reciprocity between indigenous development and sovereignty.
16 An example includes the principle of national treatment, enjoining non-discrimination in international trade and non-imposition of trade barriers. On 'national treatment' principle, see particularly Michael Pendleton, 'Our Allegiance - Australians Or Global Citizens?' , E Law - Murdoch University Electronic Journal of Law, Vol 6, No 3, (September, 1999), at 101; on reciprocity and the suggestion of 'globalisation rights', ibid, at 91. See also, UN Charter, art 55 (a).
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