Food for some Asian thoughts
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Human Rights Reader 54
SOME WELL KNOWN AND SOME LESS WELL KNOWN ASPECTS OF HUMAN RIGHTS
WORK.
1. We know that the human rights-based approach pushes organiza-
tions to focus more on law making, influencing policy, and bring-
ing about empowering participation. In other words, only by con-
tributing to social, economic and legal transformations will we
guarantee the sustained protection and fulfillment of human
rights.
2. We also know that the position of claim holders and duty bear-
ers is not a fixed attachment to a person, but rather a perspec-
tive on the role people assume in a legally defined relationship.
Ergo, the human rights-based approach demands the capacity and
capacity gaps of both claim holders and duty bearers be identi-
fied, analyzed and acted upon in an effort to bring about needed
changes.
3. We further know that a State's increased awareness of the im-
portance of human rights ought to push it in the direction of
creating an ad-hoc legal framework for human rights to be upheld.
But we have also been made aware that laws and rights are not
synonymous. (!) The existence of (new) laws inspired in human
rights do not necessarily mean that the legal position of claim
holders --as subjects of rights-- has improved.
4. On the other hand, we probably are less aware that the strug-
gle for rights can be used as an important political tool to make
the State guarantee full support and protection of the social and
economic rights of its citizens; this, at a time when the suppor-
tive role of the State itself in the economic and social life of
its citizens is declining, when subsidies are being cut and more
responsibilities are being passed-on to the private sector.
5. If we take Children's Rights as an example, we will see that
we also do not know that this idea is still new to many govern-
ments and societies. States think the provisions of the Conven-
tion on the Rights of the Child (CRC) have to simply be added to
existing national policies and laws rather than calling for a
whole new way of designing and drafting legislation and policy
for children. What still prevails is the traditional view of the
child as an object of support and protection by the State rather
than as a subject of rights. Hence, the laws that define the role
of the State vis-a-vis the child mainly see the State as a ser-
vice provider charged with fulfilling the needs of children and
as an institution to protect children from harm by guaranteeing
their security and punishing the perpetrators of any harm in-
flicted against them.
6. It is the idea of the child as a 'rights holder' that is not
well developed. Children are mainly seen in function of adults
and of society, and not as persons entitled to, as a group, ex-
press their views and aspirations on issues related to them.
7. Another less known fact is that individuals' rights are gener-
ally not very important in East Asia, where I live. The notion of
rights as inalienable entitlements of individuals towards the
State does neither exist in legal practice nor in cultural prac-
tices here. What matters here is the fulfillment of social duties
by the citizens who, in exchange, expect a good economic perform-
ance by the State. The State has absolute primacy over individual
rights and is seen as the expression of the common interests of
its citizens. This primacy carries conditions though: it corre-
lates the State with duties to provide good standards of living.
It is due to the fulfillment of this social and economic duty
that the State can request the support (and submission) of citi-
zens. Therefore, the interests of the collective --as expressed
by the State-- ultimately prevail over individual rights. In last
instance, individual civil rights are not to infringe upon the
State's and the public interest.
8. Such a view of the relationship between citizens and State is
deeply rooted in Confucian traditions. The idea is that the indi-
vidual must, through performing her duties, serve society, i.e.,
surrender to the collective. The individual is not a goal in it-
self --only the broader community is.
9. These cultural underpinnings are reinforced by the socialist
understanding of human rights where the idea of inalienable and
pre-state-natural-rights is lacking. The source of citizens'
rights is not an innate human right. Citizens' rights stem from
the situation of the individual in the specific social context,
from her role in the production process and in the socio-economic
structure of the State itself: citizens' rights are class rights.
(David Lempert)
10. The difficulty to reconcile the political and philosophical
tradition just described with the tradition that generated the
idea-of-human- rights is obvious. Human rights concepts were de-
veloped as part of the struggles of the bourgoisie against the
absolute power of the feudal State in Europe. Thus the basic idea
of rights is to empower the citizens vis-a-vis the State and to
limit the arbitrary use of State power against individual citi-
zens, among other, through abusive laws. In the socialist view,
laws and rights are granted to the citizens by the State. Some
have said this concept equals the idea of a 'gardener state' that
'cultivates' people: the State is seen as knowledgeable and pro-
active and the citizens are seen as passive receivers of State
inputs that gear them to become useful to society.
11. In the case of citizens' claims, judges may interpret the
laws from the perspective and interests of the State and society
as a whole. This means judges are not necessarily neutral in
their accountability to the actual respective laws, but are part
of the apparatus of the State that defends the collective rights
and policies against unjustified individual claims. This may
leave judges little space in cases where citizens claim the non-
fulfillment or violation of their individual rights by State in-
stitutions (or, in our example, the violation of selected chil-
dren's rights). Less possibilities currently exist for an NGO to
question decisions by State authorities through the court system.
12. These types of conflicts give citizens in this part of the
world limited possibilities to have their rights enforced (and
legal claims upheld) when using the justice system. The more ef-
fective current way is to make a complaint to the respective au-
thorities directly and hope that claims are taken into account.
13. It is this strong duty bearers' position that is at the cen-
ter of changing human rights attitudes overall in East Asia.
There are still important spaces to fill. Among them, legislation
that allows the evaluation of the performance of duty bearers.
Citizens simply have to have the means to hold them accountable.
14. [The other side of the coin is also not well known, namely,
that progress in women's and children's rights has really been
impressive in China and Vietnam in the last 15 years. But that is
the topic of another Reader.]
15. In what remains to be gained, progress will be slow though,
because State priority in East Asia is on passing new economic --
and not human rights-- laws. (Joining the WTO is a priority
here). Technical assistance for law reform in the area of human
rights, as well as ad-hoc training are still needed in the years
to come.
Claudio Schuftan
Ho Chi Minh City, Vietnam
mailto:aviva@netnam.vn
Mostly taken from Christian Salazar Volkmann, 'A human rights-
based approach to programming in UNICEF: The case of Vietnam',
mimeo, July 2003.
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