Malcolm, David --- "Human Rights at the End of the 1990's: Challenges to Universality" [1998] MurdochUeJlLaw 29; (1998) 5(4) Murdoch University Electronic Journal of Law

Human Rights at the End of the 1990's: Challenges to Universality

Author:	The Hon Mr Justice David Malcolm AC Chief Justice of Western Australia
Issue:	Volume 5, Number 4 (December 1998)

Ladies and Gentlemen

1. I am very pleased to have been invited this evening to speak to you on Human Rights at the End of the 1990's as part of Community Aid Abroad's Campaigns Cafe programme. I have been a supporter of Community Aid Abroad for a good many years. I have a keen interest in human rights which I pursue as the President of the Western Australian Branch of the International Commission of Jurists, or ICJ, Chairperson of the Judicial Section of Law Association for Asia and the Pacific, or LAWASIA, and a member of the governing Council of LAWASIA. The primary object of the ICJ is the promotion and protection of human rights through the observance of the Rule of Law. The primary objects of LAWASIA are the protection and promotion of human rights in the Asia-Pacific region as well as the promotion and protection of the independence of the judiciary and the legal profession.
   
2. I have also had experience working in developing countries, having been appointed Counsel and Deputy General Counsel of the Asian Development Bank for some four years between 1967 and 1970. I have also participated as an observer at trials in the region and in 1995 was a member of the United Nations mission which investigated the capacity of the Government and the judiciary in Pakistan to deal with the increasing trade in illicit drugs emanating from the opium crop in North East Afghanistan.


3. I have followed with interest Community Aid Abroad's Rights Campaign which has been established with the objective of encouraging the universal recognition of basic human rights. While this year sees the 50th anniversary of the Universal Declaration of Human Rights (UDHR)[1], the universal acceptance and implementation of certain fundamental rights has been difficult to achieve. The importance of the UDHR as an important milestone in the advancement of international human rights standards, cannot be overstated. It has been accepted as the authoritative interpretation of the content of "human rights and fundamental freedoms"[2].


4. The acceptance and observance of a universal standard for human rights continues to meet significant opposition, particularly in Asia. This opposition cannot be ignored. The need to find a universal standard is one of the most significant challenges as we approach the start of the 21st century. This evening, I will address the challenges to the universality of human rights at the end of the 1990's. In the course of my comments I will discuss briefly the nature of objections to individual rights and how there are a number of points of convergence between Western concepts of human rights and influential Asian philosophies. In conclusion, I will discuss one of the most fundamental aspects of human rights protections that must be addressed if we are to consolidate the gains that we have made in the promotion of those rights.


5. While Asia was once an arena of conflict between Western nations seeking to extend their colonial possessions, the region has become one of the most politically and economically important independent regions in the 'globalisation' of the world market. This development has cultural, political and economic implications. Western nations have increasingly been called upon to give greater deference to Asian culture. One of the areas in which Asian nations have defiantly asserted their sovereignty is in the protection and enforcement of human rights[3].


6. There has been conflict between some Asian nations, such as Indonesia, China and Thailand, and the West over the guarantee of what Western governments define as "inalienable" human rights to Asia's ever increasing population. For example, Kishore Mahbuhani, Singapore's deputy Foreign Secretary, discussing the acceptance of human rights in Asia, wrote; "There is no unified Asian view on human rights and freedom of the press. These are Western concepts. Asians are obliged to react to them."[4]


7. In his opening address to the first regional human rights conference held in Bangkok in 1993, Thai Prime Minister, Chuan Leekpai agreed that human rights are universal, but pointed out that they should vary in their application according to differences in socio-economic, cultural and historical backgrounds[5].


8. At the Association of Southeast Asian Nations ("ASEAN") conference held in Bangkok in July 1994, Indonesia and Malaysia, amongst other nations, maintained that the West's; "... free-wheeling, individual-oriented approach [to human rights] is unsuitable to Asia's still developing countries... [T]he "Asian way" must emphasise national security, economic progress, local cultures and the needs of society as a whole."[6]


9. The claim to cultural, religious and economic difference on the way Asian countries perceive human rights has received support from many nations in Asia[7]. The validity of that claim, has been debated especially where it has been made on behalf of countries such as Indonesia and Burma (Myanmar). In 1994, Dr Mahatir Mohamad, the Malaysian Prime Minister suggested that the effort to settle upon a universally accepted standard of human rights protections, governance and adherence to the rule of law was an attempt to impose a new form of Western imperialism. He said: "Much later the end of the Cold War ended and the Soviet Union collapsed leaving a unipolar world. All pretence at non-interference in the affairs of independent nations was dropped. A new international order was enunciated in which the powerful countries claim a right to impose their system of government, their free market and their concept of human rights on every country. All countries must convert to the multi-party system of government and practise the liberal views on human rights as conceived by the Europeans and the North Americans."[8]


10. The proponents of differences in culture as a mitigating factor in the enforcement of human rights have often raised the theory of 'cultural relativism' to support their position[9]. The theory of 'relativism' finds its roots in social anthropology[10]. In essence, the theory holds that moral values such as truth and justice take their meaning from the cultural context in which they appear. For example, the application of individual freedom, which finds its roots in Western history, to a non-Western society with an authoritarian tradition, is impossible because it would not have the same meaning[11].


11. In the context of human rights, jurists who support this theory argue that the development of universal standards is difficult as each tradition or culture has its own internal and discreet frame of reference against which the validity or appropriateness of behaviour is measured[12]. In assessing the performance of non-Western nations in the protection of human rights against current Western standards it is argued that; "... one must understand the dignity inherent in every body of custom, and... the need for tolerance of conventions that may differ from one's own."[13]


12. Accordingly it is argued that there can be no transnational, universal legal or moral standards against which the practice of nations in protecting human rights can be measured[14]. This is an issue which I will return to shortly.


13. Apart from cultural objections to the application of international human rights norms, the ability of a State to refuse to accept international practice is recognised in international law. A State cannot be forced to follow the practice of other States or agree to honour the terms of any treaty. A State's 'territorial sovereignty', is guaranteed by international law. The principle, put simply, holds that all States are immune from interference from external sources in their internal affairs. This principle is well established[15]. While the assertion of independence may be justifiable at international law, other commentators suggest more sinister motives. For example, in 1987 the United Nations Special Rapporteur in the Independence of the Judiciary, Dato' Param Cumaraswamy noted that State sovereignty: "... must remain a defence for poorer nations to protect their development. But sovereignty has also come to mean 'Do not comment on us.' 'Look the other way.' 'Ignore atrocity because it is none of your business.' 'Leave us totally to our own devices.'"[16]


14. The suspension or ignorance of individual human rights, and their methods whereby those rights may be enforced, in order to bring economic stability to the nation as a whole, is not an expression of cultural difference but more often than not an attempt to justify a reluctance to adopt any form of human rights guarantee[17] or slow the pace of reform.


15. Pressure on Asian governments to implement change in the methods of governance has also come from within. In 1995, Associate Professor Lee noted that the then booming economies of some Asian countries had provided a sense of urgency to the development of change. A growing, educated middle-class had seen increased tensions between national affluence and tight political controls[18].


16. Whilst the existence of differences between the cultures and levels of development of Asian nations and the West must be acknowledged, it is arguable whether these differences can justify human rights abuses which are alleged to have occurred in places such as Burma and East Timor. There are, however, significant points of concurrence between those values championed by Western human rights philosophies and Asian religious traditions.


17. One can easily trace the modern development of human rights in Western political theory to the Renaissance, although its origins in philosophy and law can be traced even further back to Greek and Roman times. The Renaissance saw the assertion of the individual's rights as against the State. It was argued that authority was derived through a mandate of the people and not through the ordination of God. A ruler was only temporary authority as compared to what was termed the 'will of God' or the 'law of nature'[19].


18. Drawing on early Greek and Roman philosophy and the work of more contemporary thinkers such as Aquinas, the individual was deemed to possess certain rights in nature such as the right to liberty[20].


19. The concept of rights and reciprocal duties that had been absent from earlier Roman philosophy was also developed at that time. It was already implied in the arguments of those who supported the right of the individual against the State that the ruler owed a duty to the ruled. The same theory was extended to respect for the rights of others. For example, the Spanish jurist Francisco Suarez argued that the law embodies a certain moral power that the individual has, not only over possessions but also with respect to what was due to the individual[21]. The philosopher and jurist Grotius argued that the 'law of nature' was not simply the exercise of rights by an individual but also respect for rights of others. The revolutionary movements in France and America echoed this call for individual rights to life, liberty and property but expressed it as against the State as well as other individuals[22].


20. The assertion of these 'inalienable' rights was not without its detractors. The religious and metaphysical terms that had accompanied the formulation of natural rights were criticised as vague and 'imaginary'[23]. The concept of inalienable, individual human rights was criticised[24], as being in conflict with the communal nature of society and the fact that certain rights must be compromised for the benefit of all.


21. Whilst the criticism of natural rights was strong, the concept of what we now term 'human rights' and the push for their observance, continued to exist in one form or another throughout the 19th and early 20th centuries. The concept was embodied in the struggle for the abolition of slavery and for universal suffrage[25]. The horrific events of the first and second world wars however provided the impetus to make certain that human rights were given international, and not simply national, recognition[26].


22. Despite the enormous differences in the cultural and religious traditions between nations in the Western and Asia, similar guarantees of non-interference with the person and possessions can be found in some of the most influential Asian philosophies. Confucianism, for example, acknowledges duties to be performed by an inferior in the service of a superior. Confucius utilised the family as an analogy for the organisation of Chinese society as a whole, with the sovereign as parent. The duties imposed upon the child to serve his or her parents were the similar to those imposed upon the subject to serve the sovereign[27]. However, the service rendered by the child to the parent must be rendered through love, and love must be earned and cannot be commanded[28]. The position of parent required that everything possible must be done to nourish, protect, control and educate the children so as to earn the child's love[29]. By analogy then, the sovereign must do the same. However, there are further duties upon the sovereign not to impose taxes too high or to exploit his subjects: "If the nation's movers only exploited the people without encouraging them and helping them to increase production,... [s]uch exploitation would inflict incalculable suffering on the people."[30]


23. Where a sovereign causes dissatisfaction among his subjects, there arises, according to Confucius, a right to revolt in order to remove the sovereign[31]. Whilst it is not couched in the terminology of 'rights and duties', one can see a correspondence between the right of the individual against the State in Western thought and the duty of the sovereign to his subjects according to Confucius.


24. A further example is provided in the Islamic faith. There are about 600 million followers of Islam, many of them living in Asian nations such as Indonesia and Malaysia. The authority of Islamic fundamentalist government comes however not through the mandate of the people but as a result of divine ordination[32]. According to Islamic political thought, the purpose of man is to serve Allah (ibada). In order to effectively carry out this purpose the community must be organised. Therefore the purpose of government is the organisation of the community in the service of Allah. The nature of the organisation is circumscribed by the Koran (Qur'an) and the Canon law or the shari'a[33]. The government is free to interfere with the affairs of its subjects unless its actions contravene the Koran and are immoral.


25. The Koran acknowledges certain rights as against the State[34]. It is here that there are some important similarities between Islam and Western thought. For example, the Koran guarantees; * the sanctity of the individual's life, thereby implying a right to life[35]; * the equality of individuals before the law[36]; * freedom from interference by government where government does not follow the will of Allah[37]; and * that each individual may provide for his or her own sustenance and that they may protect his or her personal possessions[38].


26. There are however some differences between the content of rights between the West and the Islamic Canon law (shari'a). One of the most important differences is that there is no universality in the 'rights' granted under the Koran. Women in Islamic society are still considered to be protected by men under Canon law to the point where a husband may administer a beating if his wife becomes 'unruly'[39]. Furthermore, 'non-believers' that submit to Muslim sovereignty will be permitted to carry on their own affairs but will be granted certain rights only under a special permit or aman and are not party to the same rights as Muslims[40].


27. While neither of these two philosophies utilises the language of rights and duties as Western philosophy does and nor do they embody entirely the same detail about the role of the individual in the State, it is important to note that there a number of key concepts that are common to all.


28. Assertions of cultural difference to explain the failure of nations to guarantee even the most fundamental of human rights, such as the protection of the individual, can no longer be accepted. There must be an acceptable minimum standard of protection for human rights common to all cultures[41].


29. One alternative that has been suggested is adoption of a universal standard of human dignity rather than a charter of rights[42]. Even those jurists who support a theory of cultural relativism concede that the dignity of the individual can be found in many cultures and should be given international protection[43]. The assertion of human dignity is used frequently in international human rights instruments. For example, the Universal Declaration of Human Rights begins with; "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family... "


30. This phrase is used again in the preamble of both the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural rights.


31. It has been argued , however, that the adoption of a standard of human dignity would avoid the need for States which do not follow Western liberal traditions, to accept the requirement of a system of individual rights. The assertion of rights is only a path to the greater good of human dignity[44]. As I have discussed in the context of Confucian thought and Islamic faith, there is no common language of 'rights' as they are understood in the context of Western thought. However, the primacy of the individual and the need to protect that individual from a State that acts 'immorally' would appear to be common to all. It is against this background that the Rights Campaign by Community Aid Abroad needs to examined. This identifies ten basic human rights, namely:
    
    
• 1. The right to an education
• 2. The right to enough to eat.
• 3. The right to clean water.
• 4. The right to a home.
• 5. The right to a safe environment.
• 6. The right to health care.
• 7. The right to protection from violence.
• 8. The right to equality of opportunity.
• 9. The right to a say in the future.
  
  
32. Even if we can agree on a universally acceptable standard of human rights, much work remains to be done. It is almost universally acknowledged that one of the most fundamental aspects of the protection of human rights is the creation of a strong indigenous legal system and the maintenance of an independent judiciary. The establishment of a strong legal system and an independent judiciary may sound somewhat pedestrian. It is, however, only through the creation of a strong legal system that human rights can be enforced. The system of enforcement of human rights will only operate effectively if Judges can determine disputes between individuals and the State in the absence of the State's influence. For example, judicial independence has been defined variously as: "... the degree to which judges actually decide cases in accordance with their own determinations of the evidence, the law and justice free from coercion, blandishments, interference, or threats from governmental authorities or private citizens."[45]


33. or, in the context of a parliamentary democracy: "... the capacity of the Courts to perform their constitutional function free from actual or apparent interference by, and to the extent that it is constitutionally possible, free from actual or apparent dependence upon, any persons or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control."[46]


34. The maintenance of public confidence in the impartiality of judges is essential to public acceptance of the law and the legal system. A loss of that confidence can lead to instability and threaten the existence of society.


35. One of the means whereby methods of human rights protections can be protected is through the articulation of minimum universal standards to protect judicial independence and thereby preserve judicial impartiality. Since the early 1980s, development of the concept of judicial independence at the international level, in particular by the enumeration of its key features, has proceeded apace through instruments such as the International Bar Association's Minimum Standards of Judicial Independence (1982) ("New Delhi Standards") and the United Nation's Draft Principles on the Independence of the Judiciary (1981) ("Siracusa Principles"), Basic Principles on the Independence of the Judiciary (1985) ("Basic Principles") and Draft Universal Declaration on the Independence of Justice (1989) ("Singhvi Declaration").


36. Most recently, at its 6th meeting in August 1995 in Beijing, Peoples Republic of China, the Conference of Chief Justices of Asia and the Pacific, organised under the auspices of the Law Association of Asia and the Pacific (LAWASIA) adopted a comprehensive statement of the minimum principles required to safeguard judicial independence and preserve impartiality. The Beijing Statement of Principles was adopted by unanimous resolution of all 20 Chief Justices present or represented. The Beijing Statement was amended in some relatively minor respects at the 7th Conference at Manila in August 1997. The Beijing Statement has now been adopted by 32 countries in the Asia Pacific region.


37. I do not propose to give a detailed explanation of the Beijing Principles. The United Nations Basic Principles sought to state certain basic principles of judicial independence of world-wide application. They contemplated that countries in different regions would expand upon the basic principles with respect to their different regions. This is what the Beijing Statement endeavours to do for the Asia Pacific Region which encompasses the ESCAP Region of the United Nations. The Statement provides a definition of the judicial function that must now be accepted as common to Judges across the Asia Pacific region. Article 10 of the Beijing Principles[47] provides that the objectives and functions of the Judiciary include: (i) to ensure that all persons are able to live securely under the Rule of Law;[48] (ii) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights within its own society;[49] and (iii) to administer the law impartially between citizen and citizen and between citizen and State.[50]


38. These functions complement and overlap each other. For example, it is to the Judiciary that the power of, and responsibility for, resolving disputes according to law is given.[51] The natural consequence of this allocation of responsibility is that, the judicial power must be exercised by a consistent and unwavering application of the Rule of Law. The natural consequence of that requirement is that the Judiciary must apply the Rule of Law impartially to matters brought before it. As one judge has put it: "The exercise of ... judicial power ... requires that judicial decisions be made 'according to law'. If the power is exercised on some other basis, and particularly as the consequence of influences whether of power, policy, private thoughts or money, it follows that an essential requirement of the judicial power is negated."[52]


39. In turn, a consistent, impartial and unwavering application of the Rule of Law tends to protect persons from the infringement of human rights, to the extent that they are recognised by the Rule of Law which applies in a particular country. There is room, within the historical and cultural context of a country, for a legitimate debate about the appropriate scope of human rights within that country. However, in so far as those rights are recognised, the Judiciary can play an important part in upholding them, whenever the powerful attempt to abridge them in an ad hoc or arbitrary manner. As Mr L.V. Singhvi observed in his Final Report to the United Nations Commission on Human Rights in 1985: "The strength of legal institutions is a form of insurance for the rule of law and for the observance of human rights and fundamental freedoms and for preventing the denial and miscarriage of justice."[53]


40. In conclusion I would note that it is important, not only to international law, but to the very survival of all peoples, that the argument between cultures not be bogged down in semantic arguments about Western 'rights' and Asian 'duties'. There is a common concern for the dignity of the individual by protection from arbitrary interference by the State. That common concern must be translated into a 'harmony' of protection. I wish Community Aid Abroad every success in its Rights Campaign.

Notes

[1] Gen Resolution 217 A (III).

[2] Many of the provisions of the UDHR have been reaffirmed in other Conventions such as the International Convention on Civil and Political Rights.

[3] Vincent R., Human Rights in International Relations, (1986), p. 21.

[4] Mabuhani K., "Live and Let Live", Far Eastern Economic Review 17 June 1993, p. 26.

[5] Ching F., "Asian View of Human Rights is Beginning to Take Shape", Far Eastern Economic Review, 29 April 1993, p. 27.

[6] "Human Rights Feud Splits Asia", The West Australian, 30 July 1994, p. 23.

[7] Mahbuhani K., op cit.

[8] Speech by Dr Mohamad at Rethinking Human Rights, 6 December 1994 at p. 4 cited in Lee H.P., Constitutional Values in a Turbulent Asia, 14th LAWASIA Biennial Conference, August 16-20 1995, Beijing at p. 3.

[9] An-Na'im A., "Problems of Universal Cultural Legitimacy" in Claude R. & An-Na'im A. (eds), Human Rights in Africa, (1990), p. 339.

[10] Teson F., "International Human Rights and Cultural Relativism" in Claude R. and Weston B. (eds), Human Rights, (1992), p. 42; Beattie J., "Objectivity and Social Anthropology" in Brown S. (ed), Objectivity and Cultural Divergence, (1984), p. 10.

[11] Krausz M., "Introduction" in Krausz M. (ed), Relativism: Interpretation and Confrontation, (1989), p. 1.

[12] An-Na'im A., "Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights" in Welch C. & Leary V. (eds), Asian Perspectives on Human Rights, (1990), p. 36.

[13] An-Na'im A., op cit.

[14] Teson F., op cit.

[15] Higgins, The Development of International Law Through the Political Organs of the United Nations, (1963), p. 317.

[16] Cumaraswamy P. Changing Individual Expectations - Human Rights and the Law; Expectations of Australia in Asia and the Pacific, 24th Australia Legal Convention, Perth, Western Australia, 1987 at p. 7.

[17] Teson F., op cit, p. 43; Cassese A., Human Rights in a Changing World, (1981), p. 54.

[18] Lee H. P., Constitutional Values in a Turbulent Asia, 14th LAWASIA Biennial Conference, 16 - 20 August 1995, Beijing at pp. 2-3.

[19] Vincent R., op cit, p. 23.

[20] D'Entreves A., The Notion of the State, (1967), p. 105.

[21] Vincent R., op cit, p. 25.

[22] Weston B., "Human Rights: An Overview" in Claude R. & Weston B., op cit, p. 16; Vincent R., op cit, p. 25.

[23] Weston B., ibid, p. 16.

[24] Bentham J., An Introduction to the Principles of Morals and Legislation extracted in Harris J., Legal Philosophies, (1980), pp. 36/37.

[25] Weston B., op cit, p. 16.

[26] Weston B., ibid, p. 17; Henkin L., How Nations Behave, (1976), p. 45.

[27] Cheng Tien-Hsi, China Moulded by Confucius, (1946), p. 163 .

[28] Cheng Tien-Hsi, ibid , p. 166.

[29] Li Fu Chen, The Confucian Way, (1922), p. 441.

[30] Li Fu Chen, ibid, p. 444.

[31] Tse-shyang Chen F., "The Confucian View of the World Order", in Janis M. (ed), The Influence of Religion on the Development of International Law, (1988), p. 42.

[32] Reisman M., "Islamic Fundamentalism" in Janis M., ibid., p. 117.

[33] Von Grunebaum G., Islam: Essays in the Nature and Growth of a Cultural Tradition, (1961), p. 127.

[34] Hassan R., "On Human Rights and the Qur'anic Perspective", (1982) 19 Journal of Ecumenical Studies 51, p. 55.

[35] Hassan R., ibid, p. 55/5; Except where an offence against the shari'a is punishable by death; "Take not life which God hath made sacred, except by way of justice and law" (Sura 6: 151)

[36] Hassan R., id, p. 56; For example "O ye who believe! be [sic] steadfast witnesses for Allah in equity, and not let enmity of any people seduce you that ye deal not justly. Deal justly, that is nearer your duty." (Sura 5: 9); Von Grunebaum,.,p. 132.

[37] Hassan R., id, p. 58; "It is not right for Man that God should give him [sic] the Book of Law... and he [sic] should say to his [sic] fellow-beings to obey his [sic] orders rather than those of God." (Sura 3: 79).

[38] Hassan R., id, p. 62; (Sura 11: 6 and Sura 2: 29 respectively).

[39] An-Na'im A., op cit, p. 38.

[40] An-Na'im A., op cit, p. 38.

[41] Teson F., op cit, p. 43.

[42] Donnelly J., "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights", (1982) 76 The American Political Science Review 303.

[43] An-Na'im A., op cit, p. 38.

[44] Donnelly J., "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights", (1982), 76 The American Political Science Review 303, p. 303

[45] Rosenn K., "The Protection of Judicial Independence in Latin America" (1987) 19 University of Miami Inter-American Law Review 1.

[46] Sir Guy Green, "The Rationale and Some Aspects of Judicial Independence", (1985) 59 Australian Law Journal 135.

[47] See also Singvhi Declaration Art. 1.

[48] Beijing Principles Art. 11 (a).

[49] Beijing Principles Art 11 (b).

[50] Beijing Principles Art. 11 (c).

[51] See generally Nicholson, RD Judicial Independence and Accountability: Can they Co-exist? (1994) 67 Australian Law Journal 404 at 410-411.

[52] Nicholson, RD ibid, at 405.

[53] Singhvi, LM Final Report (1985).