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Assignment Version 1
Assignment Version 1
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MATRICULATION NUMBER: A0088262Y
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In a busy year, the AIPO Declaration of Human Rights (the Declaration) is a welcome
addition to the growing corpus of human rights (HR) instruments worldwide. The
Declaration is a valuable instrument that highlights the regions concerns and presents
its own vision for human rights against the backdrop of the Vienna and Bangkok
Declarations. This paper seeks to show that the Declaration is indicative of the Asian
Values approach to HR, through an analysis of the Declaration in terms of its
normative basis for human rights, conception of duties, focus on particular rights and
forms of government. The Declarations relationship with universality of HR and
enforceability of the rights therein, will be examined, with the conclusion that it is
more of a political statement than a statement of HR.
I.
It is argued that the Declaration is a reaction to the Vienna Declaration, and a further
elaboration on the Bangkok Declaration that laid out the Asian Values argument for
human rights,1 and broadly against Western universalism, by setting out an approach
towards HR based on Asian Values.
Universalism in HR is associated with the insistence by the West that the notion of
HR, founded on liberalism and focusing on conceptualizing HR as Civil and Political
Rights (CPRs),2 is the only valid frame of reference for assessing HR. Other regions,
particularly in Asia, oppose this approach as being at odds with other cultures that
may calibrate the balance between individuals and state differently, or share a
different value system.3
The concept of Asian Values, first mentioned in the 1993 Bangkok Declaration,
emphases priority of collective responsibility over individual rights, priority of
1 Tan Hsien-Li, The ASEAN Intergovernmental Commission on Human Rights:
Institutionalising Human Rights in Southeast Asia (2011) at 147.
2 Mary Ann Glendon, A World Made New (2001) at 224-227, 228-232.
3 Lord Davidson, Is it correct to regard human rights as universal? 13 Sept 2013,
China.org.cn <http://www.china.org.cn/china/human_rights/2013-09/13/content_3002022
4.htm
economic rights, parity that duties enjoy with to rights, and cultural preference for the
cultivation of social consensus rather than toleration of dissent.4
The Asian Values is evident from the following evidence in the Declaration:
rejection of the secular theory of human rights, dignitarian conception of rights, focus
on socio-economic rights, and different understanding of the order between
individuals and state.
4 Teemu Ruskola, Where Is Asia? When Is Asia? Theorizing Comparative Law and
International Law (2011) 44 UC Davis Law Review 102
5 Mahmoud Ayoub, "The Eternal Dharma and Human Rights: The Hindu Perspective"
6 Eva Breams, Human Rights: Universality and Diversity by at page 75
7 Henri Feron, Human Rights and Faith: A world-wide secular religion (2014) 7(4) Ethics
and Global Politics 181-200
8 Morsink, Article 1, the Preamble, and the Enlightenment
9 Diane Orentlicher, Relativism and Religion in Human Rights as Politics & Idolatry
(1999) at pp 154-157
The reliance on the divine theory reflects regional realities. Universal acceptance of
the human rights idea depends upon its legitimation within diverse religious
traditions, and not just alongside them.
10
Development is theme that runs throughout the Declaration. It is mentioned in all Part
I (Principles) articles, as well as articles 16 to 20. However, although the articles
impose on the state duties of development, they are phrased in terms that do not
confer enforceable rights on the citizens. In articles 17, 18 and 19, which deal with
tangible SERs, usage of words such as should in all 3 articles, as well as
appropriate measures (article 18) and encourage and facilitate (article 19)
suggests that such rights were never meant to be enforceable.
This lends credence to the conclusion that the right to development was never meant
to be legal rights. Rather, the right to development is a political claim born out of the
New International Economic Order (NIEO), which sought to counter Western political
and economic hegemony. 23
Articles 4 and 5 protect economic sovereignty, and are influenced by the politics of
the NIEO. International financial institutions such as the IMF and the World Bank
played an increasingly intrusive role in the economies of Third World states, linking
developmental aid to the reaslisaiton of various huan rights standards. 24 This is a
reaffirmation of the principle that economic policy is within the domestic jurisdiction
of each member state.
25 Li-ann Thio, Implementing Human Rights in ASEAN Countries: Promises to Keep and
Miles to Go before I Sleep (1999) 2 Yale Hum Rts & Development Law 1, 14-20
rights has been traditionally associated with the opposite "illiberal forms of
government, and this is expressed in the Declaration.
The conceptual opposition is evident in Article 15, which states that citizens should
have the opportunity, without unreasonable restrictions, to take part in elections.
This is in contrasted with UDHR article 21, which imposes no such restriction. This is
also evident in article 22 of the Declaration that rights can be limited to meet the
just requirements of society. Notably, democratic, found in the UDHR, is
missing here.
II.
26 Surya P. Subedi, Are the Principles of Human Rights Western Ideas? An Analysis of
the Claim of the Asian Concept of Human Rights From the Perspectives of Hinduism
27 Ibid.
28 AG Walter Woon, Launch,Law Society Public and Intl Law Committee, 29 May 2008
Obsessing about whether there is one notion of human rights is likely to hinder the
advancement of HR. We should be pragmatic about achieving universality; by
recognising that HR is not acultural, 36 and taking an intercivilisational approach to the
advancement of HR. The intercivilisational approach to HR does not seek to deny the
role of culture, but considers it in tackling HR, avoiding the pitfalls of absolutism and
universalism.
Differences in implementation of the rights does not mean non-recognition; it merely
signifies the controversy in the relative extent of implementation, and permissible
grounds for derogation.37 Governments worldwide accept the idea of universality
the controversy lies with the extent and quality of implementation.
38
cannot be any form of relativism in the core group of rights such as the right to life
and freedom from torture. In the penumbra around the core are rights rights over
which there is no consensus.39 These rights are newer, and tend to be political issues
expressed in HR language.
III.
IV.
Following from the conclusion that the Declaration is largely a political statement, the
enforcement of the rights in the Declaration is likely to be problematic.
A reading of the Declaration shows that the drafters probably did not intend to set up a
regional human rights court. Although states have the task and responsibility under
Article 21 to create an appropriate regional (HR) mechanism, the usage of the
vague term appropriate, as well as task and responsibility in place of shall, does
not suggest that States actually intend to create a regional HR mechanism. The
emphasis on international cooperation and respect for territorial sovereignty and
non-interference41 means it is will probably be very weak.
Despite the low prospects of an adjudicatory mechanism, the principles enumerated in
the Declaration do not stand in the way of setting up a monitoring and reporting
mechanism. A complaints procedure would be preferable, even if it does not have
sanctioning powers, as complaints procedures brings tangible cases and issues into
view, and provide a framework for inquiry.42 More should be done to make citizens
aware of such rights, as HR, as practice and enforcement of human rights is not
merely conditioned by the legal framework.43 Domestic pressure can complement
international mechanisms in bringing about more effective implementation of HR.
The Declaration envisions CPRs and SERs would be primarily enforced by states,
mainly through the legal mechanism. SERs have been criticised as legally
unenforceable as they involve allocation of reources, which is the responsibility of the
government.44 However, the approach of the South African Court in Mazibuko v City
41 Article. 5 AIPO Declaration
42 Philip Alston, Establishing a Right to Petition under the Covenant on Economic, Social
and Cultural Rights
43 Sukhadev Thorat, Hindu social and the human rights of dalits Combat Law, Issue 4:
Dalits (Octr - Nov 2002)
44 Aryeh Neier, Social and Economic Rights: A Critique (2006) 13(2) Human Rights Brief
V.
CONCLUSION
10