Note: This course is examined through a mid-term assignment (due after recess week on 4 March 2019 at 5pm ) and a 1 week take home examination released on 11 April 2019 and due on 18th April 2019 at 4pm.
Course Description and Objectives
In 1993, just prior to the UN World Conference on Human Rights held in Vienna, countries from Asia gathered at Bangkok at attend a regional human rights meeting. They issued the 1993 Bangkok Declaration, which expressed the particular concerns of Asian countries in relation to human rights, economic and developmental priorities and how states treat individuals and groups within their territorial boundaries. The document challenged the universalist claims of international human rights law with a statement, fraught with diplomatic ambiguity, that, while recognising the universality of human rights, stated “ they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.” (para 8) The Bangkok Declaration also stressed the importance of the right of development, of de-linking human rights and conditionalities and fostering ‘appropriate’ modes of human rights protection.
The influence of the Asian regional meeting in the drafting of the 1993 Vienna Declaration and Programme of Action, which the UN Conference adopted, appears evident:
“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
This course critically examines the universalist aspirations pretensions of international law with specific reference to Asia, which contains 60% of the world’s population and is perhaps the most diverse world region in terms of culture, religion, political systems and standards of economic development. It has its fair share of systemic human rights violators. Is human rights law the new global 'standard of civilisation and if so, is it genuinely 'universal' or a form of neo-colonial moral imperialism, working in tandem with neo-liberal economic policies which advantage some states while injuring others?
Through critical inquiry and specific case studies, the course seeks to make concrete the implications of the application of ‘abstract’ principles of international human right law and to shed light into how human rights may influence notions of domestic governance and whether and to what extent it can genuinely improve the promotion of human dignity and social welfare. Where appropriate, references will be made to global norms as well as regional human rights standards from the Inter-American, European and African systems, as useful comparators.
The course has two primary objectives:
- Understanding the Rules and Regimes of International Human Rights Law with a focus on Asia: to impart a solid grounding and undertake a critical enquiry into the history, principles, norms, controversies and institutions of international human rights law, starting with the birth of human rights law in the aftermath of World War Two and the Nazi holocaust, to contemporary 21st Century human rights developments.
- Theory, Critique and Context: to construct a critical framework for analysing the claims of human rights and the efficacy of human rights norms in shaping domestic governance: to undertake a contextualized study of human rights issues within Asian societies, through examining case law, international instruments, policy and state interactions with UN human rights bodies. Our goal is to excavate the particularities of Asian states, their priorities and the problems they face, and how this shapes law and policy human rights debates in Asia (and beyond). The hope is to obtain insight into contemporary human rights practice in relation to definitional problems, how religion and culture speak to rights ideology, how indivisibility is dealt with, which human rights norms are given priority, how human rights norms are incorporated into domestic legal orders, issues pertaining to institutional co-operation, oversight and enforcement. If law is concerned with a theory of human good, what does human rights law contribute to an understanding of human flourishing in a multicultural, postmodern world? Is human rights law the modern day 'standard of civilisation'? Is it a form of imperialism or a form of benevolent global ethics? Is it designed to prevent catastrophes or is it a comprehensive (and contestable) code governing social relations?
'Asia' alone has no regional human rights system, although the 2007 ASEAN Charter ( http://www.aseansec.org/ASEAN-Charter.pdf ) provided for a "human rights body" at the sub-regional level; in late 2009, the ASEAN Inter-governmental Commission on Human Rights was established, followed by the ASEAN Commission on Women and Children in 2010. In 2012, the ASEAN Declaration on Human Rights was adopted. These developments will be subject to close academic interrogation during seminars, on its own terms as well as comparatively speaking. The role of national human rights protection bodies like courts and human rights commissions are of particular importance to the promotion of human rights in Asia and merits close study e.g. Suhakam (Malaysia); Komnas Ham (Indonesia) and human rights commissions in the Philippines, Thailand, Myanmar and South Asia.
Subjects will typically include the universality vs. cultural relativism debate ('Asian values', the inter-relationship and compatibility between religion(s) and human rights), the justiciability of socio-economic rights, particularly the reporting procedure before the Committee that oversees the International Covenant on Social, Economic and Cultural Rights (ICESCR), public interest litigation and the jurisprudence of the Indian and Philippines courts; issues pertaining to the right of development and how this affects indigenous populations (e.g. Ainu in Japan, Orang Asli in Malaysia); civil-political rights include political speech and democracy, apostasy and religious freedom, the rights of women, self-determination and secession (Bangladesh, Aceh, West Irian Jaya, for example), the rights of minorities, whether MNCs can be held accountable for rights violations (e.g. Myanmar) and transnational problems e.g. migrant workers. Case studies vary from year to year.