- We know that the human rights-based approach pushes organizations to focus more on law making, influencing policy, and bringing about empowering participation. In other words, only by contributing to social, economic and legal transformations will we guarantee the sustained protection and fulfillment of human rights.
- We also know that the position of claim holders and duty bearers is not a fixed attachment to a person, but rather a perspective 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 identified, analyzed and acted upon in an effort to bring about needed changes.
- We further know that a State’s increased awareness of the importance 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.
- On the other hand, we probably are less aware that the struggle 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 supportive 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.
- 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 governments and societies. States think the provisions of the Convention 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 service 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 inflicted against them.
- 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, express their views and aspirations on issues related to them.
- Another less known fact is that individuals’ rights are generally 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 practices here. What matters here is the fulfillment of social duties by the citizens who, in exchange, expect a good economic performance 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 correlates 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 citizens. 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.
- Such a view of the relationship between citizens and State is deeply rooted in Confucian traditions. The idea is that the individual must, through performing her duties, serve society, i.e., surrender to the collective. The individual is not a goal in itself –only the broader community is.
- 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)
- 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 developed 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 citizens, 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.
- 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 institutions (or, in our example, the violation of selected children’s rights). Less possibilities currently exist for an NGO to question decisions by State authorities through the court system.
- 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 effective current way is to make a complaint to the respective authorities directly and hope that claims are taken into account.
- It is this strong duty bearers’ position that is at the center 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.
- [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…]
- 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