AIPO, HUMAN RIGHTS, AND THE ART OF EMPTY

PROMISES
MATRICULATION NUMBER: A0088262Y
WORD COUNT: 2498

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.

THE DECLARATION AS A REACTION TO HUMAN

RIGHTS UNIVERSALISM

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.

1. A Divine Theory Of Human Rights

The Declaration posits a divine theory of human rights in stating that human beings
are created by the Almighty. The use of Almighty reflects regional particularism,
in that Asian religious traditions and cultures, which have their own principles of
human worth and dignity, should serve as the primary basis for human rights in Asian
countries.5 This is reflected in the composition of the drafters, Singapore, Indonesia,
Malaysia, the Philippines, and Brunei,6 all of which had majority of the population
belonging to monotheistic religions.
This is a rejection of the secular and rationalist justification of dignity,7 and the values
associated with the Enlightenment.8 It is also recognition that there need not be one
universal religious justification for HR, as long as national societies are able to justify
it for themselves. Human rights cannot go truly global unless it goes deeply local. 9
This has the effect of promoting the regions own conception of HR based on local
culture and religious tradition.

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

Religion is a conversation stopper in most

Muslim societies.11 To promote HR in Islamic societies, HR must be grounded in

Islamic traditions, and show that the values are not incompatible12

2. A Dignatarian Conception Of Rights

The Declaration rejects the atomistic or libertarian conception of rights, and endorses
a dignitarian conception of rights - where individual rights and freedoms are never
absolute: each right has its own limitations in order to guarantee the rights of others
and societal interests.13 This is in line with the Asian Values argument which oes not
favour rights over duties. It is evidenced in the Declaration by a restrictive approach
to fundamental rights, but placing more rights under Part III (rights and duties), such
as the freedom of expression, as opposed to it being a fundamental trump under the
UDHR. The Declarations preamble, which states: human beings live in harmony
with their environment, and the fact that human rights must balance the rights of the
individual and the obligation of the individual to society and state 14 supports this
reading. The only absolute right is the freedom of religion.
The presence of a number of correlative duties in the Declaration 15 also distinguishes
the Declaration from the UDHR. Correlative duties are horizontal duties in the sense
that they are owed to others in the duty holder's society, but are vertical in practice,
enforced by the government acting on behalf of the society.16 Such duties are present
in Article 1 (duty to participate in total development), Article 3 (duty to contribute or
take part in development), Article 12 (Freedom of expression), Article 13 (Freedom of
Association), as well as article 20 (Promotion of human rights). Like the Inter10 Diane Orentlicher, Relativism and Religion in Human Rights as Politics & Idolatry
(1999) at pp 154-157
11 Abdulaziz Sachedina, The Clash of Universalisms: Religious and Secular in Human
Rights (Fall 2007) Hedgehog Review 49-62
12 Orentlicher, supra note 11.
13 Marta Cartabia, The Age of "New Rights", Straus Institute Working paper 03/10
14 Preamble, AIPO Declaration
15 John Knox, Horizontal Human Rights (2008) 102 AJIL 1, pp 1-10
16 Ibid.

American Declaration of of Human Rights, Article 22 limits the operation of the

rights emulated therein that states and citizens shall endeavour to exercise such
righs subject to the morality, public order and general well being of society. This is
reminiscent of the Latin-American HR instrument, suggesting that the interests of
state and society outweigh the intersts of the state. 17 Although the Declaration differs
from the UDHR that rights are to be limited insofar as it secures the rights for others,
there is no practical difference as there is still a limiting lcuase for law, morality and
public order. 18

3. Emphasis on Socio-Economic Rights and Right To Development

The Western notion of HR have historically centered on the Civil and Political Rights
(CPRs).19 The Declaration reflects an Asian approach towards HR, with its
emphasis on the Socio-Economic Rights (SERs), the Right to Development (RTD)
and subsistence rights. The Declaration does not focus on CPRs, as evidenced by the
short list of fundamental rights.20 RTD was also affirmed in the Bangkok Declaration,
as an inalienable right.21
The Declarations SERs also reveals a different conception of human dignity. While
the Western liberalist discourse regards dignity as the preservation of human agency, 22
evidenced by the extensive lists of negative rights emulated in the UDHR, the
Declaration reveals an particularized conception of dignity - dignified existence with
access to food, water, housing and education (Article 17). This is indicative of the
Asian Values approach to human rights, that CPRs should only be advanced when
the populations basic human and economic needs have been addressed.

17 John Knox, Horizontal Human Rights (2008) 102 AJIL 1, pp 1-10

18 Article 29, UDHR
19 Yasuaki Onuma, Towards an intercivilisational approach to human rights in The East
Asian Challenge to Human Rights, Bauer & Bell eds., (CUP, 1999) 103-123
20 Article 23(4) UDHR
21 Preamble, The Bangkok Declaration on Human Rights
22 Michael Ignatieff, The Spiritual Crisis in Human Rights as Politics & Idolatry
(Princeton University Press, 1999) pp 77-92

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.

4. A Different Concept of The Form Of Government

HR is not free of politics. It is ultimately about a normative ordering of stateindividual relations and the role of the international community, which includes both
state and nonstate actors.25 The drafters see contemporary HR discourse, centering on
individual liberty and CPRs as endorsing the liberal and democratic form of
government common in Western countries. The Asian Values approach to human
23 Balakrishnan Rajagopal, Decolonising Resistance: Human Rights and the Challenge of
Social Movements in International Law from Below: Development, Social Movements and
Third World Resistance (CUP 2003) at 207-210
24 Antony Anghie, The Evolution of International Law: colonial and
postcolonialrealities 27(5) Third World Quarterly 739

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.

DOES ASIAN VALUES ENDANGER

UNIVERSALITY?

Universality of HR is an aspiration, that HR is desirable and necessary to alleviate

suffering around the world. It is the only language. HR is universal because certain
modern concept of HR and norms can be found universally, and because protection of
such rights is needed for the protection of people around the world. Every civilized
has recognized them as such since time immemorial. 26 Universality of HR is best
advanced by transforming moral claims into enforceable legal rights.
Practically, Asian Values undermines the project of universality of HR, insofar as
the it affects the implementation of HR as legal norms, and prefers for some rights to
remain as political claims as they are not enforceable. HR is based on universal values
found in all major civilizations of the world. 27 Conceptually however, Asian Value is
not a response to the universality aspiration. Indeed, developing countries were
among the most enthusiastic human rights proponents. Instead, it is a reaction against
universalism of the contemporary HR discourse, which sees the Western Liberalist
notion of HR as the dogma, like a religion. 28 Universalism is dangerous in that it
threatens the universality project of HR, and is epistemologically incompatible with

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

other non-naturalist values, such as Christian or Muslims ones, as it is essentially a

case of dogma against dogma.29

1. EAST VS WEST IS CONCEPTUALLLY PROBLEMATIC

However, the label of Asian approach to HR is problematic. Firstly, Asia is a social
construct - spatially, definition of Asia is negative and geographically indeterminate. 30
Culturally, China has been viewed as epitome of East Asia even though in political
thought it stands on the opposite side of law. Therefore, the concept of Asian Values
does not, and cannot purport to represent values of all Asia. It is merely loose set of
claims by more or less autocratic East and SEA states about the nature of their
political culture that was expressed in the 1993 Bangkok Declaration. 31 The lack of
consensus about values within Asia can also be inferred from its lack of a common
HR instrument.
Secondly, what is Asian would necessary entail examining what is a Western
notion of HR is. The common assumption is that that the Western notion of HR used
to measure performance in Asia is authoritative. 32 However, the Western claim to
legitimacy can prove problematic, as it has been criticized as expressing a particular
culture of Western Eighteenth- through Twentieth-Century Liberalism, 33 dependent
on the rights traditions of the US, UK and France, which has limited applicability to
cultures that do not share this historical matrix of liberal individualism. 34 The
correctnes of such a frame of reference must be doubted. Morover, although the West
would like to present one unitary view of human rights, there are still differences, as
shown by the drafting history of UDHR.35

29 Feron, supra note 7.

30 Ruskola, supra note 4.
31 Ibid.
32 Ibid.
33 David Kennedy, The International Human Rights Movement: Part of the Problem?
(2002) 15 Harvard Human Rights Journal 101
34 Ignatieff, supra note 22.
35 Morsink, supra note 8.

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

There is not, and

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.

THE AIPO DECLARATION AS A POLITICAL DOCUMENT

HR is politics, and frequently used to advance a certain version form of government

and to advance a particular conception of human dignity.40 It is argued that the
Declaration is more of a political statement than a statement of enforceable rights to
advance a particular concept of dignity. Rights are enforceable; political clams are
not. This features very prominently in the Declaration, which is heavily influenced by
Asian Values. Rights are enforceable, political claims are not. Despite the
Declaration advancing a certain concept of dignity, and the claim that economic
development comes before the realisation of CPRs, the SERs in the Declaration is
framed in non-enforceable language. Moreover, RTD is a political claim by
developing countries, a reaction to Western political and economic hegemony.
36 Henri Feron, Human Rights and Faith: A world-wide secular religion (2014) 7(4) Ethics
and Global Politics 181-200
37 Thio, supra note 25.
38 Ibid.
39 Shad Saleem Faruqi, Human Rights, Globalisation and the Asian Crisis (1999) XXVIII
No 1 INSAF, 39 at 46-47
40 Ibid.

IV.

EFFECTIVE ENFORCEMENT OF HUMAN RIGHTS IN

THE DECLARATION

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

of Johannesburg is instructive, that courts could restrict themselves to askign whether

the government took resonable steps without delving into the realm of policy-making.

V.

CONCLUSION

Ultimately, the Declaration is a political statement that seeks to advance a regional

approach to human rights. However, we must not cease to work towards the
universality of HR. We must be pragmatic about existence of different visions of HR,
and focus on improving the quality of rights realization and enforcement. It is hoped
that a new document would be drafted which contains real legal rights, not empty
promises.

10