Joseph Camilleri

As we review the evolution of human rights discourse since World War II and the international legal and institutional infrastructure that supports it, we cannot but be struck by the sheer scale, intensity, and speed of change. It is probably too early to be entirely confident of the quality or direction of change, but, as Kathryn Sikkink rightly argues, great strides have been made in both culture and institutions.

Sikkink’s essay is also right to highlight the fact that the human rights framework has become increasingly international, expansive, and even supranational in both scope and inspiration, and that underlying this progress has been the emancipatory ethos of the human rights movement.

This is no doubt a valuable account of the achievements of the human rights movement over the last seven decades. Yet, the essay somehow manages to avoid a serious discussion of the many unresolved tensions that have bedeviled the human rights agenda. How these tensions are handled in coming years will largely determine future progress in the observance of human rights, and greatly influence how we approach human governance in an age of profound transition and pervasive turbulence.

Three closely interlinked questions loom large on the human rights horizon. First, how are we to understand the content of human rights? Is it first and foremost the civil and political rights of individuals, usually associated with the formulations favored but not always practiced by Western liberal democracies? Or, does the human rights agenda encompass a wider and more complex set of entitlements and responsibilities?

A second and closely related question has to do with the future of democratic governance. Is it the case that human rights can flourish only in the context of democratic principles and processes? If so, are these principles and processes necessarily wedded to the Western liberal tradition and more loosely to the Western enlightenment and the Judeo-Christian tradition of which it is an outgrowth?

The third question, which logically follows from the previous two, has to do with the global geopolitical and geocultural transformation now under way. Is the human rights framework, as presently constituted, normatively and institutionally equipped to cope with the seismic power shift that is a function of America’s decline and Asia’s rise?

The brief observations that follow focus on this third question, whose far-reaching implications, not least for the way we address the other two questions, have yet to receive the attention they deserve.

The current international legal order, of which the human rights regime is but one element, still largely reflects Western priorities and perspectives. Its global reach, we should remember, is a function of the West’s technological, economic, and military supremacy, which began with the industrial revolution and became inextricably linked with the growth of capitalism and the rise of the merchant and manufacturing classes. Until recently, this legal order was international only in name, effectively excluding from international decision-making the large fraction of humanity that had been either colonized by Western powers or brought under their respective spheres of influence.

Set against this historical backdrop, human rights norms as they evolved in the nineteenth and twentieth centuries are best understood as an expression of the dominant Western, and more specifically Anglo-American, tradition. Daniel Skubik has identified five key attributes as constituting the core of this tradition: (1) individuality (each human being is considered to be a separate, distinct whole); (2) moral agency (each person, is a free, autonomous agent); (3) moral equality (each individual is deemed inherently equal); (4) rationality (each individual has access to reason); and (5) individual integrity (each individual has an inherent dignity concomitant with his or her individuality).¹

These attributes, which stress the agency and entitlements of individuals, explain the Western predilection for negative rights, understood as freedom from undue interference or repression by political authority. They stand in contrast to other conceptions of rights—far more prevalent across the colonized world—which privilege notions of social and economic justice (hence the dual emphasis on rights and responsibilities) or collective entitlements (hence the emphasis on the rights of peoples, ethnic, religious, and indigenous communities, and other minorities).

The advent of the newly independent states of Africa and Asia that accompanied the demise of European empires introduced a new plurality into the international system. But the transformation was neither immediate nor universal. Many of the international human rights instruments were shaped at a time when the vast majority of Asian and African societies had scarcely asserted their right to self-determination. Even in the aftermath of political independence, most of these countries, though formally participating in human rights forums and institutions, could exercise only limited leverage over a process still driven largely by Western perceptions and priorities. Nonetheless, Third World advocacy of the related notions of self-determination, decolonization, and development coupled with the increasingly vehement denunciation of racism significantly widened the scope of human rights discourse. The decision in the 1960s to adopt the International Covenant on Social, Economic and Cultural Rights to parallel the covenant on civil and political rights was a sign of things to come. The adoption of the Millennium Development Goals in 2000 and of the Sustainable Development Goals in 2015 gave further expression to this trend.

With the rise of the newly industrialized economies of Asia, the human rights regime became the subject of an increasingly vigorous, at times acrimonious, debate. At issue was the relative importance of different rights and the relationship between rights and responsibilities, as well as that between national sovereignty and the authority vested in international institutions.

Like the Asian values debate with which it was inextricably linked, the human rights controversy involved both a contest for power and a contest of ideas and principles. If we are to understand the ramifications of this controversy for human rights discourse and practice, we must revisit, however briefly, the competing claims of universalism and cultural relativism.

Given the plurality of cultural traditions, cultural relativism asserts that moral claims depend for their validity on the cultural context from which they derive. It cautions against the pretentious claims to moral superiority of any one culture and preaches instead the virtue of tolerance and the need for coexistence between diverse and potentially conflicting cultural or ethical preferences. The question is, how are we to read cultural relativism generally, and specifically the claims made by political leaders, diplomats, intellectuals and others in Asia who insist that human rights discourse must somehow accommodate Asian values?

Is it a precept which promises to maximize human dignity and well-being by exposing the moral obnoxiousness of cultural imperialism? Or is its promotion of cultural autonomy a mere subterfuge designed to obscure indifference to the worst excesses in human conduct and obstruct any attempt at humane and legitimate governance? This question, though it may seem at first sight unduly abstract, is, as we shall see, central to the task of managing the rapidly shifting geopolitical balance and the uneasy relationship between Occident and Orient.

On close inspection, the notion of an unbridgeable civilizational divide between cultures that supposedly privilege individual rights and universalist principles on the one hand and those that stress national sovereignty and social obligations on the other is simply unsustainable. We need only look at the social cosmologies that underpin two of Asia’s most influential civilizations: Hinduism and Confucianism.

The normative structure of any culture is, of course, a complex phenomenon which cannot be reduced to a single religious or ethical tradition. However, in the case of both India and China, the dominant religious or ethical worldview is closely interwoven with the country’s social and political fabric and so offers a rich array of insights. The point of the exercise, it should be stressed, is not to establish some fictitious identity between Asian and Western cultural traditions, but rather to explore the implications of differences, commonalities, and complementarities for the evolving human rights agenda.

The Hindu faith, one of the oldest world religions, still holds a remarkable sway over the cultural and political life of modern India. On the face of it, the Hindu tradition and the caste system which it sustains and legitimizes seem fundamentally at odds with notions of freedom and equality. Duties and privileges are assigned on the basis of status or position as specified by caste, age, and sex. Yet, the Hindu tradition has tolerated and even encouraged periodic challenges to the prevailing hierarchical order. The caste system itself represents an intricate set of reciprocal relationships, with each group in theory at least respecting “the rights and dignity of the others.” The notion of right, it is true, remains wedded to the concept of duty, but this must be understood in the context of dharma, one of the pillars of the Hindu worldview which represents an ideal of society, including “the righting of injustices, the restoring of balance which men in their ignorance or out of selfish passions ha[s]d disturbed.”

It is also instructive to note that modern Hinduism has sought to breathe new life into an older Hindu tradition, by giving greater prominence to five freedoms: freedom from violence, freedom from want, freedom from exploitation, freedom from violation or dishonor, and freedom from early death or disease. These five freedoms are said to promote tolerance, compassion or fellow feeling, knowledge, freedom of thought and conscience, and freedom from fear and frustration or despair. This may not be the standard liberal formulation of individual freedoms, but it does point to a delicately balanced framework of norms in which rights co-exist with obligations.

Especially revealing in this respect is the contribution of Mohandas Karamchand Gandhi, widely regarded as the father of Modern India. Though a Hindu by birth and deeply committed to Hinduism throughout his life, Gandhi was also influenced by other religious traditions, including Jainism, Christianity, and Islam. While remaining faithful to the Hindu notion of dharma and drawing on “an ethic of community, responsibility and loyalty,” he established the principle that each human being is entitled to equal consideration and concern, and “has an equal right to the necessaries of life.” Obedience to the law was, for Gandhi, “necessarily willed and reasoned.” He subordinated political obligation to a moral standard, to ‘loyalty to God and His Constitution’. The State’s authority could be accepted only to the extent that its laws were just and its actions non-repressive. Where laws were unjust and the state’s conduct repressive, the citizen could appeal to his conception of truth [satya] to challenge the authority of the State so long as the means chosen where consistent with ahimsa (doing no harm). From these principles Gandhi derived a long list of rights, including the right to vote, the right to participate in the affairs of government, the right to resist bad government, and the right to liberate one’s country from foreign rule.

The Gandhian legacy represents an uneasy blending of the cosmic harmony of dharma and the doctrine of individual rights. Elements of that synthesis are evident in the Indian constitution, although some have interpreted its elaborate statement of fundamental rights (e.g., liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; right against exploitation) as tilting the balance too far in favor of rights and neglecting ethical notions of self-discipline, cooperation, and responsibility.

The Confucian ethical code, as expressed in the Four Books (The Analects, The Great Learning, The Doctrine of the Mean, and The Book of Mencius), has largely shaped the Chinese understanding of social relationships. Its two most important contributions were to affirm the perfectibility and educability of human beings. As with the Hindu and Buddhist traditions, though without reference to their supernatural or metaphysical cosmology, the Confucian notion of human dignity is embedded not so much in the abstract, purely rational, calculating, autonomous individual favored by Western liberalism as in the person considered in relationship to other persons. It is the set of complex interpersonal relationships, that is the social context, which confers on personhood its meaning and content, hence the importance of manners, customs, and traditions in defining obligations and inextricably linking personal histories.

The Confucian ethic is not antithetical to notions of justice, but the primary function of law is the maintenance of social harmony. There is considerable scope for individual lives to be enriched, but such enrichment stems from a profound sense of shared humanity which connects the individual with others, that is, with contemporaries across space, but also across time, with elders and ancestors on the one hand, and children and descendants on the other.

Human relationships and expectations, whether in the context of family or community, are normally governed not by law but by reciprocity based on civility, respect, affection, and tradition. The organization of human relations generally and the satisfaction of human needs in particular revolve around rites rather than laws. Indeed, rites or li, understood as “the formal definition and concrete embodiment of principle,” are the closest Confucian approximation to the Western conception of rights. It is li, or the system of rites, which orders five basic status relationships: ruler-subject, father-son, husband-wife, elder brother-younger brother, and friend-friend. By ordering and providing standards of rightness for these relationships, li orders society as a whole. The Confucian vision of social harmony entails not just social cohesion but also the range of social relationships that allow individual persons to express their uniqueness and develop their creativity. The ritual-ordered community envisaged by Confucius offers an alternative to law with more flexible, less adversarial mechanisms for the resolution of conflict, and opens up the possibility of a social system that is both more diverse and more inclusive.

Much has been written about the Confucian insistence on the need for harmony in social relationships, notably the kind of harmony which rests on hierarchy, status, deference, and uniformity, which is, in other words, preoccupied with duties as opposed to rights. Yet there is in Confucian thought and practice a strong commitment to legitimacy. To put it differently, there are clear expectations as to how authority is to be exercised, for duties apply at least as much to those of high rank as they do to those of lower rank. In the Neo-Confucian context, the principles of reciprocity and humaneness required officials to “govern the people with humaneness,” “clean up the penal system,” “be fair in administering tax collections,” and “establish charitable granaries.” The Mandate of Heaven made it incumbent on any ruler or regime to respect the universal life-giving principles constitutive of human nature, notably the inherent dignity of man.

Enough has been said to suggest that, for all their differences, Hinduism and Confucianism share with the Western liberal tradition a sense of the dignity of human life, a commitment to human fulfilment, and a concern for standards of “rightness” in human conduct. Another common strand is the commitment to humane and legitimate governance, although the criteria for legitimacy may vary from one tradition to another. One of the keys to developing a viable framework of global governance lies precisely in taking account of both complementarity and commonality.

Notwithstanding the unique characteristics of each religious or ethical tradition, what the Orient brings to the table is first and foremost a sharper sense of the connection between human rights and human needs, notably those of the disadvantaged (hence the emphasis on social and economic rights). Secondly, it offers a more holistic understanding of the relationship between rights and obligations and between the individual and the community (hence the dual emphasis on rights and responsibilities). Thirdly, it helps to situate human entitlements within a larger social context that regards “individuals” not as disaggregated atoms but as persons whose identity is framed by the relationship to a larger collectivity (hence the emphasis on the rights of peoples, including not only the right to self-determination but also the right to a healthy environment, to food, to security, to a share of the common heritage of humanity).

This brings us to the last aspect of the non-Western contribution to human rights discourse, namely the emphasis on consensual decision-making. If participation is an important criterion of legitimate governance, then this should apply as much to international as to national governance. An international human rights regime is more likely to command universal respect to the extent that it proceeds by way of negotiation, involves all parties concerned, and incorporates the insights of their respective traditions.

None of this is to suggest that human rights discourse and practice and the international governance framework of which they are a part will evolve without much pain and confusion along the way. States have a tendency to appropriate normative and ethical ideas and symbols to achieve narrowly defined priorities. Simply put, official rhetoric is often used to advance the short-term interests of political elites. But the maneuverings of states should not deflect civil society from pursuing the immense opportunities presented by civilizational dialogue. By drawing on the deepest insights of their respective traditions and reaching across civilizational boundaries, the voices of civil society could fashion a rich normative dialogue that can nurture the evolution of international law and serve as a transformational arena in which the rights and needs not only of humans but also of all living things can be articulated and negotiated.

1. Daniel W. Skubik, “Two Perspectives on Human Rights and the Rule of Law: Chinese East and Anglo-American West,” World Review 3, no. 2 (June 1992).