Human Rights Dialogue (1994–2005): Series 1, Number 7 (Winter 1996): New Issues in East Asian Human Rights - A Conference Report: Articles: Identity, Recognition, and Group Rights

Dec 5, 1996

This article is part of a report of the Carnegie Council's workshop, "New Issues in East Asian Human Rights," held at Seoul National University in Korea from October 2-5, 1996.

The threat of either homogenization or "forced multiculturalism" posed by globalization has fueled crises of identity, the politics of difference, and struggles for recognition. The result has been increasing local demands by indigenous peoples for national and international recognition and poliferation of minority claims based on religion, ethnicity, and nationality throughout East Asia.

In his paper on indigenous peoples in East Asia, Benedict Kingsbury of Duke University Law School writes that identifying and mobilizing as an indigenous people are seen by groups "as an appealing form of self-expression and potentially as an effective and attractive strategy in national and international fora." He describes the transformation of the concept of indigenous peoples over the last twenty years "from a prosaic description without much international significance" into a "concept with considerable power as a basis for group mobilization, international standard-setting, transnational networks, and programmatic activity of intergovernmental and nongovernmental organizations."

In discussing the application of the concept of "indigenous peoples" in Asia, Kingsbury focuses on official positions. Of particular interest is the strong opposition to the concept voiced by China, India, Bangladesh, and Myanmar (Burma). The government of China denies the concept on definitional grounds claiming that it is "inextricably bound up with...and is indeed a function of, European colonialism." India objects on the practical ground that "centuries of migration, absorption, and differentiation" make it impossible to say who came first and therefore who the bonafide "indigenous" are. From a policy perspective, India also argues that empirically determining the first settlers would be "unhelpful and undesirable" for two reasons: 1) groups meriting particular protection would be excluded, while others not in need of protection might be included; and 2) recognition of special rights and entitlements for those who came first might spur legitimate chauvinist claims by groups all over India. Many such groups, it asserts, may be very powerful locally while in some sense "non-dominant" nationally.

As a response to such objections, Kingsbury suggests a constructivist approach to recognizing indigenous peoples in the form of a flexible list of: 1) essential requirements, such as self-identification as a distinct ethnic group, long connection with the region, and historical experience of exploitation; and 2) relevant factors, such as non-dominance in the society, cultural affinity with a particular area of land, and distinct objective characteristics such as language, race, material, or spiritual culture. These criteria and factors could then be evaluated and applied in cases of doubt or disagreement as a way of determining and enhancing the rights of "indigenous people." Joseph Chan of the University of Hong Kong expressed concern over Kingsbury's proposal to loosen the definition of indigenous peoples, saying that doing so could conflate the concept of a minority group with that of indigenous peoples, which would dilute the latter.

But what about claims to self-determination—as granted in both international human rights covenants—and the attendant challenges to sovereignty? Jefferson Plantilla of HURIGHTS Osaka moved the discussion to the actual rights being claimed by indigenous peoples in the region. Government objections to the concept of indigenous peoples seem to derive from a fear of the consequences of providing a legal basis for peoples to claim indigenous status and of calls for political autonomy and independence. But as Plantilla points out:

  • Not all indigenous people have the political objectives of political autonomy or independence.... Some if not most of the hill tribes in Thailand are reportedly asking for Thai citizen-ship. The Ainu of Japan are not asking for their own state, but full recognition of and respect for their identity separate from the dominant Japanese race. There are indigenous communities in the Philippines demanding respect for their right to the resources to which they have been attached since time immemorial.

Brian Burdekin, special adviser on national institutions to the UN High Commissioner for Human Rights, noted that in his experience, the issue of indigenous rights has proven to be one of te most difficult for many governments. He raised the conflict between people's claims to self-determination and individual claims to rights, and the "inherent tension between human rights, democratic rule, equality, nondiscrimination, and the rights of indigenous peoples." The norms, institutions, and justifications of the human rights program both overlap with and are challenged by the special circumstances and claims to exceptions enunciated by indigenous peoples, such as usage of customary law and land rights. Benedict Kingsbury agreed, adding that, "Elements of difference, disjunction, and contradiction exist which are likely for a time to remain irreducible."

Identity and recognition are also at the heart of Arief Budiman's study of the Indonesian Chinese minority. Budiman, himself an Indonesian Chinese, argues that the concept of a minority in Indonesia is a "social construction," created purposely to serve the socioeconomic and sociopolitical interests of the Indonesian government.

The case for recognition of the Chinese minority and their rights as a group is complicated by their relatively privileged position and economic ties to the ruling elite. The Dutch colonists gave them "a middle status," below the Europeans but above the indigenous natives. This status was maintained until General Suharto's takeover in 1965, when the Chinese came to dominate the business conglomerates.

Budiman notes a contradiction in public opinion toward the Indonesian Chinese. First, notwithstanding their economic superiority, the Chinese continue to be "perceived as aliens who came to Indonesia to earn a living," people whose loyalty to the country, based on their nonMuslim religious affiliations and speculative ties to Chinese communists, is not above suspicion. But, he also suggests that the basis for the government's "social construction" of a minority is largely false. He cited a recent study that showed that "many people have no objection to accepting the Chinese as equal Indonesian citizens."

Budiman maintains that given this confusion of public opinions, discrimination is in fact the result of a sustained list of legislative enactments and manipulation by the government that depends on the Chinese minority in Indonesia to "functionally serve the political and economic needs of the state...." Assimilation and acceptance are therefore dependent on a state that would prefer to cultivate antiChinese sentiment in order to keep the Indonesian Chinese vulnerable and desirous of state protection. Moreover, the possibility of Indonesian Chinese constructing their own identity as a minority as an assertion of group rights has been impeded by government bans on discussing ethnicity, religion, race, and class, and by a self-imposed inferiority complex.

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