The Appropriateness of Rights Language
Human Rights Dialogue 1.7 (Winter 1996): "New Issues in East Asian Human Rights"
December 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.
For a number of reasons, rights language is appropriate to the emerging social, economic, and political problems discussed at the workshop. Rights are an important instrument through which values are expressed, negotiated, and agreed upon at the national and international levels. They provide a crucial basis for government and other violators accountability. They are an empowering force in and of themselves, regardless of whether they are enforced. A rights regime creates a space that accommodates aspiration, as seen in the gradual implementation of the articles of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Moreover, rights language has political cachet in international and domestic lobbying. For example, in his paper on the antinuclear movement in Taiwa, Mab Huang of Soochow University in Taiwan describes how opponents of the then authoritarian Kuomintang government adopted rights language in supporting the antinuclear movement, namely the "right to a clean environment." Asserting a new rights claim is an effective way to "trump" previously existing and possibly conflicting rights claims; this is especially true in contesting government claims of "compelling interests" or "national security." Therefore, asserting the right to a clean environment for future generations, though hard to realize from a legal standpoint, counterbalances the privileging of, say, existing property rights of powerful economic interests.
The workshop papers suggest that, like it or not, many of the new claims being made in the region have taken on the language of rights, and therefore are discussed to varying degrees by activists, academics, citizens, and officials in rights terms. As a result, Clarence Dias of the International Center for Law in Development said that whether the issues raised in the workshop result in the evolution of controversial new rights is somewhat immaterial. Or, as another participant put it, "The genie is out of the bottle, and it's too late to try and cap it."
Still, participants voiced objections to the immediate use of rights language without any prior analysis of local realities. Some echoed legal scholars like Philip Alston, who has questioned the efficacy of introducing new rights without accompanying checks and balances. Others challenged the suitability of the current rights language, discourse, and paradigm to the multifarious social and economic problems of the post–Cold War globalized context. The "newness" of the issues taken up by the workshop lies in the challenge they pose to tired dichotomies embedded in the dominant rights language and logic—East/West, community/individual, rights/duties, violated/violator. Therefore, although rights language "has become hallowed in international usage," Charles Taylor warned that "it is worth trying to understand what is potentially misleading about this language in order not to make false homogenizations."
The consensus among participants seemed to be that the role of rights in addressing social problems, though varying by situation, is substantial, and that their application may involve some expansion of what Taylor called "the logic of rights." The case of Thai prostitution is one where the logic and language of rights can be called into question: there is more than one victim and one violator, coercion is not necessarily present, and the root causes are complex processes such as poverty and embedded cultural traditions. In Taylor's words, "If we want to go on using the language of rights we have to recognize that the logics involved can be different, plural, and in some cases do not allow for the easy binary identification of the violator and victim."
The social problems discussed in the papers on Filipino migrants, indigenous peoples, the Indonesian Chinese minority, Chinese internal migrants, and Thai women present assertions of collective rights based on class, race, ethnicity, and gender. These new group claimants do not fit neatly into liberal, individualistic concepts of rights. This traditional notion may need to be broadened to address the group dimensions of human suffering emphasized by contemporary grassroots movements.
Finally, at the workshop the language and logic of the indivisibility of rights—as expressed at the 1993 World Conference on Human Rights in Vienna—fell victim to the realities of competing rights claims that cannot be simultaneously implemented. This challenge to indivisibility arose in relation to the tension between the right to a clean environment and the right to development captured in the paper on the antinuclear movement in Taiwan. Donald Emmerson, professor of political science at the University of Wisconsin, Madison, cited the potential incompatibility of the three generations of rights —liberty, equality, and solidarity—posed by Karel Vasak, who is at the forefront of the movements for a right to development and other collectiverights. Commitments to rights need to be more conditional, more relative, in order for activists and scholars to respond to situations of scarce resources, and make the necessary rights trade-offs.