Human Rights: Positive Policies in Asia and the Pacific Rim-China Human Rights

Press：Hollis Publishing Company

Publication date：1998

Author： Edited by John D. Montgomery

Abstract

How—and how much—do governments advance human rights? The answers are ambiguous because even the term human rights is a politically tortured concept. This book examines them as recognized claims that are asserted by groups and individuals in pursuit of their own valued ends. Such claims are as contradictory as they are diverse. Most of them involve government because,at a minimum, people expect the state to do something to relieve poverty, nastiness, solitude, brutishness, and brevity in human life. Nearly all governments do in fact offer some protection against abuses that citizens can inflict upon each other, and sometimes they even attempt to restrain themselves, recognizing that they can also be guilty of exercising violence against individuals they despise or against citizens that are out of favor. Moreover, many governments sometimes take positive steps to assure their citizens of basic human rights. These are the policies that are the subject of this book.

The literature on human rights, however, is dominated by other concerns--the abuses and violations that are threatening to the quality of human life. People who study them hope that these reports will bring about reforms. This literature therefore tends to be gloomy and one- sided. Yet such policies are not all that governments, even malignant ones, undertake. Many governments violate some human rights but are also engaged in expanding the scope of people’s opportunities in others, in response to moral obligations like those described in the international declarations that specify human rights. Such expansions of rights are the consequences of what we call positive human rights policies. Of Course, the policies we commend in no way justify or excuse the deprivations of human rights as reported by activists and human rights organizations such as Freedom House and Amnesty International and by the U.S. Department of State, yet it may be that in the moral balance of human rights policies, if these positive efforts are considered, the human rights benefits outweigh the abuses. Even a libertarian could conclude that People are better off under a government that occasionally violates human rights than under governments that refuse to impose any restrains at all on selfish individuals acting in their own interests(as appears to be the case in early post-communist regimes). Positive human rights Policies are in a class of their own. Even minimalist libertarians can expect some human rights affirmations；the appropriate question is what expectatlons are reasonable.

Three years ago, in the search for evidence about such expectations, postdoctoral fellows at the Pacific Basin Research Center(PBRC)began studying the positive efforts of governments and other organizations to respect human dignity and human rights. Our exploration proceeded. Somewhat randomly, since the range of such policies is not well defined? Choosing among positive policies was not easy: we found no inventory of good deeds to weigh against well-documented assaults by governments against humanity. Though the lists of human rights abuses mounted, there were no collections of affirmative experiences to place on the scales.

In scanning some promising policies that are emerging in Asia and the Pacific Basin, we examined constitutional and legal promises and programs to advance human rights in fields as diverse as public health, education, environmental protection, land tenure, the demands of labor and other special groups, communal traditions, legal reforms, and even science and technology programs. The policies we studied included direct efforts to provide benefits to disadvantaged citizens(such as legal aid in China) as well as by—products of efforts to advance the course of modernization (such as supports to agro—industrial research and innovation in Bang1adesh). During this three-year cycle of research, we offered more than 20 postdoctoral fellowships to scholars from the region so they could perform work in the field or at their home institutions, and at Harvard University(where PBRC’s director is located) to gather and analyze data on the initiation, conduct, and impact of policies that seemed to Provide positive outcomes, i.e., affirmations of human rights? We found such Policies in authoritarian states such as China and Indonesia, as well as in democratic aspirants such as the Philippines and the United States; and they appeared as well in our studies of nongovernmental organizations in Indonesia and India. Our field research made use of direct and participant observation, the examination of legal documents and religious scriptures, anthropological interviews, demographic data, and assembled surveys using the critical incident method.

Some of the cases we examined were provocative illustrations of the range of possible ways of advancing human rights. They are not necessarily typical or representative in any rigorous sense, but, like the studies presented in our earlier volume, Great Policies: Strategic Innovations in Asia and the Pacific Basin Westport,CT: Praeger,1995) they demonstrate that governments can rise to surprising heights of innovation and dedication as they pursue their moral ends. In the end, we conclude that positive human rights policies are not so uncommon that the public should ignore them; indeed, we have discovered that in their origins and implementation and in their consequences, they have much to teach us.

As an external check on the validity of this conclusion, I invited leading human rights activists and other social scientists to spend a few days in Malta early in 1998 to review our approach and its implications.Those who attended were Audrey Chapman, Richard P. Claude, Dennis J.Encarnation, Milton J. Esman, Nathan Glazer, Ted Robert Gurr, Barbara Harff, Tohn M.Heffron, Alex Inkeles, Ian Martin, Charles Norchi, and Henry J.Steiner. Collectively, these colleagues represent three approaches to examining human rights experiences: first,the discovery and reporting of abuses as a means of discouraging such violations; second, the monitoring and measurement of changes in human rights outcomes; and third, the conduct and observation of programs and policies that affirm human rights or empower People to Pursue them. These three approaches all add something to our understanding, in a sense reinforcing the observation that gradual improvements in human rights are taking place. The first approach has induced changes that have contributed substantially to human welfare; the second, elusive though it is, has hinted at the possibility of comparing achievements among different approaches to human rights; and the third, represented in this book, implies the possibility of extending them. Although the third path is not unique to this collection, it remains somewhat unconventional and is still more informative than it is prescriptive.

There remains some ambivalence about studying human rights in this way, however. The term positive human rights policies is not to be confused with the concept of positive human rights, which has entered the literature as a means of distinguishing between refrainment from evil and the act of doing good. The study of positive policies can include both elements, if the objectives and the consequences are to provide access to rights. This book invites the reader to observe conditions under which policies have attempted to advance rights of different kinds. There is, of course, the risk of hubris in all such studies, since they seem to imply the injection of moral standards, an especially questionable procedure when it comes to appraising foreign experiences. We have tried to avoid sanctimony while recognizing the human trait to feel superior to others.

Most of us would agree on the need to exercise caution when we analyze human rights policies in other countries. But we would also observe that human rights have flourished under such scrutiny. Because rights involve relationships between citizens and their own governments, they lie near the core of national sovereignty. Yet observers from outside the circle of a nation-state may legitimately apply external values to such policies even though they do not have responsibility for them. They inevitably assume standards as they observe performance, and in spite of their efforts at self-restraint, outside observers cannot condone abuses and violations. We must accept the risk of invasiveness if we are to speak at all.Sensitive though the subject is, we believe that interference of this kind has helped move mankind to higher standards. Resentment is part of the cost of such improvement.

It is time to put aside our reluctance to defend higher standards, even when they come from external sources. External influences have had profound effects on the progress of human rights. There are at 1east half a dozen such influences that have contributed in history to these improvements. At their most muscular, these developments have taken the form of military intervention, including colonialism and military occupation, and though they are guilty of excesses, they have produced laws and constitutions that have protected basic rights over decades of abuse. More intangibly, there have been milder forms of influence, such as international declarations and agreements, that have had lasting effects throughout the world by contributing concepts and clauses in dozens of laws and constitutions. There have been coercive sanctions, conditionalities, and corrective actions as well that have induced governments and other institutions to improve their behavior, perhaps reluctantly but sometimes permanently. Still less invasive are forms of moral suasion, among them, reports of violators and abusers by Amnesty International or the U.S.Department of State which have invoked international shame to prod governments to better performance. And following the collapse of the Communist empire, there has been yet another external source of change：unobtrusive forms of technical assistance in the drafting of constitutions and 1aws,usually coming as a result of an invitation extended by post-crisis governments. Finally,this book suggests how scholarship can help governments take advantage of existing experience with affirming or positive policies. Such policies, we believe, can encourage emulation without invoking the moral reproaches that come from interfering with sovereign prerogatives.

Human Rights: Positive Policies in Asia and the Pacific Rim is a preliminary step in the direction of recognizing the heuristic value of studying cases where positive policies have brought both new and old rights into being. Our observations suggest that most of these emergent rights have arisen out of political conflict rather than natural law processes, and many of them have involved some form of group participation rather than individual activism.They are deeply contextual rather than universal, although they produce claims or demands that go beyond the moment. As we have studied policies of this type, we have drawn on kinds of scholarship that are not usually associated with human rights research , we have engaged primarily in historical analysis, but our focus is on pollcies and programs in different settings, not political regimes or economic conditions.we have described them as objectively as we could in the hope that they could be viewed comparatively. The results constitute a distinct form of data, which can be detached from generally recognized approaches to comparative politics such as regime type, organizational structure, moral aspirations, or economic status, all of which, to be sure, can decisively influence choices affecting human rights decisions.

A glance at the Table of Contents of this book will reveal the outlines of our search. The first section begins by describing theoretical qualities of human rights, first as they appear in international affirmations of universal values, then as they are revealed in Western and non-Western perceptions of rights and wrongs, and finally as they respond to efforts to influence human rights behavior in another country. The second section, moving toward manifestations of commitment to human rights, examines legal protections of women in China, affirmations of the rights of underprivileged groups in India, the introduction of special tribunals to reinforce legal rights in India, and a pilot program to provide legal assistance to underrepresented individuals and groups in India. More specific efforts to advance the access to recognized rights are described in the third section, including support for technological innovations designed to help the poor in Bangladesh, approaches to public health services in the Philippines, and affirmative action programs on behalf of retirees and female employees in Japan. The final section reviews the efforts of persecuted minorities to obtain retroactive justice, actions by indigenous peoples to advance their rights, and experiences with efforts to use educational systems to protect and preserve the threatened culture of Tibet. The concluding chapter examines and compares some of the policy dimensions of the human rights activities that have been described here.

These chapters are intended to show how human rights policies in Asia and the Pacific have enhanced human dignity, directly or indirectly. They represent our hope that such policies will continue to display the noblest ambitions of organized society.

Brief Introdution of the Author

Edited by John D. Montgomery

Contents

ix Foreword

xv Acknowledgements

Human Rights as Universal Values
John D．Montgomery

2    Rights as Affirmations of Human Values
6    Values, Rights, and Policies
12    The Use of Policy Resources for Human Rights
18    Conclusion: Introducing the Rest of the Book
20    Appendix

Human Wrongs and Human Rights
Arvind Sharma

29    Human Rights: Formulation and Ratification
31    Historical Background
33    Social and Economic Rights
34    Individual and Collective Rights
36    Rights and Duties
37    Basis for Human Rights
39    Rights: Absolute or Universal?

Policies, Resource Commitments, and Values: A Comparison of U.S. and Japanese Approaches to Human Rights in China
Ming Wan

44    Policy Makers
48    Policy Objectives
57    Resources Committed
61    Values Revealed
67    Conclusion

Women's Rights, State's Law: The Role of Law in Women's Rights Policy in China
Jonathan Hecht

72    The Development of Women’ Rights Law in China
77   The Implementation of Women’ Rights Laws in China
88   The Significance and Limits of Women’s Rights Law in China

India's Reservation Policies as Affirmative Action
Arvind Sharma

97   Introduction
98   How the Policies Were Formulated
102   Why the Policies Were Formulated
104   With What Consequences?
107   Unintended Results：Who Benefits and Why?
109   Conclusion

The National Human Rights Commission of India as a Value-Creating Institution
Charles H, Norchi

113   Establishing the National Human Rights Commission of India
117   The Chakma Claims
125   The NHRC as a Value-Creating Institution: Lessons

Access to Justice: Legal Aid in The People's Republic of China
Zheng Yong

132   Historical Development of Legal Aid in the PRC
137   Concrete Practice of Legal Aid Programs
143   Problems and Opportunities for the Chinese Legal Aid System
147   Conclusion

The Impact of Science and Technology Policies on Human Values in Bangladesh
Abdul Hye Mondal

151 Introduction

152   Methodology and Analytical Framework
153   Findings and Analysis of Human Values
157   Policy Implications and Alternatives
161   Appendix A
163   Appendix B

Human Values in Public Health: Comparing Authoritarian and Democratic Programs in the Philippines
Exaltacion E. Lainberte

181   Introduction
182    The Sociopolitical Context
183    Shifts and Continuities in Public Health Action and Budgetary Allocation
187    Public Health Programs and Health Outcomes
192    Conclusions
196    Appendix

Adverse Consequences of ”protective” Public Policies: The Workplace Plight of Women and the Aged in Japan
Jay s. Siegel

209   Introduction
210   Women’s Rights, Social Status and Public Policy
215   The Distress of Older Workers
218   Conclusion

Bringing the Past Into the Present: Relatives of the Disappeared in Latin American
Jennifer Schirmer

225   Background：The Relatives of the Disappeared During Repression
238   The Groups Compared
243   Conclusions

Indigenous Organizations, Protests and Human Rights in Ecuador
Thomas F. Carroll

247   Introduction
250   Background
258   The Protests
271   Interpretations

Education Rights for Tibetans in Tibet and India
Lobsang Sangay

285   Introduction
286   Traditional Schools and Religious Influences
287   Education to Open the Country: The Foreign Schools
289   Education for Ideology: Occupied Tibet
297   Education for Restoration and Renovation: The Tibetan Community in Exile
302   Conclusion

Toward a Conclusion: Human Rights and Human Development
John D．Montgomery

309   The Functions of Positive Human Rights Policies
310   Resources Applied in Positive Human Rights Policies
311   The Range of Positive Human Rights Policies
311   Programs in the Sample
314   “Indirect” Human Rights Policies
315   “Direct” Human Rights Policies
316   Comparisons and Evaluations
319   Transferability of Asian Experiences
327   A ”Natural History” of Human Rights?

333   Notes

345   About the Authors

349    lndex

Human Rights: Positive Policies in Asia and the Pacific Rim

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