Please read Part I – Asian Charter on Human Rights – it’s significance and purpose
The Asian Human Rights Charter – a People’s Charter, was the initiative of the Asian Human Rights Commission, a regional human rights organisation based in Hong Kong. The idea of drafting the Charter emerged as a result of certain discourses on human rights that took place prior to the Vienna Conference of Human Rights in 1993, and as also a follow up to this Conference.
The Vienna Conference on Human rights in 1993 was expected to be a landmark conference in the history of Human Rights. To comprehend this, one would first need to track back to the adoption of the 1948 Universal Declaration of Human Rights, and what happened in its wake.
The 1948 Universal declaration of Human Rights (UDHR) marked the new beginning or articulation of human rights to be the basis of international agreements, laying down the most fundamental aspects of rights that everyone in the world would be expected to respect and protect.
UDHR marked the beginning of this new discourse on human rights, and it was propelled by the shock that the world at large, and the western world in particular, suffered due to the 1st and 2nd World Wars. That this path should never be repeated again was the fervent desire of everyone living at the time that had experienced the horrors of the two World Wars.
However, it must be noted that the worst horrors that the world had seen was not confined to the two World Wars. In terms of the western world perhaps these were the two most important events. But, to the rest of the world, there were very many great horrors going on for a very long time.
One of those great horrors was the experience of colonialism. The people who lived in the colonised countries knew this horror, and for the colonising countries this period was marked as some kind of a golden age. The wealth created out of colonialism was flowing into these countries and the people who benefitted from this new wealth may not have wanted to know the cost at which such wealth had been and was being made.
The time when the UDHR was declared was also the time when direct colonialism, for the most part, was coming to an end. The British Empire, which was the largest Empire, holding most of the colonial countries, had made this decision to quit these countries and also to grant independence to these lands. Other colonial powers, like the French, Spanish, and the like, were also following the same course of events, at least from a theoretical point of view. That the world should bring an end to the colonial era was an underlying wish during these times.
Therefore, it can be said that UDHR not only represented the aspirations that events of the two World Wars should not recur, but also represented aspirations for the end of the colonial occupation of any country, and to recognise all nations on an equal basis. This implied that all citizens of all nations were also entitled to the rights declared under the UDHR.
Very soon after the UDHR was adopted, there began to be a realisation that what had been expressed in the UDHR was a wish, and not, strictly speaking, a law. The UDHR, some argued, could be regarded as part customary law, but this was not sufficient in order to bring to light the momentous decision that was taken by agreeing that the UDHR usher a new period in history, where the rights of human beings will be the foundation of political, social, and cultural life.
Therefore, there was a discussion to make the rights declared by the UDHR binding, like law. The characteristic of law is that it is binding on all those for whom the law has been promulgated. Therefore, the rights enshrined in the UDHR had to be re-articulated in a manner that could become binding on every nation.
The International Covenant on Civil and Political Rights and the International Covenant of Social and Economic Rights, came to be adopted in order to fulfil this requirement of making these rights as part of the law that would be binding on all nations who agree to regard these conventions as part of their law. The process of expression of such agreements was also laid down. Thus, there was a new stage of development of international understanding of human rights as those rights that are binding on all governments and those rights that people would demand as a matter of law.
The Vienna Conference on human rights in 1993 was meant to mark a further stage in the development of human rights. It was realised, as far as the developed countries were concerned, the rights which were enshrined in the ICCPR were already very much a part of their law and therefore the new development should mark understanding of rights beyond the respect for civil and political rights only. The emphasis on economic, social and cultural rights was in that way regarded as second-generation rights, in terms of the developed countries.
And now by 1993 it was said that we were also reaching a third generation of rights, such as gender related rights, environmental rights, and ecological and other areas of rights. Again, this marking of the third generation of rights were valid in terms of developed countries; it was questionable whether they were valid in practical terms in the developing countries.
The major problem of the developing countries was (and is) that the first generation rights – the civil, and political rights – had not yet been realised to the extent that they were being realised in the developed countries. For the most part, in the developing countries, the basic rights relating to illegal arrest and illegal detention, right to fair trial, rights of prisoners, and the right to equality and non-discrimination were still problematic.
The primary reason for this was that most of these countries did not have the institutional foundations for practical realisation for these rights. Many countries did not recognise the idea of separation of powers, and, therefore, the very idea of the independence of the judiciary was alien to these countries. Without respect for independence of the judiciary, none of the civil rights, as enshrined in the ICCPR could be realised at all. It is an independent judiciary that gives meaning to the realisation of rights protecting the liberty of individuals and gives validity to whatever limitations are imposed on these rights in terms of punishment of criminals.
Even in countries where the independence of the judiciary was recognised to some degree, there were other problems in the development of the policing system. The policing system in these countries did not provide adequately for the respect of civil rights. Many policing systems were, in fact, more militaristic in nature, and not of a civilian character such as that in the developed countries.
Also the training for this police, in order to deal with crime on an advanced basis, in terms of capacities for investigation characteristic of modern times had not been provided. The use of torture against all forms of criminals was quite widespread and the accusation of corruption was also equally widespread. In the minds of the people, the police officers were not seen as protectors of their rights, but as enemies of their rights. The prosecutorial systems were often controlled by political forces and the unbiased prosecution was a right that was not available to these people who were living in most countries in the developing world.
What came to be realised after the Vienna Conference was that there is a vast gap in the possibility of achieving human rights, in developing countries as compared with the developed countries. It was this gap that needed to be addressed first if the human rights were to become a practically meaningful concept for people in the developing countries.
Therefore, new initiatives were needed, particularly in terms of developing countries. And it was also realised that this need is mostly felt by those who are living in the developing countries; those who are living in developed countries do not feel this need in the same way, because they have not directly experienced the adverse consequences of living under dysfunctional system of law enforcement and dysfunctional system of judiciary, i.e. the bad systems of governance that existed in the developing countries. Therefore, the articulation of the problem had to come from those who suffered from this problem.
It was the duty of the human rights movements in the developing countries to begin to articulate these problems in terms of actual practical implementation of human rights as universal rights. Universality of human rights came to be accepted as common to all after the Vienna Conference. However, between the abstract acceptance of this notion and practical possibilities of realisation was this enormous gap.
The initiatives to write the Asian Charter as a People’s Charter arose from his realisation. The initiators of this, almost immediately after 1993, embarked upon a course of attempting to make the problems relating to human rights existing in the developing counties a matter of focus of human rights concerns throughout the world. The call for this initiative came from the AHRC in 1993 itself. And, thereafter, a number of persons selected from the human rights organisations throughout Asia were called for a few consultations. They were posed with this question and their opinions were asked about how to set about this task. After many discussions, the consensus was on the articulation of the obstacles to the realisation of human rights existing in each of the countries in Asia should be the focal point of the new discussion that would be done under the overall idea of developing the Asian Charter. That was the original notion with which the drafting of this Charter started.
Thereafter, consultations were held in every part of Asia, with persons who were active on human rights at the time, including some eminent members of the judiciary like the late V.R. Krishna Iyyer, a former Indian Supreme Court judge, as well as other eminent academics in the field of human rights, like Professor Yash Gai, who was based at the time at the Hong Kong University. Numerous activists who had dedicated their lives to the pursuit of human rights were brought into these discussions.
As it was stated, the focal point of these discussions was to articulate clearly what they were facing at the level of human rights. This happened in terms of almost every country. On the basis of enormous amount of knowledge that was gathered, related to the enormous obstacles to the realisation of human rights in these countries, a draft of the Asian Human Rights Charter was written.
And this draft was again circulated, through the modern communication facilities, such as the Internet and email networks, so that it could literally reach tens of thousands of persons; all of them were invited to comment on this draft.
It was after all these ideas were brought together that finally a group of eminent persons were called upon to do the final draft of the Asian Human Rights Charter.
And that is the draft that has now become the Charter.
The final act of adopting the Charter was the next step. At this stage, a number of persons who were associated with the promotion of the Kwangju uprising – ideals to the rest of the world – took an interest to this initiative of the Asian Human Rights Charter, and it was they who introduced the idea to the May 18 Foundation, and they, in turn, facilitated the event for the public adoption of the Asian Charter. This event was held in Kwangju City in 1998.
