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The Asian values debate and its relevance to international humanitarian law
https://www.icrc.org/en/doc/resources/documents/article/other/57jqzl.htm
31-03-2001 Article, International Review of the Red Cross, No. 841, by Alfred M. Boll
Alfred M. Boll is an ICRC delegate and is at present Legal Adviser at the ICRC Regional Delegation for the Pacific, Sydney office. He holds the degrees of JD and MA (Latin American Studies) from the University of Wisconsin-Madison and a BA (Political Science) from the University of Chicago. This is a personal contribution to this issue of the Review.
Introduction
A lively debate throughout the 1990s on the universal nature of rights and values, and whether these are compatible with the values and concepts of rights common to Asian peoples, has attracted the attention of politicians and scholars in Asia and elsewhere. Although this “Asian values debate” has subsided in recent years, it has incited controversy in many respects. Its political, economic, social, cultural and moral ramifications, its substance, its name, the characterization of the issues, and even the identity and position of many of the individuals who have chosen to take a stand on it or on issues they see as inextricably related, have provoked clashes [1 ] . In fact, to qualify the discussions on “Asian values” as a “debate” might even be seen by some as a demonstration of unacceptable bias. It is nevertheless submitted that there has indeed been a “debate” over the existence, nature and ramifications of “Asian values”, as related to “Western values”. Moreover, the rhetoric has at times been so intense that onlookers from the sidelines might even have felt a certain dizziness akin to that of spectators at a world-class tennis match, whose heads are constantly swivelling back and forth from serve to return.
It is neither the author’s intention to define Asian values, nor to take part in the debate, however it may be labelled, although to submit thoughts intended to be dispassionate about it might justifiably be considered an endeavour in which only the naive or reckless might engage. This brief comment is compiled by a non-Asian (though at present living in Australia, but whether Australia is a part of Asia has also been the subject of debate), who has had the privilege of working and living in different parts of Asia for several years and who claims no expertise in the subject. Likewise, it must be recognized that even an attempt at dispassionate analysis may be considered impossible owing to any author’s inherent bias, whether cultural or otherwise. Nonetheless, references to what others have published or stated about Asian values should not be construed as taking sides. Similarly, the citation, or not, of high-profile persons linked to the Asian values debate is not meant to indicate support for, or rejection of, their positions. Nor is this comment in any way a summary of the debate itself.
The issue
The debate on Asian values has taken place both within and outside Asia, Asian values having been contrasted to “Western values”, and its relevance is clearly evident in terms of the broader issue of the respective duties of States and individuals to one another. It thus also has a bearing on the protection of the individual and States’ obligations in that regard. No matter how the issues surrounding Asian values are characterized, it is clear that those values are, or have become, relevant to the broader discussions on human rights concepts and international human rights law. As such, it must be asked what relation they bear t o international humanitarian law, to the protection that law provides for the individual in the context of armed conflict and to the duties it imposes on States.
The debate has at least two important implications for international humanitarian law: on the one hand, in terms of that law’s significance for and implementation in Asia; and, more generally, for the discussions on cultural or value-based influences on the nature or application of the law. It thus seems to raise questions for international humanitarian law in black-letter legal terms, as a body of law which is universal in scope, but also in moral or societal terms, in relation to the law’s claim to reflect common interests and ideas. Questions as to the extent to which underlying societal or cultural values shape or create legal regimes are also inherently related to ideas of justice and its sources. But regardless of whether the claim that international humanitarian law is a common human denominator is based either on purely practical and/or pragmatic reasons related to the efficient conduct of warfare, or on more idealistic ones related to fundamental standards of conduct vis-à-vis fellow human beings, the Asian values debate is relevant to how we interpret the underlying consensus which created the law, and to its application in all settings and parts of the world.
Asian values have been defined as putting emphasis on a consensual approach, communitarianism rather than individualism, social order and harmony, respect for elders, discipline, a paternalistic State and the primary role of government in economic development, linked to the premise that “there are values and patterns of behaviour that are common to Asian countries and peoples” [2 ] . In contrast, “Western values” have been associated with transparency, accountability, global competitiveness, a universalistic outlook and universal practices, and an emphasis on private initiatives and the independence of the private sector. [3 ]
In his article “Asian values: An asset or a liability” [4 ] , from which the above definitions are taken, Professor Han Sung-Joo asserts that Asian values, which have been held up as the driving force behind Asia’s rapid economic development in recent decades, have been used by politicians and scholars for various purposes: to respond to Western criticism of Asia; to legitimize a regime in power or a political system; to protect tradition against perceived detrimental Western influence; as an academic source of enquiry related to rapid economic development; as a source of conflict with the West (many in the West claiming that “Asian values” are in fact values not limited to Asia); and to counter “western emphasis on areas such as human rights and the environment [as ] unwarranted interference at best, and revealing ulterior motives at worst” [5 ] . The author then proceeds to ask whether the same values which were claimed to have produced an Asian economic miracle are also the cause of the economic downturn of the late 1990s in Asia. He cites one school of thought which proposes that the same Asian values which created economic advantage “during the early industrialization and pre-globalization stage of development, have actually impeded these Asian countries in adjusting to the new age of interdependence and globalization.” [6 ] Agreeing that there are also differences in specific values in the Asian region [7 ] , Professor Han concludes that:
“[w ] hether these values play a positive or negative role seems to depend on a particular country’s stage of development, as well as how specific values within the basket of so-called Asian values are selected and combined. In a globalized world where goods, services and capital move uninhibited across national borders, Asian values can be a liability unless they adapt to the requirements of transparency, accountability, and limitless competition. It is impossible to predict what future role Asian values will play. As in th e past, it will depend very much on how societies and governments apply values to the challenges they face.” [8 ]
For the purposes of our discussion, the most relevant argument as regards the uses made of Asian values and the related debate cited by Professor Han is that they serve as a bulwark against a Western emphasis on human rights which is not “Asian”, and which either constitutes meddling by outsiders or their use of discourse about human rights to further purposes which are inimical to Asian interests. [9 ]
In his article “Rights, duties and responsibilities”, Professor Yash Ghai of the University of Hong Kong states that:
“[t ] he rise of Asian values as a political doctrine can be traced to the end of the cold war. Its most active proponents were Singapore and Malaysia [10 ] . It came into prominence to challenge what was claimed to be the attempts of the West to establish its global intellectual and cultural hegemony by imposing Western notions of rights under the guise of universalism.” [11 ]
The author explores the development of the Asian values debate in the context of the ideological confrontation between former communist States and the West, the former stressing social and economic rights, the latter civil and political rights. He argues that the West’s representation of the collapse of many communist governments as a victory of democracy and human rights was also used to further Western advantage in various spheres, specifically to define and secure political relationships, even justifying international intervention. Many States were not overly enthusiastic about this approach and its potential consequences for authoritarian political systems, but also for competitiveness in international trade, owing to their particular economic policies. Their response was a direct cultural attack on the assertion that human rights are universal, countering “Western rights” with “Asian values” and a claim that Asia’s economic and social success is based on Asian values, just as the economic crisis and moral decadence of the West are the result of its preoccupation with rights [12 ] . Professor Ghai places China outside these arguments, noting that the Chinese response to issues of human rights has been national sovereignty and maintaining that human rights is an issue which depends on each country’s unique situation and does not come within the purview of the international community. Although Professor Ghai rejects what he calls the “doctrine of Asian values” [13 ] , he goes on to examine the argument that rights-based regimes promote confrontation and conflict, and that duty-based regimes promote harmony and consensus. [14 ]
If it is difficult to point to practical consequences of the Asian values debate itself, the amount of literature and comment that it has provoked is voluminous (though perhaps not always substantive) [15 ] . Questions regarding the extent to which we can compare the morals or values of different cultures or societies, insofar as they shape our understanding of the world, right and wrong, justice and injustice, and the appropriate relationship between the individual and the State, are, however, clear, and claims in relation to “Asian values” would seem to have tapped a deep vein of thought, emotion and conviction.
In an anthropological analysis of values and social controls of certain groups in South Asia, Christoph von Fürer-Haimendorf introduces his study by noting that observance from the outside is not necessarily conducive to an understanding of the nature of the event being observed [16 ] . Without an understanding of the underlying cultural, moral and ethical framework in which the event is taking place, correct conclusions about thinking and behaviour cannot be drawn. As an example of how concepts of morality and propriety differ from one culture to another, he uses the illustration of a Tibetan audience viewing Verdi’s opera Don Carlo. The scene in which a son confesses his love for his new young stepmother obviously sets the stage for ultimate tragedy in the eyes of Western audiences, whereas a Tibetan audience would not understand the controversy: for them, in traditional terms, there is nothing aberrant in the sharing of one wife by father and son. [17 ]
Von Fürer-Haimendorf goes on to discuss the problem of the relativity of morals, and the variety of interpretations drawn from comparative studies of societies. He concludes however that:
“[a ] n understanding between different societies across cultural barriers is explicable only if we assume the existence of something approximating to a common moral language shared by the whole of humanity. The existence of such a common language does not mean that all societies use it to express identical moral ideas, but only that there is intuitive agreement on certain basic concepts, essential for any discourse on moral problems.” [18 ]
To return to the Asian values debate, and assuming that the above-cited postulate applies to “values” or ideas of “rights” used as part of the debate, we must ask whether international humanitarian law falls into a category of “intuitive agreement on certain basic concepts” or some form of universality, or whether it represents values not shared by all, especially in its relation to human rights.
The case of international humanitarian law
To attempt an answer, we must first be clear about the relationship between international humanitarian law and human rights, and fit the Asian values debate in appropriately. In essence, the notion of human rights is about political, societal and economic relationships, that is, the relationship between the individual and the collective, the individual and society, or most importantly in most cases, t he individual and the State. [19 ]
One notion of human rights, that is, the relationship between the individual and the larger community, can be based on a world view dictated by a philosophy, a religion, an economic construct or cultural or social values. Thus there are notions of the proper or “natural” relationship between the individual and the State and/or collective embedded in Confucianism [20 ] , Marxism, Christianity, Islam, a free market philosophy and indeed all philosophies, which can be compared and contrasted. Such a list arguably includes Asian values [21 ] . Another notion of human rights is that embedded in any national legal system. Laws define a certain relationship between the individual and society, or the individual and the State. A third notion of human rights is that embodied in certain international treaties, commonly known as international human rights law. This body of law is separate from international humanitarian law, although containing areas which overlap with it.
To compare international humanitarian law with the international law of human rights is not only feasible, but has been done in many ways, for it is a comparison of systems of protection of the individual established by the international community or by States in their mutual relations, namely international humanitarian law which applies in situations of armed conflict and which cannot be suspended at any time, and international law of human rights which applies at all times, but of which certain treaty provisions can be suspended under well-defined conditions. [22 ]
Each system of protection reflects a certain view of the relationship between States and individuals. International humanitarian law does not entitle individuals to claim rights, rather it places States and other parties to armed conflicts under constraints and obligations designed to protect people not taking part in hostilities. It creates individual criminal responsibility for crimes. Conversely, international human rights law does give individuals rights, often backing them up with recourse to mechanisms for national or international enforcement of those rights. The greatest difference between the two systems is their definition of the scope of protection required for the individual. They sometimes overlap: both agree that murder, torture and cruel and inhuman treatment and punishment are prohibited at all times, and that individuals have the right to judicial guarantees, to a fair trial and to humane treatment. But international humanitarian law says nothing about free speech, freedom of the press, elections, representative government, and so on, areas which are often the subject of international human rights treaties. International humanitarian law overlaps with international human rights law in its most fundamental terms: while people and governments might disagree — and the international treaties do disagree — on what constitutes a human right, in the Geneva Conventions all the world’s nations have agreed on what might be called the most basic human rights in times of armed conflict. It is in this sense that international humanitarian law might be called the “least common denominator” with regard to the obligations of the State toward individual human beings, albeit in crisis situations where the survival of the State or of its internal order may be at stake.
Of course, the provisions of international humanitarian law can also be compared to notions of human rights as expressed by States in their national laws. However, suffice it to say that all Asian States have ratified the four 1949 Geneva Conventions on the protection of war victims (although in this region ratification of the 1977 Additional Protocols has admittedly been slower than in many parts of the world), and that the Conventions are thus part and parcel of all Asian national expressions of the relationship between the individual and the State or, in other terms, of human rights in ar med conflict.
Likewise, international humanitarian law might be examined to determine whether or not it embodies what has been defined as Asian values expressing the proper relationship between the individual and the State. This is a far more momentous task, as it involves looking beyond international humanitarian law as simply black-letter rules, and into the underlying consensus and philosophical world view which incites States to place limits on their conduct when having recourse to armed force. Do the reasons of Asian States for making laws of war differ from those of non-Asian States?
While we cannot in this context examine the customs and laws of war in ancient Asia, there is quite a substantial amount of literature and studies which maintain that the essential principles of international humanitarian law are as old in Asia as in Europe, if not much older, and that the principles which led to the establishment of these laws emanate from a perception of warfare which has been common to mankind through the ages. As in every country, differences in the levels of implementation of these ideas can be seen in the various Asian countries, and it would be incorrect to argue that the same specific rules can be found historically throughout Asia. But examples of their similarity abound.
In his article on protection of victims of war, “Traditional Asian approaches: The Chinese view”, Professor Zhu Li-Sun demonstrates not only that in ancient China customary rules relating to the conduct of war mirror those contained in the Geneva Conventions, but also that humanitarian ideals and values which shaped the ancient Chinese laws of war are enshrined in today’s body of international humanitarian law [23 ] . This is confirmed by Dr Zhu Wen-Qi in his Chinese-language manual of international humanitarian law, who even cites evidence of this law in the China of 4,000 years ago [24 ] . The development of rules of conduct in war is of course dif ferent from country to country, and merits specific examination in each case [25 ] . Likewise, the specific reasons behind the development of this law in Asia, whether out of a pragmatic desire for post-war advantage, or versus or complementary to an ideological, political or philosophical framework, merits further study. No attempt will be made here to answer these questions, or to determine whether modern Asian States have professed the same reasons for adherence to international humanitarian law and to what extent this adherence can be traced to past practice.
Concluding remarks
Whatever the reasons for the historical development of rules of conduct in war and modern-day adherence to them, it is clear that in essence the Asian values debate, with the course it has taken, does not threaten the legitimacy in relation to Asia or otherwise of the international system of protection established in the Geneva Conventions. Asian States are no different from the rest of the world in their strong statements of support for international humanitarian law and their levels of implementation. Recent declarations by various Asian governments that they are moving toward ratification of the 1977 Additional Protocols also support the opinion that there is no discrepancy between Asian States’ views of the proper scope of international humanitarian law and the provisions of the various humanitarian conventions. In this sense the use of Asian values to assert the contrary would perhaps even constitute an affront to Asian countries.
The analysis in moral terms, or in terms of values, leads to the same conclusion. Whether or not one supports it, the thesis (or theses) of Asian values does not detract from the claim that international humanitarian law reflects common interests and ideas in the most important way, namely in practice. When concerned with prote cting victims of the use of armed force, be they wounded or captured members of armed forces, the populations of occupied territories or civilians not taking part in hostilities, all that matters is the underlying practical consensus on humanitarian law in actual application. Pundits may quarrel over the rest, but when deeds match words, the question is whether there was indeed an argument in the first place.
Notes
Whatever the reasons for the historical development of rules of conduct in war and modern-day adherence to them, it is clear that in essence the Asian values debate, with the course it has taken, does not threaten the legitimacy in relation to Asia or otherwise of the international system of protection established in the Geneva Conventions. Asian States are no different from the rest of the world in their strong statements of support for international humanitarian law and their levels of implementation. Recent declarations by various Asian governments that they are moving toward ratification of the 1977 Additional Protocols also support the opinion that there is no discrepancy between Asian States’ views of the proper scope of international humanitarian law and the provisions of the various humanitarian conventions. In this sense the use of Asian values to assert the contrary would perhaps even constitute an affront to Asian countries.
The analysis in moral terms, or in terms of values, leads to the same conclusion. Whether or not one supports it, the thesis (or theses) of Asian values does not detract from the claim that international humanitarian law reflects common interests and ideas in the most important way, namely in practice. When concerned with protecting victims of the use of armed force, be they wounded or captured members of armed forces, the populations of occupied territories or civilians not taking part in hos tilities, all that matters is the underlying practical consensus on humanitarian law in actual application. Pundits may quarrel over the rest, but when deeds match words, the question is whether there was indeed an argument in the first place.
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