Human Rights Protection of Ethnic Minorities

Human Rights Protection of Ethnic Minorities A cross-cultural perspective

André van der Braak,

Professor of Buddhist Philosophy in Dialogue with other World Views VU University, Amsterdam

Human rights in China are a highly contested topic, on which the government of the People's Republic of China and its supporters, on the one hand, and Western critics and human rights organizations, on the other, have starkly different views. PRC authorities, their supporters, and other proponents claim that existing policies and enforcement measures are sufficient to guard against human rights abuses.With regard to the human rights protection of ethnic minorities, for example, it is claimed that the PRC's Constitution and laws guarantee equal rights to all ethnic groups in China and help promote ethnic minority groups' economic and cultural development.

Furthermore, ethnic minorities enjoyed preferential treatment in being exempted from the population growth control of the One-Child Policy, prior to its

abolishment in 2015. Ethnic minorities are represented in the National People's Congress as well as governments at the provincial and prefectural levels. Some ethnic minorities in China live in what are described as ethnic autonomous areas. These "regional autonomies" guarantee ethnic minorities the freedom to use and develop their ethnic languages, and to maintain their own cultural and social customs. In addition, the PRC government has provided preferential economic development and aid to areas where ethnic minorities live.

According to some Western observers, such as Amnesty International and Human Rights Watch, as well as foreign governmental institutions such as the U.S. State

Department,however, the human rights situation in China, also with regard to the protection of ethnic minorities, leaves much to be desired. They claim there is a strong government control on ethnic minorities, resulting for example in the violation of worker’s rights (the hukou system which restricts migrants’ freedom of movement), and in discriminations against rural workers and ethical minorities. Furthermore, they claim there is a lack of religious freedom, with regard to being able to found or maintain religious organizations, the

establishment and maintenance of religious sites, the education of clergy, the installment of religious leaders (especially when foreign influence is at play, such as with the Vatican or the Tibetan government-in-exile in Dharamsala). Only the national organizations of the five

1 http://en.people.cn/constitution/constitution.html

religions (Buddhism, Daoism, Islam, Protestantism, Catholicism) are officially recognized, and are closely monitored by the government.

How come there is such a wide discrepancy between some Western and Chinese views, when it comes to human rights? This paper wants to argue that it is, to some extent, due to philosophical hermeneutical issues. The dialogue between the West and China is filled with difficulties in the philosophical arena and breaks down almost completely in the area of human rights. The concept of human rights, that is the rights that attach to an individual human being, apart from his or her place in a social order and apart from considerations of citizenship, ethnicity, class, religion, or gender, is a relatively recent one. It has its origin in certain recent developments in the Western philosophical tradition, such as the natural rights tradition of Hobbes and Locke in the 17th century, and was given perhaps its most rigorous formulation by Kant in the 18th century. These early formulations of the idea of individual human rights have led to the Universal Declaration of Human Rights (hereafter UDHR) adopted by the General Assembly of the United Nations on December 10, 1948.

Undoubtedly, the adoption of the UDHR has been a major step forward in the protection of human rights of ethnic minorities all around the world. However, there is still much discussion about the universal applicability of the UDHR. Given their Western origins, is it truly the case that human rights are universal? In this paper, I want to investigate what steps can be taken in order to broaden the world wide appeal of the UDHR.

Supra-cultural and super-cultural

The American/Indian scholar Joseph Prabhu distinguishes three approaches to the

legitimization of world wide consensus to the UDHR, which he describes as supra-cultural, super-cultural and inter-cultural. The supra-cultural model, as he describes it as exemplified in the natural rights tradition, for example, “attempts to rise above or transcend the realm of the cultural by invoking some divine or natural essence that is alleged to be the true mark of our humanity.”

Such a divine essence has been, for some, the Christian God. However, such a divine essence always needs to be mediated through human and cultural understanding. In the light of cultural and religious diversity, it is difficult to hold on to the notion of a divine essence. Therefore, at its establishment, the UDHR deliberately kept its distance from religion:

2 See for example: https://www.hrw.org/world-report/2015/country-chapters/china-and-tibet

A cloak of silence was thrown over the question of religion, not only because of reasons of universal appeal, but also because of the vast diversity of religious sentiment and the complications of having to deal with it. When the Declaration was drafted, it was generally felt that religions by their exclusive and absolute nature tend to be divisive and conflict-producing forces. Not only was there a difference of opinion among the drafters as to whether human rights ought to be regarded as sacred, there was also dissension as to the grounds of any purported sacredness.

The other option is to ground human rights in a secular universal value. At the drafting of the Declaration, the notion of “human dignity” was used as such a universal value:

the preamble to the Declaration indicates that “human dignity” was chosen as the foundational concept on which the notion of HR was based, without further inquiries into where that dignity came from and why that dignity ought to be protected with rights.

However, the use of such a universal value leads to many questions. On what philosophical grounds do human beings have rights? What kind of philosophy of human nature is implicit in such an assumption? As a possible strategy to avoid such problems, one could argue that human rights are not intrinsic entitlements, but merely pragmatic ones. However, if human rights are not intrinsic, then why should we take them seriously?

The supra-cultural model is hard to defend in light of cultural diversity. Whether one posits a divine essence (“God”) or a biological essence (“human nature”), its expression is always culturally mediated. And especially in the light of the diversity of many ethnic minorities in China, it is difficult to revert to a so-called “universal value” in a way that is acceptable to these many minorities.

In light of such challenges to the supra-cultural model, many take refuge in a super- cultural model. According to Prabhu, the super-cultural model claims that

human rights thinking represents an advanced state of cultural evolution, which not all cultures have achieved. In actuality, it is Western culture alone which is alleged to have done so, and the universal nature of human rights means, in effect, that non-Western cultures now have to embark on the same journey and path of modernization as the West.

Just as, for example, the West moved “beyond” its religious heritage to arrive at a

“mature” secular outlook that could serve as the proper basis for human rights, other cultures must be expected to do the same, if human rights are to be truly universal.

However, Prabhu argues that in such a model, universality is confused with uniformity. The standards of the West, as being the most evolved culture, are used as universal standards that need to be emulated by less evolved, non-Western cultures. In order to meet this objection, one could argue that their discovery in the West does not make human rights less universal.

4 Prabhu 2006.

5 Prabhu 2006.

6 Prabhu 2011.

Newton’s laws of gravity also happened to be discovered in the West, but that doesn’t make them less valid. However, the notion of universal individual human rights is not merely a prescriptive idea, but a normative claim. It involves the universalization of a very particular idea, which has meaning and validity only in the philosophical context of Western culture.

The super-cultural model, Prabhu argues, represents a form of cultural imperialism. It imposes a Western ethnocentric standard on the rest of the world in order to arrive at

universality. It also suffers from epistemological blindness: it does not recognize that the dominant Western way of conceiving human rights represents only one way of looking at things, and that there are other, non-Western perspectives on human rights that need to be explored. In order to come to such an exploration, that can lead to a fuller and richer interpretation of the various ways in which human rights can be conceived, Prabhu

recommends the encounter and dialogue of different interpretations of human rights: a cross- cultural perspective.

The intercultural model

Such an encounter is made possible by the third model, the intercultural model. The intercultural model

starts from the humble premise that one’s culture is only one among many, with diverse strengths and achievements but also partialities and blind spots. This model, which I am advocating, attempts neither to transcend cultural differences, nor to finesse these differences by making one culture superior and normative for the others. It rather takes the other cultures as seriously as it takes itself and attempts an open-minded, meaning- and-truth-seeking dialogue.

The challenges for such a cross-cultural hermeneutic of human rights are similar to the challenges for cross-cultural philosophy in general. In order for such a hermeneutic to be successful, epistemological and ontological boundaried need to be crossed. With regard to the EU-China dialogue, Western Cartesianism, with its dualistic separation between mind and body, individual and world, and man and God, needs to be left behind, in order to make room for a meeting with Confucian world views.

The Chinese scholar Chenshan Tian, director of the Center for East-West Relations at Beijing Foreign Studies University, has explored such comparative hermeneutics.

He speaks about the “cultural veil” separating China and the West. He argues that the Chinese notion of renquan 人权 simply does not match the English notion of “human rights.” They do not

7 Prabhu 2011.

correspond, are not synonymous, and cannot be translated into each other.

First, the Western notion of “human rights” has its origin in the notion of an omnipotent God, whereas in China, the relations between people and society determine what people can or cannot do.

Second, the “quan” in “renquan” does not point to “rights” or “wrongs,” instead it refers to the actions that the community agrees to as appropriate or inappropriate under certain conditions; rights and obligations are always relative. Yet, “rights” is determined by God and God-given, so it is an absolute concept. Over the years, the West has used “rights” to judge China, China has used “renquan” as an inadequate equivalent to “rights,” and both sides fell into a deep and muddy swamp. One seems plausible in self-justification, the other is completely dumbfounded, and both result as flawed interpretations. This misunderstanding has brought both sides embarrassment and paralysis.

第二点， 人权” “ “ 的 权”，根本不是针对“错” 而有的 对”之意，而是指一定情势下 “

根据社会所约定而权衡的对人与人关系适当或者不适当的行动；权利总是与义务相 对的。而“rights”是上帝判定的、赋予的，因而是个绝对概念。长期以来，西方

用 rights” “ 判定中国；中国用 人权” “ 比附 rights”，双方陷入了一个泥泞沼泽的误 “

区；一个振振有词，另一个无所措手足，发出微弱的争辩。误解给双方带来无可奈

何的难堪。

A Consensus Approach to Human Rights

The intercultural model for the universality of human rights was explored in an important collection of essays in 1999, The East Asian Challenge to Human Rights.

Two of the essays, by Charles Taylor and Joseph Chan, are especially relevant for our discussion.

The Canadian philosopher Charles Taylor, in his essay “Conditions of an unforced consensus on human rights,”

proposes making a distinction between the norms in the UDHR, the underlying world views and values that legitimate those norms, and the legal forms that put those norms into practice.

What we are looking for, in the end, is a world consensus on certain norms of conduct enforceable on governments. To be accepted in any given society, these would in each case have to repose on some widely acknowledged philosophical justification, and to be enforced, they would have to find expression in legal mechanisms. One way of putting our central question might be this: what variations can we imagine in philosophical justifications or in legal forms that would still be compatible with a meaningful universal consensus on what really matters to us, the enforceable norms.

It is not a problem if world views and values differ widely, as well as legal forms, across cultures, as long as the norms of the UDHR are being adhered to.

9 Ibid.

10 Ibid.

11 Bauer & Bell, 1999.

12 Taylor 1999.

13 Ibid., 129.

There does seem to be some base for hoping that we can achieve at least some agreement on these norms. One can presumable find in all cultures condemnations of genocide, murder, torture and slavery, as well as of, say, “disappearances” and the shooting of innocent demonstrators.

Taylor argues that we should distinguish between norms of conduct and their underlying justification. The same norms of conduct can be justified by different philosophical concepts.

For example, the Western rights tradition contains certain views on human nature, society and the human good, whereas Chinese traditions contain different views on such topics. However, they could still agree on the same norms, regardless of their underlying philosophical

justification.

The language of rights is embedded in a Western individualistic, liberal tradition, and in a philosophical view of human society that greatly privileges individual freedom.

Therefore, modern Western discourse of rights involves a set of legal forms by which certain immunities and liberties are inscribed as individual rights. Much protest against the Western human rights model is a protest against three interconnected things, that could perhaps be separated out: (1) The enforcement of certain norms; (2) The underlying philosophy of the pre-eminent role of the autonomous individual in society (this can lead individuals to demand their rights in selfish ways); (3) Legal forms that give them force.

Taylor offers a plea for “loosening the connection between a legal culture of human rights enforcement and the philosophical conceptions of human life that originally nourished it.”

As an example of such a different justifications of human rights, Taylor compares the Western exaltation of human agency versus the Buddhist focus on nonviolence and

interdependence. An unforced world consensus on human rights might initially agree on the norms, but disagree on the underlying philosophy of the person and society. Later, a process can follow of mutual learning, leading to a “fusion of horizons” in which the moral universe of the other can become less strange.

Taylor’s tripartite distinction between norms, legal mechanisms, and justification provides a possibility for moving beyond Western ethnocentrism. It allows for the recognition and acceptance of the fact that there are many human rights cultures around the world, even if human rights is not necessarily the term these cultures would use in self-description. In many of them the relations between morality, positive law, and world views are differently articulated than in the West. For instance, in Confucianism the notion of familial piety is sometimes invoked in the context of human rights discussion. However, familial piety is not a

14 Ibid., 125.

universal concept, and it doesn’t start with the individual, whose rights it is concerned to protect from the encroachments or oppression of society and the state. From a Confucian standpoint, human reality is not incarnated in the individual only but in the social whole.

From such a perspective many of the assumptions underlying Western human rights discourse would be disputed. In addition to a critique of individualism, the Confucian tradition would also criticize the idea of rights being separated from obligations.

Human Rights and Confucianism

Joseph Chan, professor in the Department of Politics and Public Administration at the University of Hong Kong, approaches human rights from a neo-Confucian perspective. It is often claimed that Confucianism is incompatible with human rights. In his article in The East Asian Challenge to Human Rights, in which he argues for the compatibility between human rights and Confucianism, Chan lists four alleged Confucian reasons for rejecting the idea of human rights. First, it is argued, “any assertion of human rights must presuppose that human beings are asocial beings and have rights independent of cultural and society,” while Confucians take a social, contextual and role-based understanding of human beings.

Second, it is argued, “any assertion of human rights would be premised on the view that human beings are egoistic.”, in contrast to the Confucian ideal of familial and communal relationships.

Chan argues that both these objections only apply if human rights are based on a Western metaphysical notion of the individual, and a metaphysical moral doctrine of individualism. He proposes using a non-metaphysical understanding of the individual that Confucianism can endorse.

Third, it is argued that human rights and Confucianism are incompatible because “the Confucian conception of personal relationships advocates hierarchy and submission.”

Fourth, it is argued that “the appeal to rights would turn social relationships from harmonious to conflictual or litigious.”

Chan argues that, although Confucians prefer familial and communal care, benevolent paternalism, and reliance on rituals and the power of virtues, human rights can still be endorsed by Confucians as a “fallback option”: a last line of defense of basic human interests when the aforementioned preferred mechanisms are inadequate or abused.

16 Chan 1999, 216.

17 Ibid., 219.

18 Ibid., 222.

19 Ibid., 226.

The Chinese philosopher Tongdong Bai has recently extended Chan’s artice in order to further discuss how human rights can be endorsed from a Confucianist point of view.

While acknowledging that the basic ideas of Confucianism are not compatible with the interpretation of human rights that is adopted by contemporary liberal societies, he attempts to come to a different understanding of human rights according to Confucianism. He challenges the universalist understanding of human rights using the arguments of John Rawls: the common understanding of rights in liberal societies has to be weakened into an overlapping consensus that is based upon family resemblances. Bai argues for a “thin” description of human rights (not based on metaphysical and moral assumptions about human nature) rather than a “thick” description of human rights (including Western liberal metaphysical and moral assumptions about human nature).

Conclusion

With regard to the human rights protection of ethnic minorities, the consensus approach seems especially important. Rather than relying on Western metaphysical notions of

individuality, individualism and the inherent equality of all human beings, we need to find a way to find a Chinese philosophical justification for supporting the norms of the UDHR.

The consensus approach, as originally formulated by political philosopher John Rawls, has also been criticized and questioned. The Confucian political philosopher Qing Jiang has argued that Rawls presupposes its own comprehensive moral doctrine, namely a liberal democratic one that takes values like freedom and quality to be foundational.

When Rawls asks, “ how is it possible for there to exist over time a just and stable society of free and equal citizens?,”

he already takes for granted a certain picture of how society should be. Jiang sees Rawls’ theory as hypocritical, claiming to be neutral between worldviews when it is actually spreading liberal values to all sectors of society.

However, there are also non-Rawlsian formulations of consensus theory that overcome such objections.

Although the label ‘human rights’ may originate from the West, human rights as an expression of humaneness have been part of the Confucian fabric of Chinese society for millennia already. Social institutions like the family and the community, as well as values such as reciprocity, resilience and self-help, have been supporting and protecting the human

20 Bai 2013.

21 Ibid.

22 Qing 2012.

23 Rawls 1987.

rights of many Chinese since time immemorial. However, participants in the international human rights discourse often fail to notice such a rich Chinese human rights culture. When looking for human rights in China, they seem only interested in legally enforceable rights within an individual/state paradigm, which determines human rights relations in the West.

The Dutch Cross-Cultural Human Rights Centre, led by professor Tom Zwart, attempts to remedy this situation.

In this spirit, this paper has tried to provide some constructive proposals for the broadening and deepening of the consensus upon which the future of human rights depends. It has looked into the possibilities for strengthening the Confucian discourse on human rights, in the context of an intercultural approach to human rights, as evidenced in the consensus approach followed by Charles Taylor, Joseph Chan and Tongdong Bai. In order to move forward to a meaningful and enduring consensus between different cultural moralities, the discipline of comparative philosophy is indispensible.

Through intercultural conversation based on a cross-cultural hermeneutic, we can hope to move forward towards the universality which the UDHR proclaims, but whose actual achievement still lies in the future.

Literature

Bai, Tongdong, “Confucian Rights,” Conference Proceedings, The 8

Annual Meeting of The Comparative &

Continental Philosophy Circle (CCPC) (Fudan University: Shanghai, 2013).

Bauer, Joanne & Daniel Bell, eds., The East Asian Challenge for Human Rights (New York: Cambridge University, 1999).

Chan, Joseph, “A Confucian Perspective on Human Rights for Contemporary China,” in The East Asian Challenge for Human Rights, 212-237

Connolly, Tim, Doing Philosophy Comparatively (New York, Bloomsbury 2015).

Jiang, Qing, A Confucian Institutional Order: How China’s Ancient Past Can Shape Its Political Future, translated by Edmund Ryden (Princeton, NJ: Princeton University Press, 2012).

Prabhu, Joseph, “Human Rights in Cross-Cultural Perspective,” Proceedings of the United Nations Conference on Human Rights and Traditional Cultures (U.N Publication, Geneva, 2011).

Rawls, John, “The Idea of an Overlapping Consensus,” Oxford Journal of Legal Studies 7, 1 (1987): 1-25.

Taylor, Charles, “Conditions of an Unforced Consensus on Human Rights,” in The East Asian Challenge for Human Rights, 124-144.

Tian, Chenshan, “Penetrating the Cultural Veil”, paper presented at the conference of The Continental and Comparative Philosophy Circle (CCPC), Fudan University, Shanghai, 2013.

Universal Declaration of Human Rights, http://www.un.org/en/universal-declaration-human-rights/index.html (United nations, 1948).

25 http://crossculturalhumanrightscentre.com/