An interview with Yash Ghai, Professor Emeritus of Constitutional Law of University of Hong Kong
by Luisa Antoniolli
Last November 19, professor Yash Ghai was a guest of the School of International Studies of the University of Trento where he held the opening lecture of the academic year 2009-2010. We had a chance to talk with him about his lecture "Human Rights and Ethnic Identity."
What is the historical relevance of the human rights movement and what is its role today?
If the first quarter of the century after the end of the second world war saw the rise of the ideology of individual oriented human rights, the last quarter of that century saw a major challenge, in the name of the community, to that approach. If in the first period, self determination was the foundation for state sovereignty, in the second period it was mobilized to challenge that sovereignty. This happened because of the rise of ethnicity. Ethnicity has not yet vanquished earlier understandings of human rights (and indeed feeds on it) but it has posed greater challenge to it than autocrats ever did—precisely because it presents the challenge in the language of human rights. And the way that the western community, under Bushite hegemony, chose to fight that challenge, has eroded the legitimacy of rights more than any terrorist movement could. So the challenge of ethnicity to human rights is not free from ambiguities.
What kind of relationship is there between human rights and the protection of ethnic groups?
An essential principle of the new world order established after the second world war is the primacy of human rights as individual rights. When we consider that the impetus for the inclusion of human rights in the Charter and mandate of the United Nations was motivated by Nazi atrocities directed at specific minorities and ethnic groups during the Holocaust, it is surprising that the Charter and the Universal Declaration should have eschewed the question of entitlements of groups. This glossing over group rights is all the more surprising as the peace settlement of the war was the only settlement of major world conflicts that did not in some sense provide for the protection of groups, even if the obligations in the past were imposed only on the vanquished or on states called into being by the settlement.
How does the claim of groups for self-determination interferes with the relationship between human rights and the protection of ethnic groups?
The implications of another important UN principle, that of the self-determination of peoples, were little understood, regarded essentially as the charter for decolonization. Otherwise formulations of self-determination in the documents of the UN left ambiguous its importance and scope. It had remarkably little effect at that time on the understanding or structure of rights. With the end of colonialism, not much further attention was paid to it (event though it featured prominently in the two Covenants).
This is no longer the case. Self-determination often presented, at least in political theory, as the foundation of a regime of rights, is now the rallying cry of separatists, autonomists, the champions of traditional community cultures. Authority at one time for state sovereignty, it is now been mobilized to challenge that sovereignty in the name of religious, linguistic or cultural community, the source of group rights. But it relies on the same old fashioned theories of the nation-state which are seen as the impetus to the growth of human rights.
How can human rights as universal rights be reconciled with situations characterized by very different economic, social and cultural conditions?
How that challenge is met will to a significant degree determine the resilience and development of human rights. Today we tend to see ethnicity as a negative force and attribute to its rise, intolerance, displacement of people, victimization of children and women, suicide bombers, massacres, etc. But ethnicity is also emancipatory; it is a basis for resistance to oppression; it is a primary source of identity, pride and solidarity. It is because of this Janus faced quality that it is hard to formulate responses to it.
The international community has been forced to recognise and accommodate ethnicity; it has intervened in several intra-state conflicts with armed force and it has imposed political solutions on states. There has been considerable pre-occupation with establishing norms and institutions for the regulation of inter-ethnic relations, particularly under the seductive influence of Arend Lijphart’s theory of consociation, based on the primacy of the community over the individual.
In which ways human rights and ethnically based claims typically conflict which each other?
Following are some ways in which human rights and assertions of ethnicity conflict.
a. Human rights seek to be colour blind, aloof from religious or other affiliations; ethnicity makes these affiliations basic to human existence.
b. Human rights empower the individual; ethnicity the group.
c. Human rights set the framework for relations between citizens inter se and between citizens and the state; ethnicity compels attention to and regulation of inter-ethnic relations, and the relations of the group to the state.
d. Human rights aim to be inclusive; ethnicity exclusive, but that exclusivity may be broadening in a different way—e.g., Islamic community with resonances in the Arab world, Indonesia, Pakistan, etc. (this ‘warm feeling’ of solidarity across the globe, transcending national boundaries, is its appeal, the notion of umma).
e. Ethnicity has posed problems for human rights in a way that nationalism did not, for the principal reason that nationalism did not seek accommodation of rights within an existing state, but its own state; ethnicity seeks accommodation within an existing state. It internalises to the state problems that would otherwise dissipate on the formation of a new state; it brings problems of cultural relativism not as concerns of distant societies, but as basic to the very definition and existence of a state, and of the co-existence of groups which under the theory of nationalism are incompatible. In other words, the conflict between human rights and cultural relativism cannot be treated simply as a philosophical or political discourse, but as a conflict which must be resolved concretely if some degree of order, stability and mutual respect is to be achieved.
f. Ethnicity dulls the consciousness of rights; while human rights seek to bring groups within a broader unity, emphasising our common humanity, ethnicity fragments. Violations of rights of members of other groups excite little disquiet; indeed considerable gratification, as the foundation for its own prosperity (e.g., Malayas did not ever criticise Mathahir’s disregard of human rights until the Anwar affair, when human rights became an internal Malay issue; numerous indigenous Fijians cheerfully acquiesce in the denial of rights of Indo-Fijians; and what can one say about the current sectarian madness in Iraq?).
g. Even more serious is the suspension of rights that accompany ethnic conflicts: freedom of speech, due process, habeas corpus, rights of personal liberty or movement, personal or group security, leading to the militarisation of state and society.
h. When ethnicity is translated in the language of rights, it takes the form of group rights which often undermine the essential principles of human rights such as equality, autonomy and due process; both of outsiders and members of the group.
Can these conflicts be overcome?
I believe that the values of human rights have the capacity to resolve many of these differences and dilemmas. Already our understanding of human rights has been enriched under the pressure of ethnic claims, such as that of the notion of equality, human dignity, the relevance of social justice. Human rights still have the potential to mediate, in a principled way, conflicts between communities and between the state and communities, as the experience of India, South Africa, Canada and Fiji show.