Globalisation and Human Rights
Professor Yash Ghai of the Department of Law, University of Hong Kong, was the Foundation's guest speaker on 29 September 1999. This is a summary of his remarks.
For those of us in Asia, the controversy was acute: several regimes in Asia had opposed the decision of the United Nations Commission on Human Rights in Geneva the previous day to intervene in East Timor, despite the killings that had taken place there. This showed the lack of their commitment to human rights. Recognising that many of his audience were from the business sector, he hoped that what he had to say would not offend.
In the brief time available to him today, Professor Yash Ghai would not try to provide solutions. Rather, he would try to provide some kind of framework within which to explore the connection between the emerging phenomenon of globalisation and the human condition. He believed that human rights was a complex concept, and would try to show why he thought this to be so. And globalisation was possibly more complex still. So Professor Yash Ghai would try to disaggregate each term and then explore some linkages between them.
The term "globalisation" was used in a general sense to refer to international relations, to links between institutions, between peoples, to the clash of cultures. And today the term increasingly meant the marketisation of the world's economies. Trade no longer took place within self-contained national economies, bound by national legal frameworks: now the state had been displaced by global economic institutions and regulatory frameworks. There had been the enormous expansion of trade, the growth in intellectual property, the opening of markets, economic growth and the integration of economies. The many manifestations of capitalism were now supported by global economic forces operating within the matrix of market discipline, in which there was less room for the nation state.
Globalisation was not a warm and human force. It was based on selfishness, on exploitation of resources.
Globalisation was not a warm and human force. It was based on selfishness, on exploitation of resources. Moreover, it was operating in an environment, the global environment, that was without effective institutions to protect human rights.
The concept of human rights first appeared in a national context, in the French and United States constitutions, and subsequently in most national constitutions. Regional and international progress in human rights was made first in Europe. International standards were formulated and made legally binding through treaties and global institutions which protected the individual outside the structure of the nation state. Recently there had been a further breakthrough in the development of human rights. The Geneva decision marked a global acceptance of responsibility for human rights.
Some commentators accused human rights activists of an "overproduction" of human rights. Although human rights activists insisted on the indivisibility of rights, that rights were all of a piece, Professor Yash Ghai did not think this was so. For there were human rights of many different kinds: the concept was complex and heterogeneous. Historically, different kinds of rights had emerged at different times. In the eighteenth and nineteenth centuries civil and political rights had dominated the discourse. By the end of the nineteenth century and into the twentieth, welfare rights began to emerge. And more recently rights to a clean environment, to peace, and similar concepts had come to the forefront.
Unfortunately, there was now some trend to detach current discourse about human rights from its earlier philosophical roots and use it simply as a basis for claims. This blurred the legal basis for human rights. It is arguable that it would be better to arrive at a narrower set of human rights with a stronger philosophical and political foundation.
Moreover, there were differences in perspective even concerning "the same" human rights - different discourses. For example, the US State Department published an annual index of the human rights performance of different countries. But, said Professor Yash Ghai, if given the same task he would write a different report. As he would go on to show, it was not always right to attribute human rights shortcomings in particular countries to those countries' governments. The shortcomings might be due to factors beyond the nation state's control - factors arising from globalisation, for example.
Professor Yash Ghai drew attention to the proliferation of non-governmental organisations (NGOs), and the developing networks they were forming. National human rights commissions met every year, and liaised among themselves during the year. States also discussed human rights. There was the decision in Rome to establish a World Criminal Court. These were significant developments, but, Professor Yash Ghai felt, they were still embryonic. There was no mass international movement for human rights.
How did human rights, this complex heterogeneous concept, interact with the forces of globalisation? The interaction itself was complex. In some senses globalisation was a liberalising force. By dragging local economies into the market it broke down feudal systems. Women were in many respects the victims of globalisation in poor countries, but on the other hand as a result of it they would get jobs and become economically independent.
It was helpful here to distinguish between different kinds of human rights. Globalisation promoted market-friendly human rights. When Professor Yash Ghai had studied law, he said, he had never heard of intellectual property. Yet intellectual property was now a major issue. For example the Fijian drink yacona had been produced in the island for centuries, and yet now the US was claiming to patent it. Professor Yash Ghai did work at one time for the FAO to help resolve a dispute over the ownership of seeds: ownership was claimed by industrialists in Europe and by farmers in the Third World. How did one patent life forms? Intellectual property was a difficult area.
Globalisation exposed the weaknesses of human rights under the United Nations system.
However, the point he wished to make was that the strengthening of legal systems to reinforce property rights was often at the expense of other kinds of rights, for example welfare rights and workers’ rights. Some rights protected access to the courts, but this benefited small numbers of people. Professor Yash Ghai had worked in Mozambique, and had seen the revamping of the legal system there as part of the reconstruction of that nation. But this had had no effect on the countryside; ninety percent of the lawyers lived in the capital Mbotu and disputes in the countryside went unresolved. The benefits were too unevenly spread.
The problem was that there were asymmetries in the capitalist system. All in this room, said Professor Yash Ghai looking around him, were beneficiaries of globalisation. He himself could travel more or less where he pleased, obtain paid work as an academic or in practice; he was very privileged. But the majority did not benefit in this way and experienced a harsher outcome from globalisation.
Globalisation exposed the weaknesses of human rights under the United Nations system. Human rights had been developed in the context of states, and the institutions that protected human rights were national institutions. Human rights had been conceived in terms of protection against national political forces, but now power was shifting from states to globalised economic forces. And there were plenty of abuses from multinational companies, in terms of their employment practices, but the power of these companies was so great that the local national institutions could not do much.
On a more personal note, Professor Yash Ghai cited a major publisher who refused to publish a work of his in Singapore because it contained matter critical of Mr Lee Kwan Yiew. Professor Yash Ghai had written to colleagues around the world urging a boycott of this publisher. But the response was lukewarm because so many writers were dependent on the financial resources of this publisher to get their work into the public domain.
There was a need to rethink the framework of rights. It was often not right to blame the government of a country for lack of rights: it might not be within that government's control. This was to attribute responsibility where no authority existed. To protect human rights in a global context one needed global institutions, but effective institutions were not yet present. Within a national context, central authorities had emerged before rights, and were therefore available to protect rights when these emerged subsequently. Yet in the international context, rights had emerged before the corresponding institutions. One needed a global authority to make human rights universal.
Was there a necessary link between human rights and free markets? Professor Yash Ghai conceded that this was a popular view, espoused by Milton Friedmann in "Free men, free markets", among others. Yet he saw plenty of counterexamples - markets that were functioning but not within free political systems: Japan, Malaysia and apartheid South Africa were examples. The Marxist doctrine of initial accumulation via the state was a compelling one, Professor Yash Ghai felt: it implied the expropriation of resources by the state.
Was the UN intervention in East Timor a modern-day manifestation of colonialism? Emphatically not, Professor Yash Ghai answered. There were people being slaughtered. There was a genuine mass feeling of the need to support the East Timorese - outraged consciences. The pity was that the intervention had not taken place earlier. There seemed to be a pattern in these affairs - Rwanda, Kosovo, and elsewhere - attrocities had to mount to a certain level before action was taken.
On the whole Professor Yash Ghai was not optimistic about the future of human rights. The problem was how to get solidarity across frontiers. He did not see how one could get beyond the often not very effective networking and lobbying of NGOs. What was wanted was a people's movement, but this seemed a remote prospect.
The above does not necessarily represent the views of the Foundation.