Routledge Handbook of Human Rights in Asia

Fernand de Varennes, Christie M. Gardiner, Fernand de Varennes, Christie M. Gardiner

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781317518198
• Edition: 1
• Topic: Law
• Subtopic: Housing & Urban Development Law
• Index: Law

The Routledge Handbook of Human Rights in Asia provides a rich study of human rights challenges facing some of the most vulnerable people in Asia. While formal accession to core international human rights instruments is commonplace across the region, the realisation of human rights for many remains elusive as development pressure, violent conflict, limited political will and discrimination maintain human rights volatility.

This Handbook explores the underlying causes of human rights abuse in a range of contexts, considers lessons learnt from global, regional and domestic initiatives and provides recommendations and justifications for reform. Comprising 23 chapters, it examines the strengths and weaknesses of human rights institutions in Asia and covers issues such as:

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• Participation, marginalisation, detention and exclusion

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• Private sector responsibility and security

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• Conflict and post-conflict rehabilitation

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• Trafficking, displacement and citizenship

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• Ageing populations, identity and sexuality.

Drawing together a remarkable collection of leading and emerging scholars, advisers and practitioners, this Handbook is essential reading for students, scholars, policy makers and advocates of human rights in Asia and the world.

Part I

Strengthening Asian human rights institutions

1

The rights of the marginalised in Asia

Increasing protection or vulnerability?

Fernand de Varennes

Introduction

I am neither of the East nor of the West, no boundaries exist within my breast.

– Jalāl ad-Dīn Muhammad Balkhī (Rumi)

As other contributors in this Handbook have pointed out, Asia remains the only part of the world without a regional human rights protections system, despite some more localised attempts and other sectoral efforts in this regard, such as the ASEAN Intergovernmental Commission on Human Rights (AICHR),¹ the ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children (ACWC),² the ASEAN Committee to Implement the Declaration on the Protection and Promotion of the Rights of Migrant Workers,³ and the Arab Human Rights Committee.⁴

Human rights are not necessarily less recognised in the region, nor are countries in Asia particularly unreceptive environments. After all, ‘Asia’ is a vast part of the world,⁵ home to the world’s largest populations and arguably most diverse societies in religious, cultural, linguistic, economic and social terms. As others have also pointed out, it was always going to be a greater challenge here to reach any kind of consensus than where there were more shared traditions in cultural terms, such as in the Americas or in Europe.

Indeed, if one were to limit oneself to an admittedly simple measurement as to whether there is less support for international human rights standards in Asia – by looking at the relative rate of support for the UN’s main treaties dealing with some of the more vulnerable segments of society – Asian states cannot be said to deviate much in terms of ratification from the states in other parts of the globe. For example, all Asian states have ratified the Convention on the Rights of the Child,⁶ only one Asian state (Iran) has not ratified or acceded to the Convention on the Elimination of All Forms of Discrimination Against Women,⁷ and although only nine of the 51 states which had ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families are in Asia, it is still a proportion higher than that of Europe, since ratification has mainly been from Africa and Latin America.⁸

Unfortunately, even if by this simple measure Asian states cannot be said to greatly lag behind their counterparts in other parts of the world, ratification of human rights instruments does not automatically equate with compliance with the standards which they contain. This may be particularly true in relation to some of the world’s most vulnerable or marginalised segments of society.

Asia and the world’s most vulnerable

You can only have lasting peace based on justice.

– Mahatma Gandhi (Wrench 1942)

Asia as a region does not display any intrinsic rejection of general human rights treaties, nor of those that deal specifically with some of the world’s most marginalised or vulnerable segments of society, such as migrant workers, refugees, children, women or minorities. However, in practice and in recent years this part of the world has been convulsed – some might say increasingly so – by deeply disturbing developments, from the ravages of conflicts and atrocities committed against minorities during times of conflicts (Yazidis and other religious minorities in Iraq; Hazara in Afghanistan) to the denial of basic human rights such as that of citizenship targeting specific ethnic groups (such as the Rohingya in Myanmar). Many of these in turn contribute to massive refugee and IDP (Internally Displaced People) movements – the largest the world has experienced since the end of the Second World War,⁹ and with Asian regions figuring very prominently. Nor can it be said that the situation of women and children has markedly improved, except in countries where economic stability and prospects have had positive consequences in relation to access to education, health and public services. Even here, apparent statistical improvement can be misleading when it does not equally benefit all segments of a country’s population. There are undoubtedly positive developments in some areas that should not be discounted, whether in relation to some initial positive steps for women in Saudi Arabia, such as a decree taking effect in June 2018 allowing women to drive, or right to vote and to run for office in municipal elections in 2015, or the increased access to education for most children in recent decades in the People’s Republic of China.

It is of course impossible to provide a comprehensive picture covering both progress or failures in relation to all human rights matters in all of Asia. A much more modest approach is to focus on particularly vulnerable segments in those countries where there appear more clearly serious challenges that remain to be addressed. Unfortunately, this focus on ‘negativity’ may give the lopsided impression that Asian governments, as a whole, are not responding properly to their human rights obligations. This is not necessarily the case since the constraints of this chapter do not permit a comprehensive examination of all relevant aspects – the positive and the negative – of any given issue. This is the reason one should keep in mind that the focus in the next sections will be on the more notable areas of challenges and failures dealing with the human rights of some of the most marginalised in the region.

Refugees, IDPs and statelessness

Imagine being told you don’t belong because of the language you speak, the faith you follow, the customs you practice or the colour of your skin. This is the stark reality for many of the world’s stateless. Discrimination, which can be the root cause of their lack of nationality, also pervades their everyday lives – often with crippling effects. If we want to end statelessness, we must address this discrimination. We must insist on equal nationality rights for all.

– Filippo Grandi, United Nations High Commissioner for Refugees (2017c)

Recent figures from the United Nations High Commissioner for Refugees (UNHCR) identify Asia as home to more stateless people¹⁰ and a source of more refugees and IDPs than any other part of the world. At the end of 2016, almost half the world’s refugees come from only three Asian countries when one includes the 5.3 million Palestinian refugees registered by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) (UNHCR 2017b: 2). While it should be kept in mind that as of 2017, about 59.63% of the global population was living in Asia, it should still be acknowledged that when considered in its entirety, it seems undeniable that Asia as a whole is disproportionately a source of and the home to many more refugees, IDPs and stateless people than any other continent. It is also noteworthy that the UNHCR launch in November 2014 of the #IBelong Campaign to End Statelessness with the goal of ending statelessness in ten years has helped raise awareness of statelessness and focus political attention to address it. This has led to regional initiatives such as the Abidjan Declaration of Ministers of ECOWAS Member States on Eradication of Statelessness¹¹ and the Brazil Declaration and Plan of Action.¹² Unfortunately no such momentum exists yet in this regard in Asia, though ASEAN mechanisms have not been completely silent on at least the connection between statelessness and human trafficking.¹³ There have also been a number of global and regional NGO initiatives to address the particular vulnerability of children in situations of statelessness, though none of these specifically aimed at or emanating from the Asian region (Institute on Statelessness and Inclusion 2017: 14). Though not identical to situations of statelessness, it is thought that as many as ‘135 million children under five years old across Asia and the Pacific have not had their births registered’, with consequences not entirely dissimilar to statelessness since ‘registration is often a prerequisite in establishing a child’s legal identity’ (Institute on Statelessness and Inclusion 2017: 61). Thus, tens of millions of people in Asian countries lack proof of legal identity, including birth certificates, though not all of them are stateless. As in other parts of the world, the vast majority of stateless children in Asia are from minority groups such as the Rohingya who face discrimination in nationality laws.

Asian states have perhaps also been more timid from an international legal point of view, with few accessions or ratifications of the two UN treaties on statelessness: the 1954 Convention Relating to the Status of Stateless Persons¹⁴ and the 1961 Convention on the Reduction of Statelessness.¹⁵

Further aggravating this unfortunate state of affairs, and demonstrating the interlocking human rights dimensions affecting sections of society who can be doubly marginalised, women in more Asian countries than anywhere else in the world can be denied the right to transmit their citizenship to their children because of their gender, including in some cases in combination with their ethnicity. Some 25 countries maintain nationality laws that discriminate against women in this manner, with the vast majority of them in Asia.¹⁶ The consequences of this not only involve gender discrimination: these situations also revolve around contexts which compound the extreme vulnerability of their children as well since, because of their statelessness, they will likely encounter numerous and burdensome disadvantages or even complete denial in accessing medical care, education and formal employment, thus becoming highly vulnerable to exploitation, drugs, hopelessness and ultimately disenfranchisement from participation in society.¹⁷

Multilayered marginalisation in cases of statelessness in Asia are not limited to women and children – it in particular impacts on minorities disproportionally, as can be seen in dramatic and tragic fashion by the plight of Myanmar’s Rohingya, that of Palestinians, of Bidoons in the Arabian Peninsula, Tibetans in India, Kurds of Syria, and Nepali from Bhutan, amongst others. According to the UNHCR, ‘[d]iscrimination, exclusion and persecution most commonly describe the existence of stateless minorities. More than 75% of the world’s known stateless populations belong to minority groups’ (UNHCR 2017c: 1). As with the children of women who cannot transmit their citizenship because of gender discrimination, stateless minority children find themselves particularly vulnerable ‘to poverty and difficulties in accessing education, health care, and other state services’ (UNHCR 2017c: 3), as well as to trafficking and sexual or economic exploitation.¹⁸

Many other cases of statelessness can be associated to situations of conflict where individuals fleeing instability and warfare may find themselves unable to prove their nationality or otherwise obtain citizenship of the country where they resided. They themselves are multiply vulnerable: as refugees or IDPs, as stateless individuals, as minorities, or even further as marginalised women or children. Indeed, this is one of the reasons the 1951 Convention Relating to the Status of Refugees recognises a link, in its definition of a refugee, of the particular vulnerability of minorities as ‘persons who flee persecution . . . because of their race, religion, nationality, or membership in a particular social group’. The point must be emphasised because it is at times misunderstood or not sufficiently acknowledged: the very definition of those who can claim refugee status are recognised to be individuals vulnerable because of ‘their race, religion, nationality’; in other words, they are likely to be minorities in the countries they must flee. Put another way, the relationship between persecution of minorities, and the human rights abuses they suffer, and refugee flows has been too frequently demonstrated.

In addition, forced displacement experienced by refugees and IDPs in Asia creates unstable circumstances that increase the risk of statelessness. Refugees may for example ‘lose their identity documents and be unable to prove the bond with their home country. Being undocumented does not equate to being stateless, but it makes it challenging to prove...

Table of contents

• Cover Page
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Illustrations
• List of Contributors
• Foreword by Rita Izsák-Ndiaye
• Acknowledgements
• List of Abbreviations
• PART I Strengthening Asian Human Rights Institutions
• PART II Participation and Exclusion
• PART III The Private Sector
• PART IV Security and conflict
• PART V Trafficking, Displacement and Citizenship
• PART VI Age, Identity and Sexuality
• Index