Human rights, as we now understand them, are the product of the years since the Second World War. While human rights are now widely accepted by governments, at least rhetorically, it is important to remember that their development has been very slow, and often episodic. Implementation is uneven in East Asia. The major institutional bodies that have developed human rights principles in the post-war period are the United Nations and the Council of Europe. Somewhat slower are the Organisation of American States and the African Union.
There is no regional inter-state organisation in East Asia that has at least some concern for human rights. Standard setting, beyond the national level, as a result, is exclusively the work of the United Nations (UN), though Europe is often looked to for developments. Taiwan is outside the UN. Hong Kong was a party to the main UN human rights treaties before reversion to China, as a result of decisions of the United Kingdom as a colonial power. Reversion to China did not end that link to the UN treaties. Subsequently China itself signed the International Covenant on Civil and Political Rights. All but Taiwan have signed onto the major United Nations human rights treaties. Even North Korea has signed them. ASEAN (the Association of South East Asian Nations), of which Vietnam is a member, issued the ASEAN Human Rights
Declaration in November 2012. It does mention discrimination on the grounds of gender, but not sexual orientation or gender identity.
The six UN member states under consideration (a) have all signed the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC); (b) all but North Korea have signed the Convention against Racial Discrimination; (c) all but North Korea and Vietnam have signed the Convention against Torture. Mongolia and South Korea have signed the optional protocol to the International Covenant on Civil and Political Rights, allowing individual appeals to the UN’s Human Rights Committee after the exhaustion of domestic remedies. Two jurisdictions stand out as places where a shift to international post-war standards on human rights has been an important part of a political transition from authoritarian government to democracy — South Korea and Taiwan. Human rights protection was also a major issue around the reversion of Hong Kong to China in 1997.
China shifted from some scepticism over human rights, to signing the major UN human rights treaties and inserting a provision on human rights in its constitution in 2004. It reads, ‘The State respects and preserves human rights’ (Peerenboom et al. 2006: 413). These actions served to diffuse some of the opposition in the United States to China joining the World Trade Organisation. Human rights have become part of China’s self-presentation on the international stage. There is a China Society for Human Rights Studies, which publishes a bimonthly magazine titled Human Rights, with articles by a range of academics and government spokespeople. The magazine has yet to address any issues of sex or gender diversity. Since the US annually publishes a report that criticizes human rights in China, China annually publishes a report on human rights in the United States. Political competition sometimes helps the cause of human rights.
Adherence to international human rights treaties is of some importance for our purposes. The UN Human Rights Committee, which supervises the implementation of the International Covenant on Civil and Political Rights, ruled in 1994 in Toonen v Australia that a criminal law prohibition of homosexual acts was a violation of the Covenant. The Committee interpreted the word ‘sex’ in the anti-discrimination provision of the Covenant to include ‘sexual orientation’, so the ruling was both on the right to privacy and the right to equality. The denial of spousal pension benefits to a same-sex partner has also been held to violate the treaty in cases from Australia and Colombia, in this way giving recognition to same-sex relationships. In the case of Joslin v New Zealand in 2002, the committee rejected a claim for same-sex marriage on the basis of the specific reference to ‘men and women’ in Article 23 of the Covenant on Civil and Political Rights. The UN Human Rights Committee and the UN Committee on Economic, Social and Cultural rights have both urged Hong Kong to prohibit discrimination on the basis of sexual orientation (Sanders 2011: 253; Office of the High Commissioner 2012).
In the lead-up to the reversion of Hong Kong to China there were intense discussions over the implications of reversion for human rights. The suppression of the student-led demonstration in Tiananmen Square in Beijing in June 1989 occurred during the drafting of the Basic Law, which was to serve as the constitution for the Hong Kong Special Administrative Region (SAR). The events of June 1989 led directly to the enactment of Hong Kong’s first domestic human rights legislation, the Bill of Rights Ordinance (BRO). The colonial government decided to largely base the BRO on the International Covenant on Civil and Political Rights (ICCPR) as a means to boost public confidence prior to the handover to China. Petersen notes that it ‘selected the ICCPR because the Joint Declaration and also the published drafts of the Basic Law provided that the ICCPR would remain in force and be implemented through the laws of Hong Kong’ (Petersen 2006: 226-27). The Hong Kong Bill of Rights Ordinance remains in force today. As a result Hong Kong courts have ruled in gay rights cases that the Bill of Rights (and therefore indirectly the ICCPR) has constitutional status and overrules any statutory provisions that are in conflict with its provisions.
The UN became familiar with issues of sexual orientation and gender identity through (a) the work of special rapporteurs (a special category of independent experts) and treaty bodies (such as the Human Rights Committee, set up to monitor state compliance with the ICCPR), (b) the work on HIV/AIDS by UNAIDS, the UN Development Program (UNDP 2012), the UN Population Fund, the World Health Organisation, and the World Bank, (c) the work of a relatively new organised and continuing LGBT lobby at the UN, and (d) a slowly expanding number of states willing to include LGBT issues in their international human rights advocacy. These developments led to the decision by the UN Human Rights Council, the lead UN political body charged with supporting human rights, recognising the issue of discrimination on grounds of sexual orientation and gender identity and authorising a study in 2011. States from the East Asia region which supported the resolution were Japan and the Republic of Korea. China abstained. Supportive states had, at the time, a narrow majority of votes in the Council, allowing this innovation. The Council resolution placed the issues on the ongoing human rights agenda of the UN for the first time, validating strong support from the UN High Commissioner for Human Rights and leading to activism on the issues by the Secretary General, Ban Ki-moon. This active advocacy by the UN was new. In 2012 the UN published a booklet aimed at a popular audience, titled ‘Born Free and Equal’. It endorsed LGBT equality rights, with a detailed text and colourful pictures of pride parades and smiling couples and their children (Office of the High Commissioner 2012). There is an ad hoc ‘Core LGBT Group’ of states active at the UN on these issues. Japan was the only Asian state participating in the group when it met on September 26, 2013, during the annual fall session of the UN General Assembly (Fridae 2013a).
In the period since the Second World War it has become common for countries to establish national advisory commissions on human rights, to supplement the work of the courts, legislatures and administrations. The first commission to be established in East Asia is in South Korea. The idea of a human rights commission for South Korea goes back to the 1993 Vienna UN World Conference on Human Rights, when non-governmental organisations urged the government to establish such a body. The Korean government adopted the idea in 1996. In the 1997 presidential election all three candidates supported a commission and supported the inclusion of sexual orientation in its mandate. Kim Dae-jung served as president from 1998 to 2003, and received the Nobel Peace Prize in 2000 for his opening to North Korea. While a strong Catholic, he supported human rights for homosexuals and the inclusion of sexual orientation concerns in the mandate of the proposed commission. The commission was established by legislation in 2001 and was specifically authorised to address discrimination on the basis of sexual orientation, a first in Asia.
However, sexual orientation discrimination did not become against the law as the human rights commission was advisory only, a supplement to the legislative and judicial systems. The Korean commission became a remarkably effective human rights body. Its initial recommendations were all accepted and implemented by government. It worked with LGBT NGOs, contracting with the leading male and female organisations for research and consultation work. The Commission drafted and promoted a general non-discrimination law, which included sexual orientation as a prohibited ground of discrimination (addressed later). It concluded that the ban on sodomy for members of the armed forces was a violation of human rights. The government accepted the Commission’s conclusions on Internet censorship (to be discussed below), but not its later positions on the anti-discrimination law or homosexual acts within the military (Sanders 2012).
The Ministry of Justice of Japan issued a draft bill to establish a human rights commission in 2002. Sexual orientation discrimination was to be a concern of the body. Gays and lesbians had testified openly at public hearings leading up to the final report. The proposed legislation was seen as a breakthrough. OCCUR, a Japanese gay rights NGO, said it was the first case of the public recognition of lesbian and gay rights. The draft was considered in the lower house of the national Diet in 2002, 2003 and 2005, but never enacted. The Social Democratic Party included the protection of lesbian and gay rights in their platform in 1993, the first time any political party with seats in the Diet had made such a statement. The surprise victory of the Democratic Party of Japan (DPJ) in the national election in 2009 held the promise of an opening on human rights and LGBT rights, but the reform moment passed quickly without any institutional or legislative gains and the Liberal Democratic Party (LDP) regained power in late 2012. The DPJ government planned a national human rights commission, but this has been shelved by the LDP government of Abe Shinzo (Japan Times 2013).
There is an Asia-Pacific regional grouping of national human rights commissions, and it has addressed LGBTI equality rights (see www. asiapacificforum. net). At present, for East Asia, the only commissions in the grouping are in South Korea and Mongolia.