when it comes to contested human rights, subsidiarity will play a significant role.
Even the European Court of Human Rights has a so called “margin of appreciation”, such as in relation to the same-sex marriage case. There is no European consensus on this issue, so it is left to be sorted out by democratic politics. If there is no European consensus, you can bet there is no global consensus. It stands to reason that it is important to recognize a global margin of appreciation to manage these sorts of issues, in our very diverse world. If not, you could have well-funded and engaged activists seeking to universalise their agenda by clothing it with the legitimacy of the term, universal human rights, when there is no universal support for it, nor opportunity for evaluation, argument and counter-argument.
Such dissensus exists not only in the championing of new rights, but also how well-established rights like free speech are interpreted. This is certainly shaped by context, and libertarian readings of free speech (eg in the USA) are the outliers, not the mainstream. Contrast the USA approach towards political libel with that of other commonwealth jurisdictions, for example. Or laws that sanction the ‘wounding of religious feelings’ which would be unheard of in the USA but not elsewhere. Other Asian countries like Thailand have strict lese majeste laws which prohibit ‘royal defamation’ which many consider to fall below international protective standards. These are difficult issues – how are we to resolve it? I am against a free-fall into cultural relativism because wicked things can be legitimized in the name of culture, ideology or religion. We cannot evade the struggle; how do we distinguish good and evil, can we invoke these terms in a plural and postmodern age? Does anyone have a silver bullet, it would solve a lot of headaches. I think human rights can play a role in setting out the contours of legitimate and illegitimate departures from a general norm, the parameters of the permissible, rather than stipulating ‘one right way.’ Human rights must prohibit violations of core human rights and yes, I recognize that too may be debated, and it must figure out what lies in the penumbra, what is a contested right which may be better resolved through national democratic process rather than a diktat from ‘on high’.
What is the function of the principle of subsidiarity in human rights and why is the Asian perspective on human rights unique?
First of all, there is no single Asian perspective. It is better to speak of ‘values in Asia’, just as there are diverse ‘values in Europe.’ Asia is a very diverse continent, where there are peoples and groups with liberal, communitarian, religious, capitalist, communist, statist worldviews. So as far as Asia is concerned, I think it is fair broadly to say that we take our communities very seriously and we do not necessarily accept the idea that individuals are isolated monads as the dominant American or liberal approach believes. I might add that