Human Rights as a Concept of Public Law: Challenges for Central Asian Higher Education Systems

Abstract

This chapter first explains human rights as a concept of public law and briefly analyzes its legal nature. Second, the chapter outlines the particular challenges this concept presents for the Central Asian countries and their formal education sectors. Treating the concept as a predominantly legal phenomenon, it considers how human rights play into key ideas such as the Rechtsstaat and its crucial elements: rule of law and civil society. Further, it scrutinizes the role of human rights education (HRE) and knowledge dissemination in raising legal awareness and promoting legal culture among the population, a particularly relevant problem for the Central Asian countries. The chapter then proceeds to address issues of disseminating knowledge on human rights, primarily in the formal education sectors and hence public (but also private) higher education institutions that impart legal knowledge in the four main Central Asian countries. Challenges to providing effective formal education in human rights are reviewed, along with local contextual factors in the region (cultural, social, historical, economic, and political) contributing to those challenges. Understanding such factors facilitates the development of potentially useful suggestions and solutions to address these challenges. The latest overview of the current human rights education programs in Central Asia is a crucial basis for this brief analysis. Lastly, the chapter argues in favor of applying a systemic, principled, as well as contextualized approach to improving human rights education efforts in the region.

1 Introduction

The human rights agenda in public discourse, including on the matter of dissemination of knowledge on and implementation of international human rights law (IHRL) has only gained in importance and relevance in the twenty-first century. Given the ongoing developments in the world, such as emergency situations (e.g., the COVID-19 outbreak in 2019), situations of violent conflict in 2022, and armed conflicts including Russia’s war against Ukraine, the attention on and demand for human rights law and protection is not surprising. Sadly, these developments create or contribute to conditions that are conducive to violations of various human rights, above all, individual rights. The concept of human rights is often perceived as a public, moral, political, international, and/or diplomatic one. We should not forget, however, that human rights have a legal dimension, too. They are directly affected by law and human rights, in turn, affect legal concepts, norms, and principles. Hence, a proper dissemination of knowledge on and education in human rights in any political system needs to always take the legal dimension into account. In Central Asia, the dissemination of knowledge on human rights (law) through teaching and instruction has experienced many bumps along the road, and will likely continue to do so.

It is important, therefore, to look at the legal dimension of human rights and how it relates to key public law concepts, such as rule of law, civil society, and the Rechtsstaat and to review the role of human rights education and knowledge dissemination in raising legal awareness and promoting legal culture among the population, a particularly relevant problem for the Central Asian countries. This chapter conducts a brief analysis of the relationship between human rights and law as such. Hence, this chapter will examine human rights predominantly from the perspective of its legal dimensions. It subsequently looks at the education systems of four Central Asian states, in particular, law universities and/or faculties, with a view to establishing how exactly knowledge on human rights is conveyed and taught to students in these countries. Their curricula were used if publicly available. Challenges to providing effective human rights education are reviewed, along with regional contextual factors of cultural, social, historical, economic, and political nature contributing to those challenges. Understanding such factors clearly facilitates the development of potentially useful suggestions to address said challenges, something this chapter also seeks to do. Lastly, the chapter argues in favor of applying a systemic, principled, as well as contextualized approach to improving human rights education efforts in the region.

2 Human Rights as a Concept of (Public) Law and the Role of Knowledge Dissemination

From the second half of the twentieth century onward, the concept of human rights became a permanent part of the way we think about relations between nations.¹ In the Central Asian states, this only began to be the case following their independence from the Soviet Union in 1991. Their domestic constitutions included most civil and political rights, as well as some economic, social, and cultural rights. The notion of constitutional rights also started to gain hold in the region. Moreover, human rights began to enter official and informal discourses in domestic and foreign policies of Central Asian states.

According to D’Amato, international human rights are now a legislative condition of foreign aid, they have been institutionalized in bureaucratic structures, and, perhaps most importantly, they have been indelibly stamped on the minds of the public as one of the most important standards by which to measure other countries’ political systems.² This has continued to hold true for the first two decades of this century as well. The expression “international human rights” has a powerful emotional connotation. Arguably, “human rights” has become one of the most popular and widely used terms in the mass media’s coverage of external policy issues and the conduct of states at domestic, regional, and international levels.

It is important to stress at this point that human rights also have a strong legal dimension. There are several key factors that justify this statement. First of all, human rights are provided, ensured, and guaranteed by law, i.e., by way of application of legal norms and principles; they are within and not outside the legal realm. Human rights are developed and protected using legal means. Human rights are, inter alia, what makes the law more than just a regulatory framework, turning a legal regime into a system of protection. Within the human rights narrative, human rights advocates have identified the promise of “using the law as a means of social change based on a commitment to humanitarian values on a global scale.”³ This has also been true for Central Asian contexts, although the perception of and application of the law—as merely a statist tool for achieving narrow goals of ruling elites—in these countries has often created and continues to create obstacles to fulfilling that commitment.

Second, supremacy of human rights and freedoms constitute one of the fundamental features of the concept of the Rechtsstaat or the “state of law.”⁴ This aspect of democracy involves both the rights and interests of individuals and rights and freedoms of citizens.⁵ In a true Rechtsstaat, individuals have the right to freedom in social and political life. Such a “state of law” fully recognizes this individual freedom and does not allow itself to interfere with it.⁶ It is imperative that the supremacy of human rights and freedoms is not just expressed as a nominal recognition and establishment in domestic legislation on the fundamental rights and freedoms of individuals; it must actually be guaranteed in reality, with a tangible way of enforcing and fulfilling those rights, interests, and freedoms.⁷ Moreover, not only are human rights and their supremacy one of the key features of the idea of the Rechtsstaat, they also act as one of the preconditions for the establishment of a true “state of law”; in other words where there is no respect for human rights, there will also be no chance of a Rechtsstaat or “state of law” in any form.

Third, the “legal culture” element is also important. This could be defined as a network of values and attitudes relating to law, which determines why, where, and when people turn to (or turn away from) the law or the government. As lawyers are well aware, legal culture encompasses legal views and viewpoints, norms, institutions, as well as behavioral relations based on law. Essentially, the high level of legal culture in the Rechtsstaat signifies a culture of recognition, protection, and realization of human rights and freedoms as among the highest values of society.⁸ Without this full-fledged recognition, it is simply not feasible to achieve an advanced level of legal awareness and an established legal culture. The value component, or axiological component, is of relevance here. Fundamental rights and freedoms can be said to be a societal value of legal nature, and hence there is another—value-oriented—connection between human rights and law. For all these reasons, human rights and freedoms, as well as their provision and realization are of the utmost importance for establishing the other components of the Rechtsstaat, such as the principle of rule of law and a functioning civil society.

Fourth, the concept of human rights plays a major role in international law.⁹ International human rights law or IHRL actually exists, it is an objective fact. This branch of public international law has been developing quite dynamically, with a wide range of well-established treaty sources and customary rules. Along with other important legal regimes in international law, such as international humanitarian¹⁰ and criminal law, IHRL, applicable both during peacetime and armed conflict, comprises a mutually complementary rather than a mutually exclusive set of norms and principles.

Fifth, human rights are more than just a legal category. They are in fact also predominantly a public law concept. The following brief arguments support this proposition. The violators of human rights are mostly—although not exclusively—states, with IHRL imposing the corresponding obligations and duties (to respect the rights of individuals) upon state actors.¹¹ It is the state that bears the primary responsibility for providing proper conditions in order to make sure that the rights and freedoms of all members of the society are duly protected and realized. Further, human rights represent a normative form of interaction between people, organization (“orderizing”) of their relationships with one another, coordination of their acts and activities, prevention of contradictions as well as confrontations and conflicts.¹² In other words, human rights set out the necessary normative conditions and ways of life. Consequently, they are needed by any state that aims at ensuring its society functions normally. This state—read “public”—element is all the more apparent when we recall the imperative role of democratic concepts such as human rights in key legal ideas such as the Rechtsstaat and rule of law.¹³

When it comes to the connection between the public law dimension of human rights and HRE, there are practical reasons why the dissemination of knowledge on human rights, starting with formal education in this sphere, should highlight the (public) law aspects. This is needed in order to make it clear to those being educated that the duty to establish the necessary legal protection frameworks for human rights lie first and foremost with the state. This does not in any way refute the famous proposition by Francis Lieber regarding the rights and duties paradigm: “no right without its duty, no duty without its right”; in fact, it only reinforces it. Both states and individuals have certain duties in terms of reciprocating rights. However, states have an especially important duty, not least due to the enormous potential, control, and resources they have at their disposal compared to individuals. Learning about how rights and duties work will contribute to the development of an advanced legal culture in any given society. This is especially true in regions such as Central Asia where so much still remains to be done in terms of raising legal awareness, including in the sphere of human rights and fundamental freedoms. For this reason alone (and there are certainly others), proper systematic dissemination of human rights knowledge is crucial. This may, as it does in Central Asia, encounter some of the problems discussed in some detail below (see Sect. 4). What follows is a short description of the current situation regarding teaching human rights/human rights law in Central Asian contexts.

3 Human Rights in the Education Sector in Central Asian States

Human rights education should not be regarded as an optional extra to a law curriculum in the formal education sector in the countries of Central Asia. Like many other countries, Central Asian states are obliged under IHRL to provide education aimed at strengthening respect for human rights.¹⁴ The overview in the following sub-chapters does not purport to be exhaustive or comprehensive but highlights and briefly comments on the main elements of the formal education systems at university level (except for Turkmenistan for which there is no reliable and publicly accessible information).

3.1 Kazakhstan

Kazakhstan has a highly centralized top-down political system that leaves little political, administrative, and fiscal authority to the lower levels of a clearly defined hierarchy.¹⁵ This is also reflected in the education system, which is characterized by extensive planning and norms. Kazakhstan uses national strategic planning to broadly set out a vision for the country, but also to regulate every aspect of the education system at the central level.¹⁶ Education in Kazakhstan is divided into pre-primary education, school education (including primary, lower secondary, and upper general or vocational secondary education), post-secondary, and tertiary education.¹⁷

A number of higher education institutions, both public and private, have the following courses in their bachelor’s programs and course catalogues: “Human Rights Advocacy/International Human Rights Law” (KAZGUU), “Human Rights Protection” (Al-Farabi Kazakh National University), “International Human Rights Law” (KIMEP University), “Human Rights: Theory and Practice of Realization,” and “International System of Human Rights Protection” (Karaganda Buketov University).¹⁸ These specialized courses are offered alongside profile subjects such as “Public International Law,” “International Public Law,” and courses based on other specific branches of international law (e.g., “International Criminal Law,” “International Humanitarian Law,” “International Criminal Procedure,” “Law of International Organizations,” “Diplomatic and Consular Law,” etc.).¹⁹ Higher education subsequently proceeds to some advanced human rights-related courses for lawyers at master’s level. Part of these courses is taught by holders of foreign degrees (i.e., professors with terminal degrees from universities in Western and Eastern Europe). Accordingly, it can be concluded that there is a relatively strong human rights component in the educational programs of the major universities in Kazakhstan.²⁰

3.2 Kyrgyzstan

According to the available reports, there is currently no comprehensive system of human rights education that is part of Kyrgyzstan’s formal education system.²¹ As maintained by Amnesty International, such a system would include (but would not be restricted to) a national human rights curriculum, programs and teaching packages for teaching human rights in line with international mechanisms, and professional training and development courses for teachers (or a system of regular monitoring and evaluation of teaching quality).²²

Some universities teach human rights-related disciplines as part of their curricula, primarily within their undergraduate programs. One example is “International Human Rights Law” and “Business and Human Rights” at the American University of Central Asia in Bishkek.²³ Another example is “International Human Rights Law” at Ala-Too International University in Bishkek.²⁴ However, the majority of universities have not introduced the key elements of human rights into their curriculum (public universities, in particular), at least based on the available and accessible sources of information. This status quo suggests the somewhat surprising conclusion that in Kyrgyzstan, once dubbed an “island of democracy” in the region, the teaching of (international) human rights law and standards has not been deeply integrated into or systematically applied across all institutions of higher education.

3.3 Tajikistan

Unfortunately, practically no reliable information regarding the undergraduate study curricula of public universities in Tajikistan is publicly accessible. Unlike its neighbors Kyrgyzstan and Kazakhstan, Tajikistan does not make this information public, with one exception: the Russian-Tajik Slavonic University, which regularly teaches a course entitled “Safeguarding and Protection of Civil Rights” at its Faculty of Law.²⁵ The fact that since 2006, the Law Faculty of the Tajik National University has had a specialized Chair (Department) of Human Rights and Comparative Law suggests that they are specific courses on human rights for undergraduates.²⁶ The programs and curricula of other higher education institutions in the country cannot be verified due to the lack of accessible online sources.

3.4 Uzbekistan

In Uzbekistan, a number of programs and initiatives on human rights education have recently been announced. In 2019, the parliament (Oliy Majlis) adopted a National Program of Action for the Implementation of the Provisions of the UN Declaration on Human Rights Education and Training.²⁷ In 2020, a Presidential Decree on the National Strategy on Human Rights was adopted. The Decree contained provisions on increasing legal literacy in the sphere of human rights which included, inter alia, the development of proposals for the introduction of training courses (textbooks) “Human Rights,” “Women’s Rights,” and “Children’s Rights” in state higher education institutions and general education institutions.²⁸ Subsequently, in 2021 a special National Commission for Human Rights Education was established and one of its specific tasks is to develop a National Program for Human Rights Education.²⁹ Although these are all undeniably positive developments, confirming and finding up-to-date information on follow-up to any of these initiatives is a challenge, as such information is not made fully or promptly accessible.

According to the available study programs and curriculum lists of leading universities, there are some undergraduate courses on human rights. This is the case for the Faculty of Public Law at Tashkent State University of Law, for example, where a course called “Human Rights” is offered (for 2nd year students),³⁰ and as part of the bachelor’s degree program under the “Jurisprudence” specialization of the University of World Economy and Diplomacy, a course entitled “Human Rights” is offered for 2nd, 3rd, and 4th years.³¹ Undergraduate students of the Faculty of Social Sciences, Department of Civil Society and Law at the National University of Uzbekistan are also offered a course somewhat curiously named “International and Human Rights.”³² In addition, one of the peripheral universities, the Karakalpak State University named after Berdakh has a functioning chair in its Faculty of Law, again with the curious title of “Chair of Human Rights, State Law and Administration.”³³ Unfortunately, no information is available as to what exact courses the faculty teaches.

However, human rights subjects are mostly taught in a generalist way rather than as a category of public or international law—this is illustrated by the respective course titles and the curriculum structure. There appears to be no unified, coherent approach to teaching IHRL as a legal discipline. Further, in some universities, such courses are only offered for students in certain years, while other universities offer human rights courses at almost all levels, except for freshman. These inconsistencies could be remedied if, in parallel to national ad hoc plans, domestic education standards in each of the Central Asian contexts, studies were to consistently stipulate human rights law courses.

4 Challenges to Effective Instruction on Human Rights

Some of the difficulties encountered by instructors in human rights and IHRL disciplines in the Central Asian region are similar in nature to the typical challenges to teaching public international law. Others are strongly associated with factors specific to the region. Correspondingly, this section is divided into two short parts: the first deals with the challenges resulting from the inherent connection between human rights law and public international law (understandably, this category of challenges would surely not be endemic to this region only); the second encompasses those challenges that are directly related to particularities of the local context in terms of the history of the region, its politics, economics, social factors, people’s mentality, religion, and culture.

The first group includes the following observations. There are university students who question the very essence of international law, and by extension IHRL, as a true legal branch or its international nature, while others doubt whether international law is still capable of solving the complicated problems of today. There are those who admit the importance of public international law from a doctrinal and theoretical perspective, but deny its practical role compared to domestic law. Further, students tend to rely on domestic legal concepts, principles, and analogies to understand international legal sources and concepts. In other words, there is a clear tendency to apply the logic of the “law of subordination” typical of domestic legal systems to the “law of coordination” which characterizes international law and IHRL. The influence of political considerations on the application and implementation of international law must be noted, too. As is well known, the role of the existence or absence of political will of governments when it comes to domestic implementation and dissemination of knowledge on treaty and customary IHRL is crucial. This often leads to a misperception among students of international law and IHRL that the entire international law structure represents a regulatory system governed by Realpolitik rather than cosmopolitan axiology and legal values. All these difficulties ultimately contribute to students’ skeptical attitudes toward modern international law.

When it comes to the second group of challenges, one problem lies in governments’ and populations’ general perception of law and its dissemination. According to this author elsewhere:

Law is oftentimes regarded by certain authorities [in Central Asia] as merely an instrument, i.e., a functional tool to support exclusively the state system and national interests but not as a value on its own or a means to help improve the well-being of the society. This, along with a traditional conformist mentality and general distrust of the people toward legal rules as serving only the interests of the State, results in attitudes such as legal nihilism and low legal culture. Adding to this is an underestimation of the influence and power of the respective progressive academic schools of legal thought which are not sufficiently represented by prominent academics and lack proper tools, textbooks, individual and collective monographs, reference editions, etc. While the constitutional systems of all post-Soviet States include elements of the democratic, liberal, secular and social State, and encompass most of the categories of fundamental constitutional/human rights (civil, political, economic, social and cultural) in their respective Supreme Laws, their implementation in practice remains another major challenge. This in large part may be attributed to the preponderance of statist and positivist approaches to the law in almost all countries of the region.³⁴

All the challenges mentioned in the above quote, i.e., (1) legal nihilism and low legal culture, (2) underestimation of the power of the academic schools of legal thought, and (3) statist and positivist approaches to law, equally apply to public international law, IHRL, and the academic instruction thereof. International law—and IHRL by extension—is part of law as such. Alongside the general attitudes toward law, international law is also often perceived by both students and teachers as merely an instrument of power politics and government decision-making rather than an important value-oriented legal phenomenon and essential tool to ensure peace, security, and the well-being of the people, including their individual rights. This affects the teaching of human rights law courses to undergraduate students: in my opinion, before embarking on learning the tenets of IHRL, students need first to have a solid basic understanding of law and legal theory, so as to be able to appreciate the role of the different branches of law but also to be able to critically reflect on legal norms and principles operating at the international level and protecting individual and collective rights.

Furthermore, a well-known problem with the idea of human rights and international law lies in it being viewed essentially as a product of Western culture, promoting predominantly Western values and interests that are often considered alien or even incompatible with Eastern/non-Western culture(s). A sub-concept of this “Westernism,” so-called Eurocentrism, that is a European bias, may serve as an illustrative example in this regard. This phenomenon has long been noted and commented upon by scholars.³⁵ Being part of Asia, Central Asia is also prone to such attitudes. This often necessitates reconstructing or restructuring the older curricula to encompass non-Western scholarship of international law and human rights but also means dealing with students’ cultural relativistic points of view.

Finally, the scarcity of library resources on IHRL at the higher education establishments in the Central Asian region needs to be noted. The majority of the modern literature on human rights law—is difficult to obtain in these libraries, at least in paper format. This might partially be related to the very limited funding for library stocks, but it may also well be due to a lack of interest and insufficient motivation to order foreign titles written in English to be made available for students being educated in universities where the language of instruction is English. Coupled with the lack of teaching aids and textbooks on the subject in Russian or in English, this problem represents a major issue to be tackled at the systemic level. In the author’s opinion, a lack of scholarly resources does not bode well for effective instruction in any discipline.

5 Ways Ahead for Human Rights Education in Central Asia

In order to address the challenges of HRE in Central Asia described above, I propose the following potentially useful approaches. First, I suggest that, to make human rights instruction much more systematic and holistic, all interested parties, beginning with the relevant state entities, allocate and expand the necessary resources.³⁶ Commitment to human rights could better be demonstrated in practice, including by way of providing the necessary financial means to improve the relevant education systems.

Second, with a view to addressing the key issue of legal nihilism and the low level of legal culture, proper, comprehensive, theoretical, doctrinal, and practical dissemination of knowledge and coverage of legal principles in a systematic manner appears necessary. It is proposed that these countries further develop and expand their respective schools of legal thought, which could contribute to strengthening the role of the law and its efficiency, not only in the state’s interests but, first and foremost, for the benefit of society.³⁷ Moreover, taking into account attitudes of local populations and mentality of the people, the dissemination of legal values and ideas needs to be integrated into the education system at an early stage. This is not only a question of developing schools of legal thought. If the understanding of law as a basic value, and not just a tool, along with an effective explanation of the idea of human rights, true constitutionalism, and civil society, are not covered during the early stages of education (high school), gaps in legal awareness and legal culture will arise.³⁸

Third, and building on the previous recommendation, it appears important for human rights instructors, educators, and teachers in Central Asia to apply the so-called value-based approach to their teaching. This approach suggests a contextualized explanation of IHRL from the perspective of its contribution to the protection of fundamental values of humankind, such as respect for human rights and fundamental freedoms, but also global peace and security. It is in line with a more general view on the law as being a “protective” set of rules rather than simply a “regulative” system. International law and IHRL’s fundamental premise that they serve the needs of the global/international community and individuals by way of maintaining, securing the achievement of, and protecting the key values of humanity (“humanity” as in “humankind”) is more likely to be clearly understood when the aforementioned approach is applied.

Fourth, and finally, special attention has to be paid to the quality of the instructors who deliver the human rights courses. Human rights law and IHRL must be taught by properly trained teachers and professors, otherwise human rights education reforms will not be viable. If teachers and trainers are not able to explain, e.g., the difference between a right-holder and a duty-bearer, cannot themselves identify human rights violations or abuses or give relevant examples, or properly analyze case studies, the adoption and improvement of human rights curricula/programs may in fact negatively influence the respect for human rights in the countries of Central Asia. Training of educators would need to be approached consistently, for example by supporting their participation in various types of human rights events, providing relevant on-the-job training, inviting international experts to speak, and recruiting instructors who have graduated from foreign universities with a focus on public international law and human rights.³⁹

6 Conclusion

The discussion in this chapter covered several challenges and problematic issues that education systems in Central Asia experience in terms of teaching human rights-related disciplines in high schools and universities. It grouped these challenges into two main categories: those pertaining to the unique nature of IHRL itself as being part of public international law, and those related to and flowing from local contexts in the region. By subsequently proposing certain potentially useful recommendations and approaches (such as, for example, value-based approaches), this chapter offers not only a description of the problems human rights instructors encounter in their work but also provides a range of potentially useful methods or tools to address those problems.

This chapter in no way purports to provide a comprehensive description or range of methods and tools. Instead, its suggestions should be taken as a minimal starting point for improving the teaching of human rights in the region where the latter’s role is oftentimes ignored or insufficiently recognized. While some instructors (including the author of this work) have already begun to employ several of these methods and approaches, for others this might not yet be the case. With this in mind, the author hopes that this piece will serve as an instrumental tool for instructors and educators who genuinely want to improve their teaching of human rights law.

In order for IHRL to be applied effectively and successfully in Central Asia, it must first be learnt and understood properly by government representatives and populations alike. For this, we rely on high school and university teachers and instructors to carry out their duties professionally. In the modern world, where IHRL, with its value system, is constantly challenged and its norms and principles are often blatantly violated, the task of these instructors becomes all the more crucial. Certainly, all the challenges described above need to be addressed in a principled, systematic, and contextualized manner. Considering that the education systems in the region, along with the state and legal systems, are still developing and continue to face many hurdles, this will not be easy. One needs to be patient but also determined. That said, when was anything about human rights law and its proper realization ever easy? And the very same applies to effective teaching of human rights law as well.