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Although it has long been accepted that human rights are, in the words of the Vienna Declaration and Programme of Action,[1] "universal, indivisible and interdependent and interrelated" and that the universal nature of human rights "is beyond question", the principle of universality has lately been questioned by the governments of a number of South East Asian states.[2] The main reason for the sometimes trenchant criticism of universal human rights by these governments is that, in their view, the current human rights instruments are largely representative of Western values and do not adequately reflect those of Asia. The arguments advanced present something of a caricature of the values espoused by the highly diverse peoples of the geo-political region known as Asia, but a statement of the opinions expressed is necessary for their subsequent deconstruction and analysis. First, it is argued that contemporary human rights are the product of Western political thought and as such promote destructive individualism at the expense of harmonious communitarianism. Second, it is contended that the West emphasises individual rights at the expense of duties. Third, because of the West's focus on individual rights, pre-eminence has been given to civil and political rights at the expense of economic, social and cultural rights, particularly the right to development. Finally, it is argued that the West has used its view of individualistic human rights as an instrument of neo-imperialism. Asian states which do not conform to the West's notion of democracy and human rights are both criticised and punished through the instruments of trade sanctions and development aid which are linked to progress in human right and good governance.
In order to determine whether these arguments have any validity, it is necessary to examine the assumptions on which they are based and, if they are found to be credible, to ask what this means for the international protection of human rights. In short, if the assertion in UN instruments that human rights are universal is found to be open to question, does this mean that the international human rights system might possibly unravel? If such an outcome were the logical consequence of the challenge to universalism, it would throw into disarray the notion of a credible international system of human rights protection which has been under construction by states since the end of the Second World War.
The literature on the historical development of human rights tends to acknowledge that the concept of human rights has its origin in Western political philosophy.[3] Most authors trace the evolution of human rights back to the Classical period, through the development of natural law and natural rights and to the re-emergence of natural law during the second World War. The English, American and French constitutional revolutions of the seventeenth and eighteenth centuries and their accompanying declarations of rights are frequently portrayed as the progenitors of modern human rights documents, while the writings of Locke and Montesquieu, among others, are seen as providing the intellectual ballast for these developments.
In recent years, however, there has been an attempt to find bases for human rights in the religious, philosophical and social traditions of non- Western cultures. A number of writers have identified what might be called proto-human rights doctrines in Judaism, Islam, Buddhism, Confucianism and Hinduism.[4] While these religious and philosophical traditions clearly do not articulate the language of rights and concentrate rather more upon the duties which individuals owe to each other, none the less they are concerned with the preservation and promotion of human dignity. Al- Na'im, for example, suggests that all traditions recognise the golden rule or rule of reciprocity that one should treat others as one would wish to be treated oneself.[5] Although a framework of interlocking duties may have the appearance of human rights, they are not human rights as they are conceived in Western writings. Although there is much debate over the nature of rights in Western jurisprudence, it can at least be asserted that a right is an entitlement which the right-owner possesses as against all others, particularly the state. While it might not be too great a philosophical leap to suggest, as Renteln does, that duties are simply the "flip side" of rights, it is more than a semantic argument to suggest the converse that rights are simply the "flip side" of duties.[6] Because of this Donnelly argues that while other religious and philosophical traditions might be concerned with the preservation of human dignity through a duty-based system, this does not mean that they are the same as human rights.[7] while Donnelly's argument might be intellectually and historically "pure", there is surely some benefit in acknowledging that other religious and philosophical traditions have identified proto-human rights since these serve to provide a cross-cultural underpinning of modern international human rights whose objective is the preservation and promotion of human dignity.[8] It is for this reason that it is possible to refer to the duty-based approach systems of these other traditions as proto-human rights, since they lend support to the arguments about the universality of broad concepts of human rights.
Despite these observations, it would appear that if one takes a strict view of human rights as entitlements which a right-owner possesses against all others, particularly the state and its emanations, then the evolution of human rights is almost exclusively of Western origin. This becomes even more apparent when one examines their pragmatic rather than theoretical foundations. In essence, human rights were conceived as instruments by which to combat oppression by autocratic rulers and exclusion from the political process. The American Declaration of Independence and the ensuing Bill of Rights were designed not only to free the American colonies from an English parliament in which they had no political representation, but also to protect future generations from the abuse of political power by any indigenous government. Similarly, the French Declaration on the Rights and Duties of Man was aimed at curtailing oppression by future governments. Intimately associated with these ideas was the concept of self-determination rooted in the notion of democratic participation in government. Human rights were thus initially the direct product of the evolution of the modern democratic state, and the modern democratic state is undoubtedly of Western provenance.[9] There may have been limits on rulers in other polities, but these were largely based upon their sense of moral constraint in the interests of harmony and good governance or from fear of being violently deposed, rather than notions of democratic governance and the normative restraint of individualised rights.[10]
The Western intellectual foundations of human rights are also evident in the post-1940 human rights movement. President Truman's "Four Freedoms" speech, the inclusion of references to human rights in the Atlantic Charter and the United Nations (UN) Charter, and the drafting of the Universal Declaration of Human Rights[11] all show a predominantly Western influence. This is not to say that there was an absence of non-Western input into the Universal Declaration. The history of the drafting of the Declaration shows that there was considerable discussion about the cross-cultural acceptability of the instrument.[12] The statement by the American Anthropological Society to the UN Commission on Human Rights on the proposed Declaration also sensitised the Commission to the idea that other cultures might not be persuaded by a human rights code which was predominantly Western in its orientation. The Association commented:[13]
It [the Declaration] will not be convincing to the Indonesian, the African, the Indian, the Chinese, if it lies on the same plane as like documents of an earlier period. The Rights of Man in the Twentieth Century cannot be circumscribed by the standards of any single culture or be dictated by the aspirations of any single people. Such a document will lead to frustration, not realization of the personalities of vast numbers of human beings.
This observation by the American Anthropological Society introduced into the debate on human rights the notion of cultural relativism.
Although cultural relativism has been appropriated as a general term to argue that all human rights are culturally derived and mediated, it has its origins in the study of anthropology, where it emerged in the early twentieth century as a reaction to the theory of cultural evolutionism.[14] The central precept of cultural evolutionism was that human societies would naturally progress from the primitive to the modern. European civilisation was, of course, seen as the pinnacle of such progress and implicit in this were racist overtones. As Hatch has written, "the people who were thought to be the least cultured were also thought to be the least intelligent and the darkest in pigmentation".[15] The response of the relativists to the theory of cultural evolution was to show that everyone is culturally conditioned and to call into question the assumptions of Western superiority. The effect of cultural relativism, in an anthropological sense, is to challenge absolute and universalist conceptions of morality and to promote tolerance of other cultures. As Renteln argues, however, it is a mistake to think that tolerance requires us to tolerate everything. She says, "the key point is that the theory of ethical relativism as descriptive hypothesis is not a value theory but rather a theory about value judgments".[16] Relativity is thus a tool for self- reflection or to promote self-awareness and for analysing our cultural and ethical standpoints before we seek to apply them to other cultures; it is not some kind of prohibition of the criticism of other cultures or moralities.[17] The effect of cultural relativity, therefore, is to weaken the very idea of universality. Since there is no universal culture, but rather a broad array of cultures, there can, in consequence, be no single, universally valid standpoint on any moral issue. Furthermore, because human rights are a species of moral entitlement, they cannot have a universal quality, but must vary according to the cultural environment in which they originate and function. To take this argument a little further, since human rights are essentially the product of Western culture or, more specifically, Western political philosophy, their application to non-Western cultures or philosophies must be open to question.
The principle of the universality of human rights, which is expressed in the Universal Declaration of Human Rights and other United Nations instruments, is posited upon certain assumptions about the fundamental nature of all human beings. It assumes that since all people possess the same essential human qualities, every person must, in consequence, be of equal dignity and worth and thus equal in rights. Although this assumption is the subject of considerable philosophical and jurisprudential debate,[18] it none the less finds support not only in a variety of national and international human rights instruments, but also, to a certain degree, in a number of theological and philosophical traditions. Certainly, these ideas can be discerned in Christian traditions, particularly that of the social teaching of Roman Catholicism,[19] and while other traditions may be duty rather than rights-based, none the less, the intrinsic dignity and worth of the human person remain central elements of their doctrines. Within the UN human rights system, however, it follows that because all people are equal in dignity and worth they also possess those human rights in equal measure. The logical corollary of this is that human rights are universal in character; that is, they apply to all people regardless of location, time or personal characteristics. This view is not only stated explicitly in the Vienna Declaration and Programme of Action 1993,[20] it is also supported implicitly by the broad anti-discrimination provisions of the major human rights instruments. Article 2 of the Universal Declaration of Human Rights, for example, provides:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
It is one thing to say that human rights are possessed equally by all human beings the world over, but quite another to say exactly what those right are and how they stand in relation to each other. In the present context these are particularly important issues. In its pure or absolute form[21] the principle of universality would not allow any variation in the application rights; there would have to be a uniform application of those rights. Furthermore, the Vienna Declaration And Programme of action states that since human rights are "indivisible and interdependent and interrelated" the international community must treat them "in a fair and equal manner, on the same footing and with the same emphasis".[22] This means that not only are human rights universal in their application, but also that there is no hierarchical relationship between the various rights: one right must not be granted at the expense of another. To put it another way, human rights are horizontally integrated and mutually supportive. This suggests that the argument by some Asian governments that the right to development must take priority over certain civil and political rights is, on this understanding of the universality and equal application of all rights, unsustainable.
Following the examination of universality and relativity above, it will be apparent that the two theories in their extreme or radical forms stand diametrically opposed to each other. Absolute universality would seem to require total uniformity in the enjoyment of all human rights by all human beings, whereas absolute relativity implies an absence of human rights, as that term is currently understood, since all conceptions of rights if, indeed, there are any conceptions of rights, are completely determined and mediated by the culture in which they originate. An analysis of both international human rights instruments and the practice of states suggests that neither absolute universality nor absolute relativity holds sway in the treatment of human rights. Absolute universality cannot hold true, because the wide diversity of societies and cultures clearly interpret and apply the same rights in different ways.[23] Neither can absolute relativity hold true, because there is a universal consensus on both the existence and the need to implement human rights. This is evidenced by the significant number of human rights instruments of both a legally binding and "soft law"[24] nature now in existence. Lying somewhere between the two absolutes is a middle way which reconciles the demands of universality and the demands of culture.
Before it is possible to analyse where this middle way might lie, it is necessary to examine further some of the basic terms and concepts upon which this discussion is based. First, it is necessary to look more closely at the nature of human rights in the international system. Second, some attempt must be made to determine the methods by which states give effect to these human rights and to examine the roles which states and international human rights bodies play in the mediation of the principles of universality and cultural relativity. Finally, it is essential to ask what is meant by culture and how culture relates to states and sub-state groupings.
If one accepts that a human right is an entitlement which is owned by a right-owner, that is, an individual human being, then there must be a correlative duty on the part of the duty bearer, in this case the state, to respect that right unconditionally.[25] Since the individual is the owner of the right, the state must give the owner what is his or her due. To use Dworkin's terminology, a right is a "trump" to which all other considerations of social policy must yield.[26] The ownership of a human right, or the rights one has simply because one is a human being, places the right-owner in a position of superiority vis-a-vis the state. Furthermore, since human rights are inalienable they cannot legitimately be denied.
The human rights owned by individuals are set down in a number of instruments, some of which are legally binding and some of which are not. Without engaging in a doctrinal argument over the precise legal status of the Universal Declaration of Human Rights,[27] it is probably fair to say that, at the very least, it represents a high degree of international consensus on those human rights which are owned by all members of the human race.[28] Support for this proposition can be found both within the Universal Declaration itself which states that it is "a common standard of achievement for all peoples and all nations" and in the 1968 Proclamation of Teheran, paragraph 2 of which provides:
The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable right of all members of the human family and constitutes an obligation for the members of the international community. (Emphasis added.)
It is also clear that the Universal Declaration of Human Rights is the progenitor of most contemporary human rights instruments. All the regional human rights conventions - the European, American and African Conventions - recognise this fact directly in their preambles, while the Vienna Declaration and Programme of Actions 1993 acknowledges that the Universal Declaration has been the basis for the UN's standard setting work, especially in its manifestation in the two International Covenants. In the light of this it would seem difficult, if not impossible, to deny that the Universal Declaration is a more or less comprehensive catalogue of human rights.
Although it is possible to claim this status for the Universal Declaration, it is doubtful whether this, in itself, is particularly helpful, since identification of the rights themselves does not reveal their content. It is all very well to know that one has the right to life, liberty and security of the person, but until it is possible to state with some specificity how this right will apply in concrete circumstances, it remains a fairly abstract proposition. In this sense it is possible to view the rights set down in the Universal Declaration as a catalogue of moral entitlements having some pre-normative status rather than legal norms. While Donnelly takes the view that human rights are moral entitlements and that they are thus different to rights embodied as legal norms, that is, legal rights,[29] it is none the less possible to argue that the value of normative human rights is that they confer both a legitimacy on their status and establish a direct legal relationship between the individual and the state. I would agree with Donnelly that appeal to moral entitlements is a particularly powerful device, but the power of legal legitimacy can provide a sharper tool if we wish both to protect and vindicate human rights when they are violated.
In order to make human rights useful, therefore, it is necessary to move away from their indeterminacy and to concretise them. As noted above this requires the interpretation and application of a right in concrete circumstances. It is only when an individual claims that his or her right has been violated and some authoritative decision making agency interprets and applies the right to the situation at hand that human rights norms begin to manifest their true scope and identity. This is not simply a matter of legal interpretation, it is also something much deeper than this. The vindication of a right will often reveal a deficiency in some social policy and the state will thus be required not only to make reparation to the victim, but to take appropriate steps to ensure that such a violation does not happen again. In a sense, it involves some reconstruction of the apparatus of the state to ensure that it is in line with the state's human rights obligations. As Ronald Dworkin has commented, "the process of making an abstract right successively more concrete is not simply a process of deduction or interpretation of the abstract statement but a fresh step in political theory."[30]
Although an individual is a right-owner, it is none the less the function of the state to take the necessary measures to ensure that the right is fully protected. In so doing, the state enjoys a degree of latitude. Because states have different social institutions and traditions, there must be scope for different methods of implementing human rights. These can be widely divergent, but this does not mean that human rights are denied just because they are implemented differently. if one takes the common law tradition of protecting human rights, it will necessarily be markedly different to the civil law tradition in the same field. Take, for example, the right to a fair trial. While common law states might use an adversarial system and the civil law states an inquisitorial system, this does not mean that the right will be inadequately protected in either.[31] While it is possible to exercise value judgments about which system might be more efficient or yield the better result or be better equipped to avoid miscarriages of justice, both are capable of exhibiting the indicia of the right to a fair trial which are contained in Article 14 of the International Covenant on Civil and Political Rights.
The extent to which human rights institutions are able to take local (state) variations into account in the implementation of human rights depends upon a number of factors. The most important of these is the constituent instrument under which a particular institution functions. in some of the instruments, the degree of discretion allowed to states in the implementation of the rights is reasonably well, though often broadly, defined. In the International Covenant on Civil and Political, for example, Article 18 (freedom of thought, conscience and religion), Article 19 (freedom of expression), Article 22 (freedom of association) and Article 25 (democratic rights) all allow states discretion in limiting the application of the right. similar provisions can be found in the European, American and African Conventions on Human Rights. While these limits are to be determined subjectively according to defined criteria in the first instance by the implementing state, they are also subject to the supervision of the institutions which are granted competence to determine whether or not the state in question can justify its limitations in an objective sense.[32]
The instrument under which the most refined application of this doctrine, known as the margin of appreciation, has been developed has been the European Convention on Human Rights.[33] Although the doctrine emerged under Article 15 of the ECHR, which deals with derogations from the Convention in times of emergency, it has been extended to deal with issues of normative and moral diversity among the contracting parties. Where a contracting party claims that it is limiting the application of a particular right for the protection of health and morals, it must show that it is doing so within the limits of necessity and proportionality; that is, the limitation must be "necessary in a democratic society ... for the protection of health or morals" and the measures taken must not exceed those necessary to achieve the desired ends.[34] Despite these limitations, this leaves contracting parties with a fairly wide area of discretion. In Handyside[35] a case that dealt with the publication of the Little Red Schoolbook which the British authorities had held to be obscene, the European Court of Human Rights declined to intervene holding that such matters fell within the state's margin of appreciation. In so doing, the Court observed that there was "no uniform conception of public morals" in such matters.[36] Similarly, in the more recent case of Tammar v Estonia,[37] it was held that the prohibited use of certain words by Tammar, a journalist, in the description of a solo mother did not interfere with his freedom of expression, but rather fell to be regulated by national law. If such a broad range of morals can be identified in Europe, then it is not too implausible to suggest that there must be an even broader range of cultural and moral systems around the globe. Andrews has made this point particularly well. He has written:[38]
Whatever the extent of the like mindedness and the common heritage of the Member States of the Council of Europe, the fact remains that the extent of their common traditions, shared values and cultural alikeness is relative. Looked at from an African or Islamic perspective, there may appear to be a coherence of values in Western Europe. Within the States themselves, despite extensive Europeanisation since 1945, there remain significant social and cultural differences.
Despite these observations about the position of the European Court of Human Rights, the Human Rights Committee has been noticeably reluctant to embrace a margin of appreciation doctrine in dealing with individual communications under the Optional Protocol to the International Covenant on Civil and Political Rights. The reason which has been suggested for this is that the HRC does not wish to open the door to claims of cultural relativity.[39] In its early days, it appeared that the Committee seemed inclined to offer states a fairly liberal margin of appreciation. In Herzberg et al v Finland,[40] the Committee held that it would not interfere with Finland's restraints upon the broadcasting of material relating to homosexuality by the state's public broadcasters. Since that finding, however, the Committee has become increasingly less deferential to national justifications of limitations upon implementation of particular rights. In Toonen v Australia,[41] for example, Australia argued that Tasmanian laws criminalising homosexual behaviour were necessary for the protection of public morals and claimed that this was a matter solely for the national authorities to determine. The Human Rights Committee denied that under Article 17 (right to privacy) moral issues were matters for exclusively domestic determination, "as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy".[42] In consequence of this, it was for the Committee to determine whether Tasmania's criminal law was lawful and reasonable, and in deciding upon the reasonableness of the law in question, it was upon the state to show that the interference with privacy was proportional to the end sought and necessary in the circumstances of the case. Australia could not show that this was so.
There is, therefore, a sharp distinction between the European system and the so-called universal system in the area of the doctrine of the margin of appreciation. While the text of certain articles of the International Covenant on Civil and Political Rights seem to invite the application of such a doctrine, the jurisprudence of the Committee has consistently denied it. The reasons for this are, perhaps, not difficult to find. While the European system has developed an enormous self-confidence throughout the half a century of its existence, and while the level of compliance by contracting parties is high, the same cannot be said for the Optional Protocol of the International Covenant on Civil and Political Rights or the Human Rights Committee. While the decisions of the European Court are clearly binding on contracting parties,[43] the same cannot be said for the final views of the Human Rights Committee, despite that institution's best efforts to increase their potency.[44] Furthermore, the level of compliance among states parties to the Optional Protocol is poor, especially among those states with some of the poorest human rights records.[45] If the HRC were to accept that differences in social, cultural or moral development were acceptable as excuses for certain domestic practices, then states would undoubtedly be tempted justify their non-compliance with international standards by the abuse of the margin of appreciation doctrine. In an institution which has such relatively weak enforcement powers, this is perhaps seen as a problematic area which is best avoided.
Although this is not the place to debate whether the Human Rights Committee ought to develop a fully-fledged margin of appreciation doctrine, it is significant that all the major human rights instruments recognise that there can be restrictions by states on the implementation of human rights as long as these comply with prescribed limits. This in itself suggests the possibility of a certain cultural and thus normative diversity within the international community. If it is accepted that this is indeed so, then it is but a small step to accepting that any concept of universal human rights must be limited to a certain degree by such cultural and normative diversity. On a scale which ranges from absolute universality to absolute relativity, therefore, it would seem that in the international human rights system the metaphorical pointer hovers close to the universal end of the scale. The reality that universal human rights recognises some accommodation of the demands of culture means that it is modified to a certain degree from its absolute state. In recognition of this, future references to universal human rights will be taken to imply this modification.
Defining and studying culture has been the central concern of anthropologists since the discipline was first acknowledged as a legitimate and separate field of academic study in the nineteenth century. While most definitions of what constitutes culture from an anthropological viewpoint are contestable, the classic definition is taken to be that put forward by Edward Burnett Tylor in Primitive Culture written in 1871. Here, he wrote:
Culture...is that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.
Freeman seems to draw upon Tylor's definition when he defines culture for his purposes as "the beliefs, values, norms, sentiments and practices that support, give meaning and (at least in favourable cases) value to human lives".[46] Although there might be problems with this definition in deciding who is to determine what constitutes a "favourable case" and what gives "value" to human lives, Freeman overcomes this by arguing that it is those who "believe the beliefs, value the values, endorse the norms, feel the sentiments and engage in the practices and who must live the consequences of their interpretation".[47] In other words, the most competent interpreters of a culture are those whose culture it is. This is undoubtedly a relativist approach, but determining the validity and content of a culture is undoubtedly for those who live their lives within it.[48]
It is evident from Tylor's definition of culture, however, that culture is not enjoyed by an individual in isolation but that it only has meaning when that individual is part of a larger society. As Donnelly observes:[49]
The very ideas of respecting and violating human rights rest on the idea of the individual as part of a larger community and social enterprise.
This notion of the individual located within a cultural community is reflected in the protection of cultural rights in Article 27 of the Civil and Political Covenant which states that "minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language".[50] Not only does this formulation of the rights of minorities articulate the right in individual terms, it also presupposes the prior existence of a minority group or community. This in itself raises questions about the relationship between the state, the sub-state entities within which cultural practices occur and the individuals who engage in these cultural practices. It seems inevitable that since states must protect individuals' cultural, linguistic and religious rights within the context of sub-state communities, it also follows that states must protect those communities or groups in themselves. Were they not to do so, then the individuals in question would have no opportunity to exercise their rights "in community with other members of their group". The rights of the group, however, are of a different order to the rights of the individuals who constitute the community or group and who wish to participate in its cultural life. This raises the problematic issue of whether there are any group rights per se, but it seems that if states are under an obligation to protect an individuals rights within a pre-existing group, it must logically follow that there must be a corresponding set of rights and obligations to protect the group itself. In a sense, this might be said to fall within the ambit of the right to self- determination which is protected by common Article 1 of the two International Covenants.[51]
Without attempting to resolve the complex and contentious issue of group rights here, it is none the less apparent that states are under an obligation to protect cultural diversity, where such diversity exists. But the term "culture" also appears to be used in a variety of senses in the international instruments. Article 27(1) of the Universal Declaration states:
Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
While Article 15(1) of the International Covenant on Economic, Social and Cultural Rights is even less specific. It provides:
The States Parties to the present Covenant recognise the right of everyone (a) to take part in cultural life ...
While "cultural life" in these provisions might be read in a restrictive sense as being synonymous with the artistic, intellectual or religious life of a state, there seems to be no reason why they should be read in this restrictive way. While states might have a "cultural life" in this broadest of senses, it is also apparent that states are capable of comprehending many cultures within their borders. Indeed, the very concept of the bicultural or multicultural state would seem to recognise this. Unfortunately, this imprecision in the use of the term culture has given rise to some of the problems which are found in the debate on universality and cultural relativity. The major problem is that there has been an elision between culture and the state, so that the state is assumed to have a specific culture and is seen to have a role in safeguarding that specific culture. The reality, of course, is that there are very few mono-cultural states, in the sense that the vast majority of states contain a number of cultural groups. In New Zealand, for example, while Europeans and Maori might be the dominant cultural groups, there are also Chinese, Indians and a significant number of peoples from a variety of Pacific island states, each with there own distinct culture. If one were to look at virtually any state, one would find a more or less significant cultural diversity within its borders, and it is this cultural diversity which universal human rights are also designed to safeguard.
If the term culture is used with such imprecision in relation to the state, as exemplified by the use of the terms British or French culture, for example, then it is used with even greater imprecision when it is deployed in the context of the debates about whether current international human rights documents represent Western culture and values at the expense of Asian culture and values. What is "Western culture" or "Asian culture"? In the "East versus West" debate culture is often portrayed in a cliched way. "Western" culture is obsessed with the individual rather than families or the broader community. Thus, within the Western liberal-democratic framework, the individual has no respect for authority or society as a whole, leading to the ultimate destruction of all that is moral. "Asian" culture, on the other hand, ensures that family and community enjoy precedence over individual desires, and that social harmony is promoted for the good of all. Respect for authority and the institutions of the state is central to the Asian value system, and it is argued that it is this which has lead to Asian states' economic success. [52]
Representations of Western and Asian cultures in these ways distort reality and are not helpful in dealing with the question of whether international human rights norms as currently conceived fail to give sufficient support to Asian values. If we examine the notion of Western culture as expounded, for example, by one of the prime critics of the liberal- democratic approach to human rights, the Prime Minister of Malaysia, Mahathir Mohamad, then we find the following hyperbolic statement: [53]
The West's interpretation of human rights is that every individual can do what he likes, free from any restraint by governments ... The result is perhaps not quite what the original liberal democrats expected. Individuals soon decided that they should break every rule and code governing their society. Beginning with simple things like dress codes, they went on to discard marriage as an institution. Extra-marital sex became the norm. The family was redefined to mean co-habitation between a man and a woman, with frequent changes of partners, or between a man and a man or woman and woman. Children were begotten without known fathers, which in time will lead to incest between brothers and sisters and even father and daughter or mother and son. But then incest to them is not wrong either, if that is what is desired by the individuals.
After such a statement, it might be legitimate to ask of which Western culture is this representative? Is this present day New Zealand? Is it Spain? Or is it coded criticism of the largest and, perhaps, most influential of liberal-democratic states, the United States of America? If it is the latter, to which cultural group does the statement refer? American Catholics or fundamentalist evangelical Christians? One suspects neither group would recognise a portrayal of themselves in Mahathir Mohamad's statement, although there may be certain of them who might be inclined to agree with the Malaysian Prime Minister's criticism of the liberal state.
What then of Asian cultural values? The first question which must be asked in this context is, what is Asia? In terms of the UN system, Asia stretches from Cyprus to the Pacific. But even if discussion in the area of human rights were limited to South East Asia, there is considerable diversity of political and social systems within this sub-region. It is only necessary to compare the predominantly Catholic Philippines with the most populous Muslim state in the world, Indonesia, to realise that there is a wide divergence of cultural bases. Similarly, in political terms, there could be no more marked difference between Japan and North Korea. As Diokno has pointed out, while some South East Asian leaders have criticised the individualism of the West, in the Philippines, for example, it is the family which takes precedence as the fundamental unit of society, even at the expense of society itself.[54]
Finally, when the leaders of Asian states criticise human rights for their alleged Western bias, for whom do those leaders speak? Do they speak for their states' multitudinous indigenous cultures, or do they speak for elites within the states which they represent?[55] As Donnelly observes:[56]
Arguments of cultural relativity are far too often made by economic and political elites that have long since left traditional culture behind.
Furthermore, as indicated above, the tendency when discussing this issue is for the state and culture to become conflated so that the state is, often mistakenly, seen to be the true representative of culture. Usually, however, this culture, which consists of the virtues of individual sacrifice to the needs of society, obedience to authority, emphasising duties at the expense of rights and maintaining social harmony, is constructed by elites and is often aimed at maintaining the pre-eminent position of those elites. Thus, when representatives of elites talk about culture, it is usually from a self-interested position. Furthermore, it is apparent that neither Asian leaders nor academics speak with one voice on this issue. Former President Ramos of The Philippines and President Kim Dae Jung of South Korea have both taken the view that Asian values and the universality of human rights are complementary.[57] The Asian Human Rights Commission, an NGO founded in 1986 by a number of prominent Asian jurists has also strongly supported the reconciliation of universal human rights with different cultural values.[58] In Kwangju, South Korea on 17 May 1998, the Commission adopted the Asian Human Rights Charter which states:[59]
We believe that rights are universal, every person being entitled to them by virtue of being a human being. Cultural traditions affect the way in which a society organises relationships within itself, but they do not detract from the universalism of rights which are primarily concerned with the relationship of citizens with the state and the inherent dignity of persons and groups.
This statement by the Asian Human Rights Commission reveals a deeply nuanced and sensitive approach to questions of universality and cultural relativity. The point that human rights are essentially about the individual's relationship with the state is undeniable, for human rights instruments are couched in these terms; they place obligations on states to protect the rights in question. Similarly, the recognition that culture is concerned with the internal organisation of groups and individuals within the state reflects a reality which exists in nearly all states. There is, indeed, no reason why the two are incompatible, nor why they should be set up in an antagonistic rather than a complementary relationship. The temptation is to suggest that those who advocate the "Asian way" in the realm of human rights, are simply using the argument by way of self-justification for autocratic rule, whether that autocratic rule is an end in itself or directed towards an improvement in economic performance.
It has been remarked by a number of commentators that the Asian critique of human rights has only arisen in the post-Cold War period, possibly because the disappearance of the old bloc antagonisms left something of a vacuum in international relations which was filled by the West's concern with the state of democracy and human rights in a number of Asian states.[60] At the same time, a number of Asian states had enjoyed a period of sustained economic growth which gave their leaders the confidence to criticise the West for its meddlesome attitude in the region. The leaders of China, Malaysia and Singapore, all states which were, to a greater or lesser extent, the recipients of adverse human rights reports from the us state Department, Human Rights Watch and Amnesty International, among others, retaliated by arguing that the West did not enjoy a clean moral bill of health when it came to human rights matters. The criticism that the rampant individualism so typical of liberal-democratic regimes led to a breakdown in both family and other social structures was commonplace, while the virtues of the "Asian way" in preserving harmonious social structures and promoting rapid economic development were advanced. Although, as demonstrated above, these criticisms often rely upon caricatures of Eastern and Western "cultures" and make the mistake of conflating culture and state, none the less they have had a significant impact on the debate on the meaning of the universality of human rights. often, however, the criticism of the "Western way" and the extolling of the virtues of the "Asian way" have been employed by some south East Asian governments to justify the denial of certain civil and political rights at the expense of economic development.[61]
If one were to disregard the lightly shrouded agenda behind the criticism of the allegedly Western orientation of human rights by these leaders, one would see that there is a high degree of consensus on the universality of human rights, as that term is understood in this paper, that is, universality should not be taken to be absolute, but as modified to take into account the reality of cultural divergence which exists in all states and societies. This universality is evidenced in a broad array of normative and non-normative instruments upon which there is a high degree of consensus. Although a number of Asian states in a preparatory meeting to the Vienna Conference which took place in Bangkok in 1993 advanced the view that human rights primarily reflected Western values and did not give sufficient weight to Asian values, this did not ultimately hold sway at Vienna. In Bangkok, it was proposed that reference should be made to the importance of the cultural context of human rights.[62] The Bangkok Declaration thus stated:[63]
...while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.
It will be noted that despite the reference to the historical and cultural contingency of human rights, their universal nature was still acknowledged. This approach was also replicated in the Vienna Declaration and Programme of Action, although it is clear that this document repeatedly emphasises the universality of human rights in other sections. The relevant part of the text ultimately adopted by the approximately one hundred and eighty states participating in the Vienna Conference reads:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Although this might be regarded as ambiguous and perhaps leaving the door open to arguments of cultural relativity, it is also clear that it represents a modified universalist position; in other words, it is entirely consistent with the approach advocated in this paper. Indeed, it is arguably a rather weak statement of modified universality, since a more robust approach would suggest that minorities and cultures within states must be protected both in themselves and through the individuals who wish to practice and enjoy their culture. Rather than undermining universality, cultural diversity contributes to it and develops it as a meaningful concept. As the non- binding Asian Declaration on Human Rights has most aptly stated:
The plurality of cultural identities in Asia is not contrary to the universality of human rights but rather as so many cultural manifestations of human dignity enriching universal norms.
The question which arises here, however, is how can these ideals be reconciled while ensuring that all human rights are respected and treated on an equal footing? The answer is perhaps to be found in a kind of modified "margin of appreciation" doctrine which was referred to above. While the Human Rights Committee has been loath to allow the doctrine to operate under the Optional Protocol, it seems apparent that when the Committee is functioning under its Article 40 mandate to receive periodic reports from states parties, it is much more sensitive to local, cultural concerns. Indeed, the Committee's very modus operandi under Article 40, which it refers to as "constructive dialogue" with states, makes this clear.[64] Even under the individual complaints procedure of the Optional Protocol there is evidence of some sensitivity to local needs. The jurisprudence of the Committee under Article 26, for example, has always conceded that apparent discrimination will be tolerated if it can be shown to be objectively justifiable and proportionate.[65] If the Committee were to be more confident in its role and pronouncements, it could arguably fashion a workable margin of appreciation doctrine which could reconcile the demands of different states.
Even if such a development were to take place, however, it is arguable whether it would be able to deal with the "hard cases" represented by China, Malaysia and Singapore. It has, however, been the contention of this paper, that the arguments for cultural relativity advanced by the leaders of these states are wrongly conceived; they are not claims about real culture but statements about the construction of an elitist dogma designed to serve the government's view about the politically acceptable relationship between the individual and the state. Indeed, one of the paradoxes of the Asian cultural relativity debate is that those rights which support and articulate culture, particularly the right to freedom of expression, are the very rights which these governments actively, and sometimes severely, curtail. The universality-cultural relativity debate therefore is not really a debate about the proper role of culture in the protection of universal human rights, but rather a justification of autocracy at the expense of true culture. If this were acknowledged, then the international protection of human rights and the protection of different cultures within disparate states would enjoy the protection they properly require and deserve.
[*] Professor of Law, Law School, University of Hull, England
[1] A/CONF. 157/23, 12 July 1993.
[2] See, for example, the statements made at the Vienna World Conference on Human Rights in June 1993 by Liu Huaqiu (Head of the Chinese Delegation), U Ohn Gyaw (Minister for Foreign Affairs and Chairman of the Delegation of Myanmar), Ali Alatas (Minister for Foreign Affairs and Head of the Delegation for Indonesia) and Wong Kan Seng (Minister for Foreign Affairs of the Republic of Singapore). These statements are reproduced in James T H Tang (ed), Human Rights and International Relations in the Asia Pacific (London, Pinter, 1995), Appendix III, pp 213-49.
[3] See, for example, AH Robertson and JG Merrills Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights (Manchester, Manchester University Press, 3rd ed, 1996); R Panikkar, "Is the Notion of Human Rights a Western Concept?", (1982) 120 Diogenes 76; SP Subedi, "Are the Principles of Human Rights 'Western' Ideas? An Analysis of the Claim of the 'Asian' Concept of Human Rights from the Perspective of Hinduism" (1999) 30 California Western International Law Journal 45; M Freeman, "Universal Rights and Particular Cultures" in M Jacobsen and O Bruun (eds), Human Rights and Asian Values (Richmond, Curzon, 2000), pp 43-58; J Donnelly, "Human Rights and Human Dignity: An Analytic Critique of Non- Western Conceptions of Human Rights" (1982) 76 American Political Science Review 303; AD Renteln, International Human Rights: Universalism versus Relativism (Newbury Park, Sage Publications,1990), especially ch 1.
[4] Renteln, op cit n 3, at 55-56. See also MR Ishay, The Human Rights Reader: Major Political Writings, Essays, Speeches, and Documents from the Bible to the Present (London, Routledge,1997) and Subedi, op cit n 3.
[5] AA An-Na'im, "Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights" in CE Welch Jr and VA Leary (eds), Asian Perspectives on Human Rights (Boulder, Westview Press, 1990), pp 31-54 at 37.
[6] Renteln, op cit n 3, at 43.
[7] J Donnelly, Universal Human Rights in Theory and Practice (Ithaca, Cornell University Press,1989), especially ch 3.
[8] The preamble of the International Covenant on Civil and Political Rights declares, for example, that "these rights derive from the inherent dignity of the human person". See further below.
[9] Indeed, as Freeman, op cit n 3, at 52 argues that "in order to defend themselves against Western domination, the non-Western peoples have adopted certain Western institutions and projects". He notes, in particular, that they have adopted the neo-Westphalian state system to participate in the global economic and political system.
[10] See Donnelly, op cit n 7, at ch 3.
[11] GA Resolution 217A, GAOR, 3rd Sess, Part I, Resolutions, p. 71.
[12] J Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia, University of Pennsylvania Press, 1999).
[13] American Anthropological Association, "Statement on Human Rights" (1947) 49 American Anthropologist 539 at 543.
[14] Renteln, op cit n 3, at 61-65.
[15] E Hatch, Culture and Morality: The Relativity of Values in Anthropology (New York, Guildford, Columbia University Press, 1983), p 26.
[16] Renteln, op cit n 3, at 73.
[17] Ibid at 77.
[18] For an overview of these debates see P Jones, Rights (Basingstoke, Macmillan, 1994) and D Sidorsky, "Contemporary Reinterpretations of the Concept of Human Rights" in D Sidorsky (ed), Essays on Human Rights (Philadelphia, Jewish Publication Society of America, 1979), p 89.
[19] The Catechism of the Catholic Church states, for example that "the equality of men [sic] rests essentially on their dignity as persons and the rights that flow from it".
[20] Op cit n 1, at pgh 1, 5 and 32.
[21] Donnelly, op cit n 7, at 110 refers to this as "radical" universalism.
[22] Op cit n 1, at pgh 5.
[23] See below.
[24] "Soft law" refers to a wide variety of standard setting documents which are usually entitled "codes" or "rules". They are not, strictly speaking, legally binding, but they act as a pointer to the way in which the international community sees international law developing in particular areas. They may also contribute to the formation of customary international law. See M Shaw, International Law (Cambridge, Cambridge University Press, 4 ed, 1997), pp 92-93.
[25] Of course, in a philosophical or jurisprudential sense, the very existence of human rights is contestable. None the less, it seems safe to assume for the purposes of international law that such rights do exist and have been embodied in positive instruments. Donnelly, op cit n 7 draws a distinction between human rights as moral rights and as legal rights when they are reduced to positive form. For a description and an evaluation of some theories of human rights, see S Davidson, Human Rights (Buckingham, Open University Press, 1993), ch 2.
[26] R Dworkin, Taking Rights Seriously (London, Duckworth, 1977).
[27] On the possible legal status of the Universal Declaration see Davidson, op cit n 24, at 65-67.
[28] Donnelly, op cit n 7, at 25 takes the view that given the wide consensus on the Universal Declaration, he views the list of rights contained therein as 'authoritative'.
[29] Ibid, ch 1.
[30] R Dworkin, A Matter of Principle (Cambridge, Mass, Harvard University Press, 1985), p 357
[31] Although as the extensive case law under Article 6 of the European Convention on Human Rights shows, defects still persist in a number of states.
[32] See P R Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Aldershot, Ashgate, 1998), pp 311-314.
[33] See P van Dijk, GJH van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague, London, Kluwer Law International, 1998) and DJ Harris, M O'Boyle, C Warbrick, Law of the European Convention On Human Rights (London, Butterworths, 1995).
[34] See Articles 9 (freedom of thought conscience and religion), 10 (freedom of expression) and 11 (freedom of assembly and association).
[35] Application No. 5493/72. Judgment of 7 December 1976.
[36] Ibid.
[37] Application No. 41205/98. Judgment of 6 February 2001.
[38] JA Andrews, "Human Rights: A Common or Divisive Heritage" (1994) XXI Thesaurus Acroasium, pp 72-90, at 78.
[39] E Evatt, "The Impact of International Human Rights on Domestic Law". Draft paper prepared for Liberty Equality, Community: Constitutional Rights in Conflict? A Conference on the Future of the New Zealand Constitution. Auckland 20-21 August 1999.
[40] UN Doc A/37/40, p 161.
[41] 488/1992, Toonen v Australia, CCPR/C/50/D/488/1992.
[42] Ibid, para 8(6).
[43] Article 46(1) European Convention on Human Rights and Fundamental Freedoms 1950.
[44] S Davidson, "Intention and Effect: The Legal Status of The Final Views of The Human Rights Committee" in G Huscroft and P Rishworth (eds), Litigating Rights (forthcoming January 2002).
[45] See the Report by Professor A Bayefsky to the International Law Association, International Law Association, Report of the Sixty Seventh Conference Held at Helsinki, Finland, 12-17 August 1996 (1996), p 346
[46] Freeman, op cit n 3, at 48.
[47] Ibid at 49. This view is reflected in the Draft Declaration on the Rights of Indigenous Peoples, E/ CN.4/Sub.2/1993/29/Annex I, 23 August 1993 which states that entry to the group is determined by the group itself. Article 9 of the draft declaration provides:
"Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No disadvantage of any kind may arise from the exercise of such a right."
Article 32 further provides:
"Indigenous peoples have the collective right to determine their own citizenship in accordance with their customs and traditions. Indigenous citizenship does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures."
[48] For a detailed account of the nature of culture see M Carrithers, Why Humans Have Cultures: Explaining Anthropology and Social Diversity (Oxford, Oxford University Press, 1992).
[49] Donnelly, op cit n 7, at 156.
[50] Emphasis added.
[51] See also the Draft Declaration on the Rights of Indigenous Peoples, op cit n 47, which not only seeks to protect the individual rights of indigenous peoples, but also their collective rights. A number of articles deal with collective rights, but the protection of the right to self-determination in Articles 3 and 31 is, perhaps, the most significant.
[52] See, for example, B Kausikan, "Asia's different standard" (1993) Foreign Policy 38.
[53] The Just International Conference on Rethinking Human Rights, held in Kuala Lumpur on 6 December 1994. <http://www.smpke.jpm.my/>
[54] M S I Diokno, "Once Again, The Asian Values Debate" in Jacobsen and Bruun, op cit n 3, pp 75- 91 at 78.
[55] M Freeman, "Human Rights and Real Cultures" (1998) 1 NQHR 25.
[56] Donnelly, op cit n 7, at 120.
[57] Diokno, op cit n 54, at 83.
[58] http://www.ahrchk.net/charter/final_content.html
[59] Ibid at Part I, para 2(2).
[60] M Freeman, "Human Rights: Asia and the West" in Tang, op cit n 2, pp13-24 at 13-14; C E Welch, Jr, "Global Change and Human Rights: Asian Perspectives" in Welch, op cit n 5, at 1-2.
[61] See, for example, Kausikan, op cit n 53.
[62] A/CONF.157/PC/59 A/CONF.157/ASRM/8, 7 April 1993.
[63] At para 8.
[64] See D McGoldrick, The Human Rights Committee (Oxford, Oxford University Press, 1990).
[65] See, for example, the statement in Toonen v Australia, op cit n 41, at para 8(3).
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