versus cultural relativism" debate in human rights law - HeinOnline

Asia-PacificJournalon Human Rights and the Law 1: 67-84, 2006. @2006 Koninklike Brill NV. Printedin the Netherlands

THE FALLACIES IN THE "UNIVERSALISM

VERSUS CULTURAL RELATIVISM" DEBATE IN HUMAN RIGHTS LAW Fernand de Varennes*

1. Introduction Human rights are a "Western" construct which do not always sit comfortably within the confines of many Asian societies. This view often leads to the assumption that the "idea" of human rights is somehow more the prerogative of Western societies. This is not only oversimplistic, it is also based on an ignorance of Asian writings and traditions from which one can find the same "seeds" and inspirations for what we call today human rights. The Qu'ran, which is not only a holy book but also a book of law, contains sections dealing with equality, freedom of religion, and the right to property, as did other philosophical and legal sources throughout Asia. While not necessarily using the words "human rights", they were nevertheless based on a sense of justice and humanity that are essential building blocks for what are considered today human rights standards. This article proposes that these assumptions need to be examined anew in light of a more detached historical and legal perspective - one which is not exclusively "Western". It will attempt to highlight a few of he moral and philosophical underpinnings of international human rights which are closely linked to Asian traditions, and not intrinsically alien to them. Finally, it will proceed with a critical examination of the whole debate surrounding the universality of human rights and cultural relativism, showing that much of the debate is actually obscured by a failure to fully understand the nature and content of international human rights. It will be suggested that many of these international standards are capable of taking

* Associate Professor, School of Law, Murdoch University.

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into account cultural and societal particularities while not affecting their universal application. 2.

Are Human Rights a Western Invention and Imposition - A Brief Overview of the Emergence of International Human Rights

Contrary to what many people may believe, the first attempts to have human rights incorporated as a universal and binding international rule in the 20h Century did not come from Western States. It was on the contrary an Asian country, Japan, which on 13 February 1919 attempted to have the League of Nations Covenant approve an amendment to Article 21 with this first draft: The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord, as soon as possible, to all alien nationals as states members of the League, equal and just treatment in every respect, making no distinction, either in law or in fact, of account of their race and nationality.' The main opponents of this first attempt to recognise equality and prohibit discrimination in international law was vehemently opposed by Australia, Britain, Greece, Poland and the United States, states which today many people would have thought naturally and automatically supportive of the ideology of human rights. The truth is in fact quite different. This equality clause was not strictly speaking universal, as it only would have applied to citizens of Member States on the League of Nations. Additionally, it was most certainly linked to the Japanese frustrations at the discrimination and humiliation that they faced from Western colonial authorities who dominated much of Asia and the rest of the world at the time, effectively locking out the Japanese from what they concerned their own backyard. What is most telling however is that for many from the West, the idea that this most fundamental of human rights might be legally enforceable was completely unacceptable, even alien to their Western sensibilities. The reaction of British Foreign Secretary Lord Balfour about the clause serves to show how it certainly was not true at beginning of the 20 th Century that

1 Margaret Macmillan (2003), Paris 1919: Six Months that Changed the World, Random House, New York.

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human rights were yet an accepted constituent of Western legal and political thought: The notion that all men were created equal was an interesting one, he found, but he did not believe it. You could scarcely say that a man in Central Africa was equal to a European. Some of the greatest opposition came from Australian Prime Minister Billy Hughes, with the support of the Prime Minister of New Zealand, William Massey. The threat of such a clause to the "White Australia" immigration policy was evident, and as one point a compromise was offered which would have exempted national immigration policies. A much further watered-down version was subsequently proposed by the Japanese, and despite a high level of support (from China and many Western Member States), the clause was not approved.2 On the one hand, it cannot be denied that the ideology of human rights owe much to Western thinkers such as Jean-Jacques Rousseau, John Stuart Mills and others. On the other hand, this incident also demonstrates that Western states have not always been overly receptive to acknowledging human rights as legally binding obligations that would actually limit their sovereignty. To have human rights standards restrict the powers of government also conflicted with a well-established Western political principle, the absolute sovereignty of the state as evolved in Europe after the 1 5 th Century. In its purest form, what happened before the Second World War was that the concept of human rights, supposed to be the foundation of Western society, collided directly with that other great creation of Western political and philosophical thought, state sovereignty. This can once again be seen in the comments of the British delegate to the League of Nations, Lord Robert Cecil, as to the reasons why Western countries had to reject the Japanese proposal of including an equality provision in the League treaty: [It would mean] encroaching upon the sovereignty of states members of the League... [opening] the door to serious controversy and to interference in the domestic affairs of states... Ironically, a majority (11 out of 16) of the delegates actually voted in favour of the Japanese amendment. But U.S. President Woodrow Wilson, who was chairing the 1919 session, ruled that the amendment had not been accepted because important issues needed to be unanimously approved. 2


The rejection of the Japanese attempt in 1919 by Western countries such as Australia, Britain, and the United States shows that immediately after the First World War, many Western countries in fact rejected the legal concept of international human rights because it contradicted what many in these countries felt was a much more important principle, the sovereignty of the state. The ideology of international human rights, which is a recognition that certain moral and social values are above state sovereignty, was totally unacceptable to a number of Western societies and ideology at the time and still causes some anguish in some of these states. There were of course economic and political reasons for the Japanese proposal, but still they were proposing for the first time that a limited human right obligation should be a legal rule applicable to everyone. Western states refused this at the time. They had economic interests to protect, but also they were not ready to accept the idea that the sovereignty of the state could be tempered by moral imperatives from the outside. One could even suggest that some Western countries still have problems accepting this: part of the resistance in the United States to the creation of a permanent International Criminal Court, is that the United States would lose some of its sovereignty, and that American citizens would come under the jurisdiction of "foreign judges". In some ways, these are some of the same arguments used against the Japanese proposal in 1919 to ban racial discrimination. This mainly Western view, that state sovereignty overrode any kind of human rights obligations, came to change at the time of the Second World War and to lead to a situation where East and West, Asian, African and European, could find common moral, philosophical and legal grounds for a universal code of basic human rights which was neither uniquely Western or Asian. After the Second World War, Western countries in particular seem to have realised that human rights had to be part of the international system, and that perhaps it had been short-sighted to have rejected earlier attempts to incorporate these under the League of Nations: The idea thus began to emerge that one significant cause of the war lay in Hitler's contempt for human rights and freedoms. If then, a repetition of such a catastrophe were to be avoided, there would have to be an awareness of the importance of the interdependence of peace and human rights, and action after the

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war would be needed to ensure that the attainment of these dual objectives would become an essential priority for all states and for the international community as a whole.3 The end of World War II signalled a turning point, at least from the point of view of the resistance of those Western states which had objected to legally-binding human rights stands. There then emerged an acknowledgment that it was no longer tolerable to maintain that states had absolute sovereignty in legal terms in the way they dealt with their own population, given modern technological abilities in an interdependent in a global community. Quite clearly this could - and had - lead to instability within the international community, as other states would be tempted to intervene if there were persecutions, genocide or other atrocities committed against other people. So there had to be a "code of conduct" to maintain peace, one of which involves the recognition of some minimal guarantees for all human beings, what we recognize today as not only moral or philosophical standards, but legally binding human rights. In this context, little by little, a renewed natural-law doctrine began to gain currency: the idea that respect for human rights (along with the maintenance of peace) ought to constitute the point of no return for the new world community that would emerge... 4 The great inspirational document for later treaties dealing with international human rights is the United Nations' Universal Declaration of Human Rights. Here, once again, there is often the mistaken belief that the document mainly reflects Western values, when in reality it is a product from a variety of traditions from around the world. Of the 58 countries participating in its genesis, 20 were from Latin America, 4 African and 14 Asian. Non-European countries were therefore very much a part of this process. At the time of the drafting of the Universal Declaration, there were no strong differing viewpoints because of the general nature of the Declaration, nor any no fundamental problems with the broad principles. There was quite a bit of input by non-Western states, and some of the rights such as the protection of minorities and self-determination which, although they did not make it in the Universal Declaration, were first 3 Antonio Cassesse (1990), Human Rights in a Changing World, Polity Press, Cambridge,

p. 29. 4 Id.


raised during the drafting of the Declaration and were eventually to become rights in international law, through the efforts of socialist and nonWestern states. Even the right to equality, which many assume is so intimately connected to Western legal thinking, was mainly included in the Declaration through the efforts of Socialist and non-Western states including Asian. Furthermore, the Universal Declaration contains a series of economic and social rights thanks to the efforts of socialist and non-Western states, so in effect the Declaration is the result of a confrontation and compromise between different cultural, moral and political traditions. Nevertheless, the West proposed proclaiming at the world level only the civil and political rights, and only in the essentially individualistic conception they had had in the eighteenth and nineteenth centuries. It was only in a second stage, given the hostility of the Socialist countries and under strong pressure from the Latin Americans... that the West agreed to incorporate.., a number of economic and social rights as well - entirely unknown in the "sacred" texts of the Western tradition.5 The Universal Declaration does contain a number of gaps and weaknesses, but these are due not to the reluctance of Asian states, but to persistent resistance from Western states, especially in relation to the right to selfdetermination and certain rights for minorities. It was also due to the resistance from Western states that the Universal Declaration was not to be a legally binding instrument. Even at the end of the Second World War, many Western states still had difficulty accepting the idea that state sovereignty should be subjected to some form of restrictions. One could certainly argue that absolute state sovereignty, the basic philosophical principle which is the main obstacle even today to the application of human rights, is more traditionally a construct of Western political thought than of Asian or Islamic traditions: The Universal Declaration is the fruit of several ideologies: the melting point of diverse conceptions of man and society. As was rightly pointed out by P. Imbert, it does not constitute the "blowup", at world level, of national texts, but their "adjustment" to a multicultural world that is deeply heterogeneous and divided. To

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some extent, it has fulfilled the hope expressed in 1947 by the Chinese delegate to the UN Commission on Human Rights, that the declaration should reconcile Confucius and Thomas Aquinas. On the whole, the Declaration remains a lodestar, which has guided the community of states as they gradually emerged from the dark age when the possession of armies, guns and warships was the sole factor for judging the conduct of states, and there were no general principles, accepted and approved by all, for 6 distinguishing good from evil in the world community. The UN Declaration, the core document towards the development of an international human rights regime is where "East" meets "West", and not just a European invention, nor uniquely influenced by Western ideology. 3. The Philosophical Underpinning of Human Rights: Justice, Equality, Respect - Universal or Western? The international human rights system which has emerged with the adoption of the Universal Declaration and the two Covenants (Civil and Political Rights; Economic, Social and Cultural Rights) demand respect for certain minimum standards. It is sometimes asserted, more or less openly, that for Western states, human rights have a longer established tradition, are more inherently part of their culture, and thus have a greater affinity with these societies than others. As indicated earlier, in historical terms until the advent of the Second War II, Western states were often - and in some cases still are - the most reluctant to accept outside legal restrictions on their "sovereignty". 7 Furthermore, a number of Western countries have quite incomplete guarantees for the protection of human rights, the most prominent of these being Australia (which does not have a bill or rights nor any substantial protection of human rights in its constitution) and the United States (which 6 Supra, note 1, pp. 37-38. 7 In recent years, the Government of Australia has been highly critical of UN condemnations of various practices and policies affecting the treatment of Aborigines and refugee claimants. The official reactions from Australia have ranged from assertions that, as a Western democracy, Australia has no human rights problems, that real human rights violations only occur in "other" countries, presumably Asia and Africa, to assertions that the UN human rights mechanisms are deeply flawed.

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tends to reject altogether any international human rights mechanism that would affect its sovereignty). It is therefore not completely true to suggest that because of their democratic traditions or cultural superiority, Western states are somehow automatically more receptive to human rights from a legal as opposed to theoretical point of view, or that international human rights are direct and natural descendants from Western traditions. Some of the most racist societies in the world which had in place deeply ingrained and legally sanctioned discriminatory practices (Apartheid South Africa, Nazi Germany, Australia and the mistreatment of Aborigines, the US and its Afro-American population) are after all based on various Western ideologies and cultures. To put it bluntly, there is almost an automatic prejudice that equates any "noble" principles to Western traditions, leaving out any contribution from Asian, Islamic or African sources. Yet, long before the French Declaration of the Rights of Man and the United States Declaration of Independence, Buddha advanced the "revolutionary" idea that all human beings are equal, as does the Qu'ran. Even earlier, rulers such as King Darius of Persia concluded treaties with defeated populations which contained provisions granting freedom of religion to the newly subjugated peoples. Towards the end of the 1 4 th Century, Korean scholar and statesman Yi Yul Gok argued that the rise and fall of a society depended on whether or not a way was open for freedom of expression. As one author points out when addressing the issue of nationality in Thailand: In the Sukhothai period, King Ramkamhaeng The Great had stoneslabs inscribed in the oldest known Siamese writing in A.D. 1293 recording the practice and usage of the government of the kingdom in upholding the right of everyone to be free, and of censuring respect for such freedoms as are today recognized as fundamental or basic human rights, viz., freedom of movement, of thought, of religion or conscience, and of the free flow of commerce. There is ample evidence of the generous treatment of visitors and the personal care with which justice was administered 8 without discrimination as to race or sex.

8 Quoted in Fernand de Varennes (1998), Asia-Pacific Human Rights Documents and

Resources, Volume 1, Kluwer Law International, The Hague, p. 1.

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These examples do not prove that Asian societies are particularly amenable to human rights that restrict a state's sovereignty, but they do indicate that throughout time and space many non-Western societies in Asia and elsewhere acknowledged the importance of concepts such as human dignity, individual freedom and equality, all of which are the building blocks of what has emerged in the second half of the 20th Century as international human rights law. Asia's most influential religious and ethical systems such as Hinduism, Buddhism, Confucianism and Islam all contain a very deep sense of the dignity of human life and a commitment to human fulfilment. They acknowledge the need for justice between ruler and ruled, and correctness or rightness in human conduct. While they may have differences of emphasis, they all recognise restrictions on the powers of the ruler, or on the sovereignty of the state, in the name of a greater moral duty of humane and just treatment. In a sense, it is perhaps more the Western tradition of absolute state sovereignty, exported to the rest of the world through colonialism and Marxism, which does not accept any outside moral restrictions that has until recently found it difficult to accept the limitations imposed by international human rights. It explains why Australia, Britain and the United States so opposed the attempt by Japan to incorporate a very limited human right in 1919, why many of these same Western countries were against having a legally binding UN Universal Declaration in 1946, and why even today countries like the US is voraciously against the new International Criminal Court. To suggest that the principles of equality, non-discrimination and human dignity are somewhat innate to Western societies is historically factually incorrect. To believe that Asian traditions such as Hinduism, Buddhism, Confucianism and Islam are conversely not as "modem" or "receptive" as Western traditional secularism is similarly erroneous. While various Asian religious or ethical systems may have some views which may not sit comfortably with some aspects of the modem formulation of international human rights law, they all recognise the basic values of humanity and justice. More importantly, they all accept that which has been at the centre of Western reluctance and even historical rejection of international human rights from a legal point of view: that the sovereignty of the state must be limited by certain fundamental moral values. Hinduism, Islam, Buddhism and international human rights all recognise this. The Western political concept of state sovereignty has been much more reluctant to accept it.

UNI VERSA LISM VERSUS CUL TURAL RELATIVISM

4. The Fundamental Mistake in the Universality Debate - East and West: In-built Consideration of Culture and other Factors in a Number of International Human Rights The preceding issues bring up the recurring debate as to the universality of international human rights and how these can be reconciled with cultural differences. Because it is wrongly assumed that international human rights are mainly Western constructs, the logical if mistaken conclusion is that Western countries will have somewhat less serious human rights problems, and that any opposition to international human rights must naturally come from non-Western states. In particular, various commentators have at times suggested that Asian or Islamic states "naturally" reject the universal application of human rights. The tangible evidence of this is rather more tenuous. None of the supporters of the "Asian perspectives" denies the international nature of human rights, or that it is a valid international concern. The Indonesian delegates to the Vienna World Conference on Human Rights for example acknowledged that "the issue of human rights has ceased to be a bloc controversy...". If there was a non-Western reaction, it was against the selective, if not hypocritical, use of the language of human rights by the superpowers for their own agendas. While there are certainly very serious problems, such as the emphasis by certain Asian governments on national sovereignty, no one in Asia is actually denying that human rights are universal. Indeed, contrary to assertions made by some non-governmental organisations, the Bangkok Declaration which was adopted by the governments of 40 Asian states at the UN Vienna World Conference restated the commitment of these Asian governments to the Universal Declaration of Human Rights and encouraged further ratification of international human rights instruments. It also affirmed the universality and interdependence and indivisibility of political, civil, economic, social and cultural rights. If there is a problem in relation to Asian perspectives and human rights, it is not in relation to the universality of human rights, but on the issue of cultural relativity and human rights rather than true universal application of human rights standards as contained in international instruments. From a Western point of view, the premise of cultural relativism, that human rights standards can vary among different cultures must be

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absolutely and unconditionally rejected: since "if there is an international human rights standard - then its meaning remains uniform across borders." 9 This apparently means that: Unless one wishes to give up the very notion of an international law of human rights altogether, these rights should have essentially the same meaning regardless of local traditions.' 0 The above quoted legal scholar gives the example of non-discrimination and argues that non-discrimination in one state should mean essentially the same thing in any country and that therefore there can be no major difference between what an individual should be entitled regardless of the country he or she lives in. He gives the following illustration: If women in Moslem countries are discriminated against, it is not enough to say that a tradition, no matter how old and venerable, requires such discrimination. At one level, what he is stating is absolutely right. Human rights such torture or non-discrimination cannot be extinguished under the guise of "cultural traditions", be it in a state with a Muslim majority or in a government controlled by an indigenous people. In this sense, his arguments would seem sensible in legal terms, yet there is also here a severe misunderstanding in his example as to the actual application of nondiscrimination in international law. The error which however seriously weakens his example is to present nondiscrimination as if all differences of treatment are necessarily and automatically discriminatory. This is quite simply a grave misunderstanding and misapplication of the international standard. It is now quite clear that in international law not all distinctions are discriminatory: [The principle of equality before the law] does not exclude the different treatment of persons from the consideration of factual

9 Fernando Tes6n, International Human Rights and Cultural Relativism, (1984-85) 25 Virginia Journalof InternationalLaw 869, p. 870. '0 Ibid.


differences.. .To treat equally in a mechanical way would be as unjust as to treat equal matters differently." More recently, the European Court of Human Rights summarised the legal application of this human right standard in the following way: [A] difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised.' 2 This means that it is possible, even required, to take into account all relevant factors when deciding if a situation is discriminatory or not, including the social and cultural conditions in a country. Nondiscrimination in international law clearly does not impose similar outcomes in completely different contexts and conditions, which is what seems to be implied with those with a rigid, usually Western-slanted view of human rights as advanced by Professor Tes6n and others - instead of a truly international one. At least in the application of human rights such as non-discrimination, and those other rights which refer to considerations of public morality, public order, and similar factors, the results of the application of the universal standard may vary according to what is in international law legally justifiable and reasonable in different contexts. To take the example of an international right such as the right to education, does it mean that education, which is essentially free in Europe and North America up to the university level, must also have in its application the same result in the world's poorest countries? If a country such as Papua New Guinea is unable to offer free public education for everyone up to the end of grade 12, then is it violating the international human right to education? The answer would of course be no. The specific implementation of most social, economic and cultural rights do depend on "local circumstances": in other words, whereas the universal standard of these rights and their application across the world do not vary, the actual results from the actual implementation can vary, as Article 2 of the International Covenant on Economic, Social and Cultural Rights itself presupposes: 1 South West Africa Case (Second Phase), [1966] International Court of Justice 284. Willis v. United Kingdom, European Court of Human Rights, judgment of I1 June 2002.

12

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Each State Party to the present Covenant undertakes to take steps and individually and through international assistance cooperation ...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant... What needs to be distinguished in the whole debate over cultural relativism is the confusion that exists as to what the debate is all about. Although the debate is sometimes portrayed as tensions involving a denial of the universality of human rights, this is not the true nature of the argument. At least officially, no Asian or African state will openly deny that the basic human rights contained in instruments such as the UN Declaration of Human Rights are universal. The true crux of the matter is whether human rights can be "set aside" because of cultural differences. But even this seemingly simple statement can be understood in two ways: it may mean that fundamental human rights are universal in the sense that they cannot be set aside because of cultural differences. This is uncontroversial: no human right in international law can be disregarded because of cultural differences, whether it involves torture, freedom of religion or non-discrimination, for example. However, a human right standard which has a different impact in a particular country because of cultural or other considerations is not being "set aside". If a particular human right standard contains the requirement of "reasonable accommodation", or of rights being limited for reasons of morality, security, health, public order, etc., it means that the national context, including religious or cultural factors, may in some cases be validly taken into account before deciding if there has been a breach of the international human rights standard. As described earlier, while the international standard of non-discrimination itself does not change, in practical terms a particular situation may or may not be discriminatory only after due consideration of all of the relevant factors in a given state. The standard is still "universal", yet its impact will be different in a very different factual situation. It is here that some Western scholars have difficulty accepting that universal human rights do not reject all considerations of culture or of other relevant contextual factors in a particular society. It is also probably here where Western governments naturally assume that it is "their" own


standards which should be the appropriate measuring stick as to what constitutes appropriate behaviours that conform to human rights - rather than an international one. Since human rights are universal, there is thus perhaps an inherent expectation that non-Western countries should follow the natural lead of Western liberal democracies. One way of illustrating the error in this last view is to consider how one universal human right - freedom of expression - can in reality vary from one country to the other because of a very different context, yet still be universal in its application. One could give the hypothetical situation of an elected politician, "Andr6", being accused of bigamy in a local newspaper. Andr6 would be anxious to protect his reputation and could seek a court order preventing publication of this information on the basis that it would ruin his reputation and career because of the defamatory accusations being published in the media. In a Western liberal democracy such as Australia, freedom of expression can be limited to protect the reputation of individuals. This is also at the same time a recognised and permissible restriction in international law: 13 Article 19 of the International Covenant on Civil and Political Rights acknowledging this with the following provisions: 1. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 2.

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: 1. For respect of the rights or reputations of others;...

In a Christian state such as Australia, allegations of bigamy could be damaging to one's reputation, since it would be generally considered as

13 General

Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976. Available at http://www.unhchr.ch/htmlmenu3/b/accpr.htm.

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morally reprehensible. The likely outcome in such a context would be that Andr6 could seek and probably obtain a court order to restrict the publication of such information. This result would not be a breach of freedom of expression but actually be consistent with the international, as opposed to domestic or even Western view, since the application of the universal standard of freedom of expression contains a permissible restriction to limit information that is damageable to one's reputation. Must the result in the application of this universal standard be the same in every part of the world? No. Contrary to those - usually Western scholars and governments - who reject any potential consideration of cultural or other factors, it is possible to have a different result in the application of freedom of expression if the context in a particular state is quite different. If instead of Australia, Andr6 were a politician accused of polygamy in Brunei Darusalaam, the result of the application of the universal standard of freedom of expression could be completely different. Any attempt to prevent a newspaper from publishing such a story would probably be a breach of freedom of expression in Brunei, from an international legal point of view, even though it would not be in Australia. This is because in Brunei Darusalaam the story would not be defamatory or particularly detrimental to Andre's reputation, since polygamy is a practice accepted in the social, moral and legal context of that country. Unless necessary to protect his reputation, it is not permissible according to the international - as opposed to domestic or "Western" - standard of freedom of expression to prevent the newspaper from running the story. Same type of conduct involved; same universal standard; yet completely different results from the application of the international standard of freedom of expression. This is because the human right of freedom of expression contains elements that take into account the particular situation in a country, including culture, religion, etc. This therefore means that while the actual international standard itself does not change, its application can bring in different results in states with completely different situations. This was perhaps what Pieter Kooijmans, the former Special Rapporteur of the UN Commission on Human Rights, was trying to say when he acknowledged that even though much of the Universal Declaration of Human Rights might have been influenced by the West, things have changed in the evolution of international human rights law:


Representatives of all regions of the world were consciously involved in the elaboration of these norms and rules which were nearly all adopted by consensus. The most basic set of rules, the [two] Covenants.. .are regularly interpreted by independent Committees, in which all regions and cultures are equally represented. And even the strongest opponents of the notion of cultural relativism must admit that the realization of human rights in different cultural settings may diverge, whereas the strongest adherents of the concept of cultural relativism readily admit that there are certain rights, the so-called "core rights" dealing with the integrity of the human person, like the prohibition of torture or the right not to be arbitrarily deprived of one's life, may not be harmed under any circumstances. There are quite clearly international human rights standards that are intended to incorporate relevant local "conditions" (public morality, reasonability, justified in the circumstances, public order, etc.) and others that do not permit any such considerations. The latter category includes rights such as torture and genocide, while in the former one can identify non-discrimination, freedom of expression, religion, etc. While all of these international human rights standards are "universal" and therefore applicable to all states, the result of the application of those standards that do allow for considerations of morality or some other justifiable restriction open the door to the "relative" impact of these standards in different contexts, as shows the example of defamation under freedom of expression. Thus it is possible that there can be some differences in impact due to cultural factors, but this difference should not be exaggerated: difference of culture is not of itself in international law a sufficient ground to discard any international human right standard; it may simply be one of a series of other considerations that may have a limited relevance, such as in considerations of morality for the purposes of a legitimate restriction of freedom of expression, in the application of a specific human right. 5. Conclusion [The] seemingly irreconcilable conflict between universalists and relativists is more theoretical than real. There is actually a wide

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range of consensus that most of the alleged human rights must be universally protected. 14 The debate between universalists and cultural relativists has, very often, been one where both sides have actually not understood that neither are completely right nor completely wrong. A plethora of literature deals with the concept of universalism and cultural relativism in human rights, but much of it is extremely misleading. Many tenants of the universalist position suggest that human rights are independent of place, ideology and value systems, and that therefore any consideration of cultural specificities are completely and absolutely excluded in all situations. Some commentators from non-Western countries criticise the concept of universal human rights as an imposition of Western values. For its part, the cultural relativist view of human rights tends to consider that human rights can only be applied by reference to the rules and values that are internal to any given culture, suggesting for example that there are distinct Western, Asian or Islamic perceptions of human rights. Neither is completely accurate. A number international human rights standards already incorporates considerations of the local context and therefore are intended to vary where appropriate. Non-discrimination and other rights such as freedom of religion and expression include considerations of factors such as public morality, and are therefore from an international point of view expected to be potentially different in the result of their application, though one must also add that there would seem to be an "international minimum" of what would be acceptable under such factors. It is also quite clear that international human rights standards cannot be discarded simply because a particular practice has deep religious or cultural roots, whether involving Christian, Muslim or Buddhist traditions, whether they involve an indigenous people or a liberal democracy. Historically speaking, the West's fixation with state sovereignty has resulted in some vehement opposition to international human rights as being legally binding, and even to this day the opposition has not 14 Yasuaki,

Onuma, "In Quest of Intercivilizational Human Rights: 'Universal vs. Relative'

Human Rights Viewed from an Asian perspective", (2000) Asia-PacificJournalon Human Rights and the Law, Vol. 1,No. 1, 53-88, p. 73.


completely disappeared: indeed, it could be argued that it is regaining currency with governments in Australia and the U.S. These same Western states tend to assume that "their" standards are the relevant ones, and often seek to export their views onto other countries. Indeed, it could be argued that the "Asian Values" reactions in the early 1990s from a number of Asian intellectuals and statesmen, including Singapore's Lee Kuan Yew and Malaysia's Mahathir Mohamad, was as much against being forced to accept "Western" norms of human rights as it was on a more Asian communal-based ethics. The fallacy was twofold, since it assumed that these Western standards were identical to international human rights norms - they are not - or that the application of these international standards must necessarily have the same results, regardless of cultural or any other context - also false where specific rights allow for factors such as morality and other justifications in considering whether there is a breach.