Citation: 7 Asia-Pac. J. on Hum. Rts. & L. 67 2006

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Asia-Pacific Journal on Human Rights and the Law 1: 67-84, 2006.

@ 2006 Koninklike Brill NV. Printed in the Netherlands

THE FALLACIES IN THE "UNIVERSALISMVERSUS CULTURAL RELATIVISM" DEBATE IN

HUMAN RIGHTS LAW

Fernand de Varennes*

1. Introduction

Human rights are a "Western" construct which do not always sitcomfortably within the confines of many Asian societies. This view oftenleads to the assumption that the "idea" of human rights is somehow morethe prerogative of Western societies. This is not only oversimplistic, it isalso based on an ignorance of Asian writings and traditions from whichone can find the same "seeds" and inspirations for what we call todayhuman rights.

The Qu'ran, which is not only a holy book but also a book of law, containssections dealing with equality, freedom of religion, and the right toproperty, as did other philosophical and legal sources throughout Asia.While not necessarily using the words "human rights", they werenevertheless based on a sense of justice and humanity that are essentialbuilding blocks for what are considered today human rights standards.

This article proposes that these assumptions need to be examined anew inlight of a more detached historical and legal perspective - one which is notexclusively "Western". It will attempt to highlight a few of he moral andphilosophical underpinnings of international human rights which areclosely linked to Asian traditions, and not intrinsically alien to them.

Finally, it will proceed with a critical examination of the whole debatesurrounding the universality of human rights and cultural relativism,showing that much of the debate is actually obscured by a failure to fullyunderstand the nature and content of international human rights. It will besuggested 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 theiruniversal application.

2. Are Human Rights a Western Invention and Imposition - A BriefOverview of the Emergence of International Human Rights

Contrary to what many people may believe, the first attempts to havehuman rights incorporated as a universal and binding international rule inthe 20h Century did not come from Western States. It was on the contraryan Asian country, Japan, which on 13 February 1919 attempted to have theLeague of Nations Covenant approve an amendment to Article 21 with thisfirst draft:

The equality of nations being a basic principle of the League ofNations, the High Contracting Parties agree to accord, as soon aspossible, 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 prohibitdiscrimination in international law was vehemently opposed by Australia,Britain, Greece, Poland and the United States, states which today manypeople would have thought naturally and automatically supportive of theideology of human rights. The truth is in fact quite different.

This equality clause was not strictly speaking universal, as it only wouldhave applied to citizens of Member States on the League of Nations.Additionally, it was most certainly linked to the Japanese frustrations atthe discrimination and humiliation that they faced from Western colonialauthorities who dominated much of Asia and the rest of the world at thetime, effectively locking out the Japanese from what they concerned theirown backyard.

What is most telling however is that for many from the West, the idea thatthis most fundamental of human rights might be legally enforceable wascompletely unacceptable, even alien to their Western sensibilities. Thereaction of British Foreign Secretary Lord Balfour about the clause servesto show how it certainly was not true at beginning of the 20th Century that

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

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human rights were yet an accepted constituent of Western legal andpolitical 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 aman in Central Africa was equal to a European.

Some of the greatest opposition came from Australian Prime MinisterBilly 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 wasoffered which would have exempted national immigration policies. Amuch further watered-down version was subsequently proposed by theJapanese, and despite a high level of support (from China and manyWestern Member States), the clause was not approved.2

On the one hand, it cannot be denied that the ideology of human rights owemuch to Western thinkers such as Jean-Jacques Rousseau, John StuartMills and others. On the other hand, this incident also demonstrates thatWestern states have not always been overly receptive to acknowledginghuman rights as legally binding obligations that would actually limit theirsovereignty. To have human rights standards restrict the powers ofgovernment also conflicted with a well-established Western politicalprinciple, the absolute sovereignty of the state as evolved in Europe afterthe 1 5 th Century.

In its purest form, what happened before the Second World War was thatthe concept of human rights, supposed to be the foundation of Westernsociety, collided directly with that other great creation of Western politicaland philosophical thought, state sovereignty. This can once again be seenin the comments of the British delegate to the League of Nations, LordRobert Cecil, as to the reasons why Western countries had to reject theJapanese proposal of including an equality provision in the League treaty:

[It would mean] encroaching upon the sovereignty of statesmembers of the League... [opening] the door to seriouscontroversy and to interference in the domestic affairs of states...

2 Ironically, a majority (11 out of 16) of the delegates actually voted in favour of theJapanese amendment. But U.S. President Woodrow Wilson, who was chairing the 1919session, ruled that the amendment had not been accepted because important issues neededto be unanimously approved.

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The rejection of the Japanese attempt in 1919 by Western countries such asAustralia, Britain, and the United States shows that immediately after theFirst World War, many Western countries in fact rejected the legal conceptof international human rights because it contradicted what many in thesecountries felt was a much more important principle, the sovereignty of thestate. The ideology of international human rights, which is a recognitionthat certain moral and social values are above state sovereignty, was totallyunacceptable 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 Japaneseproposal, but still they were proposing for the first time that a limitedhuman right obligation should be a legal rule applicable to everyone.

Western states refused this at the time. They had economic interests toprotect, but also they were not ready to accept the idea that the sovereigntyof the state could be tempered by moral imperatives from the outside. Onecould even suggest that some Western countries still have problemsaccepting this: part of the resistance in the United States to the creation ofa permanent International Criminal Court, is that the United States wouldlose some of its sovereignty, and that American citizens would come underthe jurisdiction of "foreign judges". In some ways, these are some of thesame arguments used against the Japanese proposal in 1919 to ban racialdiscrimination.

This mainly Western view, that state sovereignty overrode any kind ofhuman rights obligations, came to change at the time of the Second WorldWar and to lead to a situation where East and West, Asian, African andEuropean, could find common moral, philosophical and legal grounds for auniversal code of basic human rights which was neither uniquely Westernor Asian.

After the Second World War, Western countries in particular seem to haverealised that human rights had to be part of the international system, andthat perhaps it had been short-sighted to have rejected earlier attempts toincorporate these under the League of Nations:

The idea thus began to emerge that one significant cause of thewar lay in Hitler's contempt for human rights and freedoms. Ifthen, a repetition of such a catastrophe were to be avoided, therewould have to be an awareness of the importance of theinterdependence of peace and human rights, and action after the

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war would be needed to ensure that the attainment of these dualobjectives would become an essential priority for all states and forthe international community as a whole.3

The end of World War II signalled a turning point, at least from the pointof view of the resistance of those Western states which had objected tolegally-binding human rights stands. There then emerged anacknowledgment that it was no longer tolerable to maintain that states hadabsolute sovereignty in legal terms in the way they dealt with their ownpopulation, given modern technological abilities in an interdependent in aglobal community. Quite clearly this could - and had - lead to instabilitywithin the international community, as other states would be tempted tointervene if there were persecutions, genocide or other atrocitiescommitted against other people.

So there had to be a "code of conduct" to maintain peace, one of whichinvolves the recognition of some minimal guarantees for all human beings,what we recognize today as not only moral or philosophical standards, butlegally binding human rights.

In this context, little by little, a renewed natural-law doctrinebegan to gain currency: the idea that respect for human rights(along with the maintenance of peace) ought to constitute the point

4of no return for the new world community that would emerge...

The great inspirational document for later treaties dealing withinternational human rights is the United Nations' Universal Declaration ofHuman Rights. Here, once again, there is often the mistaken belief that thedocument mainly reflects Western values, when in reality it is a productfrom a variety of traditions from around the world. Of the 58 countriesparticipating in its genesis, 20 were from Latin America, 4 African and 14Asian. Non-European countries were therefore very much a part of thisprocess. At the time of the drafting of the Universal Declaration, therewere no strong differing viewpoints because of the general nature of theDeclaration, nor any no fundamental problems with the broad principles.

There was quite a bit of input by non-Western states, and some of therights 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.

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raised during the drafting of the Declaration and were eventually tobecome rights in international law, through the efforts of socialist and non-Western states. Even the right to equality, which many assume is sointimately connected to Western legal thinking, was mainly included in theDeclaration through the efforts of Socialist and non-Western statesincluding Asian.

Furthermore, the Universal Declaration contains a series of economic andsocial rights thanks to the efforts of socialist and non-Western states, so ineffect the Declaration is the result of a confrontation and compromisebetween different cultural, moral and political traditions.

Nevertheless, the West proposed proclaiming at the world levelonly the civil and political rights, and only in the essentiallyindividualistic conception they had had in the eighteenth andnineteenth centuries. It was only in a second stage, given thehostility of the Socialist countries and under strong pressure fromthe Latin Americans... that the West agreed to incorporate.., anumber of economic and social rights as well - entirely unknownin 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 persistentresistance from Western states, especially in relation to the right to self-determination and certain rights for minorities.

It was also due to the resistance from Western states that the UniversalDeclaration was not to be a legally binding instrument. Even at the end ofthe Second World War, many Western states still had difficulty acceptingthe idea that state sovereignty should be subjected to some form ofrestrictions. One could certainly argue that absolute state sovereignty, thebasic philosophical principle which is the main obstacle even today to theapplication of human rights, is more traditionally a construct of Westernpolitical thought than of Asian or Islamic traditions:

The Universal Declaration is the fruit of several ideologies: themelting point of diverse conceptions of man and society. As wasrightly pointed out by P. Imbert, it does not constitute the "blow-up", at world level, of national texts, but their "adjustment" to amulticultural world that is deeply heterogeneous and divided. To

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some extent, it has fulfilled the hope expressed in 1947 by theChinese delegate to the UN Commission on Human Rights, thatthe declaration should reconcile Confucius and Thomas Aquinas.

On the whole, the Declaration remains a lodestar, which hasguided the community of states as they gradually emerged fromthe dark age when the possession of armies, guns and warshipswas the sole factor for judging the conduct of states, and therewere no general principles, accepted and approved by all, fordistinguishing good from evil in the world community. 6

The UN Declaration, the core document towards the development of aninternational human rights regime is where "East" meets "West", and notjust 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 theadoption of the Universal Declaration and the two Covenants (Civil andPolitical Rights; Economic, Social and Cultural Rights) demand respect forcertain minimum standards.

It is sometimes asserted, more or less openly, that for Western states,human rights have a longer established tradition, are more inherently partof their culture, and thus have a greater affinity with these societies thanothers.

As indicated earlier, in historical terms until the advent of the Second WarII, Western states were often - and in some cases still are - the mostreluctant to accept outside legal restrictions on their "sovereignty". 7

Furthermore, a number of Western countries have quite incompleteguarantees for the protection of human rights, the most prominent of thesebeing Australia (which does not have a bill or rights nor any substantialprotection 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 UNcondemnations of various practices and policies affecting the treatment of Aborigines andrefugee claimants. The official reactions from Australia have ranged from assertions that, asa Western democracy, Australia has no human rights problems, that real human rightsviolations only occur in "other" countries, presumably Asia and Africa, to assertions thatthe UN human rights mechanisms are deeply flawed.

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tends to reject altogether any international human rights mechanism thatwould affect its sovereignty).

It is therefore not completely true to suggest that because of theirdemocratic traditions or cultural superiority, Western states are somehowautomatically more receptive to human rights from a legal as opposed totheoretical point of view, or that international human rights are direct andnatural descendants from Western traditions. Some of the most racistsocieties in the world which had in place deeply ingrained and legallysanctioned discriminatory practices (Apartheid South Africa, NaziGermany, Australia and the mistreatment of Aborigines, the US and itsAfro-American population) are after all based on various Westernideologies and cultures. To put it bluntly, there is almost an automaticprejudice that equates any "noble" principles to Western traditions, leavingout any contribution from Asian, Islamic or African sources.

Yet, long before the French Declaration of the Rights of Man and theUnited 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 withdefeated populations which contained provisions granting freedom ofreligion to the newly subjugated peoples. Towards the end of the 1 4th

Century, Korean scholar and statesman Yi Yul Gok argued that the riseand fall of a society depended on whether or not a way was open forfreedom of expression. As one author points out when addressing the issueof nationality in Thailand:

In the Sukhothai period, King Ramkamhaeng The Great had stone-slabs inscribed in the oldest known Siamese writing in A.D. 1293recording the practice and usage of the government of thekingdom in upholding the right of everyone to be free, and ofcensuring respect for such freedoms as are today recognized asfundamental or basic human rights, viz., freedom of movement, ofthought, of religion or conscience, and of the free flow ofcommerce. There is ample evidence of the generous treatment ofvisitors and the personal care with which justice was administeredwithout discrimination as to race or sex.8

8 Quoted in Fernand de Varennes (1998), Asia-Pacific Human Rights Documents andResources, Volume 1, Kluwer Law International, The Hague, p. 1.

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These examples do not prove that Asian societies are particularlyamenable to human rights that restrict a state's sovereignty, but they doindicate that throughout time and space many non-Western societies inAsia and elsewhere acknowledged the importance of concepts such ashuman dignity, individual freedom and equality, all of which are thebuilding blocks of what has emerged in the second half of the 20th Centuryas 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 thedignity of human life and a commitment to human fulfilment. Theyacknowledge the need for justice between ruler and ruled, and correctnessor rightness in human conduct. While they may have differences ofemphasis, they all recognise restrictions on the powers of the ruler, or onthe sovereignty of the state, in the name of a greater moral duty of humaneand just treatment.

In a sense, it is perhaps more the Western tradition of absolute statesovereignty, exported to the rest of the world through colonialism andMarxism, which does not accept any outside moral restrictions that hasuntil recently found it difficult to accept the limitations imposed byinternational human rights. It explains why Australia, Britain and theUnited States so opposed the attempt by Japan to incorporate a verylimited human right in 1919, why many of these same Western countrieswere against having a legally binding UN Universal Declaration in 1946,and why even today countries like the US is voraciously against the newInternational Criminal Court.

To suggest that the principles of equality, non-discrimination and humandignity are somewhat innate to Western societies is historically factuallyincorrect. To believe that Asian traditions such as Hinduism, Buddhism,Confucianism and Islam are conversely not as "modem" or "receptive" asWestern traditional secularism is similarly erroneous. While various Asianreligious or ethical systems may have some views which may not sitcomfortably with some aspects of the modem formulation of internationalhuman rights law, they all recognise the basic values of humanity andjustice. More importantly, they all accept that which has been at the centreof Western reluctance and even historical rejection of international humanrights from a legal point of view: that the sovereignty of the state must belimited by certain fundamental moral values. Hinduism, Islam, Buddhismand international human rights all recognise this. The Western politicalconcept of state sovereignty has been much more reluctant to accept it.

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4. The Fundamental Mistake in the Universality Debate - East andWest: 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 ofinternational human rights and how these can be reconciled with culturaldifferences. Because it is wrongly assumed that international human rightsare mainly Western constructs, the logical if mistaken conclusion is thatWestern countries will have somewhat less serious human rights problems,and that any opposition to international human rights must naturally comefrom non-Western states. In particular, various commentators have at timessuggested that Asian or Islamic states "naturally" reject the universalapplication of human rights.

The tangible evidence of this is rather more tenuous. None of thesupporters of the "Asian perspectives" denies the international nature ofhuman rights, or that it is a valid international concern. The Indonesiandelegates to the Vienna World Conference on Human Rights for exampleacknowledged that "the issue of human rights has ceased to be a bloccontroversy...". If there was a non-Western reaction, it was against theselective, if not hypocritical, use of the language of human rights by thesuperpowers for their own agendas.

While there are certainly very serious problems, such as the emphasis bycertain Asian governments on national sovereignty, no one in Asia isactually denying that human rights are universal. Indeed, contrary toassertions made by some non-governmental organisations, the BangkokDeclaration which was adopted by the governments of 40 Asian states atthe UN Vienna World Conference restated the commitment of these Asiangovernments to the Universal Declaration of Human Rights andencouraged further ratification of international human rights instruments. Italso affirmed the universality and interdependence and indivisibility ofpolitical, civil, economic, social and cultural rights.

If there is a problem in relation to Asian perspectives and human rights, itis not in relation to the universality of human rights, but on the issue ofcultural relativity and human rights rather than true universal applicationof human rights standards as contained in international instruments.

From a Western point of view, the premise of cultural relativism, thathuman rights standards can vary among different cultures must be

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absolutely and unconditionally rejected: since "if there is an internationalhuman rights standard - then its meaning remains uniform acrossborders."9

This apparently means that:

Unless one wishes to give up the very notion of an internationallaw of human rights altogether, these rights should haveessentially the same meaning regardless of local traditions.' 0

The above quoted legal scholar gives the example of non-discriminationand argues that non-discrimination in one state should mean essentially thesame thing in any country and that therefore there can be no majordifference between what an individual should be entitled regardless of thecountry he or she lives in. He gives the following illustration:

If women in Moslem countries are discriminated against, it is notenough 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 suchtorture or non-discrimination cannot be extinguished under the guise of"cultural traditions", be it in a state with a Muslim majority or in agovernment controlled by an indigenous people. In this sense, hisarguments would seem sensible in legal terms, yet there is also here asevere misunderstanding in his example as to the actual application of non-discrimination in international law.

The error which however seriously weakens his example is to present non-discrimination as if all differences of treatment are necessarily andautomatically discriminatory. This is quite simply a gravemisunderstanding and misapplication of the international standard. It isnow quite clear that in international law not all distinctions arediscriminatory:

[The principle of equality before the law] does not exclude thedifferent treatment of persons from the consideration of factual

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

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differences.. .To treat equally in a mechanical way would be asunjust as to treat equal matters differently."

More recently, the European Court of Human Rights summarised the legalapplication of this human right standard in the following way:

[A] difference of treatment is discriminatory if it has no objectiveand reasonable justification, that is if it does not pursue alegitimate aim or if there is not a reasonable relationship ofproportionality between the means employed and the aims soughtto be realised.' 2

This means that it is possible, even required, to take into account allrelevant factors when deciding if a situation is discriminatory or not,including the social and cultural conditions in a country. Non-discrimination in international law clearly does not impose similaroutcomes in completely different contexts and conditions, which is whatseems to be implied with those with a rigid, usually Western-slanted viewof human rights as advanced by Professor Tes6n and others - instead of atruly international one. At least in the application of human rights such asnon-discrimination, and those other rights which refer to considerations ofpublic morality, public order, and similar factors, the results of theapplication of the universal standard may vary according to what is ininternational 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 NorthAmerica up to the university level, must also have in its application thesame result in the world's poorest countries? If a country such as PapuaNew Guinea is unable to offer free public education for everyone up to theend of grade 12, then is it violating the international human right toeducation?

The answer would of course be no. The specific implementation of mostsocial, economic and cultural rights do depend on "local circumstances":in other words, whereas the universal standard of these rights and theirapplication across the world do not vary, the actual results from the actualimplementation can vary, as Article 2 of the International Covenant onEconomic, Social and Cultural Rights itself presupposes:

1 South West Africa Case (Second Phase), [1966] International Court of Justice 284.12 Willis v. United Kingdom, European Court of Human Rights, judgment of I 1 June 2002.

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Each State Party to the present Covenant undertakes to take stepsindividually and through international assistance andcooperation ...to the maximum of its available resources, with aview to achieving progressively the full realization of the rightsrecognised in the present Covenant...

What needs to be distinguished in the whole debate over cultural relativismis the confusion that exists as to what the debate is all about. Although thedebate is sometimes portrayed as tensions involving a denial of theuniversality of human rights, this is not the true nature of the argument. Atleast officially, no Asian or African state will openly deny that the basichuman rights contained in instruments such as the UN Declaration ofHuman 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 statementcan be understood in two ways: it may mean that fundamental humanrights are universal in the sense that they cannot be set aside because ofcultural differences. This is uncontroversial: no human right ininternational law can be disregarded because of cultural differences,whether it involves torture, freedom of religion or non-discrimination, forexample.

However, a human right standard which has a different impact in aparticular country because of cultural or other considerations is not being"set aside". If a particular human right standard contains the requirementof "reasonable accommodation", or of rights being limited for reasons ofmorality, security, health, public order, etc., it means that the nationalcontext, including religious or cultural factors, may in some cases bevalidly taken into account before deciding if there has been a breach of theinternational human rights standard. As described earlier, while theinternational standard of non-discrimination itself does not change, inpractical terms a particular situation may or may not be discriminatoryonly 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 verydifferent factual situation.

It is here that some Western scholars have difficulty accepting thatuniversal human rights do not reject all considerations of culture or ofother relevant contextual factors in a particular society. It is also probablyhere where Western governments naturally assume that it is "their" own

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standards which should be the appropriate measuring stick as to whatconstitutes appropriate behaviours that conform to human rights - ratherthan an international one. Since human rights are universal, there is thusperhaps an inherent expectation that non-Western countries should followthe natural lead of Western liberal democracies.

One way of illustrating the error in this last view is to consider how oneuniversal human right - freedom of expression - can in reality vary fromone country to the other because of a very different context, yet still beuniversal 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 toprotect his reputation and could seek a court order preventing publicationof this information on the basis that it would ruin his reputation and careerbecause of the defamatory accusations being published in the media.

In a Western liberal democracy such as Australia, freedom of expressioncan be limited to protect the reputation of individuals. This is also at thesame time a recognised and permissible restriction in international law:Article 19 of the International Covenant on Civil and Political Rights13

acknowledging this with the following provisions:

1. Everyone shall have the right to freedom of expression; this rightshall include freedom to seek, receive and impart information andideas of all kinds, regardless of frontiers, either orally, in writingor in print, in the form of art, or through any other media of hischoice.

2. The exercise of the rights provided for in paragraph 2 of thisarticle carries with it special duties and responsibilities. It maytherefore be subject to certain restrictions, but these shall only besuch 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 bedamaging to one's reputation, since it would be generally considered as

13 General Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 23March 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 thatAndr6 could seek and probably obtain a court order to restrict thepublication of such information. This result would not be a breach offreedom of expression but actually be consistent with the international, asopposed to domestic or even Western view, since the application of theuniversal standard of freedom of expression contains a permissiblerestriction to limit information that is damageable to one's reputation.

Must the result in the application of this universal standard be the same inevery part of the world? No. Contrary to those - usually Western scholarsand governments - who reject any potential consideration of cultural orother factors, it is possible to have a different result in the application offreedom of expression if the context in a particular state is quite different.If instead of Australia, Andr6 were a politician accused of polygamy inBrunei Darusalaam, the result of the application of the universal standardof freedom of expression could be completely different.

Any attempt to prevent a newspaper from publishing such a story wouldprobably be a breach of freedom of expression in Brunei, from aninternational legal point of view, even though it would not be in Australia.This is because in Brunei Darusalaam the story would not be defamatoryor particularly detrimental to Andre's reputation, since polygamy is apractice accepted in the social, moral and legal context of that country.Unless necessary to protect his reputation, it is not permissible accordingto the international - as opposed to domestic or "Western" - standard offreedom of expression to prevent the newspaper from running the story.

Same type of conduct involved; same universal standard; yet completelydifferent results from the application of the international standard offreedom of expression. This is because the human right of freedom ofexpression contains elements that take into account the particular situationin a country, including culture, religion, etc. This therefore means thatwhile the actual international standard itself does not change, itsapplication can bring in different results in states with completely differentsituations.

This was perhaps what Pieter Kooijmans, the former Special Rapporteur ofthe UN Commission on Human Rights, was trying to say when heacknowledged that even though much of the Universal Declaration ofHuman Rights might have been influenced by the West, things havechanged in the evolution of international human rights law:

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Representatives of all regions of the world were consciouslyinvolved in the elaboration of these norms and rules which werenearly all adopted by consensus. The most basic set of rules, the[two] Covenants.. .are regularly interpreted by independentCommittees, in which all regions and cultures are equallyrepresented. And even the strongest opponents of the notion ofcultural relativism must admit that the realization of human rightsin different cultural settings may diverge, whereas the strongestadherents of the concept of cultural relativism readily admit thatthere are certain rights, the so-called "core rights" dealing with theintegrity of the human person, like the prohibition of torture or theright not to be arbitrarily deprived of one's life, may not beharmed under any circumstances.

There are quite clearly international human rights standards that areintended to incorporate relevant local "conditions" (public morality,reasonability, justified in the circumstances, public order, etc.) and othersthat do not permit any such considerations. The latter category includesrights such as torture and genocide, while in the former one can identifynon-discrimination, freedom of expression, religion, etc.

While all of these international human rights standards are "universal" andtherefore applicable to all states, the result of the application of thosestandards that do allow for considerations of morality or some otherjustifiable restriction open the door to the "relative" impact of thesestandards in different contexts, as shows the example of defamation underfreedom of expression. Thus it is possible that there can be somedifferences in impact due to cultural factors, but this difference should notbe exaggerated: difference of culture is not of itself in international law asufficient ground to discard any international human right standard; it maysimply be one of a series of other considerations that may have a limitedrelevance, such as in considerations of morality for the purposes of alegitimate restriction of freedom of expression, in the application of aspecific human right.

5. Conclusion

[The] seemingly irreconcilable conflict between universalists andrelativists 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 beuniversally protected. 14

The debate between universalists and cultural relativists has, very often,been one where both sides have actually not understood that neither arecompletely right nor completely wrong.

A plethora of literature deals with the concept of universalism and culturalrelativism in human rights, but much of it is extremely misleading. Manytenants of the universalist position suggest that human rights areindependent of place, ideology and value systems, and that therefore anyconsideration of cultural specificities are completely and absolutelyexcluded in all situations. Some commentators from non-Westerncountries criticise the concept of universal human rights as an impositionof Western values.

For its part, the cultural relativist view of human rights tends to considerthat human rights can only be applied by reference to the rules and valuesthat are internal to any given culture, suggesting for example that there aredistinct Western, Asian or Islamic perceptions of human rights.

Neither is completely accurate. A number international human rightsstandards already incorporates considerations of the local context andtherefore are intended to vary where appropriate. Non-discrimination andother rights such as freedom of religion and expression includeconsiderations of factors such as public morality, and are therefore from aninternational point of view expected to be potentially different in the resultof their application, though one must also add that there would seem to bean "international minimum" of what would be acceptable under suchfactors. It is also quite clear that international human rights standardscannot be discarded simply because a particular practice has deep religiousor cultural roots, whether involving Christian, Muslim or Buddhisttraditions, whether they involve an indigenous people or a liberaldemocracy.

Historically speaking, the West's fixation with state sovereignty hasresulted in some vehement opposition to international human rights asbeing 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-Pacific Journal on HumanRights and the Law, Vol. 1, No. 1, 53-88, p. 73.

UNIVERSALISM VERSUS CULTURAL RELATIVISM

completely disappeared: indeed, it could be argued that it is regainingcurrency with governments in Australia and the U.S.

These same Western states tend to assume that "their" standards are therelevant ones, and often seek to export their views onto other countries.Indeed, it could be argued that the "Asian Values" reactions in the early1990s from a number of Asian intellectuals and statesmen, includingSingapore's Lee Kuan Yew and Malaysia's Mahathir Mohamad, was asmuch against being forced to accept "Western" norms of human rights as itwas on a more Asian communal-based ethics.

The fallacy was twofold, since it assumed that these Western standardswere identical to international human rights norms - they are not - or thatthe application of these international standards must necessarily have thesame results, regardless of cultural or any other context - also false wherespecific rights allow for factors such as morality and other justifications inconsidering whether there is a breach.