Universality of humanrights and cultural diversityOctober 7, 2005 - nr.4
No. 4, juni 1998
In this report, the Advisory Council has looked at a number of points relating to the notion of cultural diversity and the universality of human rights. In answering the question of the relationship between cultural diversity and universality of human rights, the first thing to remember is that human rights are an expression of culture and that they must always be applied within a specific context. Although there are great similarities between the various cultures when it comes to human rights, acceptance of the universality of human rights norms does not mean that they have to be applied uniformly in all cases. The degree of latitude available to states largely depends on the amount of space which is left by international conventions and the associated supervisory mechanisms. It must therefore always be possible to call states to account for the way in which they apply human rights within their territories.
The important question of the meaning of the term 'universality of human rights' and its limits in practice points to the intercultural basis for human rights and the way in which this is reflected in international conventions. The Advisory Council notes that since 1948 there have been many developments leading to worldwide acceptance of human rights norms, in both an ethical and a legal sense. Over the years, representatives of extremely diverse states and cultural backgrounds have worked together to develop today's international legal system for the protection of human rights. The argument that human rights should be seen as a Western concept is not borne out by the facts. Support for human rights has grown more widespread over the years, and it has become increasingly clear that human rights norms are in principle compatible with the leading ethical, religious and philosophical traditions. The universality of human rights norms is therefore seldom disputed in the political arena.
There are various political and philosophical views on the relationship between universality and cultural diversity. The relativism espoused by such diverse currents of thought as post-modernism, communitarianism and multiculturalism should not, in the opinion of the Advisory Council, be carried to extremes. Both empirical and normative arguments are put forward to support this view. Over-emphasis on cultural differences fails to do justice to the considerable similarities between the various cultures when it comes to human rights. The moral caution preached by proponents of these currents of thought can lead to a moral paralysis which makes it impossible to pass critical judgement on situations and developments in one's own culture and in others.
A small number of states justify human rights violations in an unacceptable manner by invoking cultural diversity. Such justification often serves to shield their own societies against criticism, or to restrict the scope of a number of fundamental human rights in order, among other things, to strengthen the position of the political elite. This may be considered an improper invocation of cultural diversity by the state concerned.
Another frequently heard argument is that human rights are a 'luxury' which countries can only afford if they have achieved a certain standard of socioeconomic development. This view must be broadly rejected. Discrimination against women, torture or calls to kill inconvenient authors are unacceptable, whatever historical, cultural or religious justifications may be provided for them. However, this debate does point to the important problem of human rights whose implementation involves major financial expenditure. Countries with insufficient resources are hit disproportionately hard.
The Advisory Council emphasises the value of a more moderate relativist standpoint which calls for tolerance of differences in the specific implementation of human rights. The fact that human rights are universally accepted does not mean that they should always be uniformly applied. They must always be applied in a different cultural and socioeconomic context. The protection of human rights must primarily be given shape and meaning at national level. The international supervisory system is complementary, and in a number of cases allows states a certain degree of latitude in implementing human rights norms.
The extent of this latitude largely depends on the amount of room allowed by international conventions and the associated supervisory mechanisms. In the case of certain core rights -mainly those in the 'non-derogable' category- there can be no such latitude. In other cases, however, such latitude does exist. It may vary from one right to another, and even from one element of a right to another, depending on differences in culture. The importance of implementing the right completely must always be weighed against other significant interests of society. If it is decided to curtail, for example, freedom of expression, such curtailment must be as limited as possible and in accordance with international law.
The universality of human rights means that any latitude in making policy must always be controlled latitude. It must always be possible to call states to account, primarily at national level, but also in international judicial, semi-judicial and political forums. If such controlled latitude in making policy is accepted, this can help to enhance the universality of human rights. The Netherlands can play an important part in such supervision, especially since, by ratifying a very large number of human rights conventions and accepting complaint procedures, it has shown itself willing to submit its own human rights policy to external criticism.
There is a particular problem in the case of human rights whose implementation entails high costs for governments (as is the case with certain economic, social and cultural rights). The degree of implementation will depend, among other things, on the country's socioeconomic situation. This may mean that complete implementation can only be achieved after some time. Here again there is latitude, but it is scrutinised by the ESC Committee.
In order to have a smoothly functioning system of controlled latitude in policy matters, it is vital that all states become party to international human rights conventions and the accompanying optional protocols. Many countries have still failed to do so. They thereby make it impossible for their citizens to assert their internationally acknowledged human rights, and at the same time they escape the supervisory mechanisms established under international conventions. This is a serious obstacle to effective supervision of compliance by independent bodies. The Advisory Council calls on the government to support normative activities concerning optional protocols to the Convention on the Elimination of All Forms of Discrimination against Women and the ICESC and, in the course of bilateral and multilateral contacts, to systematically urge states which have not yet signed or ratified international human rights conventions to do so now.
A major problem is the selectiveness with which states respond to human rights violations. Such response, or lack of it, is sometimes politically motivated. This is true of countries in all parts of the world, and can seriously undermine the claim of universality. In order to make an effective contribution to the debate on human rights, the Advisory Council recommends the government, taking account of the comments made above with regard to latitude in policy matters, to apply similar standards to all countries in similar cases and to encourage other countries and international bodies in the field of human rights to act in the same spirit.
The relationship between and the equality of civil and political rights and economic social and cultural rights, and the issue of collective rights, have played a prominent part in the universality debate for many years. As regards the former, despite positive steps in this area since 1993, the Advisory Council feels that the government should make even greater efforts than at present to approach the two categories of rights equally, using the recommendations made on the subject by the former Advisory Committee on Human Rights and Foreign Policy and the National Advisory Council for Development Cooperation as guidelines. These recommend procedures which would permit gradual implementation to be monitored. They also propose that financial assistance be used to make the international community share responsibility for implementing these rights. Development cooperation is an important instrument here. At the same time, earlier agreements and commitments in the field of human rights must be consistently fulfilled. The fact that the Netherlands will sometimes have to distance itself from views expressed by friendly countries, such as the United States, can only enhance the credibility of its human rights policy and further increase public support for human rights.
In addition to being willing to encourage constructive dialogue within international organisations, the Netherlands must be prepared to call countries to account for their implementation of both categories of rights. In the opinion of the Advisory Council, this means that the Dutch government must make clear, in discussions with countries which justify such things as cruel or inhuman treatment or punishment, mutilating forms of female circumcision or serious curtailment of the freedom of expression by invoking cultural or religious traditions, that such violations of internationally accepted norms are unacceptable. The Dutch government must also continue to object to reservations to this effect which certain countries make to the relevant conventions. The government's policy of devoting extensive attention to such issues in multilateral forums must continue to be pursued and, where appropriate, reinforced by bilateral action.
It is possible that adding to the existing catalogue of human rights, for example by including collective rights, may enhance the intercultural nature of human rights, but this is by no means certain. This debate is currently focused on the issue of collective rights. The report on the subject by the Advisory Committee on Human Rights and Foreign Policy called for restraint in adding to the catalogue of human rights, owing in particular to the legal and technical problems that this would entail. The Advisory Council agrees with the Advisory Committee on Human Rights and Foreign Policy that collective rights can, in certain circumstances, encourage the development of cultural diversity, and recommends open and constructive involvement in the debate on the further development of such rights. In this way account can be taken of the cultural considerations which underlie the wish for recognition of collective rights. However, in the opinion of the Advisory Council, the government should see to it that the debate on collective rights is not used to justify violations of individual rights. Any recognition of new or existing collective rights should only be accepted if it leads to further reinforcement of universally acknowledged individual human rights.
The challenge for human rights policy is to identify shared basic principles in an intercultural context, without sacrificing the universal core on which the moral appeal and legal validity of human rights are based. In this connection, the Advisory Council believes that governments should take the fullest possible account of the experiences of citizens and victims of violations. One way to do this is to increase public support for the notion of universal human rights in various cultural and social settings. In this connection it is vital that citizens should know and be able to claim their rights. Action to promote consciousness-raising and educational programmes can make a major contribution here.
The Advisory Council therefore recommends the government to continue to provide explicit support, through both bilateral and multilateral programmes, for NGOs which play a crucial role in this area. More specifically, it recommends that Dutch foreign policy, particularly in the field of development cooperation, should continue to provide support for governments and NGOs which work to achieve de facto and de jure equal rights for women. In addition to support for legal measures (for example, legal assistance and measures relating to women's rights), there must be considerable scope for non-legal measures such as health care, education and information programmes. This can help to eliminate cultural obstacles to the implementation of human rights and to take advantage of cultural factors which encourage their observance.
Professor R.F.M. Lubbers
Chair, Advisory Council on International Affairs
2500 EB The Hague
Date: 17 June 1997
Re: Advisory Council on International Affairs/
Request for advice on the universality
of human rights and cultural diversity
Universality of human rights and cultural diversity
1. In the Vienna Declaration and Plan of Action adopted by the United Nations World Conference on Human Rights in 1993, the principle of the universality of human rights was reaffirmed and explicitly accepted by the international community. It was also confirmed that, within the framework established by the United Nations Charter, the promotion and protection of all human rights are matters which concern the international community as a whole and cannot solely be viewed in terms of national sovereignty. At the same time, it was accepted that national and regional characteristics and differing historical, cultural and religious backgrounds must be borne in mind with regard to the obligation of all states to uphold universal human rights.
2. The final documents of the UN world conferences held since the World Conference on Human Rights have also mentioned the relationship between universal human rights and cultural backgrounds. For example, the final document of the Fourth World Conference on Women in Beijing in 1995 included a statement that the significance of and full respect for various religious and ethnic values, cultural backgrounds and philosophical convictions of individuals and their communities should contribute to the full enjoyment by women of their human rights. In other words, it raised the issue of how a contribution can be made, from various cultural backgrounds, to ensuring respect for all the human rights of women.
3. Despite this international consensus on the universality of human rights, a number of governments invoke purportedly separate cultural or religious identities as a basis for disputing the universality of human rights or rejecting it outright. Such views are expressed in the debate on 'Asian values' and the political and sociocultural role of Islam. Important constants in this debate are the subordination of the individual to the community and the friction between such subordination and the obligation upon states, as laid down in international law, to guarantee the human rights of the individual. What this means in practice is that, on cultural grounds, a number of governments resist taking specific action to improve the human rights situation in their countries.
In the light of these developments, Dutch diplomatic efforts in the field of human rights will increasingly have to be aimed at defending the principle of the universality of human rights.
B. Policy issues
4. The Advisory Council on International Affairs is asked to comment on the relationship between culture and human rights, and more specifically on attempts to invoke separate cultural identities in relation to universal human rights. The Advisory Council is likewise asked to comment on effective instruments which can be used in Dutch human rights policy and broader international contacts in order to promote the implementation of human rights in a variety of cultural settings. The following issues may be examined in this connection:
- What is the meaning of the concept of universality of human rights, and where do its limits lie in practice? To what extent does the idea of human rights, and its enshrinement in international conventions, have a universal, intercultural basis? To what extent does the principle of universality permit human rights to be implemented in diverse ways, taking account of the cultural diversity which typifies the world?
- Can a meaningful distinction be made between real and purported cultural differences when human rights are invoked or violated? Can a meaningful distinction be made between proper attempts to uphold human rights and improper ones based on differences in power or cultural dominance?
- What international law and human rights considerations should play a decisive part in determining the extent of the international community's duty of legitimate care in promoting and protecting human rights, as enshrined in the goals and principles of the United Nations Charter? What significance should be assigned to cultural diversity in this connection? Can existing cultural diversity be grounds for restraint when it comes to the effective promotion and protection of human rights? How does such diversity contribute to the effective implementation of human rights?
- Can cultural differences be taken into account when determining the existence, nature and extent of human rights violations? Is it possible to find more or less objective criteria for this purpose?
- To what extent do international conventions and intergovernmental institutions in the field of human rights allow such rights to be implemented in a culturally diverse manner? Relevant concepts here include the 'margin of appreciation' doctrine developed by the European Court of Human Rights. Under this doctrine, the Court displays considerable restraint in cases where it is necessary to determine what is in accordance with morals. In this case, the Court accepts a certain degree of variation in the way human rights are implemented, without allowing this to detract from the universality of the rights covered by the European Convention for the Protection of Human Rights and Fundamental Freedoms. What criteria should such a 'margin of appreciation' satisfy? Should distinctions be made from one right to another? Is a similar approach to be found in other regional or global supervisory mechanisms? Can the United Nations apply differing standards when supervising the implementation of human rights, taking account of cultural differences?
- Can cultural differences be taken into account when determining how human rights violations should be criticised? Is criticism of human rights violations subject to cultural differences? How could a joint European approach to the protection and promotion of universal human rights take account of cultural differences? What opportunities are there for Dutch bilateral policy in this connection?
- How can people whose human rights are being violated by the invocation of separate cultural identity be made more aware of their rights?
- The determination and implementation of human rights are interrelated. Does adding to the existing catalogue of human rights enhance the intercultural nature of human rights or, on the contrary, encourage the non-observance of existing rights? Does the development of accountability for the implementation of existing economic, social and cultural rights help to uphold human rights as a whole, and does this reinforce the universal, intercultural nature of human rights?
- Are there opportunities to promote the observance of human rights in policy fields other than that of human rights, taking account of cultural diversity?
We would appreciate it if the Advisory Council on International Affairs could submit a report to us on these issues and any related matters. We are well aware of the complexity of the subject on which we are asking you to comment. Nevertheless, and in view of the importance of the subject in the aforementioned European and international debate, we would appreciate it if you could submit your report to us by 1 January 1998.
MINISTER FOR FOREIGN AFFAIRS
MINISTER OF DEFENCE
MINISTER FOR DEVELOPMENT COOPERATION
Professor R.F.M. Lubbers
Chairman, Advisory Council on
P.O. Box 20061
2500 EB The Hague
Human Rights, Good Governance and
2500 EB Den Haag
Date 30 October 1998
Contact K. Adhin
Our Ref. DMD/RM 330-98
Tel. (70) - 348.4864
Fax (70) - 348.5049
Re:Universality of human rights and cultural diversity
Dear Professor Lubbers,
Thank you for your report on the universality of human rights and cultural diversity prepared at the request of our predecessors. What prompted that request was the need for arguments to support the most open possible approach to the international debate on this subject, and for an effective set of instruments to promote respect for human rights in various cultural settings. We greatly value the way in which the report deals with a number of aspects of this complex material in a clear and systematic fashion, basing its observations on a strongly legal approach. The report and its recommendations prompt the Government to make the following observations.
The Advisory Council describes a number of developments in the creation of a corpus of international law on human rights, concluding that human rights norms are universally accepted and that there is no fundamental incompatibility between these norms on the one hand and the major philosophical, ethical and religious traditions on the other. The Government endorses this view. It also shares the Council's opinion that cultural diversity is usually invoked as an argument for curtailing human rights by rulers seeking to strengthen their own positions and to shield themselves from criticism. The Government rejects such false arguments. It considers the report's recommendations on universality and, in particular, its observations on whether any latitude can be permitted in the implementation of non-derogable rights such as the right to life and freedom from torture, as additional support for a policy that has long been pursued.
The Government acknowledges the problem identified by the Council that poor countries have to make disproportionate efforts to observe human rights whose implementation involves major financial expenditure. It is endeavouring to assist these countries by means of various development cooperation instruments. In this field the Netherlands is ahead of many other nations in that it supports governments that give priority to basic social services for their population. This is part of the 20/20 initiative adopted at the Social Summit in Copenhagen in March 1995, and fleshed out in the Oslo Consensus of April 1996. Discussion of its implementation was on the agenda for the meeting in Hanoi in October 1998. The Government plays an active role in this field.
The following may be said with regard to certain specific recommendations made by the Council. The Government agrees with the Council that the universality of human rights is best served if the international community responds in a non-selective manner to violations of those rights. Promoting respect for the most fundamental human rights around the world is an essential element in Dutch foreign policy, though the instruments used to achieve this aim may be different depending on the country concerned. In order to be effective, the Netherlands may sometimes have to operate within an EU framework, while at other times bilateral action is called for: each of these approaches can reinforce the other.
The Government would endorse the importance of giving equal value to civil and political rights on the one hand, and economic, social and cultural rights on the other. These rights are mutually reinforcing; simultaneous promotion of compliance in both categories is in the interest of the universal implementation of human rights. As a result of the difference in the legal status of economic, social and cultural rights, in that they impose a positive obligation on governments, international human rights forums have, over the years, tended to devote more and more attention to civil and political rights. At the 54th session of the UN Commission on Human Rights, the then Minister of Foreign Affairs called upon the Commission to rectify this situation. It should be noted in this connection that activities within the development cooperation sector and other UN forums (such as the specialised agencies) are probably more effective when it comes to removing obstacles
to the enjoyment of economic, social and cultural rights. The Government believes that an individual right of petition under the International Covenant on Economic, Social and Cultural Rights to be laid down in an optional protocol would be a valuable instrument if it were genuinely to reinforce international monitoring of observance of these rights. This seems unlikely to happen, even in the longer term, and the Government now feels it would be more desirable to focus efforts on strengthening the existing supervisory mechanisms. The Government provides support to the Office of the High Commissioner for Human Rights for activities aimed at increasing the effectiveness of the Committee on Economic, Social and Cultural Rights.
The Government endorses the Council's recommendations regarding equal rights for women. The universality of women's rights as an integral component of human rights in general is indisputable. The Government condemns unacceptable infringements of these rights that are justified by reference to cultural or religious traditions. In addition to activities in the legal sphere directed towards equality before the law, and the implementation and protection of women's rights, attention should be focused on education, health care, political participation in both local and national government, and the role of women in the production process. The Government shares the Council's opinion that a complaint and investigation procedure under the Convention on the Elimination of All Forms of Discrimination against Women might improve observance of women's rights, and therefore supports the drafting of an optional protocol to this end.
The Government endorses the Council's recommendation concerning human rights education. Public awareness and knowledge of human rights can contribute to a considerable extent to universal implementation of those rights. Non-governmental organisations (NGOs) and other civil society groupings working for and with the population can play a specific role in increasing knowledge of human rights by relating to relevant developments in each specific culture. The Government also attaches high priority to supporting NGOs that provide assistance to the victims of human rights violations. It is in agreement with the Council's view that activities in this area must be in tune with the experiences of citizens and victims as far as possible. An example is the seminar organised in June 1998 by Article XIX, an international NGO, acting on a proposal from the Ministry of Foreign Affairs. The theme of the seminar was freedom of expression in the Middle East and North Africa. The aim was to build on the experience of participants from the countries concerned in order to evolve a strategy to encourage governments in the region to implement this basic right. A follow-up to the seminar is in preparation.
Finally, the Government endorses the Council's conclusion that the main challenge facing human rights policy is to find common principles in an inter-cultural setting, without undermining the core principle of universality. Dilemmas will continue to arise where there is no clarity regarding criteria or guidelines in the light of which a country's own interpretation of the norms can be assessed. In any event, the Government will continue, at multilateral, EU and bilateral level, to work for the genuine implementation of human rights in various cultural settings. This includes conducting a constructive dialogue. In this context it is essential to make use of every opportunity to create a local understanding and a local interpretation of human rights while holding on to the principle of universality. In this way a contribution can be made to the worldwide enjoyment of human rights within a context of cultural diversity.
The Minister of Foreign Affairs
The Minister of Defence
The Minister for Development Cooperation
No press release has been published for this advice.