Universality of Human Rights

December 4, 2008 - nr.63
Summary

Conclusions and recommendations
 

Sixty years after the adoption of the Universal Declaration of Human Rights, the issue of the universality of human rights still provokes debate in the international arena, although the discussion has shifted in the course of time. At the beginning of the 21st century, the debate should be placed against the backdrop of recent developments: the attacks of 11 September 2001 and the subsequent international counterterrorism strategies; the political and economic positioning of States like China, Russia and India; the birth of the Millennium Development Goals; gross human rights violations during or after violent conflicts, the number of which is again increasing; and the consequences of the ongoing process of globalisation.

In this advisory report, which can in many ways be considered as a follow-up to the 1998 AIV report on the same subject, the AIV intends to contribute to the further enhancement of the concept of universality and to its effective implementation in practice. In doing so, it focuses on different processes that play an important role in turning universality from a principle into reality.

In summarising its findings, the AIV will relate them to the questions posed by the Ministers in their request for advice. Four of the questions will be addressed in section Conclusions, whereas the question regarding policy options for the Netherlands will be addressed in Recommendations.


Conclusions

  1.  Does the AIV recognise the development referred to in the request for advice, namely that the universality of human rights is disputed by an increasing number of States?

The AIV would like to observe that the assumptions put forward in the request for advice – that the universality of human rights is disputed by an increasing number of States and that there is an urgent need for counterarguments – might be too defensive. The idea of the universality of human rights is sometimes challenged by cultural and political ideas or economic circumstances that are at times seen as incompatible with international or universal human rights standards, but there are also other signs. For example, ‘Human rights and the rule of law’ was one of the main pillars of the outcome document of the 2005 World Summit, in which all UN Member States reaffirmed that human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing. And in a recent general debate (2008) in the Human Rights Council on the follow-up and implementation of the 1993 Vienna Declaration and Programme of Action all Members again reaffirmed the universality of human rights.

The general acceptance of the universal nature of human rights is quite remarkable, and the AIV fully supports the view that ‘the success of human rights in becoming the accepted standard of international morality is one of the more improbable stories of the twentieth century.’ The AIV would observe that by and large, as a result of the trickle-down effect of international human rights law in national legal systems, cultural exceptions are in practice put forward only to a limited degree. And when they are, they are mainly voiced by local communities (as opposed to the State that has ratified the relevant human rights instrument), or by States if they serve the interests of the political or religious establishment.

That said, the AIV does acknowledge that there is an underlying debate of a more complex nature. While States may not cast doubt on the universality of human rights in a formal sense in international forums, they often defend religious and political traditions and in doing so they frequently use instruments provided by international human rights law: in other words, they enter reservations to treaties or invoke treaty clauses that accept restrictions of human rights in certain circumstances.

Furthermore, formal adherence to universal human rights norms does not mean that these norms are observed in practice. This is not just a matter of State responsibility; powerful local ethnic communities at sub-State level sometimes defend cultural or contextual exceptions to universally accepted human rights standards, and thus hinder their actual implementation. It is hard to escape the conclusion that the idea of human rights has gained surface acceptance across the globe without sufficiently influencing the practice of States’ governments and other powerful actors.

The AIV observes that the gap between principles and practice might even pose a greater challenge to the universality of human rights than cultural exceptions do. The universality of human rights should therefore be perceived not as a foregone conclusion but rather as the result of a process of universalisation by which human rights come to be realised.

  1. What arguments do States use when challenging the universality of human rights?

When a State itself (as opposed to local or tribal communities) invokes culture, it is mainly within the framework of universal human rights protection. Statements by some States typically reveal a concern that this framework is being abused in order to impose Western conceptions of human rights. The argument is that Western conceptions undermine non-Western religious values and beliefs (in particular Islam).Traditional religious practices have also prompted States to enter reservations to human rights treaties.

Culture- or context-specific arguments are, however, not only based on religion, but are sometimes also drawn from a country’s economic situation (especially as regards social and economic rights) or from a culture that emphasises citizens’ duties over their rights. In the Confucian and Vedic traditions, for example, duties are supposed to be more important than rights, while in African countries the community often plays an important role in nurturing the individual.

In addition, the AIV observes that in many countries, traditional authorities – who may support harmful practices – may be stronger than the State authorities. Local State officials are often unwilling to challenge these chiefs, since the balance of power is often tilted against the State. Due to the power of local chiefs or authorities, human rights bills may sometimes even stall in parliament. Some States argue that it is not their job to change certain cultural traditions observed by conservative ethnic communities within their territory.

  1. How much legitimacy do the arguments have that are put forward in support of challenges to universality on cultural or religious grounds?

The AIV strongly believes that universality, in the sense of universal acceptance of human rights, will be reinforced if cultural variation is acknowledged. Indeed, if human rights norms leave room for cultural-specific implementations, cultures and States might be more willing to embrace the universal appeal of the international human rights framework. In other words, universality does not mean uniformity.

The AIV also holds strong views about the dynamic nature of cultures. With the right incentives, local leadership and support of local opinion formers, an overlapping consensus on the harmful character of such practices could be established, which could lead to their eventual eradication.

In the final analysis, the universality of human rights is not a ‘one-size-fits-all’ concept, but one that allows for a certain diversity of interpretations, within the margins set at international level. This raises the question of what latitude the universal human rights framework allows for cultural understandings and interpretations of universal standards. As the AIV stated in its 1998 report, the answer to this question differs from one right to another. Some non-derogable rights, such as the right to life, the right not to be subjected to torture or to inhuman or degrading treatment, and the right to recognition before the law, must be observed strictly and the provisions on them must therefore be applied uniformly. In other cases governments can be allowed some latitude to make policy regarding application, although it should always be possible to hold them accountable for their use of this latitude.

This leads once again to the question of how much latitude a State has in applying human rights law, and when has a State exceeded that latitude. It is not easy to define the exact contours of ‘permissible restrictions’ on freedoms that are often the subject of culturally relativist arguments. At European level, the European Court of Human Rights has developed what is known as the ‘margin of appreciation’ doctrine. Developing an equivalent of the margin of appreciation doctrine at global level might help to reconcile the poles of universality and diversity in the interpretation and implementation of human rights standards. Authoritative statements and interpretations made by the UN treaty bodies, not only with respect to particular cases but also in general (for example in a General Comment), could help to define what would be considered universally permissible restrictions on specific human rights. One way to develop this line of thinking is to conceive of rights as having a ‘core’ and a ‘periphery’. Whereas the core of the rights should be interpreted uniformly, the periphery could allow more scope for diversity.

  1. What is the role of civil society in this discussion and how could it influence government positions?

The AIV would stress that human rights must be respected, protected and promoted by the State, as it is the State that is the primary bearer of human rights obligations. In States with a weak human rights tradition, it is necessary to build capacity, for instance by providing human rights training to police forces and the judiciary, if human rights are to be universally respected and protected on the ground.

Yet it should be emphasised that support for civil society and grassroots human rights NGOs is key to compliance with universal human rights standards. Provided that the NGOs concerned contribute to the realisation of human rights, they can act as persuasive intermediaries between international human rights law and local practices, as they are thoroughly familiar with the grass roots, while often at the same time being part of transnational networks where a universal human rights language is spoken. Such NGOs may tap into the cultural resources of a society where human rights violations are still common, ensure that the international legal formulation is embedded in the vernacular, and then use this vernacular to effect change and ‘push the envelope’.


Recommendations

In this section, the AIV will elaborate on the Ministers’ fourth question, regarding the best approach for the Netherlands in the debate on universality.

As stated above, the AIV is of the view that human rights can indeed be considered as the accepted standard of international morality. But they should also be seen as the product of the process of universalisation. Universalisation should reduce the gap between principles and practice and covers a number of separate actions and processes that should take place within a given cultural, religious, social and political context:

  1. increasing knowledge and awareness of human rights, in governmental and nongovernmental circles, and among the different ethnicities (for example indigenous peoples and national minorities and their leaders) of which States are composed;
  2. popular acceptance of human rights as a relevant way of looking at certain issues;
  3. the implementation and legal enforcement of human rights norms;
  4. their mobilisation in addressing social concerns; and
  5. the actual realisation of human rights by all economic, political and legal means.

The AIV recommends that the Netherlands, while promoting the universality of human rights, keep the process of universalisation and its distinct components in mind. This means that in certain cases the Netherlands might consider supporting policies aimed at increasing knowledge of human rights, while in others it might support the enforcement of human rights norms, depending on the particular situation and the particular needs in a country or a locality – and always keeping in mind that in the end these different processes contribute to universalisation, which in turn leads to enhanced universality.

While promoting universality, the indivisibility of human rights should always be borne in mind. The AIV wishes to reiterate that all human rights are indivisible, interdependent and interrelated.

Because treaty ratification increases the chances that human rights will become institutionalised, the Netherlands is advised to continue persuading States of the added value of ratifying the international human rights conventions, of entering as few reservations as possible upon ratification, and of withdrawing their reservations over time.

When developing human rights policies in respect of the situation in other States, the Netherlands may want to bear in mind that top-down imposition of human rights norms that are not widely supported may sometimes be effective but will often lack the desired impact in the long run. Accordingly, resources should also be made available to support pressure from below, since laws that reflect popular ideas have more legitimacy and a greater chance of becoming effective.

In countries where local or tribal communities wield considerable power, the Netherlands could explore the possibility of entering into a dialogue both with the State authorities and with representatives of those communities. If possible, the Netherlands could also try to approach these representatives – local chiefs, elders, religious leaders, opinion makers – indirectly through funding for NGOs and grassroots organisations that engage in intercultural dialogues.

Faced with the deficiencies of supranational supervision, individual States often want to develop strategies to respond to other States’ restrictions on human rights. In its international relations, its bilateral and multilateral dialogues, and its development cooperation, it is legitimate for the Netherlands (as an individual country and as an EU Member State) to use these strategies, and on that basis to criticise the human rights records of other States and to try to improve their human rights compliance.

In doing so, however, it is important for the Netherlands to ensure that these strategies are not based solely on its own attitude to human rights (which itself is the result of a centuries-long process). Instead, such standards ought to be informed by an international consensus. Preferably, the standards should be translated into norms, practices and traditions that the State addressed can identify with. They ought to be internalised, so that citizens as well as their leaders recognise them as part of their own value system.

By linking up with the cultural foundations of human rights norms, the universality of human rights discourse could become more entrenched. This requires a sensitivity to arguments that are likely to be persuasive to a specific community or to address the particular apprehensions of the members of that community. It might for example be necessary to address religious, cultural, political or economic issues of concern and adjust the formal human rights discourse accordingly.

Translating international human rights standards into the cultural language of the country with which the discussion is taking place may at times require abandoning terminological rigour. The AIV suggests that projects that contribute to respect for human rights in the wider sense be funded irrespective of the name-tag given to them by local NGOs.

To sum up, a successful Dutch universal human rights strategy should be based on acknowledgement of cultural diversity, on a process-oriented dialogue, and on support for grassroots initiatives. Success also depends, however, on strict respect for human rights standards within the Netherlands itself, and on an even-handed approach toward human rights violators worldwide. Using double standards discredits a universal human rights strategy. The Netherlands should be willing to address concerns about its own human rights record in an open and honest dialogue and redress the situation if necessary. Also, when criticising the human rights record of other countries, the Netherlands ought to make sure that all receive their fair share of criticism. This means that the Netherlands may sometimes have to distance itself from practices of other EU Member States and allied countries such as the United States.

As regards credibility, reference may also be made to the criticism which is often made in developing countries that the West emphasises civil and political rights rather than economic, social and cultural rights and collective rights. By supporting respect for and protection and promotion of economic, social, and cultural rights in developing countries, Western States such as the Netherlands may undercut tu quoque human rights arguments, and thus contribute to universal respect for all human rights. Accordingly, the AIV recommends that the Netherlands become party to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which will allow individuals to petition the competent supervisory committee about violations of economic, social and cultural rights, once it has been adopted by the UN General Assembly.

Finally, the AIV would reiterate that respect for, and not merely tolerance of, specific cultural manifestations should pervade the entire universality discourse. A constructive dialogue, as advocated by the Minister of Foreign Affairs in his Human Rights Strategy, is more effective than an approach based on the assumption of clashing civilisations, with the human rights absolutism that entails.

To conclude, the AIV would like to address the question of whether these recommendations might – in the end – lead to a relativistic approach. This is certainly not the case. The international consensus on human rights norms is still the starting point and the outcome to be realised – or, to quote the Universal Declaration of Human Rights, the ‘common standard of achievement’. However, this standard can only be achieved if the processes of universalisation and internalisation are given the attention they deserve. Strategies based on a top-down imposition of human rights need to be complemented by a bottom-up approach. Finding a new equilibrium between these two perspectives is imperative if human rights principles are to be truly realised in practice.

Advice request

Mr. F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
Postbus 20061
2500 EB  Den Haag

 

Date     21 May 2008
Re        Request for advice on ‘Reclaiming the Universality of Human Rights’

 

Introduction

Within the various international human rights forums, the universality of human rights is being called into question by a growing number of states, and specific cultural or religious circumstances are being forcefully invoked in order to curtail that universality. In theory, the universality of human rights is endorsed by the member states of the United Nations, and hence by practically the entire international community, through their recognition of the Universal Declaration of Human Rights and ratification of the various human rights conventions. At the same time, however, other instruments, especially the Vienna Declaration of 1993, recognise the importance of particular national and regional circumstances in relation to human rights.

This trend is also noticeable in the political dialogues on human rights which the Netherlands conducts at multilateral and bilateral level: governments increasingly question the universality of human rights, putting forward cultural arguments in order to justify less than full respect for human rights.

This standpoint is recognisable at local, regional and global level, particularly in the Human Rights Council, where it manifests itself in factionalism, with the African Group and the members of the OIC taking a position contrary to Western and like-minded countries (‘the West against the rest’).

Together with its EU partners and other like-minded countries, the Netherlands must respond effectively to this undesirable erosion of human rights, so that wherever possible, any arguments that appear to condone human rights violations based on cultural relativism can be constructively refuted. However, the Netherlands’ response cannot always be based on traditional arguments whereby states are reminded of their responsibility to respect human rights, such as the ratification of the UN human rights treaties and the recognition of the Universal Declaration of Human Rights and the internationally binding obligations they entail. Such arguments carry insufficient weight in the current political debate.

A new impulse must be given to states’ unconditional obligation to respect human rights and human dignity, and thereby to the universal validity of these rights. The idea of ‘bottom-up universality’ as proposed by Professor Van Genugten in his article ‘The African move towards the adoption of the 2007 Declaration on the Rights of Indigenous Peoples: the substantive arguments behind the procedures’ could point the way forward to a vigorous defence of the universality of human rights based on an analysis of the arguments in support of ‘bottom-up universality’.

Background

The AIV report ‘Universality of Human Rights and Cultural Diversity’ (published June 1998) has already provided a thorough analysis of the academic and political developments and insights with regard to the universality of human rights and the influence of cultural factors on such issues as the implementation of human rights treaties and respect for human rights.

In that report, the AIV indicated a number of problems which could jeopardise the credibility of states which constantly emphasise the universality of human rights. One problem cited was a selective approach in responding to human rights violations. Within the Human Rights Council, the Universal Periodic Review will result in a broad analysis of the human rights situation in all UN member states, making it more difficult, in principle, for states to follow this selective approach.

In its conclusion to the 1998 report, the AIV also contends that ‘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.’

This universal core is undermined when there is no effective counterweight to the kind of cultural relativist ideas on human rights put forward in human rights forums such as the Human Rights Council and at other diplomatic levels. Some parties have sought to introduce such views into international law through resolutions, as recently happened in the Human Rights Council during the debate on the mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Under article 4C of the extended mandate, as proposed by the African Group, the Arab Group and the OIC, the Special Rapporteur will also report on the ‘abuse’ of freedom of expression for racial or religious discrimination. The article is derived from the terms of article 19 (3) of the International Covenant on Civil and Political Rights.

Policy questions

The Advisory Council on International Affairs is hereby requested to give up-to-date, supplementary advice about the above-mentioned developments and about the way in which the Netherlands can provide an effective counterweight to the growing tendency to give greater priority to the particular circumstances within an individual state than to the universal duty to respect human rights.

  1. Does the AIV recognise the trend, outlined above, towards increased infringement by states of the universality of human rights?
     
  2. In questioning the universality of human rights, what standpoints do states adopt and what arguments do they put forward in order to support them? What, in your view, are likely to be the underlying causes and motivating factors for this?
     
  3. Following on from the previous question: to what extent do these states use the agreed text on universality and national and regional particularities from the 1993 Vienna Declaration as a basis for their argumentation? Is this argument a valid one (in line with the ‘margin of appreciation’) or an attempt to evade international interference?
     
  4. How can the Netherlands – in collaboration with the EU and the international community – best respond to the standpoints and considerations presented by these states?
     
  5. Does the AIV perceive a growing discrepancy between what the governments of the states proclaim about universality and the standpoints of civil society organisations, the judiciary and other groups within those same countries? In what ways could civil society influence and possibly change the position of governments who claim local custom as justification for their views? 

We would appreciate the Council’s deliberation about these matters and its advice in relation to them.

 

Maxime Verhagen
Minister of Foreign Affairs
Bert Koenders
Minister for Development Cooperation

 

Government reactions

Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
Postbus 20061
2500 EB Den Haag

Cc: Presidents of the House of Representatives and the Senate

Date  24 March 2009
Re     Government response to the advisory report ‘Universality of Human Rights: Principles, Practice and Prospects’


Dear Mr Korthals Altes,

On behalf of the government, I would like to thank you for the advisory report entitled ‘Universality of Human Rights: Principles, Practice and Prospects’, which the Advisory Council on International Affairs (AIV) published in late November 2008 following my request for advice on this subject.1 In my own capacity and on behalf of the Minister for Development Cooperation, I have enclosed the government’s response. A copy of this letter will be forwarded to the Presidents of the House of Representatives and the Senate.

Introduction

Last year we celebrated the 60th anniversary of the document that first laid down the universal application of human rights: the Universal Declaration of Human Rights. As I wrote in my letter on the celebration of International Human Rights Day on 10 December 2008, rarely has a document had so much significance for the daily lives of people throughout the world. Human rights have become the common conscience of the world, and the Universal Declaration is therefore still as fresh and valuable as it was when it was drawn up 60 years ago. The government believes that this also applies to the principle of universality on which the Declaration is based – the idea that human rights apply to everyone throughout the world. Article 1 of the Declaration validates this principle: ‘All human beings are born free and equal in dignity and rights.’ Despite all our differences – in appearance, culture, sex, age, personal preferences and religious or other beliefs – we have an innate equality in dignity and rights. This conviction is of inestimable value and should always occupy a central place in our efforts to promote and protect human rights. Universality is therefore the key principle behind the human rights strategy, as set out in the document ‘Human dignity for all’, which was sent to the House of Representatives in November 2007.

The principle of universality is, however, the subject of discussion. And although this is nothing new – such discussion is almost as old as the Universal Declaration itself – the government has found it increasingly necessary in recent years to counter states and other actors that try to undermine the universal nature of human rights by invoking cultural and religious traditions. In this regard, the human rights strategy states: ‘The Dutch government remains of the opinion that international engagement and dialogue are possible only on the basis of universal principles. … However, this is not a position that should be defended from behind a barricade. It will require lively debate …’

To inject new, topical arguments into this debate, I asked the AIV in May 2008 to publish a report on universality, to supplement their 1998 report on this subject. In the request for advice, the AIV was asked whether it recognises that the universality of human rights is disputed by a growing number of states. It was also asked what arguments states use when challenging the universality of human rights, how the Netherlands can best respond to these arguments, and what role civil society organisations should play in influencing governments that invoke local customs.

The government welcomes the report, which provides useful insights and offers practical recommendations that are largely in keeping with the present human rights policy set out in the human rights strategy.

The report’s conclusions and recommendations are examined below, theme by theme.

The debate on universality

The AIV notes that challenges to the universality of human rights on the international stage are not very numerous: there has been little explicit denial of universality in recent years. The AIV does, however, establish that many states pay lip service to the universality of human rights while doing little or nothing to enforce respect for human rights in practice. In many cases, governments allow human rights violations to continue under the influence of local rulers. These local leaders operate outside the control of the central authority when they allow and legitimise traditional practices such as female circumcision and ritual prostitution and servitude. States may also enter reservations in respect of treaties or invoke treaty provisions that permit certain rights to be restricted in order to allow people to pursue their religious and political traditions.

The government agrees with the AIV that the broad acceptance of the universal nature of human rights is very striking and notes that universality has been reaffirmed several times in recent years. At the same time, the government would observe that it is more difficult to uphold universality as a guiding principle in international fora. The countries that oppose the universality of human rights – if not formally, at least de facto – are increasingly vocal, and their influence is growing. The government would like to emphasise that a distinction must be made between what is laid down in declarations and what takes place behind the scenes during negotiations on these declarations. For instance, although human rights are an important subject in the outcome document of the 2005 World Summit, this was the result of very laborious negotiations, and the Netherlands and like-minded countries had to work very hard to achieve this outcome. The government is convinced that the document would otherwise have looked very different. Another example concerns the negotiations during the first year of the Human Rights Council on the Council’s new supervisory mechanism: the universal periodic review (UPR). During these negotiations, certain non-Western countries argued that the UPR should allow for differentiation based on differences in culture and development. Only the persistent opposition of Western and allied countries was able to prevent this; this means that the UPR process is now the same for every country and is based on universal standards. The government would also refer to Human Rights Watch’s 2009 annual report, which says that those countries that want to undermine the international human rights system seldom express themselves in such terms. Instead, their governments say they support human rights in principle, but oppose the way in which powerful (i.e. Western) countries misuse human rights for their own purposes. In reality, they refuse to attach consequences in their own countries to the universality of human rights and wish to avoid international scrutiny.2

The government cannot therefore endorse the AIV’s view that the assumptions in the request for advice might be too defensive. It does, however, believe that when assessing states’ positions there is some benefit to distinguishing between the national government and local communities, as the AIV recommends.

‘Universality’ and ‘universalisation’

The government agrees with the AIV that the gap between principle and practice is a major problem, but has difficulty with the terminology that the AIV uses to describe this problem. In some passages, the AIV seems to assume that universality is not an a priori principle. For instance, the AIV suggests in the summary that the term ‘universality’ has an empirical content: universality increases or decreases according to the extent to which it is accepted by holders of rights. As stated in the introduction, the government regards universality – that is, the conviction that every individual is born with equal rights – to be a matter of fact, which is independent of the extent to which the principle is endorsed. Universality is not the outcome of a process, though it may be accepted to a greater or lesser extent. It is better to use another term for the acceptance process. The AIV’s term ‘universalisation’ may be useful in this regard.

The government fully agrees that efforts to promote acceptance of the universal application of human rights are an urgent necessity. That is why, in its human rights strategy, it considers the implementation of the existing human rights standards to be the core of its foreign policy on human rights. The proper way of closing the gap between principle and practice is to reform current practices while adopting universal rights as the guiding principle – and not to interpret these principles in a way that brings them more into line with existing practices. The concept of ‘universalisation’ will be considered in more detail later in this response.

Cultural diversity and policy scope for governments

The AIV report looks at several arguments that states use to undermine universality. States may take the view that universality is misused to impose Western conceptions of human rights. In addition, there are cultural or context-related arguments, based on traditional religious practices, the economic situation, or claims that a certain culture is less compatible with the idea of individual rights. Here too, the AIV rightly points to the distinction that can be made between the way in which human rights are viewed by official government bodies and by traditional authorities.

The AIV underlines the importance of respect for cultural diversity in its report. It points out that if human rights standards allow room for culture-specific applications in practice, cultures and states will be more willing to accept the universal application of the international human rights system. The AIV rejects the idea that universal implementation of human rights demands cultural uniformity.

The government shares this view, but would also emphasise the importance of clear boundaries when it comes to the scope for culture-specific applications of human rights in practice. Although cultural diversity within one’s own society and outside it must certainly be cherished, caution is required in the area of human rights. International law rightly allows scope for culturally determined interpretations of more peripheral parts of the human rights acquis. At the same time, it must be ensured that local traditions and customs are not used as an excuse for not applying fundamental rights and for casting aside key elements of the human rights acquis, whether temporarily or permanently. As described in the human rights strategy, the government believes that universality does not mean that every society should ultimately look exactly the same, but that the behaviour of government authorities towards the public should meet certain minimum requirements that are defined in terms of human rights. So this is not a plea for uniformity – after all, no two individuals or countries are exactly alike – but for a universal basis which everyone can fall back on. When determining the scope for culture-specific applications, treaty provisions should be the guide. The government would also emphasise that, as the AIV notes, countries should always explain how they have used the latitude available. This gives the UN treaty bodies an opportunity to determine the core and periphery of human rights and thereby governments’ latitude on a case-by-case basis. Given the present balance of power, the government believes it is unwise to develop the conceptual distinction between the core and periphery of certain human rights further at international level.

None of this alters the fact that support for a human rights culture will grow if the Netherlands takes account of local customs, traditions and convictions in its policy on human rights abroad. The government is aware of this, as reflected, for example, in the way it explicitly takes account of local needs, working closely with local human rights organisations when financing human rights projects. The allocation of these funds is largely in the hands of Dutch embassies, as they are particularly familiar with the human rights situation on the ground and the players involved.

The process of universalisation

A central theme of the AIV’s report is the importance of working at different levels – national and above all local – to promote acceptance of the universality of human rights. By engaging in dialogue with local and other leaders and by increasing public knowledge of human rights, a gradual process of universalisation can be promoted, from both above and below. In this regard, the AIV advises the Netherlands to take into account the universalisation process and its specific components:
a. increasing knowledge and awareness of human rights;
b. popular acceptance of human rights;
c. implementation and legal enforcement of human rights norms;
d. their mobilisation in addressing social concerns;
e. the actual realisation of human rights.

Like the AIV, the government sees worldwide acceptance of the universality of human rights as an important key to improving implementation of human rights. And the process of universalisation described by the AIV has much in common with the policy that the Netherlands is currently developing to strengthen national systems for protecting human rights worldwide. As explained in the human rights strategy, this refers to all the elements that a country requires to ensure compliance with human rights, i.e. the national human rights infrastructure. This entails not only considering how human rights must be implemented from above, but also and above all promoting the development and acceptance of ideas about human rights from below. For example, the national system for protecting human rights includes ratification of international human rights instruments, amendment of national legislation and cooperation with the UN system. In addition, effective institutions should exist to promote and protect human rights. Participation, non-discrimination and accountability should be integral parts of national policy. Lastly, all members of the public should have access to information on human rights, and there should be a free, active and independent civil society. The latter is very important for the gradual acceptance of the universal application of human rights. In the course of 2009, the government will publish a manual for embassies containing practical guidelines on how to support the various elements of the system. As already noted, the government definitely does not see the universality of human rights as something that must be established through the process of universalisation but rather as a starting point.

Support for initiatives from below

The AIV recommends that human rights policy should not concentrate exclusively on influencing governments from above, but should above all contribute to acceptance and implementation of human rights from below. Implementation of human rights norms is often frustrated because states are powerless to do anything about human rights violations that are defended by local leaders. The government agrees with the AIV that it is very important to increase knowledge of human rights and build capacity at grassroots level.

The government welcomes the attention the AIV pays to the importance of strengthening human rights from below. To supplement what has been described above, the government would like to highlight the fact that the Netherlands directs its human rights efforts to supporting local human rights organisations and explicitly seeks dialogue with local religious and other leaders. Alongside the tens of millions of euros allocated to human rights projects in the field of development cooperation, the Netherlands subsidises local and regional human rights projects worldwide every year. In 2008 a sum of about €23 million was committed to these efforts. The Netherlands also facilitated and organised various meetings between local religious leaders last year. A recent example is the interreligious conference ‘Faith in human rights’, which was held in The Hague on 9 and 10 December 2008.

The AIV advises the Netherlands, as part of its efforts to promote worldwide acceptance of human rights, to prioritise ties with the ruling culture to avoid creating a feeling that alien cultural standards and values are being imposed. In this regard, the government agrees with the AIV that when financing local human rights projects, the main focus should not be on how projects are packaged, but on their intrinsic merits. At the same time, the government would note that it is required to account for how and to what extent financing projects contributes to improving human rights – in other words, human rights funds must be spent effectively.

An effective and credible strategy

The government sets out below its response to the other recommendations for an effective and credible human rights strategy that the AIV makes in its report.

The government endorses the AIV’s view that effective criticism of human rights violations is based not on the paradigm of clashing civilisations but on the desire to establish constructive dialogue in the realisation that improving human rights worldwide is a gradual process. Human rights should not be regarded or presented as a ‘Western concept’, but as an expression of a universally shared morality, laid down in the Universal Declaration of Human Rights and other documents.

The government also accepts the AIV’s recommendation to continue reviewing critically the human rights situation in the Netherlands itself, not least to increase the credibility of its criticisms of the human rights situation in other countries. That is precisely why the Netherlands was one of the first countries to have itself assessed by the UPR; in doing so it adopted an open and receptive attitude that could serve as an example to others. The Netherlands adopts a similar cooperative attitude when it is being assessed by other international supervisory mechanisms. In the future, the government will continue to cooperate fully with UN treaty bodies and the supervisory bodies of the Council of Europe and will implement their recommendations wherever possible.

The AIV rightly notes that the credibility of Dutch human rights policy will be enhanced if the Netherlands consistently applies the same standards when pointing out shortcomings in the human rights situation in other countries. In recent years, the Netherlands has not avoided criticising its allies on human rights issues. For instance, the government has repeatedly taken the United States to task for human rights violations at Guantánamo Bay. The Netherlands has also criticised allied countries for abuses through the UPR. In the future, too, the Netherlands will not neglect critical scrutiny of other Western countries, including EU partners.

The government embraces the AIV’s recommendation to treat all human rights – civil, political, economic, social and cultural – as equal in value and the building blocks of an interdependent whole. The Netherlands is a firm advocate of the abolition of child labour, worldwide access of children (girls as well as boys) to education, and combating economic inequalities in the world. At the same time, in implementing its human rights policy, it takes account of the fact that changes in these areas are strongly connected with the recognition of civil and political freedoms: where citizens are free to defend their own interests and those of others, they are better able to persuade their governments to respect their economic, social and cultural rights.

The government is more critical of the AIV’s recommendation that its policy on human rights abroad should not be based solely on its own attitude to human rights, ‘which itself is the result of a centuries-long process’, but should take the international consensus on the core significance of the norms in question as its main starting point. The government agrees with the AIV that universalisation of human rights does not always benefit from openly propagating progressive interpretations of human rights standards. Nevertheless, the government believes that restraint in this regard is not always appropriate, as developments over the last 60 years show. For instance, thanks to decades of vigorous lobbying for recognition of women’s rights – initially a non-issue in large parts of the world – the position of women is now improving worldwide.

An example of a sensitive issue on which the Netherlands is currently campaigning internationally is that of homosexual rights. Thanks to Dutch efforts, 66 countries signed a declaration in the UN General Assembly in December 2008 calling on states to decriminalise homosexuality. The fact that this declaration, besides winning great admiration, also provoked a great deal of resistance, shows not that the Netherlands is too far ahead of the rest of the field, but rather that such an initiative was an urgent necessity. The government is therefore determined to continue fighting for the protection of the rights of homosexuals and other vulnerable groups in the years ahead. At international level, the Netherlands will continue to highlight the fact that human rights apply to all people, irrespective of their sex, ethnic background, religion or sexual orientation, even if many countries strongly oppose this. The Netherlands will continue to pursue this struggle through the UN, since it realises that recognition of universal human rights is ultimately a matter for the international community as a whole.

Lastly, the government endorses the AIV’s recommendation to continue promoting respect for human rights through traditional avenues. The AIV says that urging countries to ratify conventions enhances the institutionalisation of human rights. The government will follow the AIV’s recommendation to continue trying to persuade states of the added value of ratifying human rights conventions, of entering as few reservations as possible when doing so, and of later evaluating any reservations made and withdrawing them as quickly as possible.

Conclusion

Although explicit denials of the universality of human rights are scarce, the de facto undermining of human rights is assuming worrying forms. For example, countries notorious for human rights abuses are slowly but surely trying to erode UN supervision of worldwide implementation of human rights at country level. This calls for a forceful response on the part of the Netherlands and like-minded countries that see human rights, including situations in specific countries, as a matter for the international community as a whole. As the AIV recommends, states must not only be held to account for their conduct at government level; in addition to addressing regional and local authorities, grassroots support for a culture of human rights must be created.

In this regard, respect for existing local customs and traditions is essential. Promoting human rights does not mean sacrificing cultural diversity, but rather creating space within that diversity for respecting human rights. It is a good idea for the human rights discourse to use local concepts as far as possible, to remove any impression that alien cultural ideas are being imposed from outside. In the government’s view, the scope for doing this is however limited by what is permitted in international conventions. The boundaries must be clear. Diversity must not lead to one person – male or female, Muslim or atheist – having fewer rights than another. Our innate equality in rights must not be undermined by invoking cultural differences. The government is therefore pleased that the AIV emphasises that it does not favour a relativistic approach.

By holding governments to account internationally and creating local support, the Netherlands will continue to promote respect for human rights worldwide. A central plank of this strategy is a differentiated approach that not only helps expand knowledge and awareness of human rights from below, but also encourages states to further recognise and implement international human rights standards. Through this approach, the Netherlands will continue to actively focus attention on more controversial human rights issues, such as equal rights for homosexuals and other vulnerable groups. This is based on the firm conviction that protecting all human rights, including those of vulnerable groups, is not a product of Western thinking but a consistent application of universal human rights standards, as recognised by the entire international community 60 years ago in the Universal Declaration of Human Rights.

Yours sincerely,

 


Maxime Verhagen
Minister of Foreign Affairs
 


1 Letter dated May 2008, ref. DMH/MR-245/08.
2 Human Rights Watch World Report 2009, Introduction: ‘Taking back the initiative from the human rights spoilers’. The report can be consulted at: http://www.hrw.org/world-report-2009.
 

Press releases

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