Multiculturalism and International Law

MSc in Human Rights and Multiculturalism
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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 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.

Info session for MA International Law and Human Rights programme

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.

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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.

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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.

The Culturalization of Human Rights Law

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 , 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. Background 1. In the Vienna Declaration and Plan of Action adopted by the United Nations World Conference on Human Rights in , 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.

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 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.

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.

By: Manuel Rama-Montaldo.

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