Are human rights universal or are they dependent on cultural traditions? It is often said that the only way to advance the human rights agenda is to argue that rights are inherent and inalienable and that culture has no role to play in understanding either the content or implementation of international human rights. In response it is often argued that human rights are a Western construct not compatible with other cultures/traditions. But I have never been convinced by such arguments. And having been living in Asia for a while has made me draw a few conclusions.
The idea of universal, inherent human rights focuses on the existence of a so-called natural law, a higher moral order informed by foundational theories rooted in moral, social, political and religious ideologies. They speak to the existence and definition of human nature and what it means to have a right. These are epistemological questions that have been around for a long time.
Universality can be a tool to interfere in the internal affairs of States. And arguably, that was the intention of the human rights system: to challenge the State and its monopoly over the means to exercise power. But this intention was also balanced with the protection of State sovereignty and the principle of non-intervention, and with the empowering of States with the responsibility to protect human rights. It is not difficult to see why a constant tension exists.
The modern human rights regime represents the institutionalisation of a set of moral values. This can be seen from the myriad mechanisms: declarations, treaties, institutions, jus cogens norms, case law, custom, etc. In this sense, even for the more skeptical of critics, it is hard to deny the existence of a set of rules and obligations that protect all persons without distinction. This, however, does not stop States from entrenching human rights violations into their Constitutions or to systematically violate human rights. Often, traditions and practices, religious beliefs and historical or geographical contexts are used to justify the relativism of human rights. This line of argument often reflects the supremacy of state sovereignty.
The development of the modern human rights regime was also a political expression of the kind of governing system that ought to exist in order to guarantee the protection of individuals. When looking at the history of the human rights regime it is impossible to ignore its cultural (and political) underpinnings. For a long time there have been claims about the implicit Western bias in the way human rights instruments have developed. But this bias is less pronounced than it is often assumed. In fact, the values articulated in human rights instruments, starting with the Universal Declaration of Human Rights, are a chronological reflection of European and global values, moral lessons learnt, political ideologies, and a wide range of religious and secular traditions. Modern human rights have been influenced by Western views as much as by socialist and ‘Third-world’ views (so-called 1st generation rights, 2nd generation rights, and 3rd generation rights), both to the benefit and to the detriment of the human rights agenda.
Relativists, as they are called, often claim that universal human rights standards cannot accommodate non-Western values. Demands for group rights and cultural rights, while advancing the rights of minorities (for instance indigenous peoples), can also serve to promote the continuation of oppressive practices, as, for example, the practice of female genital mutilation as a manifestation of power politics and gender inequalities in some societies. It is for that reason that any human rights agenda cannot pretend to work in a cultural or political vacuum, least they hide national or political interest elements. Time and time again particularism and nationalism have undermined the promotion of universal human rights. Particularism speaks to different understandings of morality, of what is right and wrong, rooted in traditional practices and beliefs, and wholly context driven.
I am of the opinion that cultural relativism therefore, rather than being ignored needs to be understood in its own context, because culture has a big role to play in understanding the content of human rights and their implementation. It is true that the discourse of human rights has often become hijacked by cultural practices, religious and traditional beliefs and geopolitical conceptions. It is also often subject to domestic politics and speaks to the tensions that are often found in the way States choose (or not) to integrate international law into their domestic legislation or the way States apply the law.
Culture can be understood as tradition, national identity (both of which imply a fixed state) or as susceptible to power structures and external influences. In an evolving conception of culture, human rights can become part of culture, in turn contributing to the universalisation of human rights. But more often than not, political considerations, the primacy of the principle of sovereignty, and the tensions inherent have a bearing on the way cultures can adopt human rights values. Unfortunately this seems to be the norm. Take a look at the 1993 Bangkok declaration in which Asian countries recognised the existence of human rights. On reading this the declaration you will see that, while to most Western countries human rights are a means to an end (prosperity, etc.), for Asian countries human rights are the end itself, subject to other conditions such as economic development. The UK or Australia’s treatment of refugees and asylum seekers another example of how politics construct culture (not the other way around) in applying the law.
Cultural traditions and religious practices are often a source of gender discrimination. Arguably, any cultural tradition that allows the subjugation of half of a society, the use of violence and the constant portrayal of people as weak and worthless should be eliminated as a cultural tradition. It is, thus, not about preserving cultural traditions, it is about preserving a status of power relations. Culture can be empowering for human rights. Power politics a hindrance. Relativists often argue in favour of the latter, and hijack the evolution of culture in the process. Watching a recent National Geographic documentary about India, a marriage ceremony was explained and glorified as a celebrated cultural tradition while the (female) narrator recounted the process of symbolising the bride becoming the property of the husband and her subjugation in marriage. The whole procedure romanticised the tradition while ignoring its symbolic meaning for the perpetuation of violence against women and girls in India, an issue that has dominated international media since the brutal gang rape and death of an Indian student in New Delhi in December 2012, and countless others since.
Time and time again women’s rights, and other rights are seen as relative issues subject to cultural and religious beliefs rather than as a core human rights issue. Arguably the question should not be whether human rights are compatible with values and cultural traditions, but whether values and cultural traditions are compatible with human rights. In that case, the values of both Western and non-Western nations are put to the test.
Nonetheless, culture is the only way of understanding the content and implementation of human rights because it places those rights in the specific context. We should avoid the trap of believing that culture is fixed and learn to identify cultural values and practices that serve to perpetuate the subordination of peoples, discrimination, unfair treatment or violence, and those that promote human rights. Culture is not incompatible with human rights. Politics, power relations, lack of education and a State that fails to implement its obligations are. Ignoring the role that culture can play in advancing, as well as hindering, the human rights agenda is doing a disservice to the project of universalising human rights.