Volume 11, No 2.

The Universal Declaration of Human Rights in today’s world

Elizabeth More

In light of the persuasive, liberating force it has proven to carry for individuals and groups for over five decades, the 1948 Declaration must be cherished and kept as it is. To dismiss it as ineffective in a multicultural world would mean to abandon the search for human improvement. (Alves 2000, p.500)

… universal human rights and cultural relativism are not philosophically or morally opposed to one another. The terrain between them is fluid and rich. (Fluehr-Lobban 1998, p.1)

It is not therefore primarily a matter of trying to settle once and for all the philosophical argument between relativism and universalism in a globally satisfying way. This is probably impossible; rather, the task is to operationalise cosmopolitan democracy. (Booth 1999, p.57)

If human rights are to be truly universal and moreover effective, what is required is the consent of those on whom the obligation is really imposed: the people. (Harris-Short 2003, p.180)

1. Introduction

Arising out of the human atrocities of World War II, and the failure of minority-rights regimes under the League of Nations era (Sloane 2001), the Universal Declaration of Human Rights represented in 1948 the hope for a new future, the start of the modern ascent of global human rights, establishing a benchmark for ‘civilised conduct’ applying to all states in treating their citizens (Dunne & Wheeler 1999). While much has been gained, with a world more aware of human rights issues, commitments and rhetoric don’t always tally with reality, evident in Rwandan and Dafur genocides, Guantanamo Bay and in the ‘war on terrorism’. Often we are reminded of how power shapes international moral discourse (Dunne & Wheeler, 1999).

Today’s world clearly reveals just how difficult are understanding, agreement and compliance issues surrounding human rights, particularly involving a wide array of disciplinary bases. This is a ‘wicked problem’ (Rittel & Webber 1973). On the one hand, there appears to be general acceptance of human rights per se, and a positivist legal approach supplies some clarity. On the other, we currently confront in world history, politics and sociology an escalating disparity between states as to what the meaning and priority accorded human rights is, and whether we can ever envisage fully sharing in an agreed human rights discourse (Dunne & Wheeler 1999).

In this article, I explore the two major competing schools of thought, universalism and cultural relativism, in relation to international human rights, briefly examining philosophical, epistemological and historical aspects of the debate. I ground discussion in case studies, focusing mostly on the vexed issue of women’s rights.

I conclude that a simple black and white moral argument is certainly not sufficient, as exploration of female genital mutilation has demonstrated: taking a cross-cultural and communitarian perspective demonstrates that, as a woman and mother of a female child myself, my initial easy condemnation and belief in traditional education as a solution has been enormously challenged. Neither an extreme nihilistic cultural relativism nor an extreme universalism that permits no reasonable flexibility on cultural grounds will suffice. I come down on the side of a broad culturally inclusive universalism and concur with the argument put by Orentlicher (echoing Ignatieff) that:

The universal claims of human rights instruments are and must remain ‘self-consciously minimalist’. Their aim should be to protect human agency – not to legislate moral, political, or cultural conformity. (Orentlicher 2001, p.143)

The solution appears to be continuing efforts at appropriate cross-cultural communication and education, and a heavy emphasis on consistent involvement of grass-roots communities. This complies with the suggestions of Breitung (1996), Miller (1996) and Rajagopal (2003), and Ignatieff’s view that ‘human rights cannot go truly global unless it goes deeply local. Only when this happens can the idea of human rights achieve its radically transformative aims’ (paraphrased in Orentlicher 2001, p.157).

2. Human Rights

Instead of the earlier realist focus on international power relations, the last part of the 20th century changed its gaze to normative human rights theory, introducing the element of morality and highlighting humanity above citizenry (Chandler 2002). And, in spite of its obvious frailties, both theoretical and practical, human rights today is clearly crucial to international politics, relations and law, and an indelible part of contemporary consciousness and discourse (Steiner & Alston 2000).

With the 1948 Universal Declaration of Human Rights (UDHR) as key, we might regard the evolving universal human rights culture as taking us further in achieving a ‘true politics of common humanity’ (Booth 1999, p.61), joining Franck (Warbrick 2002, p.901) in celebrating broad international agreement on ‘decent aspirational values, such as the sanctity of life, right to democracy, participation in governance, freedom of religion and expression, the right to a decent standard of living, and the inherently equal worth of all persons’. Or, we can perceive the UDHR ‘as a widely accepted point of convergence for all micronarratives and different language games’ (Alves 2000, p.499).

There seems to be a normative consensus internationally on the list of human rights as evident in the UDHR, the subsequent International Covenants and the Vienna Declaration of 1993. What is missing is the realisation of state commitments to these (Donnelly 1999) and clarification of and agreement upon their meaning. Moreover, grave and systemic international problems remain: ‘torture, raw discrimination, corrupt process, ethnic cleansing, genocide, unspeakable poverty, political repression’ (Steiner & Alston 2000, p.vii).

It is clear that ‘“rights” are tricky, slippery things, and rights discourse is a minefield, where each conceptual step risks a detonation and self-destruction; moreover, this is so even without introducing complications allegedly generated by cultural relativism’ (Brown 1999, pp.110-11). They are dynamic rather than static and require re-examination, renewal, reconceptualisation and understanding of obstacles which hamper achieving them within and across cultures. A key issue here is the need to ground and implement human rights within diverse global cultural traditions, to attain cultural legitimacy for standards of human rights, within a balanced approach to the challenge posed to human rights universalism by cultural relativism (An-Na’im 1992). Indeed, as Lindholm (1992, p.398) rightly predicted over a decade ago: ‘In the years to come some of the most crucial intellectual, moral, and ideological battles about human rights issues may well turn on their cross-cultural intelligibility and justifiability.’ Paramount in the debate is the fact that current western human rights philosophy, politics and law centre on the individual as the pinnacle of society, while other non-western societies prize the group or community above individuals.

Gutmann (2001, pp.xi, xviii) asserts that ‘Human rights are important instruments for protecting human beings against cruelty, oppression and degradation. That’s all we need to believe to defend human rights … We have rights because we are purposive agents who should be treated as such by our fellow human beings.’

Bronkhorst (2001, p.14) defines rights as ‘primarily a legal concept, an advantage granted under a certain legal system. As a moral term, they refer to what is fair and just.’ Pogge (2002, pp.159-60) points out that conceiving human rights involves two components: comprehending human rights, and what constitutes human rights. Importantly, we must also acknowledge that ‘Human rights are not just abstract values, but a set of particular social practices to realize those values’ (Donnelly 1999, p.79).

Human rights are housed within individuals and also limit the actions of others, with democratic states charged with protecting such individual basic rights and liberties, including that of self-determination. This, from a liberal political perspective, results in pluralism and tolerance of diversity (McDonald 1992). Paradoxically, state sovereignty is both the basis for effectively implementing and enforcing human rights, and a major threat to their realisation (Donnelly 1999).

The major categories or ‘generations’ of human rights generally agreed upon include the following, the first two the ‘classics’:

* Integrity rights – to life and individual inviolability

* Civil and political rights – freedom of expression and assembly, participating in public and government activities, to public hearings by impartial tribunals

* Socio-economic rights – offering appropriate cultural and material existence

* Collective rights – community or indigenous rights such as that of development (Bronkhorst 2001; Scott 2004).

Dallmayr (2002) warns that such diverse generations of rights are not just variations on basic human rights and indeed may conflict with each other. Habermas (2002, p.209), however, is quite clear on the order: ‘From a normative standpoint, according “priority” to social and cultural basic rights does not make sense for the simple reason that such rights only serve to secure the “fair value” ... of liberal and political basic rights, that is, the factual presuppositions for the equal opportunity to exercise individual rights.’

Grounded on ideas of universality, empowerment and human centredness, the concept of human rights is considered an appropriate and vitally necessary radical framework for altering international relations and politics, including changing notions of humanitarian intervention and increasing safety, accountability and global justice (Chandler 2002).

3. History

Twining (2000-01, p.19) paints the history of the human rights regime as ‘a complex story of reaction to particular historical contingencies, genuine idealism, opportunism, protracted negotiation (not always unpressured), compromise, adjustment, and power politics’. The issue of intervention, highlighted by the Kosovo war, regarded by human rights activists as symbolising the new era of human rights enforcement, is the latest contentious issue in that regime (Chandler 2002).

Most point to Enlightenment philosophy as the birthplace of a liberal ideology highlighting the individual and providing a foundation for the concept of rights (Howard 1992). Modern human rights as norms, internationally negotiated and agreed in the UDHR (1948), arose following the horrors of World War II, with actual ratification of formal human rights conventions occurring only in the 1970s (Ignatieff 2002).

In 1993 the Vienna World Conference asserted the universality of human rights over and above cultural, religious and historical considerations, and undermined many growing anti-western criticisms (Harris-Short 2003). However, it was at this event that a new debate emerged led by Third World countries, objecting on cultural grounds to the substance rather than the notion of human rights in the UDHR and its concomitant Covenants (Robertson 1999; van Genugten 2001).

This issue had been considered previously, with the UDHR embedded in a real concern with cultural diversity for a legitimate and agreed universal setting of human rights standards, mindful of the cultural bases for standards and values. However, the near universality of signatories to the international human rights regime does not, of course, mean human rights universalisation, especially with differences in formal acceptance, ratification, and many significant reservations (Twining 2000-01). Furthermore, we should recognise that, while cross-cultural debate may have grounded the UDHR, such debate occurred within the then structures of international power relations and may not have reflected genuine views from less powerful delegates (An-Na’im 1992).

So, since its inception, the UDHR has been mired in controversy. Theoretical criticism includes reactionary, communist, communitarian and pragmatist criticisms. Criticism that is politically and ideologically motivated includes socialist, Confucianist, African and religious fundamentalist, as well as unaligned criticisms from developing countries. Thematically, these criticisms focus on the internal cohesion of the UDHR; problems with interpreting it because of few precise definitions; cultural relativism; and its sustainability, given globalisation and changes on the world stage (Bronkhorst 2001).

4. Universalism

Dunne and Wheeler (1999, p.4) look at justification of rights, as indicated in Figure 1, highlighting the dominant liberal natural rights square with universal rights for all, based on natural law and common humanity, and devoid of cultural difference:

Cultural relativism universalism

Communitarian pragmatism	Cosmopolitan pragmatism
Traditional communitarianism	Liberal natural rights

Source: Dunn & Wheeler (1999, p.4)

Such rights an individual holds as inalienable and undifferentiated, regardless of cultural identity (Sloane 2001). Dunne and Wheeler (1999, p.7) paint a simple universal picture: ‘It is wrong to torture, starve, humiliate and hurt others. Human rights are not a matter of opinion, cultural prejudice or one community’s story as opposed to another’s; they are a response to these “universal social facts”.’ Tilley (2000, p.1) takes us further in differentiating universalism from cultural relativism:

* Cultural Relativism: Although for every culture some moral judgments are valid, no moral judgment is universally valid. Every moral judgment is culturally relative.

* Universalism: Some moral judgments are universally valid.

Support for universalism adopts a macro perspective. As Pogge (2002, p.177) suggests:

… we must aspire to a single, universal standard which all persons and peoples can accept as the basis for moral judgments about the global order that constrains and conditions human life everywhere.

Criticism of this perspective points to arrogance:

Their insistence on a single, simple set of universal values, and their own historically given part in enforcing them on others, smacks of arrogance and threatens to foreclose still necessary debates about what human rights we have. (Owen 2002, p.3)

Booth (1999), moreover, is critical of a universalism apparently utopian but actually dangerous and totalitarian, in:

* Possessing an essentialist view of human nature

* Concealing the dictate of western values

* Producing unhealthy homogeneity, and

* Having a flawed basis in non-existent universal values.

5. Cultural Relativism

Against the universalism that characterises the discourse of human rights, cultural relativism insists that cultural context determines pluralism in human rights values and practices (Fluehr-Lobban 1998; Sloane 2001). Broader culturalism consists of:

the interrelated approaches of cultural essentialism (or reductionism), cultural determinism and cultural relativism. It turns culture – or cultures – into the trump card in any debate about human rights, or indeed world politics. [It emphasises] the uniqueness and exclusivity of each culture … Cultural relativism argues that each culture or society possesses its own rationality, coherence and set of values, and it is in these terms only that one can properly interpret the organization, customs and beliefs (including ideas about human rights) of that culture or society. (Booth 1999, pp.36, 37)

An-Na’im (1992, pp.2-3, 23) provides a broad definition of culture:

the totality of values, institutions and forms of behavior transmitted within a society … this wide conception of culture covers Weltanschauung [world view], ideologies and cognitive behavior … culture is a primary force in the socialization of individuals and a major determinant of the consciousness and experience of the community.

Cultural concerns are two sided – upholding one’s cultures and traditions but also protection from cultural imperialism. Culture also performs multiple roles: culture versus rights, rights to culture, rights as culture, and culture as a way of improving understanding and analysis of rights processes as ‘situated social action’ (Cowan, Dembour & Wilson 2001).

Who defines culture in a society and the role played by state governments is important, as the powerful control cultural symbols to uphold their own interests. Indeed, cultural relativism is frequently regarded as preventing justice and moral judgements, and heading down the slippery slope towards nihilism (An-Na’im 1992). As Harris-Short (2003, p.167) explains: ‘the potential distortion of culture as presented by state delegates on the international stage is compounded by the exclusion of weak, marginalized groups, such as women, from the internal processes of national culture building.’

We can discover five relativist positions:

(a) Strong cultural relativism with rights depending on culture instead of universal norms

(b) Acceptance of cultural differences but with universal norms based in a western view of human rights

(c) Moderate cultural relativism finding a common core of human rights in the overlapping values of diverse cultures

(d) Harmonising cultural pluralism to international standards through internally re-interpreting cultural traditions, and

(e) Internal-cultural discourse based in an enriched view of rights which may lead to a new version of universalism (Twining 2000-01).

Booth (1999) outlines key problems of culturalism. It:

* Prevents comparison among cultures and societies

* Overstates the self-contained nature of societies

* Privileges traditionalism, thereby often upholding the power of elites

* Moves cultural authenticity beyond culture to politics, and

* Fails to take account of how culture is contested from within, thereby making unclear to whom/what human rights are supposed to connect.

Furthermore, while maintaining that West is not necessarily best and, indeed, that no single political power knows all, Booth argues that cultural relativism per se is both empirically falsifying and ethically flawed, leading in its extreme to ‘ethnocentric blindness’ and assisting the corruption of power. We should also heed his rejection of cultural exclusivity, which, in the face of emancipatory values, ends up privileging traditional ones, leading us to ask just how much diversity is tolerable.

6. Communitarianism

While we find different concepts of the self across diverse cultures (McDonald 1992), the difficulty of interpreting human rights lies in its emphasis on the individual, autonomy and the secular. This is at the heart of conflict between West and East. The Asian perspective, grounded in Confucian philosophy, places duties before rights, grounds its hierarchy of rights in community, and upholds social cohesion above what is perceived as the dysfunctional consequences of a legal order based on individualism (Habermas 2002).

A communitarian view places community wellbeing above the pursuit of self-interest (Bronkhorst 2001), seeing community as the locus of rights rather than common humanity as an abstract notion, with community above freedom (Brown 1999; Bell 2005; Farrelly 2004). The idea of an individual with inalienable rights is inconceivable for communities where morality is defined by familial responsibilities and communal duties (Dunne & Wheeler 1999).

In Figure 1, communitarian pragmatism, as evident in the work of Brown (1999), shows us how we ought to live within an ethical community’s confines. It relates to the work of Rorty, who sees rights as a narrative of liberal societies but believes we can defend the values of human rights through sharing our capacity for experiencing pain and suffering (Dunne & Wheeler 1999).

Although group rights are already incorporated into international law in terms of states rights and corporations rights (Buchanan 2003), the notions of broader group rights, as for indigenous peoples and ethnic groups, is a divisive one (Leary 1992). With such group rights the emphasis is on the ‘us’ rather than the ‘me’, with the group structuring personal identity, often in a non-voluntary manner through birth rather than persuasion (McDonald 1992).

There are dangers in elevating collective rights above individual rights, when they turn into exclusivist rights or claims of group superiority to justify genocidal violence on the basis of ethnic superiority and purity; or, with religious fundamentalism, discriminating among groups on the basis of religion (Howard 1992; Donnelly 1999). Furthermore, the control within cohesive and apparently united communitarian societies leads to stagnation across social, cultural and economic dimensions (Franck 1997). And, as Li (2001) points out, individual rights are regarded as anti-communal in Asia, the issue confused through collapsing ‘community’ into the state and that state into the regime.

Some, however, do not envisage the need to choose between individual and community:

The choice between ‘individualist’ and ‘collectivist’ approaches disappears once we approach fundamental legal concepts with an eye toward the dialectical unity of individuation and socialization processes. Because even legal persons are individuated only on the path to socialization, the integrity of individual persons can be protected only together with the free access to those interpersonal relationships and cultural traditions in which they can maintain their identities. Without this kind of ‘communitarianism’, a properly understood individualism remains incomplete. (Habermas 2002, pp.209-10)

7. Conflict

The conflict between human rights norms in the UDHR and traditional customs and practices ground the debate between universalist and cultural relativist. Many problems emanate from religion and gender.

For example, under Islamic rule, punishment for theft is amputation of the right hand. Under Muslim Shari’a law, for the universalist, this would appear cruel, inhuman and degrading, and therefore in conflict with the UDHR. However, given the religious belief in an afterlife, considered one’s real life, and as God doesn’t inflict the same punishment twice, one’s path into that other life is made easier by earthly punishment far less severe (An-Na’im 1992). Aside from the religious argument, societal arguments tend to reflect those in the West, rationalising the benefits both to the individual thief in terms of punishment, reform and rehabilitation, and societal benefits in terms of safeguards and deterrents. Moreover, such punishment serves, as in the West, to confirm social norms and order (Howard 1992).

In Australia, the Aboriginal custom of spearing an offender by members of a victim’s family is regarded as a lesser punishment than lengthy incarceration in jail. While customary indigenous punishments have been refused previously, in 1994 a Northern Territory judge incorporated this punishment as part of the court’s sentencing options for an Aboriginal man convicted of manslaughter and given a three-year jail term. As Garkawe (1995, pp.13-14) explains:

Knowingly or unknowingly, what Chief Justice Martin’s ruling has done is to allow the cultural relativist paradigm to be given full effect, by incorporating well-established and genuine customary Aboriginal punishments as a sentencing option available to the court.

However, Parekh’s (1999) explanation of a non-ethnocentric universalist response to such punishment as inhuman (albeit to the Muslim one of stoning a convicted rapist to death), demonstrates the flaws in this approach to crime. He argues convincingly that a criminal’s human dignity is not forfeited by a single deed; that there is the alternative possibility of reform and reintegration, or isolation; that such acts don’t work as deterrents; and that such acts brutalise us and reduce commitment to respect for human dignity.

Issues of punishment are problematic enough. Nevertheless, it would seem from the literature that globally women and female children have suffered the most pervasive and often least acknowledged violation of human rights (Ashworth 1999). Indeed, Afary (2004) sees this century as one of gender wars, a fight over controlling the minds and bodies of women, spurred by the rise of Islamist and nationalist movements, bringing a range of attacks from enhanced restrictions (e.g. virginity tests for high school girls in Turkey) to atrocities of rape and honor crimes.

While 1981 marked the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), reservations (as in adherence to Shari’a law) ensure that equal treatment of women under international law is rhetoric rather than reality (Robertson 1999). For example, under Islamic rule, it remains the case that ‘Notions of women’s inferiority are deeply embedded in the character and attitudes of both women and men from early childhood’ (An-Nai’im 1990, p.394). Consequently, as Moller and Beneditti (2003, p.1) claim: ‘The argument of cultural relativism, at its extreme, negates this very notion of fundamental rights for women … [and is applied] most often in the area of women’s rights.’

Much the same is true of implementing and punishing violations of the UN Convention on the Rights of the Child (1990), especially to abolishing ‘traditional practices prejudicial to the health of children’, which goes to the heart of the cultural relativist argument (Robertson 1999). The Convention has almost universal acceptance, though with numerous reservations, particularly by Islamic states insisting on upholding their traditional religious values (Harris-Short 2003), many directly affecting female children.

Indeed, when we look at the catalogue of crimes against women and girls, we find a litany of appalling violations against their human rights – sexual abuse, under-age marriage, child prostitution, trafficking, beatings, sexual harassment, genital mutilation, denial of employment and educational opportunities, nutritional taboos, stoning, female infanticide, burning of widows, wife-battering, starving, rape, and denial of property rights (Ashworth 1999; Office of the High Commissioner for Human Rights Fact Sheet No. 23). Human rights rhetoric turns to myth, reinforced by new global movements based on group superiority, many ensuring furthering female subordination (Donnelly 1999). This comes when the feminist movement had begun to convince the world that human rights are neither gender neutral nor a western imperialist tool.

Control over cultural practices and symbols is perhaps best exemplified by the ongoing, often emotional, debate concerning female genital mutilation (FGM), a topic frequently used to explore the tension between universalism and cultural relativism (Steiner & Alston 2000). This is reflected in the view that ‘excision seen from the physical standpoint is a barbarous and inhuman practice but, when considered from the cultural standpoint, it retains an initiatory, educational and sexual value, which should be safeguarded’ (Congo Reports as quoted in Harris-Short 2003, p.140). The practice was condemned as harmful in 1993 at the Vienna Conference, regarded as violating the rights of children and women who suffer its consequences for life (Fluehr-Lobban 1998). The practice persists, despite legislation, with mothers endorsing it, believing it allows their daughters a future as women. It endures even in migrant populations, as Dembour’s (2001) sobering paper on French excision trials demonstrates.

The only equivalent to male circumcision is ‘sunna’, removing the clitoral prepuce. Female excision and infibulation are irrevocable amputations of the genital parts and can therefore be called mutilation. Dominant rationales include suppression of female sexuality, ensuring chastity and monogamy, religion, cleanliness, initiation, and protection against rape. Evidence and logic confirm problems with such post-hoc rationales for the custom, including the fact that it is not supported by the Koran. From a health perspective, the practice is appalling, always involving pain and trauma, and often leading to haemorrhaging, infection, tetanus, cysts, sterility, pain during intercourse, complications in childbirth, and sometimes death (WHO 1986; Mountis 1996; Dembour 2001).

Given the practice occurs mostly in poor communities where social support, acceptance and marriagability are paramount, it is not surprising that among the strongest proponents are the victims themselves (Boulware-Miller 1985).¹ As Mountis (1996, p.1) suggests: ‘women all over the world believe in and perpetuate the roles that culture, tradition, and religion demand that they play. Moreover, given the choice, many women would decide not to abandon the traditions that they were socialized to accept.’

Further justification is communitarian, the practice regarded as culturally vital to the community, promoting ethnic identity and belonging, especially where colonial rule has occurred (Mountis 1996; Abusharaf 2001). Others argue it affirms a woman’s value in traditional society, shows preparedness through courage for marriage, provides membership of an ‘age-set’, makes one into a woman, and enables women to find husbands (Merwine 1993; Dembour 2001). Abusharaf (2001, p.2) characterises FGM as ‘a vicious act of mutilation and injury, or a virtuous act of purity and rectitude’. Her research on the issue reveals women’s narratives of the ‘virtuous act’, and shows dominant norms, ideologies and politics about femininity and sexuality. Her research subjects point to acceptance on the basis of aesthetic norms of beauty, liberation of a woman’s body from the perceived masculinity of the clitoris, cleanliness and purification, empowerment, self-mastery over sexual desire, power with spouses, and marriageability. Abusharaf (2001, p.12) emphasises communitarianism in discovering the relational instead of individual context of the rite – collegial and community based: ‘The acceptance of “customs” prompts many … to continue the practice in order to secure social belonging to the community, kinship identification, and loyalty.’

Yet, if ‘Women “consent” to such practices because the alternative is even more painful – a life of solitude, humiliation, and deprivation’ (Tamir 1996, p.423), this is problematic. Moreover, informed choice is virtually non-existent for female children, given the procedure can occur at any age from one week to puberty. They are community members in a non-voluntary manner, often in communities without any notion of children’s rights. Certainly, the trauma is not chosen: ‘panic and shock from extreme pain, biting through the tongue, convulsions, necessity for six adults to hold down an eight-year-old, and death – indicate a practice comparable to torture’ (Minority Rights Group International 1992).²

It is unclear to what extent there is social conditioning by communities regarding this practice, although one imagines that Wenger’s (1998) ‘communities of practice’ could well explain it. Certainly:

When people grow up with a specific body of beliefs and practices, they generally get attached to and feel at home with them … However, this does not mean that the prevailing system of beliefs and practices is good for most of them or even for the society as a whole. (Parekh 1999, p.135)

Or, as Wright (2001, p.89) suggests: ‘the fact that a practice is sanctioned by culture should not in and of itself be used as an excuse to condone the reality of suffering and disempowerment that may result.’ From a feminist perspective, and without falling into the trap of false consciousness, one could argue about essentialising culture itself, and consider issues of control, power relationships, intra-cultural coercion, negation of intra-cultural difference, and cultural change (Higgins 1996).

As with abortion worldwide, illegality can sometimes lead to worse problems when such cultural practices are forced underground. Such illegal practices demonstrate difficulties with a state’s desire to uphold international legislation being undermined by a community’s failure to agree to destroy its cultural tradition and practices, and reinforced by a difficult legal system for victims, often regarded as imperialist (Harris-Short 2003).

So universalist solutions cannot rely solely on international conventions, or even on the work of the UN Special Working Group on Traditional Practices; nor on debates over cultural relativism versus universalism (Breitung 1996). Instead, options include replacing the practice instead of just repressing it, offering new ways for attaining social status, respectability and approval, and finding alternative income sources for those performing the rite. WHO has opposed medicalisation of the rite (WHO 1986). One can emphasise the right to health angle, being careful not to suggest poor parenting, and find ways to overcome the perceptions of social, economic, and cultural benefits of the rite, and concomitant social and cultural pressures for continuation (Boulware-Miller 1985). CEDAW (1994) also emphasises education, the support of women’s organisations, the role of public figures and bodies influencing attitudes, and institutionalising health strategies.

Using crucial grass-roots strategies in one Ugandan tribe, the elders reduced the practice by 36 percent, largely through educating parents and girls (with support from the UN) (Crossette 1998). In Muslim Tunisia change occurred by rejecting extreme universalism or relativism, and working through local women’s rights groups, NGOs and legal reform (Miller 1996). In Kenya alternative rites have replaced physical mutilation and reduced FGM by 70 percent (Ibhawoh 2000). These examples demonstrate liberal value pluralism, working within cultural traditions, encompassing both community and individual demands, and protecting dignity and human rights (Gutmann 2001, p.xxi).³

8. Dealing with Dichotomy?

Many writers posit improved communication, cross-cultural dialogue, intra-cultural debate and change, understanding of the other, and education, as the basis for moving forwards and finding agreed values in the human rights debate (An-Na’im 1992; Dunne & Wheeler 1999; Parekh 1999). But these should break through the popular stereotypes of East versus West, North versus South, and Islamic versus non-Islamic (van Genugten 2001), as well as recognising differences within and across cultures (Brown 1999). For others, accepting contextualisation of practices doesn’t mean the moral equality of all contexts (Brown 1999).

Anthropologists emphasise grounding discourse in the reality of human lives, incorporating a non-essentialising pluralism that escapes being universalist or relativist, while admitting that, in traversing moral and political life, we sometimes accept being torn between these two extremes of arrogance and indifference (Cowan et al 2001).

Parekh (1999, pp.151, 152, 153, 154), advocating that universal values be culturally mediated while retaining their normative and critical drive, suggests:

* Firstly, universal values can be understood in a variety of ways, ranging from the minimalist to the maximalist

* Secondly, since universal values are necessarily general and relatively indeterminate, they should as far as possible be articulated in the language of norms

* Thirdly, we should not confuse values with particular institutional mechanisms

* Fourthly, since every society enjoys the moral freedom to interpret and prioritise the agreed body of universal values, we cannot condemn its practices simply because they are different from or offend against ours, and

* Finally, we might encourage regional arrangements for defining and enforcing universal values.

Recent research reveals ‘the inherent limitations and fundamental weaknesses of an international legal system founded on a “society of states” in which the voices of the local and particular are effectively silenced’ (Harris-Short 2003, p.134). How best then to hear such voices? In discussing female genital mutilation, we saw some successes in replacing the practice, with states using local groups to ensure the grass-roots level of family and village communities are involved with change from within rather than rejected change from without (Harris-Short 2003).

This concurs with what An-Na’im (1992, p.3) has advocated, arguing a universalism of interests, qualities, values, traits and concerns as a basis for human rights in a bottom-up approach with ‘internal cultural discourse and cross-cultural dialogue as a means to enhancing the universal legitimacy of human rights’. Here, replacing harmful traditional practices by alternatives, and stressing children’s obligations as well as rights, a community upholds its cultural tradition and identity (Harris-Short 2003).

Of course, those most potent in upholding human rights from a universal perspective must acknowledge their own origins in a national, ideological and resourcing sense. They should also look within their own societies and better earn the credibility and authority required from those they seek to assist, by engaging further with their ‘wronged’ audiences (Owen 2002). The West cannot afford to extend its hypocrisy and complacency (Booth 1999), evident close to home as well as overseas in the treatment of indigenous peoples, and those in the ‘war on terror’. Moreover, while FGM, genocide and the like capture the mass media and our hearts instantly, it is important we remember that ‘most of the current underfulfilment of human rights is more or less directly connected to poverty’, with the West bearing much of the responsibility (Pogge 2002, p.152).

9. Conclusion

We should not ask too much of human rights, not regard them as the magic bullet for resolving our contemporary political ills (Brown 1999). They are not ‘a panacea for all human suffering or … the exclusive mechanism for promoting a world community conducive to human dignity’ (Sloane 2001, p.5). Certainly Singer’s (2002) call for an ethical foundation to move us beyond national boundaries into becoming a single world community may currently be too demanding.

Yet we can agree that the evolution of international human rights law, in constructing a regulative human rights ideal, has been significant and, in spite of ongoing gaps between human rights principles and state practices, despite extreme universalists and relativists, much has been achieved (Donnelly 1999; Scott 2004).

We might also agree that the UDHR has provided a foundation for constructing human rights (Bronkhorst 2001), remaining significant with its baseline for setting the human rights agenda in international consciousness and law, and generating further conventions, declarations and changes to the concept of human rights worldwide since its inception.

Nevertheless, while we seem to have arrived at a global appreciation and acceptance of the broad notion of human rights (Bell 2005), conflict continues over the substance of the concept, including the tension between a western emphasis on civil and political rights, and those socialist and/or developing states stressing rights that are economic, social and cultural (Pogge 2002). Clearly, in recent humanitarian interventions to protect human rights, the West prevails in ideological arguments, power and politics. This is confirmed in Rajagopal’s (2003) exploration of Third World resistance and development, revealing discourses that are alternative to that of ‘human rights’, and which acknowledge contributions made by that world to the dominant discourse.

Finally, I side with a broad and flexible universalism, remembering the concept of human rights itself is a cultural product (Pahuja 2004). Indeed, I concur with Sloane (2001, p.24):

Universal human rights law … is maximally inclusive. Within limits dictated by the autonomy principle, international human rights law accommodates the greatest diversity of alternative cultural conceptions of human dignity; … it is the most tolerant of cultural pluralism. Second, [it] is the uniquely appropriate mechanism to counterbalance the threats to human dignity posed by the nation-state, its offshoots, and its instrumentalities. To acknowledge the universality of human rights, then, is not to deny cultural pluralism or the relativity of value. It is to recognize the normative force of the system of international human rights in the face of cultural relativist challenges – which, in the end, appear to state little more than demands for international legal tolerance of intolerance.

Universalism in human rights must be infused with cultural sensitivity, with the capacity for diversity, but with ‘an independent moral standard which is not reducible to cultural particularism’ (Dunne & Wheeler 1999, p.12). So, the debate should not be a contest between the two perspectives, nor bogged down in human rights ancestry (Booth 1999). Rather, it should be a dialogue.

Professor Elizabeth More is Deputy Vice-Chancellor (Administration) at Macquarie University, Australia, and a member of the International Advisory Board of The Journal of International Communication. Previously Deputy Vice-Chancellor at the University of Canberra and Director of the Macquarie Graduate School of Management, she has focused on communication and management in much of her research history. She has also been President of the Australian and New Zealand Communication Association, and of the Australian and New Zealand Academy of Management. This article is an outcome of recent work in international law.

NOTES

1. This is similar to Thai children engaged in prostitution who often eschew their rights because they are financially supporting their families, without alternatives readily at hand – an issue of poverty rather than culture (Montgomery 2001).

2. In Lesotho, however, where the practice is defended on the grounds of health and culture, supposedly children are to decide at 21 whether they wish to be circumcised and this is done with ‘proper medication’ (Harris-Short 2003).

3. Of course, notions of beauty remind us that the West is not immune to practices of physical mutilation. These include braces, body piercing, tattooing, dieting and cosmetic surgery, and ‘clitoradectomies … openly performed on children and women in England and the United States as late as 1945 as a “cure” for masturbation and “promiscuity”’ (Hayter 1984, p.416; Tamir 1996). Indeed, Wright (2001) describes a 1998 edition of Australia’s Cosmopolitan magazine which covered genital surgery for enhancing sexual pleasure and aesthetics, including labioplasty and clitoriplasty, similar to FGM discussed above. This is an important reminder given Visweswaran’s (2004, p.484) argument that ‘the language of universal feminism and human rights recreates patterns of cultural deviance which fall disproportionately upon some nations and geographical areas, and not upon others’.

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