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Asia-PacificJournalon Human Rights and the Law 1: 67-84, 2006.

@2006 Koninklike Brill NV. Printedin the Netherlands

THE FALLACIES IN THE "UNIVERSALISM

VERSUS CULTURAL RELATIVISM" DEBATE IN

HUMAN RIGHTS LAW
Fernand de Varennes*

1. Introduction
Human rights are a "Western" construct which do not always sit
comfortably within the confines of many Asian societies. This view often
leads to the assumption that the "idea" of human rights is somehow more
the prerogative of Western societies. This is not only oversimplistic, it is
also based on an ignorance of Asian writings and traditions from which
one can find the same "seeds" and inspirations for what we call today
human rights.
The Qu'ran, which is not only a holy book but also a book of law, contains
sections dealing with equality, freedom of religion, and the right to
property, as did other philosophical and legal sources throughout Asia.
While not necessarily using the words "human rights", they were
nevertheless based on a sense of justice and humanity that are essential
building blocks for what are considered today human rights standards.
This article proposes that these assumptions need to be examined anew in
light of a more detached historical and legal perspective - one which is not
exclusively "Western". It will attempt to highlight a few of he moral and
philosophical underpinnings of international human rights which are
closely linked to Asian traditions, and not intrinsically alien to them.
Finally, it will proceed with a critical examination of the whole debate
surrounding the universality of human rights and cultural relativism,
showing that much of the debate is actually obscured by a failure to fully
understand the nature and content of international human rights. It will be
suggested that many of these international standards are capable of taking

* Associate Professor, School of Law, Murdoch University.

UNIVERSALISM VERSUS CULTURAL RELATIVISM

into account cultural and societal particularities while not affecting their
universal application.
2.

Are Human Rights a Western Invention and Imposition - A Brief

Overview of the Emergence of International Human Rights

Contrary to what many people may believe, the first attempts to have
human rights incorporated as a universal and binding international rule in
the 20h Century did not come from Western States. It was on the contrary
an Asian country, Japan, which on 13 February 1919 attempted to have the
League of Nations Covenant approve an amendment to Article 21 with this
first draft:
The equality of nations being a basic principle of the League of
Nations, the High Contracting Parties agree to accord, as soon as
possible, to all alien nationals as states members of the League,
equal and just treatment in every respect, making no distinction,
either in law or in fact, of account of their race and nationality.'
The main opponents of this first attempt to recognise equality and prohibit
discrimination in international law was vehemently opposed by Australia,
Britain, Greece, Poland and the United States, states which today many
people would have thought naturally and automatically supportive of the
ideology of human rights. The truth is in fact quite different.
This equality clause was not strictly speaking universal, as it only would
have applied to citizens of Member States on the League of Nations.
Additionally, it was most certainly linked to the Japanese frustrations at
the discrimination and humiliation that they faced from Western colonial
authorities who dominated much of Asia and the rest of the world at the
time, effectively locking out the Japanese from what they concerned their
own backyard.
What is most telling however is that for many from the West, the idea that
this most fundamental of human rights might be legally enforceable was
completely unacceptable, even alien to their Western sensibilities. The
reaction of British Foreign Secretary Lord Balfour about the clause serves
to show how it certainly was not true at beginning of the 20 th Century that

1 Margaret Macmillan (2003), Paris 1919: Six Months that Changed the World, Random
House, New York.

FERNAND DE VARENNES

human rights were yet an accepted constituent of Western legal and

political thought:
The notion that all men were created equal was an interesting one,
he found, but he did not believe it. You could scarcely say that a
man in Central Africa was equal to a European.
Some of the greatest opposition came from Australian Prime Minister
Billy Hughes, with the support of the Prime Minister of New Zealand,
William Massey. The threat of such a clause to the "White Australia"
immigration policy was evident, and as one point a compromise was
offered which would have exempted national immigration policies. A
much further watered-down version was subsequently proposed by the
Japanese, and despite a high level of support (from China and many
Western Member States), the clause was not approved.2
On the one hand, it cannot be denied that the ideology of human rights owe
much to Western thinkers such as Jean-Jacques Rousseau, John Stuart
Mills and others. On the other hand, this incident also demonstrates that
Western states have not always been overly receptive to acknowledging
human rights as legally binding obligations that would actually limit their
sovereignty. To have human rights standards restrict the powers of
government also conflicted with a well-established Western political
principle, the absolute sovereignty of the state as evolved in Europe after
the 1 5 th Century.
In its purest form, what happened before the Second World War was that
the concept of human rights, supposed to be the foundation of Western
society, collided directly with that other great creation of Western political
and philosophical thought, state sovereignty. This can once again be seen
in the comments of the British delegate to the League of Nations, Lord
Robert Cecil, as to the reasons why Western countries had to reject the
Japanese proposal of including an equality provision in the League treaty:
[It would mean] encroaching upon the sovereignty of states
members of the League... [opening] the door to serious
controversy and to interference in the domestic affairs of states...
Ironically, a majority (11 out of 16) of the delegates actually voted in favour of the
Japanese amendment. But U.S. President Woodrow Wilson, who was chairing the 1919
session, ruled that the amendment had not been accepted because important issues needed
to be unanimously approved.
2

UNIVERSALISM VERSUS CULTURAL RELATIVISM

The rejection of the Japanese attempt in 1919 by Western countries such as

Australia, Britain, and the United States shows that immediately after the
First World War, many Western countries in fact rejected the legal concept
of international human rights because it contradicted what many in these
countries felt was a much more important principle, the sovereignty of the
state. The ideology of international human rights, which is a recognition
that certain moral and social values are above state sovereignty, was totally
unacceptable to a number of Western societies and ideology at the time and still causes some anguish in some of these states.
There were of course economic and political reasons for the Japanese
proposal, but still they were proposing for the first time that a limited
human right obligation should be a legal rule applicable to everyone.
Western states refused this at the time. They had economic interests to
protect, but also they were not ready to accept the idea that the sovereignty
of the state could be tempered by moral imperatives from the outside. One
could even suggest that some Western countries still have problems
accepting this: part of the resistance in the United States to the creation of
a permanent International Criminal Court, is that the United States would
lose some of its sovereignty, and that American citizens would come under
the jurisdiction of "foreign judges". In some ways, these are some of the
same arguments used against the Japanese proposal in 1919 to ban racial
discrimination.
This mainly Western view, that state sovereignty overrode any kind of
human rights obligations, came to change at the time of the Second World
War and to lead to a situation where East and West, Asian, African and
European, could find common moral, philosophical and legal grounds for a
universal code of basic human rights which was neither uniquely Western
or Asian.
After the Second World War, Western countries in particular seem to have
realised that human rights had to be part of the international system, and
that perhaps it had been short-sighted to have rejected earlier attempts to
incorporate these under the League of Nations:
The idea thus began to emerge that one significant cause of the
war lay in Hitler's contempt for human rights and freedoms. If
then, a repetition of such a catastrophe were to be avoided, there
would have to be an awareness of the importance of the
interdependence of peace and human rights, and action after the

FERNAND DE VARENNES

war would be needed to ensure that the attainment of these dual

objectives would become an essential priority for all states and for
the international community as a whole.3
The end of World War II signalled a turning point, at least from the point
of view of the resistance of those Western states which had objected to
legally-binding human rights stands. There then emerged an
acknowledgment that it was no longer tolerable to maintain that states had
absolute sovereignty in legal terms in the way they dealt with their own
population, given modern technological abilities in an interdependent in a
global community. Quite clearly this could - and had - lead to instability
within the international community, as other states would be tempted to
intervene if there were persecutions, genocide or other atrocities
committed against other people.
So there had to be a "code of conduct" to maintain peace, one of which
involves the recognition of some minimal guarantees for all human beings,
what we recognize today as not only moral or philosophical standards, but
legally binding human rights.
In this context, little by little, a renewed natural-law doctrine
began to gain currency: the idea that respect for human rights
(along with the maintenance of peace) ought to constitute the point
of no return for the new world community that would emerge... 4
The great inspirational document for later treaties dealing with
international human rights is the United Nations' Universal Declaration of
Human Rights. Here, once again, there is often the mistaken belief that the
document mainly reflects Western values, when in reality it is a product
from a variety of traditions from around the world. Of the 58 countries
participating in its genesis, 20 were from Latin America, 4 African and 14
Asian. Non-European countries were therefore very much a part of this
process. At the time of the drafting of the Universal Declaration, there
were no strong differing viewpoints because of the general nature of the
Declaration, nor any no fundamental problems with the broad principles.
There was quite a bit of input by non-Western states, and some of the
rights such as the protection of minorities and self-determination which,
although they did not make it in the Universal Declaration, were first
3 Antonio Cassesse (1990), Human Rights in a Changing World, Polity Press, Cambridge,

p. 29.
4 Id.

UNIVERSALISM VERSUS CULTURAL RELATIVISM

raised during the drafting of the Declaration and were eventually to

become rights in international law, through the efforts of socialist and nonWestern states. Even the right to equality, which many assume is so
intimately connected to Western legal thinking, was mainly included in the
Declaration through the efforts of Socialist and non-Western states
including Asian.
Furthermore, the Universal Declaration contains a series of economic and
social rights thanks to the efforts of socialist and non-Western states, so in
effect the Declaration is the result of a confrontation and compromise
between different cultural, moral and political traditions.
Nevertheless, the West proposed proclaiming at the world level
only the civil and political rights, and only in the essentially
individualistic conception they had had in the eighteenth and
nineteenth centuries. It was only in a second stage, given the
hostility of the Socialist countries and under strong pressure from
the Latin Americans... that the West agreed to incorporate.., a
number of economic and social rights as well - entirely unknown
in the "sacred" texts of the Western tradition.5
The Universal Declaration does contain a number of gaps and weaknesses,
but these are due not to the reluctance of Asian states, but to persistent
resistance from Western states, especially in relation to the right to selfdetermination and certain rights for minorities.
It was also due to the resistance from Western states that the Universal
Declaration was not to be a legally binding instrument. Even at the end of
the Second World War, many Western states still had difficulty accepting
the idea that state sovereignty should be subjected to some form of
restrictions. One could certainly argue that absolute state sovereignty, the
basic philosophical principle which is the main obstacle even today to the
application of human rights, is more traditionally a construct of Western
political thought than of Asian or Islamic traditions:
The Universal Declaration is the fruit of several ideologies: the
melting point of diverse conceptions of man and society. As was
rightly pointed out by P. Imbert, it does not constitute the "blowup", at world level, of national texts, but their "adjustment" to a
multicultural world that is deeply heterogeneous and divided. To

FERNAND DE VARENNES

some extent, it has fulfilled the hope expressed in 1947 by the

Chinese delegate to the UN Commission on Human Rights, that
the declaration should reconcile Confucius and Thomas Aquinas.
On the whole, the Declaration remains a lodestar, which has
guided the community of states as they gradually emerged from
the dark age when the possession of armies, guns and warships
was the sole factor for judging the conduct of states, and there
were no general principles, accepted and approved by all, for
6
distinguishing good from evil in the world community.
The UN Declaration, the core document towards the development of an
international human rights regime is where "East" meets "West", and not
just a European invention, nor uniquely influenced by Western ideology.
3. The Philosophical Underpinning of Human Rights: Justice,
Equality, Respect - Universal or Western?
The international human rights system which has emerged with the
adoption of the Universal Declaration and the two Covenants (Civil and
Political Rights; Economic, Social and Cultural Rights) demand respect for
certain minimum standards.
It is sometimes asserted, more or less openly, that for Western states,
human rights have a longer established tradition, are more inherently part
of their culture, and thus have a greater affinity with these societies than
others.
As indicated earlier, in historical terms until the advent of the Second War
II, Western states were often - and in some cases still are - the most
reluctant to accept outside legal restrictions on their "sovereignty". 7
Furthermore, a number of Western countries have quite incomplete
guarantees for the protection of human rights, the most prominent of these
being Australia (which does not have a bill or rights nor any substantial
protection of human rights in its constitution) and the United States (which
6 Supra, note 1, pp. 37-38.
7 In recent years, the Government of Australia has been highly critical of UN
condemnations of various practices and policies affecting the treatment of Aborigines and
refugee claimants. The official reactions from Australia have ranged from assertions that, as
a Western democracy, Australia has no human rights problems, that real human rights
violations only occur in "other" countries, presumably Asia and Africa, to assertions that
the UN human rights mechanisms are deeply flawed.

UNIVERSALISM VERSUS CULTURAL RELA TIVISM

tends to reject altogether any international human rights mechanism that

would affect its sovereignty).
It is therefore not completely true to suggest that because of their
democratic traditions or cultural superiority, Western states are somehow
automatically more receptive to human rights from a legal as opposed to
theoretical point of view, or that international human rights are direct and
natural descendants from Western traditions. Some of the most racist
societies in the world which had in place deeply ingrained and legally
sanctioned discriminatory practices (Apartheid South Africa, Nazi
Germany, Australia and the mistreatment of Aborigines, the US and its
Afro-American population) are after all based on various Western
ideologies and cultures. To put it bluntly, there is almost an automatic
prejudice that equates any "noble" principles to Western traditions, leaving
out any contribution from Asian, Islamic or African sources.
Yet, long before the French Declaration of the Rights of Man and the
United States Declaration of Independence, Buddha advanced the
"revolutionary" idea that all human beings are equal, as does the Qu'ran.
Even earlier, rulers such as King Darius of Persia concluded treaties with
defeated populations which contained provisions granting freedom of
religion to the newly subjugated peoples. Towards the end of the 1 4 th
Century, Korean scholar and statesman Yi Yul Gok argued that the rise
and fall of a society depended on whether or not a way was open for
freedom of expression. As one author points out when addressing the issue
of nationality in Thailand:
In the Sukhothai period, King Ramkamhaeng The Great had stoneslabs inscribed in the oldest known Siamese writing in A.D. 1293
recording the practice and usage of the government of the
kingdom in upholding the right of everyone to be free, and of
censuring respect for such freedoms as are today recognized as
fundamental or basic human rights, viz., freedom of movement, of
thought, of religion or conscience, and of the free flow of
commerce. There is ample evidence of the generous treatment of
visitors and the personal care with which
justice was administered
8
without discrimination as to race or sex.

8 Quoted in Fernand de Varennes (1998), Asia-Pacific Human Rights Documents and

Resources, Volume 1, Kluwer Law International, The Hague, p. 1.

FERNAND DE VARENNES

These examples do not prove that Asian societies are particularly

amenable to human rights that restrict a state's sovereignty, but they do
indicate that throughout time and space many non-Western societies in
Asia and elsewhere acknowledged the importance of concepts such as
human dignity, individual freedom and equality, all of which are the
building blocks of what has emerged in the second half of the 20th Century
as international human rights law.
Asia's most influential religious and ethical systems such as Hinduism,
Buddhism, Confucianism and Islam all contain a very deep sense of the
dignity of human life and a commitment to human fulfilment. They
acknowledge the need for justice between ruler and ruled, and correctness
or rightness in human conduct. While they may have differences of
emphasis, they all recognise restrictions on the powers of the ruler, or on
the sovereignty of the state, in the name of a greater moral duty of humane
and just treatment.
In a sense, it is perhaps more the Western tradition of absolute state
sovereignty, exported to the rest of the world through colonialism and
Marxism, which does not accept any outside moral restrictions that has
until recently found it difficult to accept the limitations imposed by
international human rights. It explains why Australia, Britain and the
United States so opposed the attempt by Japan to incorporate a very
limited human right in 1919, why many of these same Western countries
were against having a legally binding UN Universal Declaration in 1946,
and why even today countries like the US is voraciously against the new
International Criminal Court.
To suggest that the principles of equality, non-discrimination and human
dignity are somewhat innate to Western societies is historically factually
incorrect. To believe that Asian traditions such as Hinduism, Buddhism,
Confucianism and Islam are conversely not as "modem" or "receptive" as
Western traditional secularism is similarly erroneous. While various Asian
religious or ethical systems may have some views which may not sit
comfortably with some aspects of the modem formulation of international
human rights law, they all recognise the basic values of humanity and
justice. More importantly, they all accept that which has been at the centre
of Western reluctance and even historical rejection of international human
rights from a legal point of view: that the sovereignty of the state must be
limited by certain fundamental moral values. Hinduism, Islam, Buddhism
and international human rights all recognise this. The Western political
concept of state sovereignty has been much more reluctant to accept it.

UNI VERSA LISM VERSUS CUL TURAL RELATIVISM

4. The Fundamental Mistake in the Universality Debate - East and

West: In-built Consideration of Culture and other Factors in a
Number of International Human Rights
The preceding issues bring up the recurring debate as to the universality of
international human rights and how these can be reconciled with cultural
differences. Because it is wrongly assumed that international human rights
are mainly Western constructs, the logical if mistaken conclusion is that
Western countries will have somewhat less serious human rights problems,
and that any opposition to international human rights must naturally come
from non-Western states. In particular, various commentators have at times
suggested that Asian or Islamic states "naturally" reject the universal
application of human rights.
The tangible evidence of this is rather more tenuous. None of the
supporters of the "Asian perspectives" denies the international nature of
human rights, or that it is a valid international concern. The Indonesian
delegates to the Vienna World Conference on Human Rights for example
acknowledged that "the issue of human rights has ceased to be a bloc
controversy...". If there was a non-Western reaction, it was against the
selective, if not hypocritical, use of the language of human rights by the
superpowers for their own agendas.
While there are certainly very serious problems, such as the emphasis by
certain Asian governments on national sovereignty, no one in Asia is
actually denying that human rights are universal. Indeed, contrary to
assertions made by some non-governmental organisations, the Bangkok
Declaration which was adopted by the governments of 40 Asian states at
the UN Vienna World Conference restated the commitment of these Asian
governments to the Universal Declaration of Human Rights and
encouraged further ratification of international human rights instruments. It
also affirmed the universality and interdependence and indivisibility of
political, civil, economic, social and cultural rights.
If there is a problem in relation to Asian perspectives and human rights, it
is not in relation to the universality of human rights, but on the issue of
cultural relativity and human rights rather than true universal application
of human rights standards as contained in international instruments.
From a Western point of view, the premise of cultural relativism, that
human rights standards can vary among different cultures must be

FERNAND DE VARENNES

absolutely and unconditionally rejected: since "if there is an international

human rights standard - then its meaning remains uniform across
borders." 9
This apparently means that:
Unless one wishes to give up the very notion of an international
law of human rights altogether, these rights should have
essentially the same meaning regardless of local traditions.' 0
The above quoted legal scholar gives the example of non-discrimination
and argues that non-discrimination in one state should mean essentially the
same thing in any country and that therefore there can be no major
difference between what an individual should be entitled regardless of the
country he or she lives in. He gives the following illustration:
If women in Moslem countries are discriminated against, it is not
enough to say that a tradition, no matter how old and venerable,
requires such discrimination.
At one level, what he is stating is absolutely right. Human rights such
torture or non-discrimination cannot be extinguished under the guise of
"cultural traditions", be it in a state with a Muslim majority or in a
government controlled by an indigenous people. In this sense, his
arguments would seem sensible in legal terms, yet there is also here a
severe misunderstanding in his example as to the actual application of nondiscrimination in international law.
The error which however seriously weakens his example is to present nondiscrimination as if all differences of treatment are necessarily and
automatically discriminatory. This is quite simply a grave
misunderstanding and misapplication of the international standard. It is
now quite clear that in international law not all distinctions are
discriminatory:
[The principle of equality before the law] does not exclude the
different treatment of persons from the consideration of factual

9 Fernando Tes6n, International Human Rights and Cultural Relativism, (1984-85) 25

Virginia Journalof InternationalLaw 869, p. 870.
'0 Ibid.

UNIVERSALISM VERSUS CULTURAL RELATIVISM

differences.. .To treat equally in a mechanical way would be as

unjust as to treat equal matters differently."
More recently, the European Court of Human Rights summarised the legal
application of this human right standard in the following way:
[A] difference of treatment is discriminatory if it has no objective
and reasonable justification, that is if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aims sought
to be realised.' 2
This means that it is possible, even required, to take into account all
relevant factors when deciding if a situation is discriminatory or not,
including the social and cultural conditions in a country. Nondiscrimination in international law clearly does not impose similar
outcomes in completely different contexts and conditions, which is what
seems to be implied with those with a rigid, usually Western-slanted view
of human rights as advanced by Professor Tes6n and others - instead of a
truly international one. At least in the application of human rights such as
non-discrimination, and those other rights which refer to considerations of
public morality, public order, and similar factors, the results of the
application of the universal standard may vary according to what is in
international law legally justifiable and reasonable in different contexts.
To take the example of an international right such as the right to education,
does it mean that education, which is essentially free in Europe and North
America up to the university level, must also have in its application the
same result in the world's poorest countries? If a country such as Papua
New Guinea is unable to offer free public education for everyone up to the
end of grade 12, then is it violating the international human right to
education?
The answer would of course be no. The specific implementation of most
social, economic and cultural rights do depend on "local circumstances":
in other words, whereas the universal standard of these rights and their
application across the world do not vary, the actual results from the actual
implementation can vary, as Article 2 of the International Covenant on
Economic, Social and Cultural Rights itself presupposes:
1 South West Africa Case (Second Phase), [1966] International Court of Justice 284.
Willis v. United Kingdom, European Court of Human Rights, judgment of I1 June 2002.

12

FERNAND DE VARENNES

Each State Party to the present Covenant undertakes to take steps

and
individually and through
international
assistance
cooperation ...to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights
recognised in the present Covenant...
What needs to be distinguished in the whole debate over cultural relativism
is the confusion that exists as to what the debate is all about. Although the
debate is sometimes portrayed as tensions involving a denial of the
universality of human rights, this is not the true nature of the argument. At
least officially, no Asian or African state will openly deny that the basic
human rights contained in instruments such as the UN Declaration of
Human Rights are universal.
The true crux of the matter is whether human rights can be "set aside"
because of cultural differences. But even this seemingly simple statement
can be understood in two ways: it may mean that fundamental human
rights are universal in the sense that they cannot be set aside because of
cultural differences. This is uncontroversial: no human right in
international law can be disregarded because of cultural differences,
whether it involves torture, freedom of religion or non-discrimination, for
example.
However, a human right standard which has a different impact in a
particular country because of cultural or other considerations is not being
"set aside". If a particular human right standard contains the requirement
of "reasonable accommodation", or of rights being limited for reasons of
morality, security, health, public order, etc., it means that the national
context, including religious or cultural factors, may in some cases be
validly taken into account before deciding if there has been a breach of the
international human rights standard. As described earlier, while the
international standard of non-discrimination itself does not change, in
practical terms a particular situation may or may not be discriminatory
only after due consideration of all of the relevant factors in a given state.
The standard is still "universal", yet its impact will be different in a very
different factual situation.
It is here that some Western scholars have difficulty accepting that
universal human rights do not reject all considerations of culture or of
other relevant contextual factors in a particular society. It is also probably
here where Western governments naturally assume that it is "their" own

UNIVERSALISM VERSUS CULTURAL RELATIVISM

standards which should be the appropriate measuring stick as to what

constitutes appropriate behaviours that conform to human rights - rather
than an international one. Since human rights are universal, there is thus
perhaps an inherent expectation that non-Western countries should follow
the natural lead of Western liberal democracies.
One way of illustrating the error in this last view is to consider how one
universal human right - freedom of expression - can in reality vary from
one country to the other because of a very different context, yet still be
universal in its application.
One could give the hypothetical situation of an elected politician, "Andr6",
being accused of bigamy in a local newspaper. Andr6 would be anxious to
protect his reputation and could seek a court order preventing publication
of this information on the basis that it would ruin his reputation and career
because of the defamatory accusations being published in the media.
In a Western liberal democracy such as Australia, freedom of expression
can be limited to protect the reputation of individuals. This is also at the
same time a recognised and permissible restriction in international law:
13
Article 19 of the International Covenant on Civil and Political Rights
acknowledging this with the following provisions:
1. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of his
choice.
2.

The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:
1. For respect of the rights or reputations of others;...

In a Christian state such as Australia, allegations of bigamy could be

damaging to one's reputation, since it would be generally considered as

13 General

Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 23

March 1976. Available at http://www.unhchr.ch/htmlmenu3/b/accpr.htm.

FERNAND DE VARENNES

morally reprehensible. The likely outcome in such a context would be that

Andr6 could seek and probably obtain a court order to restrict the
publication of such information. This result would not be a breach of
freedom of expression but actually be consistent with the international, as
opposed to domestic or even Western view, since the application of the
universal standard of freedom of expression contains a permissible
restriction to limit information that is damageable to one's reputation.
Must the result in the application of this universal standard be the same in
every part of the world? No. Contrary to those - usually Western scholars
and governments - who reject any potential consideration of cultural or
other factors, it is possible to have a different result in the application of
freedom of expression if the context in a particular state is quite different.
If instead of Australia, Andr6 were a politician accused of polygamy in
Brunei Darusalaam, the result of the application of the universal standard
of freedom of expression could be completely different.
Any attempt to prevent a newspaper from publishing such a story would
probably be a breach of freedom of expression in Brunei, from an
international legal point of view, even though it would not be in Australia.
This is because in Brunei Darusalaam the story would not be defamatory
or particularly detrimental to Andre's reputation, since polygamy is a
practice accepted in the social, moral and legal context of that country.
Unless necessary to protect his reputation, it is not permissible according
to the international - as opposed to domestic or "Western" - standard of
freedom of expression to prevent the newspaper from running the story.
Same type of conduct involved; same universal standard; yet completely
different results from the application of the international standard of
freedom of expression. This is because the human right of freedom of
expression contains elements that take into account the particular situation
in a country, including culture, religion, etc. This therefore means that
while the actual international standard itself does not change, its
application can bring in different results in states with completely different
situations.
This was perhaps what Pieter Kooijmans, the former Special Rapporteur of
the UN Commission on Human Rights, was trying to say when he
acknowledged that even though much of the Universal Declaration of
Human Rights might have been influenced by the West, things have
changed in the evolution of international human rights law:

UNIVERSALISM VERSUS CULTURAL RELATIVISM

Representatives of all regions of the world were consciously

involved in the elaboration of these norms and rules which were
nearly all adopted by consensus. The most basic set of rules, the
[two] Covenants.. .are regularly interpreted by independent
Committees, in which all regions and cultures are equally
represented. And even the strongest opponents of the notion of
cultural relativism must admit that the realization of human rights
in different cultural settings may diverge, whereas the strongest
adherents of the concept of cultural relativism readily admit that
there are certain rights, the so-called "core rights" dealing with the
integrity of the human person, like the prohibition of torture or the
right not to be arbitrarily deprived of one's life, may not be
harmed under any circumstances.
There are quite clearly international human rights standards that are
intended to incorporate relevant local "conditions" (public morality,
reasonability, justified in the circumstances, public order, etc.) and others
that do not permit any such considerations. The latter category includes
rights such as torture and genocide, while in the former one can identify
non-discrimination, freedom of expression, religion, etc.
While all of these international human rights standards are "universal" and
therefore applicable to all states, the result of the application of those
standards that do allow for considerations of morality or some other
justifiable restriction open the door to the "relative" impact of these
standards in different contexts, as shows the example of defamation under
freedom of expression. Thus it is possible that there can be some
differences in impact due to cultural factors, but this difference should not
be exaggerated: difference of culture is not of itself in international law a
sufficient ground to discard any international human right standard; it may
simply be one of a series of other considerations that may have a limited
relevance, such as in considerations of morality for the purposes of a
legitimate restriction of freedom of expression, in the application of a
specific human right.
5. Conclusion
[The] seemingly irreconcilable conflict between universalists and
relativists is more theoretical than real. There is actually a wide

FERNAND DE VARENNES

range of consensus that most of the alleged human rights must be

universally protected. 14
The debate between universalists and cultural relativists has, very often,
been one where both sides have actually not understood that neither are
completely right nor completely wrong.
A plethora of literature deals with the concept of universalism and cultural
relativism in human rights, but much of it is extremely misleading. Many
tenants of the universalist position suggest that human rights are
independent of place, ideology and value systems, and that therefore any
consideration of cultural specificities are completely and absolutely
excluded in all situations. Some commentators from non-Western
countries criticise the concept of universal human rights as an imposition
of Western values.
For its part, the cultural relativist view of human rights tends to consider
that human rights can only be applied by reference to the rules and values
that are internal to any given culture, suggesting for example that there are
distinct Western, Asian or Islamic perceptions of human rights.
Neither is completely accurate. A number international human rights
standards already incorporates considerations of the local context and
therefore are intended to vary where appropriate. Non-discrimination and
other rights such as freedom of religion and expression include
considerations of factors such as public morality, and are therefore from an
international point of view expected to be potentially different in the result
of their application, though one must also add that there would seem to be
an "international minimum" of what would be acceptable under such
factors. It is also quite clear that international human rights standards
cannot be discarded simply because a particular practice has deep religious
or cultural roots, whether involving Christian, Muslim or Buddhist
traditions, whether they involve an indigenous people or a liberal
democracy.
Historically speaking, the West's fixation with state sovereignty has
resulted in some vehement opposition to international human rights as
being legally binding, and even to this day the opposition has not
14 Yasuaki,

Onuma, "In Quest of Intercivilizational Human Rights: 'Universal vs. Relative'

Human Rights Viewed from an Asian perspective", (2000) Asia-PacificJournalon Human

Rights and the Law, Vol. 1,No. 1, 53-88, p. 73.

UNIVERSALISM VERSUS CULTURAL RELATIVISM

completely disappeared: indeed, it could be argued that it is regaining

currency with governments in Australia and the U.S.
These same Western states tend to assume that "their" standards are the
relevant ones, and often seek to export their views onto other countries.
Indeed, it could be argued that the "Asian Values" reactions in the early
1990s from a number of Asian intellectuals and statesmen, including
Singapore's Lee Kuan Yew and Malaysia's Mahathir Mohamad, was as
much against being forced to accept "Western" norms of human rights as it
was on a more Asian communal-based ethics.
The fallacy was twofold, since it assumed that these Western standards
were identical to international human rights norms - they are not - or that
the application of these international standards must necessarily have the
same results, regardless of cultural or any other context - also false where
specific rights allow for factors such as morality and other justifications in
considering whether there is a breach.