The human rights project is most deeply embedded in the lived experiences of the suffering and oppressed. Seemingly paradoxically, the difficulties human rights ideas experience in permeating local contexts recurrently resurface, challenging not only their effectiveness but also their claimed universality. Subscribing to the relative universality of human rights norms, this essay explores the importance of interweaving textured realities into the human rights discourse and argues that universal values and culture are not incompatible as long as we perceive culture as dynamic, living currents in an ever-shifting shore of evolving value systems. After discussing how legal doctrines and procedures permit normative interpretation in a way that is universal at the level of abstraction, whilst concurrently leaving room for cultural defence, we explore vernacularisation and translation approaches to norms acquisition and interpretation. For human rights to be accepted, understood, and claimed, they need to be mobilised above and beyond the human rights drawing board and localised into the grassroots, albeit without becoming a way of immunising harmful traditional practices. Canvassing the limits of permissible normative interpretation, this essay argues against particularism and in favour of culturally-sensitive, interdisciplinary approaches that are faithful to universal aspirations, accepting of culture’s dynamism, but not overrun by its moral limitations.
The relativist argument predicates that human rights ideals should not be imposed on societies with different values and traditions.[i] In obverse, universalists argue that human rights derive their very legitimacy from metaethical claims to universality.[ii] Despite the pervasiveness of these scholarly debates, theorising has failed to address the human rights shortcomings in the locale.[iii] Human rights ideas consequently face difficulties in ‘manifesting their relevance’ in the lived experiences of those geographically and culturally removed and in the sites most vulnerable to violations, with many victims in places like India exhibiting limited human rights emancipation and little knowledge of their existence.[iv] To bridge this disjuncture, universal standards must be “supplemented, informed, or contextualised by culture and tradition.”[v] Besides rendering human rights more relevant to the most disenfranchised, adaptation, defined for present purposes as the granting of leeway in the interpretation of norms, allows human rights ideas to spread more effectively, with greater legitimacy, and also shields against the threat of superpower dominance or homogenisation.[vi] Furthermore, a neorealist standpoint propounds that latitude arising as consequentiality of the manoeuvring of obligations through interpretation, also constitutes a political necessity. To meet this necessity, various legal doctrines and procedures grant states considerable leeway in interpreting human rights treaties.
The doctrine of the margin of appreciation, which permeates the jurisprudence of the European Court of Human Rights, comprises two principal elements: judicial deference and normative flexibility.[vii] Critics arguethat the doctrine is excessively relativistic and point to, inter alia, the risk of states utilising the margin rhetoric to evade human rights obligations, and its potential to stultify universal aspirations and obliterate the objective legal certainty of international norms.[viii] Antithetically, proponents allude to political realism and the notion of subsidiarity.[ix] While normative flexibility is desirable, too much deference lends itself to abuse by domestic majorities. In consequence, the doctrine preserves a significant ‘zone of legality’, but also requires states to exercise discretion in good faith, concordant with the ‘object and purpose’ of the governing norm, subject to international oversight.[x] Other legal tools that provide international legal flexibility include reservations, limitations, and derogations. Reservations preclude the operation of the provision reserved, thereby limiting the obligation of a state under a particular treaty by rendering specified parts nonbinding.[xi] They therefore, by essence, ensue potentially problematic implications for legal certainty and human rights aims by allowing freewheeling states to enjoy benefits of subscription, whilst hand-picking obligations, at the potential cost of compromising the treaty’s integrity and dissolving its contents.[xii] Conversely, reservations are a way of obtaining ratification and expanding a treaty’s reach.[xiii] While most human rights treaties neither allow nor exclude reservations, absence of prohibition does not imply permissibility.[xiv] Leeway is never unlimited. Reservations must be specific and transparent, compatible with the treaty’s object and purpose, and cannot offend peremptory norms, customary international law, or non-derogable rights, nor remove supportive guarantees or monitoring mechanisms.[xv] Similarly, to lawfully limit non-absolute rights, limitations have to be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society; an assessment that accounts for the principle of proportionality.[xvi] Derogations, in turn, must specify ‘their territorial and temporal reach,’ can only be invoked for as long as is absolutely necessary to meet an exceptional threat, and cannot offend non-derogable provisions.[xvii] While recourse to derogations is only permissible in exceptional circumstances, limitations are part and parcel of the human rights clockwork in allowing states to flexibly navigate rights conflicts.
Albeit undesirable for universal aspirations, concessions can generate mobilisation of human rights norms. Leeway may sometimes be a natural concomitant to progress, a necessary bait in the sea of human rights ideation, which, with coalescing consensus, can be consolidated to forge conformity and gradually prod nations towards greater compliance with transnational standards. Furthermore, through the prism of cultural pluralism, culture is malleable, open to change and contestation, an appreciation that lends itself to the conclusion that culture is not incompatible with human rights law.[xviii] As Donnelly aptly avers: “Culture is not destiny.”[xix] This ‘living instrument’ paradigm is a commonality that interlaces legal interpretative tools in that the leeway granted is relative and mindful of the perennial evolution of culture. Guiding principles of proportionality and necessity, applied on a case-by-case basis, are protean by nature. Similarly, the margin of appreciation doctrine is not fixed but malleable in that a broad margin can narrow over time in line with cultural convergence.[xx]
While legal interpretative tools are important, additional interdisciplinary approaches are necessary for norms adaptation into the micro. Culturally-sensitive human rights assimilation processes advocated by scholars such as Sally Merry, Abdullahi An-Na’im, and Frederico Lenzerini include vernacularisation, translation, and culturalisation.[xxi] While these approaches leave a lot of room for substantive inquiry, pluralistic processes and cross-cultural dialogues can inspire top-down and bottom-up translation and provide a springboard for reconciliation between cultural diversity and human rights obligations. The process of vernacularisation, for example, entails the extraction of human rights language from the universal into the local through a multitude of methods with varying nuances that range from replication to hybridity.[xxii] Sufficient translation needs to occur to establish the basic tenets of understanding, which are rudimentary to on-the-ground change. Too much translation, contrarily, can risk norms dilution. Merry also warns that vernacularisation processes are not independent of state interests and the extent to which cultural brokers can promote new ideas is dependent on both organisational autonomy and funding sources.[xxiii] Akin to the margin of appreciation, vernacularisation faces a resonance dilemma: the more leeway is granted, the greater the chances of adoption, but the smaller the opportunity to challenge existing frameworks.[xxiv]
In acquiescing to the human rights framework, states commit themselves to a ‘higher ideal’ and a tripartite obligation to respect, protect and, fulfil human rights.[xxv] This framework built on state voluntarism is upheld through the existence, albeit in a corset, of tools granting international legal flexibility.[xxvi] While leeway is important, interpretative approaches cannot be too flexible so as to preclude the potential for change or lead to a ‘perpetual non-attainment’ of international standards.[xxvii] Leeway can expand the reach of human rights, but also dodge compliance. In light of these dangers, the role and importance of vigilant monitoring mechanisms such as treaty bodies, in overseeing processes and drawing together “any common themes and consensus,” cannot be underscored more profusely.[xxviii] Donnelly, who explores various connotations of universalism, concurrently warns of both the dangers of ‘arrogant and abusive’ universalism, grounded in legitimate fears of neo-imperialism, and of the dangers of assuming ‘the moral infallibility of culture.’[xxix] While the preceding demonstrates the usefulness of culturally-sensitive approaches, the dangers of granting too much leeway are most saliently unveiled in relation to harmful practices clothed in curtains of culture. Traditional practices such as female genital mutilation, crimes of honour, and forced or early marriage, are powerfully rooted in “beliefs, values and cultural and social behaviour patterns which govern the lives of the societies concerned.”[xxx] The elimination of these practices poses a ‘twofold challenge’ in shifting societal understanding and prompting realisation that a practice causes a rights violations, and in changing that practice “without attacking a people’s culture.”[xxxi] While respect for culture is important, this should not evade a more searching inquiry into its underlying moral validity. Appropriately, Donnelly warns not to confuse politics with culture, and that the ‘traditional’ may merely be what populations are forced to tolerate.[xxxii] Ergo, tolerance for deviations from international standards “should decrease as the level of coercion increases.”[xxxiii] When it comes to harmful practices irreconcilable with human rights, legal doctrines and procedures should be firm and faithful to their moral underpinnings. Culturally-sensitive approaches should be employed to respectfully permeate complex webs of culture, to differentiate between legitimate and illegitimate deviations from transnational standards, and engender change when appropriate, without devaluing the richness and importance of diversity.
By corollary, a lack of translation
frustrates understanding of international human rights norms. Incomprehension
impacts participation, which in turn affects justice. As Deng’s study on the
ethnic Dinka community in Sudan illustrates, despite marked cultural
differences, definite parallels can oftentimes be drawn between international
human rights principles and traditional values.[xxxiv]
This supports the argument that universal standards can be concretised, transmobilised
inter-culturally, and woven together through comparative cross-fertilisation of
fundamental normative principles.Legal
interpretation should be flexible enough to render rights compatible with
divergent cultures, but taut enough not to result in a negation of the
protection sought. When it comes to traditional harmful practices,
international human rights law should be interpreted as informing, catalysing,
and strengthening local dialogue in shifting subjectivities and countering
harmful practices and beliefs. While an appreciation and incorporation of local
contexts and differences is significant and enriching, a kernel of utopian
universalism, short of human rights imperialism, should endure.
[i] Jack Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29(2) Human Rights Quarterly, 293-4.
[ii] Sally Engle Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’ (2006) 108(1) American Anthropologist, 40.
[iii] Michael Addo, ‘Practice of United Nations Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights’ (2010) 32(3) Human Rights Quarterly, 607-8.
[iv] Tamara Relis, ‘Human Rights and Southern Realities’ (2011) 33.2 Human Rights Quarterly, 510, 534-42.
[vi] cf Merry (2) 40.
[vii] Shany Yuval, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16(5) European Journal of International Law, 909-10.
[viii] Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31 New York University Journal of International Law and Politics, 843-4; Yuval (7) 912.
[ix] Frédéric Mégret, ‘Nature Of Obligations’, International Human Rights Law (Oxford University Press 2014), 104. The ‘democratic deficit argument’ has also been proffered in support of subsidiarity: Yuval (7) 919-20.
[x] cf Yuval (7) 909-11.
[xi] Vienna Convention on the Law of Treaties, arts.19, 21(1); Mégret (9) 105.
[xii] cf Mégret (9) 105.
[xiii] ibid 105-6.
[xiv] HRC, General Comment 24 (1994) CCPR/C/21/Rev.1/Add.6, 6; Mégret (9) 106.
[xv] Vienna Convention on the Law of Treaties, art.19(c); General Comment 24 (14) 8-11, 19; Mégret (9) 107.
[xvi] cf Mégret (9) 110-13.
[xviii] cf Addo (3) 614, 664.
[xix] cf Donnelly (1) 296.
[xx] The doctrine has consequently been criticised as being “less of a pioneer than a safe endorser of existing trends and developments.”
[xxi] Frederico Lenzerini, The Culturalization of Human Rights Law (Oxford University Press, 2014), 218; Merry (2) 38-49; Addo (3) 610-2.
[xxii] cf Merry (2) 44.
[xxv] cf Mégret (9) 99-101.
[xxvi] Vienna Convention on the Law of Treaties, arts.2(1)(d), 19(c), 31(1); Magnus Killander, ‘Interpreting Regional Human Rights Treaties’ (2010) 7(13) Sur–International Journal of Human Rights, 146-50, 163.
[xxvii] cf Merry (2) 40-4; General Comment 24 (14) 19.
[xxviii] cf Addo (3) 614, 661.
[xxix] cf Donnelly (1) 295, 303-5.
[xxx] Halima Warzazi, Final Report on the Situation regarding the Elimination of Traditional Practices affecting the Health of Women and the Girl Child (2005) E/CN.4/Sub.2/2005/36, 10.
[xxxii] cf Donnelly (1) 296.
[xxxiv] cf Relis (4) 519-20.