CULTURAL HUMAN RIGHTS; THE NEED FOR QUALIFIED UNIVERSALITY

in Tilburg Law Review
Restricted Access
Get Access to Full Text

Have an Access Token?



Enter your access token to activate and access content online.

Please login and go to your personal user account to enter your access token.



Help

Have Institutional Access?



Access content through your institution. Any other coaching guidance?



Connect

CULTURAL HUMAN RIGHTS; THE NEED FOR QUALIFIED UNIVERSALITY

in Tilburg Law Review

References

I Karen Engle, 93 Atot. J. INT'L. L. 278. 2 Abdul Aziz-Said, Human Rights in Islamic Perspective, in Adamantia Pollis & Peter Schwab, (ed.) HUMAN RtGtrrs: CULTURAL AND IDEOLOGICAL PERSPECTIVES (Preager Publishers, 1979) pp. 8-10. See also Zehra F. Arat, Women's Rights in Islam: Revisiting Quranic Rights, in Adamantia Pollis & Peter Schwab (ed.) in HUMAN RIGHT's: NEW PERSPECTIVES, NEW REALITIES (Lynne Rienner Publishers, 2000) pp. 85-88 3 Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination, 8 BUFF. RTs. L. REV., 1 (2002). 4 Id

5 Mr. Mutua notes that "The human rights corpus expresses a cultural bias, and its chastening of a state is therefore a cultural project. If culture is not defmed as some discrete, exotic, and peculiar practice which is frozen in time but rather as the dynamic totality of ideas, forms, practices, and structures of any given society, then human rights is an expression of a particular European-American culture." 6 See Mohamed Bedjaoui, Poverty of the International Order, in R. Falk, F. Kratochwil, & S. H. Mendlovitz eds., INTERNATIONAL LAW: A CONTEMPORARY PERSPECTIVE, 153, (1985). 7 Makau Mutua, Terrorism and Human Rights: Power, Culture, and Subordination. 8 BUFF. RTS. L. REV., 1 (2002).

8 Louis Henkin, The Internationalization of Human Rights, 6 PROC. GEN. EDUC. Seminal 1 (1977). 9 The International Bill of Rights is comprised of three instruments: the ICCPR, the Universal Declaration of Human Rights, art. 2, U.N. GAOR 217A (III) (1948) (hereinafter UDHR), and the International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, art. 41, 999 U.N.T.S. 171, G.A. Res. 2200, U.N. GAOR, Supp. 16 at 57, U.N. Doc. A/6316 (1987) (hereinafter ICESCR). 10 European Human Rights Law Review (E.H.R.L.R.) 2002, 5, 624-630, Case Comment 11 E.H.R.L.R. 1999, 3, 348, Call for Court Case: The Right to Education.

12 Lord Lester of Heme Hill, The Challenge of Bangalore: Making Human Rights a Practical Reality, 3 E.H.R.L.R., 273-292 (1999). 13 Id. at 289.

14 Kristen J.Miller, Human Rights of Women in Iran; The Universalist Approach and the Relativist Response, 10/2 2 EMORY Irrr'L LAW Review, 779 (1996). 15 Id. 16 Ved Nanda, The Human Rights Era at Fifty: Looking Back and Looking Forward, 5 WILLAMETTE J. INT'L L. & DiSp. RESOL. 69 (1997). 17 Younce Schooly, Cultural Sovereignty, Islam, and Human Rights - Toward a Communitarian Revision, 25 CUMB. L. REV. 651 (1995). ("A treaty is contractual agreement by states to accept certain obligations to other states, that is, specified restrictions on their sovereignty."). 18 Professor Obiora also questions how to reconcile the validation of cultural practices that are seen by Western feminists as oppressive to the women who practice them. See Amede Obiora, Feminism, Globalization, and Culture: After Ne�ing, 4 IND. J. GLOBAL LEGAL STUD. 355 (1997). 19 What's Culture Got To Do With It? Excising the Harmful Tradition of Female Circumcision, 106 HARV. L. REV., 1944, 1959 (1993).

z° 22 / 5 E.C.L.R., 173-180 (2001). 21 Consider what the full meaning when American officials say the 'Afghan swamp must first be drained.' A common American colloquialism is "throwing out the baby with the bathwater," how much of Afghan culture will America discard in the process of cleansing the State. zz Isabelle Vichniac, M. Boutros-Ghali defend les principes de 1'universalite des droits de 1'homme et de leur garantie internationale, LE MONDE, June 16, 1993, at 5. Available at last visited June 23rd 2003. z3 Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination. 8 Buff.Hum. RTS. L. REV., 1 (2002).

24 Kevin Griffen, Dalai Lama: He's Utterly Unpretentious in Nature, VANCOUVER SUN, June 28, 1993, at A8. 25 Judith Caesar, Big Saudi Brother, Christian Sci. MONITOR. 18 (Jan. 4, 1991 )

zs This may occur if the position of the dissent is to question the applicability of liberal ideals and values--which is what the terrorist are accused of attacking. 27 Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination. 8 BUFF. Huht. Rrs. L. REV., 1 (2002). 28 Makau Mutua, Professor of Law and Director, Human Rights Center, State University of New York at Buffalo School of Law. This paper was commissioned by the Geneva- based International Council on Human Rights Policy (ICHRP). On January 10, 2002, the author presented it at the ICHRP's annual meeting in Geneva, Switzerland. The meeting focused on "Global Trends and Human Rights: Before and After September 11." z9 Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination. 8 Buff. Htn�.t. RTS. L. REV., 1 (2002). j° Id. 31 Id. 3z Id.

33 rd. 34 Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination. 8 BUFF. Hur.t. RTs. L. REV., 1 (2002). 3s Amede Obiora Feminism, Glo6alization, and Culture: After Ne�ing, 4 Irm. J. GLOBAL LEGAL STUD. 355 (1997). 36 Discussion of the nature of FGM has been purposefully omitted. For information on this traditional practice please visit or last visited June 23rd 2003. 37 last visited Dec. 2"d, 2002. 38 Id.

39 U.N. Charter art. 1, par. 3 (includes in the purposes of the United Nations, "To achieve international co-operation... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."). 40 "[E]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.... Motherhood and childhood are entitled to special care and assistance." Id. at 25, par. 1-2. 41 See generally Preamble of CEDAW; the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women... [c]onsidering the international conventions concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women, recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and humanity .... 42 International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993 U.N.T.S. 3. 43 In 1947 the American Anthropological Association issued a statement to the United Nations calling for the respect of cultural differences. Additionally the association argued that there is limited applicability of any human rights declaration. Engle, Karen, Edited by: Richard A. Wilson, 93 Am. J. Int'l. L. 278 (American Journal of International Law, January, 1999, p. 278). Professor Obiora also questions how to reconcile the validation of cultural practices that are seen by Western feminists as oppressive to the women who practice them. 44 U.N. Charter art. 2, par. 1 (stating "[t]he Organization is based on the principle of the sovereign equality of all its Members."). as Id.

°6 Mr. Huntington is the head of the Olin Institute for Strategic Studies at Harvard University -or was the time of the publication of this article- found in the magazine "Foreign Affairs". 47 Samuel P. Huntington, The Clash of Civilizations, FOREIGN AFFAIRS, 22 (Summer 1993) 48 Shahriar Zarshenaz, Inside Iran: A Special Survey, INDEX ON CENSORSHIP, 11 (Mar. 1992) 49 See ANN E. MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS p. 47-50

(Westview Press, 1991). x See John Kelsay, Saudi Arabia, Pakistan, and the Universal Declaration of Human Rights, in Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberties, in David Little et al. ed., (1988). sl In 1983, Iran's U.N. Ambassador, Sa'id Raja'i Khorasani, offered an exceptionally forceful repudiation of the universality of international human rights norms. Speaking as a representative of a self-professed Islamic State, he stated that, because of its Islamic values, Iran would have no qualms about violating such norms. He proclaimed, according to the paraphrased record of his speech, that: "conventions, declarations and resolutions or decisions of international organizations, which were contrary to Islam, had no validity in the Islamic Republic of Iran...." The Universal Declaration of Human Rights, which represented secular understanding of the Judeo-Christian tradition, could not be implemented by Muslims and did not accord with the system of values recognized by the Islamic Republic of Iran; his country would therefore not hesitate to violate its provisions, since it had to choose between violating the divine law of the country and violating secular conventions. s2 Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, art. 24, available at [hereinafter Cairo Decl.]. Last visited June 23rd 2003. 53 This document was chosen to show the contrast in rights afforded by a non-Western legal document.

s° International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3; G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N.Doc A/6316 (1966) [hereinafter ICESCR]. ss Cairo Decl. art. 22(c). See also Anton La Guardia, Moslem States Urge Rushdie Book Ban, DAILY TELEGRAPH, Mar. 17, 1989, at 15 for the proposition that article 22 was deliberately drafted in such a way as to accommodate the banning of the book, "The Satanic Verse", and the condemnation of its author, Salman Rushdie, as an apostate. Ayatollah Khomeini had issued his fatwa calling for Rushdie's assassination on February 14, 1989. Before the drafting of the 1990 Cairo Declaration and at the behest of Iran, the OIC foreign ministers, during a meeting in Riyadh on March 16, 1989, had already condemned the novel as blasphemous. They had also called for banning the novel and declared Rushdie an apostate but had refused to endorse the death sentence that had been

decreed by Ayatollah Khomeini or Iran's call for economic sanctions against Great Britain. 56 See Liesl Graz, Human Rights: The Vienna Declaration, MIDDLE E. INT'L, July 9, 1993, at 14. 57 Samuel P. Huntington, The Clash of Civilizations, Fo�tEIGN AFFAIRS, 22 (Summer 1993) 58 See generally BERNARD LEWIS, ISLAM AND THE WEST (Oxford University Press , ,1993).

s9 Untitled essay by Shahriar Zarshenaz, in INSIDE IRAN: A SPECIAL SURVEY, INDEX ON CENSORSHIP, 10 (Mar. 1992). 60 Often times those who wish the critically examine an oppressive entity are more comfortable "tearing apart" a culture rather than attacking a religion. The term Islam is placed in quotes because often times the invocation of the phrase accomplished the aforementioned. 61 See Peter Feuilherade, Iran: An Astute Move, MmDLE E. INT'L, June 11, 1993, at 11. 62 Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination. 8 Buff. Huht. RTS. L. REV., 1 (2002).

63 Admittingly the Iraqi government did attack its own people with a chemical weapon so in this instance the need to intervene on the side of those whose human rights were being infringed is great. 64 Human Rights Symposium, The Concept of Human Rights and its Applications to Africa, How does the UDHR Guarantee Social and Economic Rights for African Men and Women? Professor Micere Githae Mugo, Horace Campbell, Professor Krisberg, 26 SYRACUSE J. INT'L L. & COM. 215 5

bs Makau Mutua, Terrorism and Human Rights: Power, Culture, and subordination, 8 BUFF. Rrs. L. REV., 1 (2002). s6 American disregard for civil liberties might have influenced other nations to follow suit. For example in Zimbabwe President Mugabe has labelled his political opponent as terrorists. After this classification is made it is easier to convince the world community that they (the political opponents) are in need of muzzling, persecution and distinctions. 67 Younce Schooly, Cultural Sovereignty, Islam, and Human Rights--Toward a Communitarian Revision, 25 CUMB. L. REV. 651 (1995). 68 Ann E. Mayer, 15 MiCH. J. INT'L L. 307, 308-310.

69 Makau Muta, Terrorism and Human Rights: Power, Culture, and subordination, 8 BUFF. Hun.t. R�rs. L. REV.. 1 (2002). 70 Kevin Griffen, Dalai Lama: He's Utterly Unpretentious in Nature, VANCOUVER SUN, June 28, 1993, at A8.

Information

Content Metrics

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 8 8 2
Full Text Views 10 10 2
PDF Downloads 0 0 0
EPUB Downloads 0 0 0