Keynote address by Louise Arbour : Human Rights: Bridging the Cultural Divide - Milan, 15 and 16 November 2004

15 November 2004
I am very pleased to be with you today to discuss a topic which is of great importance in a world which is too often portrayed as being divided by conflicting cultural aspirations.
What is at stake here is not so much the existence of a cultural divide as the perception that it exists and that it has implications for a number of issues, including the very notion of the universality of human rights. This is why we need to re-emphasize strongly the notion that human rights are universal and that they constitute an extraordinary vehicle with which to promote, in a contextually sensitive way, the commonality of human needs and aspirations reflected in universal human rights instruments.
The principle of universality of human rights is the cornerstone of international human rights law. As stressed in the Universal Declaration on Human Rights, recognition of the inherent dignity and the equal and inalienable rights of all members of the human rights family is the foundation of freedom, justice and peace in the world. All human beings are born free and equal in dignity and rights. Whatever their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status, they are entitled to exercise their fundamental freedoms and human rights, without discrimination, and without any other limitations than those accepted under international law.
This particular principle has, since 1948, been reiterated in numerous international conventions, declarations, and resolutions. Most recently, the Vienna Declaration and Programme of Action very forcefully reiterated that “while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
While this was solemnly declared by a gathering of all Member States representing the international community, the universality of human rights need not be considered in an inflexible and rigid manner. The international bodies and mechanisms have consistently repeated that tolerance and mutual respect constitute an obvious basis on which our societies should grow. At its recent 60th session, the Commission on Human Rights acknowledged, in a very plain manner, that international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all should be based on a profound understanding of the variety of problems existing in different societies, on full respect for their economic, social and cultural realities and on the full realization and recognition of the universality of all human rights and the principles of freedom, justice, equality and non-discrimination.
Obviously alive to the competing values of cultural specificity and human rights universality, the Commission on Human Rights invited me to reflect on the possibility of establishing a thematic procedure on the promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities. The most obvious area in which specificity and universality may be thought to compete or even to clash is in the protection of minority rights. However, this need not be so. It is readily apparent that in fact universal respect for individual rights may indeed require the protection of minority groups.
Article 27 of the International Covenant on Civil and Political Rights provides that “in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
This provision, which constitutes an important conventional provision dealing with minority issues, is very limited in its formulation. However, it has been interpreted over the years as implying positive action on the part of State parties, as well as a certain degree of recognition of groups. As the Human Rights Committee has said, although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group. This is widely recognized as the basis for the recognition of religious, cultural and linguistic diversity on the States parties’ territories.
The adoption of the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities constitutes a further step towards the acknowledgment of the existence of minorities and of cultural, linguistic and religious diversity within States. Although only individual rights are granted as such, States are called upon to protect the existence, and the national or ethnic, cultural, religious and linguistic identity, of minorities within their respective territories and shall encourage conditions for the promotion of that identity.
More recently, various United Nations bodies have expanded on these notions and have called on a number of States to preserve the language and culture of their minorities and improve education on, and education in, these languages. The adoption within UNESCO of a Universal Declaration on Cultural Diversity, and the current process towards the elaboration of a convention on this issue, should be seen as complementing our own efforts and should be strongly supported by all concerned.
National and international policies protecting cultural diversity do not result in fragmentation, conflict, weak development or authoritarian rule. Such policies are both viable, and necessary, for it is often the suppression of culturally-identified groups that leads to conflict. The 2004 Human Development Report, for instance, debunks the myth that cultural liberty requires defending traditional practices and that the preservation of culture can only be achieved at the cost progress in development, democracy and human rights. Cultural liberty is about expanding individual choices, not about preserving values and practices as an end in itself with blind allegiance to tradition.
If the case can therefore be made that respect for cultural specificity is not incompatible as such with the universal application of human rights norms, there is no doubt that some claims based on culture, religion or tradition may clash with international human rights requirements.
As respect for cultural diversity emerges as a new principle of human rights law, it is necessary to acknowledge that these two principles – universality and diversity – present inevitable challenges to each other. The resolution of any conflict between the dictates of universality and the competing claims of cultural identity requires the articulation of an analytical framework that, in my view, should be more sophisticated than the mere assertion that the two “should be balanced”. Particularly when faced with claims grounded in religious beliefs or in long standing cultural practices, one should be able to articulate a principled basis upon which to dismiss those claims as contrary to the dictates of international human rights law.
In developing a proper analytical framework for resolving such conflicts, or competing claims, guidance can be found in the legal reasoning which has proven useful in other branches of human rights theory. For instance, we have long recognized that not all distinctions drawn by law amount to discrimination. The management of life in society requires that lawmakers draw infinite distinctions. From tax rates to driving priorities, the law regulates human conduct by granting privileges (a lower tax rate to low income earners, the right of way to motorists on the right) or by imposing burdens (the duty of married persons to support each other financially upon divorce). These privileges and burdens are, by definition, imposed on some and not other members of a given society.
What human rights law prohibits is that the selection of those who will receive a benefit or be imposed a burden be made on a discriminatory basis. Prohibited grounds of discrimination typically include sex, race, ethnic origin, religion, age, disability, and may include others, such as family or marital status, sexual preference, citizenship etc… When legislative distinctions are drawn upon such grounds, they are discriminatory if they infringe upon human dignity by reflecting stereotypical views such as that some are more able or more deserving than others.
The construction of discriminatory theory, in particular the rejection of formal equality in favour of substantive equality, has been essential for the proper application of anti-discrimination principles, and can be useful in the search for the accommodation and indeed the celebration of cultural differences in the application of universal human rights principles.
For example, in examining whether a particular cultural practice which draws a distinction between the sexes is discriminatory and therefore contrary to human rights principles, one must examine whether it is an affront to human dignity. In order to do so, one must question whether the practice is based on the unacceptable view that one sex – women generally – is less able or less deserving than the other. I say “unacceptable” view because that is what human rights principles requires. This ingredient in the analysis must not be made to yield to claims of cultural differences. At the same time, one must not reject as an unacceptable stereotype and offensive prejudice everything that does not coincide with one’s own view of the world. Cultural blindness is the false impression that one’s point of view is the only true, neutral, impartial and universal one. It is therefore clear that in the appreciation of whether a particular practice is discriminatory, one’s own culture will play a part. There is no reason not to defer to the assessment of others as long as we all share in a non-discriminatory framework of analysis.
The International Convention on the Elimination of all Forms of Discrimination against Women reflects such a framework and asks States parties to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. The same non-discriminatory framework is reflected in the Declaration on the Elimination of Violence Against Women, which was adopted by consensus by the international community in 1993, and under which States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.
In the same way, we must design an analytical framework with which to approach a culturally appropriate understanding of the scope of rights and of their infringements.
Again, there is no merit to simply asserting as universal one’s own point of view. What then can we look to for guidance when we examine the conformity of a particular practice, rooted in culture and tradition, with universal human rights requirements?
Take, for instance, the prohibition of cruel, inhumane and degrading treatment as it applies to criminal sentences. The US Supreme Court recently looked at that issue in Atkins v Virginia, when asked to decide whether the application of the death penalty to a person who was mentally deficient was an unconstitutionally cruel and inhuman procedure. Corporal punishment, including whipping of rapists, was still part of Canadian criminal sentencing law when I was a law student, and was abolished in the early nineteen seventies. If these are not primarily the dictates of culture, they are practices that reflected a long tradition in the imposition of punishment. The critical observation to make here is that cultural dictates evolve in time and place, and that what may appear repugnant or offensive today may have seen innocuous not so long ago.
Therefore, while affirming the universality of human rights, one must acknowledge that the appreciation of the nature and scope of most rights must be guided by a universally acceptable analytical framework and one must also concede that there is no dominant or culturally superior point of view that yields, in and of itself, a universally correct answer. Even within the confines of a relatively homogeneous culture, reasonable people disagree as to whether, for example, assisted suicide or euthanasia is an erosion of the right to life or a vindication of personal liberty and autonomy.
As we strive to protect individual human rights as well as cultural, religious and linguistic diversity, I believe that we should stress the immense commonality of human aspirations and search for fulfilment. We should also recognize that individual human rights cannot flourish outside the units, small and large, that are essential to the definition of our personal identity.
I think of human rights law as a kind of political human DNA, which contains at once everything human beings have in common, and the particularities of groups and clans within which, ultimately, the individual emerges as uniquely deserving of protection as he or she embodies the entire human race.
The need to belong, and to find and express one’s personal identity by affiliation, is a very strong human impulse. Human rights law does not stand in the way of that aspiration. It simply ensures that all have an equal chance at realizing the potential that is contained both in similarities and in differences.
Human rights norms, and their application, must strive to affirm the importance and power of the principle of universality, which can never be compromised, while articulating a framework within which cultural diversity will serve to enrich, rather than to erode, the universal application of fundamental rights and freedoms.