The case of a woman seeking refuge in the United States from her tribe's ritual of female genital mutilation raises the question: Are human rights universal?
The girl's story reads like a fairy tale. There is the loving, protective father, who dies suddenly and at a young age. There is the villainous aunt, who banishes the girl's mother and "sells" the 17-year-old to a man three times her age to be his fourth wife. As part of the marriage, she is to suffer the tribal rite of passage of female genital mutilation (FGM). Finally, there is the girl's rescue by her mother and sister and her flight to asylum in the United States.
But this story is not fictional; it is the real-life drama of Fauziya Kasinga, a teenager from Togo, West Africa. This story ended up on the front page of The New York Times, and its heroine was interviewed by Ted Koppel on "Nightline."
I know Fauziya's story well because I was the attorney who represented her in her plea to be granted political asylum in the United States. That plea was granted in June 1996, setting the precedent that women refugees who flee persecution related to their gender-in this case genital mutilation-are entitled to protection under U.S. immigration laws.
During the extensive publicity surrounding Fauziya's case, I was interviewed frequently by TV, radio, and print journalists. On a number of occasions, I was asked what right I had to judge or condemn the cultural practices of polygamy and FGM. I was sometimes accused of being a "cultural imperialist" by imposing my Western concept of human rights on a very different culture and country.
In the context of representing Fauziya in her request for asylum, I felt there was a relatively easy response to these accusations of cultural imperialism: namely, that it was Fauziya herself who had disagreed with and resisted the practices of her own culture. Once she had made this decision, my role was simply to support her in her profound desire not to be subjected to FGM or forced into a polygamous marriage.
But answering in the context of Fauziya's request for asylum does not resolve the broader question. What is to be done when generally accepted international human rights standards conflict with long-standing cultural practices?
Female genital mutilation has been condemned as a violation of internationally protected human rights, yet it continues to be an integral part of many African, Asian, and Middle Eastern cultures. More generally, equality for women is an internationally proclaimed human right and is set forth in many treaties, including the Convention to Eliminate Discrimination Against Women, which prohibits distinctions made on the basis of gender. However, many cultures continue to deny women equal rights.
For example, in many countries, Islam is interpreted to restrict the rights of women. Is it disrespectful of their cultures and religion to find these Islamic countries in violation of international human rights standards because of their treatment of women?
These issues are at the heart of a long-standing controversy between the concepts of the universality of human rights and cultural relativism. Proponents of universality maintain that the human rights that have been guaranteed in international treaties and conventions are universal, apply to all countries, and must prevail even when they conflict with cultural or religious practices. In contrast, advocates of cultural relativism argue that permitting international norms to override the dictates of culture and religion is a violation of state sovereignty.
As individuals think about these two opposing positions and determine which is more morally compelling, they may be assisted by examining the origins and objectives of international human rights norms and by considering additional examples where international norms and culture are in conflict.
Modern international human rights law traces its origins to the post-World War II period, when countries acknowledged the profound need for an international consensus regarding the protection of basic human rights. The fact that so many nations did not intervene in a timely manner or at all as the Nazis repressed, persecuted, and then exterminated millions of people was evidence to the world community of its tragic failure.
The formation of the United Nations in 1945 was a response to the unthinkable atrocities of the Holocaust and the failure of the international community to act. The United Nations and associated human rights measures were created for the purpose of putting some substance behind the refrain "never again."
The U.N. Charter identifies one of the organization's primary objectives as "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."
Under the aegis of the United Nations, numerous human rights declarations, treaties, and conventions were drafted. One of the most fundamental declarations adopted by the U.N. General Assembly is the Universal Declaration of Human Rights. It sets forth the basic rights and freedoms that the international community committed itself to respecting and protecting.
The declaration's preamble states that it is to serve "as a common standard of achievement for all peoples and all nations." The use of the words "common standard" and "for all peoples and all nations" indicates that the declarationÕs framers intended it to be universally applied.
The Universal Declaration has been followed by a number of treaties that elaborate on its basic rights and freedoms. These treaties protect civil, political, economic, social, and cultural rights. They prohibit governments from interfering with freedom of thought, conscience, and religion or from engaging in actions such as torture and genocide. The treaties also prohibit racial and gender discrimination.
Yet, often, the rights and freedoms guaranteed in these international treaties and conventions are in direct conflict with cultural or religious practices such as FGM. The U.N. Declaration on the Elimination of Violence Against Women condemns FGM as an act of violence against women and states that countries "should condemn violence against women and should not invoke any custom, tradition, or religious consideration to avoid their obligations with respect to its elimination."
There are countless other examples of state practices that violate the internationally protected rights of women. In Afghanistan, the Taliban, who have recently fought their way to power, have prohibited women from attending school or working outside the home. Women are not even permitted to leave the house unless in the company of a male relative.
In China, female infanticide is practiced; in India, brides may be burned to death if the dowry they bring to the marriage is too small; in the West Bank and Gaza, unmarried women suspected of bringing dishonor to their families by losing their virginity may be killed.
Although we have focused on women's rights, there are just as many instances of governmental norms justified by culture or religion that violate the rights of men, as well. For example, many countries have ignored the right to freedom of thought, conscience, and religion.
In some countries, all religious practices have been forbidden, and individuals have been punished simply for holding and manifesting their religious beliefs. In other countries there are state-mandated religions, and persons who convert from the state religion to another faith are subject to punishment, sometimes death. Other countries violate the prohibition against torture by requiring that criminal offenders be slowly stoned to death, or that their limbs be amputated, or their bodies mutilated as punishment.
In light of these very concrete examples, which approach is more morally compelling—universality or cultural relativism? To some degree, the answer turns upon one's views on the nature of culture and the nature of international human rights standards.
The cultural relativists often characterize culture as an essential attribute of self-determination and of a people's sovereignty. They also may regard international norms as little more than legal pronouncements the arbitrary dictates of the more powerful nations of the world, engaging in modern "colonization" by imposing their standards on less powerful nations. From this perspective, there is little reason to argue that international norms should supersede a state's history, culture, or religion.
However, as someone who has worked for many years with refugees and other victims of human rights violations, I strongly tilt toward the principle of universality. This view does not consider culture inviolate; in fact, from this perspective, culture is often seen as the expression of the worldview of the most powerful in society. To the degree that the cultural norms are created and maintained by the powerful, they may disenfranchise less powerful individuals or groups in a society.
For example, the cultural norms in a patriarchal society become a way to maintain the inequality of women. Or the cultural norms in a caste-based society may justify discrimination against members of the lowest caste. The cultural norms in a racist society normalize and justify discrimination against members of the despised racial or ethnic group.
Those in favor of a universality approach to human rights not only question the sanctity of culture, but they also disagree with the view that international human rights standards are little more than arbitrary legal pronouncements. The human rights standards that came into existence after World War II were not legislated by a few powerful nations. To the contrary, they were drafted by representatives from diverse nations. These drafters agreed that state sovereignty could never justify certain governmental practices, such as genocide or torture.
In this light, proponents of universality argue that international human rights norms have moral authority because they constitute the world community's consensus regarding ethical behavior between governments and their citizens. If one views them from this perspective, it is not hard to make the argument that international human rights norms should be universally applied, giving all peoples the benefit of their protections.
Karen Musalo is director of the Ethics Center's International Human Rights and Migration Project.
This article was originally published in Issues in Ethics - V. 8, N. 3 Summer 1997.