The Vienna Declaration and Programme of Action, also known as VDPA, is a human rights

declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993
in Vienna, Austria. The United Nations High Commissioner for Human Rights was created by
this Declaration endorsed by General Assembly Resolution 48/121.

The VDPA reaffirmed the Universal Declaration of Human Rights and the United Nations
Charter. Its Preamble states "The World Conference on Human Rights, Considering that the
promotion and protection of human rights is a matter of priority for the international
community, and that the Conference affords a unique opportunity to carry out a comprehensive
analysis of the international human rights system and of the machinery for the protection of
human rights, in order to enhance and thus promote a fuller observance of those rights, in a just
and balanced manner."

The Preamble also states: "Invoking the spirit of our age and the realities of our time which
call upon the peoples of the world and all States Members of the United Nations to rededicate
themselves to the global task of promoting and protecting all human rights and fundamental
freedoms so as to secure full and universal enjoyment of these rights,

Human Rights as Indivisible, Interdependent and Interrelated

The VDPA emphasizes that all human rights are of equal importance, seeking to end the
qualitative division between civil and political rights and economic, social and cultural rights,
which was pronounced during the Cold War era. Part I, para 5 states that "All human rights are
universal, indivisible and interdependent and interrelated. The international community must
treat human rights globally in a fair and equal manner, on the same footing, and with the same
emphasis. 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." This phrase is also cited by Declaration of Montreal as well as The
Yogyakarta Principles and the Convention on the Rights of Persons with Disabilities. To this
end, Part II, para 75 also encourages the Commission on Human Rights, in accordance with
the Committee on Economic, Social and Cultural Rights, to continue the examination of
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on
equal basis of the Optional Protocols to the International Covenant on Civil and Political
Rights.

Human Rights as relevant universal standard

And the VDPA seeks to reaffirm human rights as universal and relevant standard. The
Preamble states: "Emphasizing that the Universal Declaration of Human Rights, which
constitutes a common standard of achievement for all peoples and all nations, is the source of
inspiration and has been the basis for the United Nations in making advances in standard setting
as contained in the existing international human rights instruments, in particular the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights."

Although it has long been accepted that human rights are, in the words of the Vienna
Declaration and Programme of Action1 "universal, indivisible and interdependent and

1
A/CONF. 157/23, 12 July 1993
interrelated" and that the universal nature of human rights "is beyond question", the
principle of universality has lately been questioned by the governments of a number of
South East Asian states2 The main reason for the sometimes trenchant criticism of universal
human rights by these governments is that, in their view, the current human rights instruments
are largely representative of Western values and do not adequately reflect those of Asia. The
arguments advanced present something of a caricature of the values espoused by the highly
diverse peoples of the geo-political region known as Asia, but a statement of the opinions
expressed is necessary for their subsequent deconstruction and analysis. First, it is argued that
contemporary human rights are the product of Western political thought and as such promote
destructive individualism at the expense of harmonious communitarianism. Second, it is
contended that the West emphasises individual rights at the expense of duties. Third, because
of the West's focus on individual rights, pre-eminence has been given to civil and political
rights at the expense of economic, social and cultural rights, particularly the right to
development. Finally, it is argued that the West has used its view of individualistic human
rights as an instrument of neo-imperialism. Asian states which do not conform to the West's
notion of democracy and human rights are both criticised and punished through the instruments
of trade sanctions and development aid which are linked to progress in human right and good
governance.

In order to determine whether these arguments have any validity, it is necessary to examine the
assumptions on which they are based and, if they are found to be credible, to ask what this
means for the international protection of human rights. In short, if the assertion in UN
instruments that human rights are universal is found to be open to question, does this mean that
the international human rights system might possibly unravel? If such an outcome were the
logical consequence of the challenge to universalism, it would throw into disarray the notion
of a credible international system of human rights protection which has been under construction
by states since the end of the Second World War.

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and
Others; South African Human Rights Commission and Another v. President of the
Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African
Constitutional Court held unanimously that the male primogeniture rule according men rights
to inheritance not enjoyed by women enshrined in the South African Customary Law of
Succession violated the right to equality guaranteed under section 9 of the South African
Constitution. On one level, the decision can be seen as a triumph for the universality of human
rights norms. On another level, however, the case raises difficult questions about the
relationship between human rights and culture. The aim of my arguments in this course work
is to assess the judgment critically in the context of the ongoing debate about the
application of international human rights standards in different cultural settings.

2
for example, the statements made at the Vienna World Conference on Human Rights in June 1993
by Liu Huaqiu (Head of the Chinese Delegation), U Ohn Gyaw (Minister for Foreign Affairs and
Chairman of the Delegation of Myanmar), Ali Alatas (Minister for Foreign Affairs and Head of the
Delegation for Indonesia) and Wong Kan Seng (Minister for Foreign Affairs of the Republic of
Singapore). These statements are reproduced in James T H Tang (Ed), Human Rights and
International Relations in the Asia Pacific (London, Pinter, 1995), Appendix III, pp 213-49.
Are Human Rights of Western Origin? (This is important as it leads us to understand
the nature of human rights as stated in the question)

The literature on the historical development of human rights tends to acknowledge that the
concept of human rights has its origin in Western political philosophy3. Most authors trace the
evolution of human rights back to the Classical period, through the development of natural law
and natural rights and to the re-emergence of natural law during the Second World War The
English, American and French constitutional revolutions of the seventeenth and eighteenth
centuries and their accompanying declarations of rights are frequently portrayed as the
progenitors of modern human rights documents, while the writings of Locke and Montesquieu,
among others, are seen as providing the intellectual ballast for these developments.

In recent years, however, there has been an attempt to find bases for human rights in the
religious, philosophical and social traditions of non- Western cultures. A number of writers
have identified what might be called proto-human rights doctrines in Judaism, Islam,
Buddhism, Confucianism and Hinduism4 While these religious and philosophical traditions
clearly do not articulate the language of rights and concentrate rather more upon the duties
which individuals owe to each other, none the less they are concerned with the preservation
and promotion of human dignity. Al- Na'im, for example, suggests that all traditions recognise
the golden rule or rule of reciprocity that one should treat others as one would wish to be treated
oneself.5 Although a framework of interlocking duties may have the appearance of human
rights, they are not human rights as they are conceived in Western writings. Although there is
much debate over the nature of rights in Western jurisprudence, it can at least be asserted that
a right is an entitlement which the right-owner possesses as against all others, particularly the
state. While it might not be too great a philosophical leap to suggest, as Renteln does, that
duties are simply the "flip side" of rights, it is more than a semantic argument to suggest the
converse that rights are simply the "flip side" of duties. Because of this Donnelly argues that
while other religious and philosophical traditions might be concerned with the preservation of
human dignity through a duty-based system, this does not mean that they are the same as human
rights. While Donnelly's argument might be intellectually and historically "pure", there is
surely some benefit in acknowledging that other religious and philosophical traditions have
identified proto-human rights since these serve to provide a cross-cultural underpinning of

3
for example, AH Robertson and JG Merrills Human Rights in the World: An Introduction to the
Study of the International Protection of Human Rights (Manchester, Manchester University Press, 3rd
ed, 1996); R Panikkar, "Is the Notion of Human Rights a Western Concept?", (1982) 120 Diogenes
76; SP Subedi, "Are the Principles of Human Rights 'Western' Ideas? An Analysis of the Claim of the
'Asian' Concept of Human Rights from the Perspective of Hinduism"(1999) 30 California Western
International Law Journal

4
Documents from the Bible to the Present (London, Routledge,1997) and Subedi, op cit n 3. Renteln,
op cit n 3, at 55-56. See also MR Ishay, The Human Rights Reader: Major Political Writings, Essays,
Speeches, and

5
AA An-Na'im, "Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human
Rights" in CE Welch Jr and VA Leary (eds), Asian Perspectives on Human Rights (Boulder,
Westview Press, 1990), pp 31-54 at 37.
modern international human rights whose objective is the preservation and promotion of human
dignity. It is for this reason that it is possible to refer to the duty-based approach systems of
these other traditions as proto-human rights, since they lend support to the arguments about the
universality of broad concepts of human rights.

Despite these observations, it would appear that if one takes a strict view of human rights as
entitlements which a right-owner possesses against all others, particularly the state and its
emanations, then the evolution of human rights is almost exclusively of Western origin. This
becomes even more apparent when one examines their pragmatic rather than theoretical
foundations. In essence, human rights were conceived as instruments by which to combat
oppression by autocratic rulers and exclusion from the political process. The American
Declaration of Independence and the ensuing Bill of Rights were designed not only to free the
American colonies from an English parliament in which they had no political representation,
but also to protect future generations from the abuse of political power by any indigenous
government. Similarly, the French Declaration on the Rights and Duties of Man was aimed at
curtailing oppression by future governments. Intimately associated with these ideas was the
concept of self-determination rooted in the notion of democratic participation in government.
Human rights were thus initially the direct product of the evolution of the modern democratic
state, and the modern democratic state is undoubtedly of Western provenance.6 There may have
been limits on rulers in other polities, but these were largely based upon their sense of moral
constraint in the interests of harmony and good governance or from fear of being violently
deposed, rather than notions of democratic governance and the normative restraint of
individualised rights.

The Western intellectual foundations of human rights are also evident in the post-1940 human
rights movement. President Truman's "Four Freedoms" speech, the inclusion of references to
human rights in the Atlantic Charter and the United Nations (UN) Charter, and the drafting of
the Universal Declaration of Human Rights7all show a predominantly Western influence. This
is not to say that there was an absence of non-Western input into the Universal Declaration.
The history of the drafting of the Declaration shows that there was considerable discussion
about the cross-cultural acceptability of the instrument. The statement by the American
Anthropological Society to the UN Commission on Human Rights on the proposed Declaration
also sensitised the Commission to the idea that other cultures might not be persuaded by a
human rights code which was predominantly Western in its orientation. The Association
commented:

It [the Declaration] will not be convincing to the Indonesian, the African, the Indian, the
Chinese, if it lies on the same plane as like documents of an earlier period. The Rights of Man

6
Indeed, as Freeman, op cit n 3, at 52 argues that "in order to defend themselves against Western
domination, the non-Western peoples have adopted certain Western institutions and projects". He
notes, in particular, that they have adopted the neo-Westphalian state system to participate in the
global economic and political system.

7
GA Resolution 217A, GAOR, 3rd Sess, Part I, Resolutions, p. 71.
in the Twentieth Century cannot be circumscribed by the standards of any single culture or be
dictated by the aspirations of any single people. Such a document will lead to frustration, not
realization of the personalities of vast numbers of human beings.

This observation by the American Anthropological Society introduced into the debate on
human rights the notion of cultural relativism. Cultural relativism has been appropriated as
a general term to argue that all human rights are culturally derived and mediated, it has its
origins in the study of anthropology, where it emerged in the early twentieth century as a
reaction to the theory of cultural evolutionism8. The central precept of cultural evolutionism
was that human societies would naturally progress from the primitive to the modern. European
civilisation was, of course, seen as the pinnacle of such progress and implicit in this were racist
overtones. As Hatch has written, "the people who were thought to be the least cultured were
also thought to be the least intelligent and the darkest in pigmentation"9. The response of the
relativists to the theory of cultural evolution was to show that everyone is culturally conditioned
and to call into question the assumptions of Western superiority. The effect of cultural
relativism, in an anthropological sense, is to challenge absolute and Universalist conceptions
of morality and to promote tolerance of other cultures. As Renteln argues, however, it is a
mistake to think that tolerance requires us to tolerate everything. She says, "The key point is
that the theory of ethical relativism as descriptive hypothesis is not a value theory but rather a
theory about value judgments"10. Relativity is thus a tool for self- reflection or to promote self-
awareness and for analysing our cultural and ethical standpoints before we seek to apply them
to other cultures; it is not some kind of prohibition of the criticism of other cultures or
moralities. The effect of cultural relativity, therefore, is to weaken the very idea of universality.
Since there is no universal culture, but rather a broad array of cultures, there can, in
consequence, be no single, universally valid standpoint on any moral issue. Furthermore,
because human rights are a species of moral entitlement, they cannot have a universal quality,
but must vary according to the cultural environment in which they originate and function. To
take this argument a little further, since human rights are essentially the product of Western
culture or, more specifically, Western political philosophy, their application to non-Western
cultures or philosophies must be open to question.

The Universality of Human Rights

The principle of the universality of human rights, which is expressed in the Universal
Declaration of Human Rights and other United Nations instruments, is posited upon certain
assumptions about the fundamental nature of all human beings. It assumes that since all people
possess the same essential human qualities, every person must, in consequence, be of equal
dignity and worth and thus equal in rights. Although this assumption is the subject of
considerable philosophical and jurisprudential debate, it none the less finds support not only in
a variety of national and international human rights instruments, but also, to a certain degree,
in a number of theological and philosophical traditions. Certainly, these ideas can be discerned
in Christian traditions, particularly that of the social teaching of Roman Catholicism, and while

8
Renteln, op cit n 3, at 61-65.

9
E Hatch, Culture and Morality: The Relativity of Values in Anthropology (New York, Guildford,
Columbia University Press, 1983), p 26.

10
Renteln, op cit n 3, at 73.
other traditions may be duty rather than rights-based, none the less, the intrinsic dignity and
worth of the human person remain central elements of their doctrines. Within the UN human
rights system, however, it follows that because all people are equal in dignity and worth they
also possess those human rights in equal measure. The logical corollary of this is that human
rights are universal in character; that is, they apply to all people regardless of location, time or
personal characteristics. This view is not only stated explicitly in the Vienna Declaration and
Programme of Action 199311, it is also supported implicitly by the broad anti-discrimination
provisions of the major human rights instruments. Article 2 of the Universal Declaration of
Human Rights, for example, provides:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.

It is one thing to say that human rights are possessed equally by all human beings the world
over, but quite another to say exactly what those right are and how they stand in relation to
each other. In the present context these are particularly important issues. In its pure or absolute
form12 the principle of universality would not allow any variation in the application rights;
there would have to be a uniform application of those rights. Furthermore, the Vienna
Declaration and Programme of action states that since human rights are "indivisible and
interdependent and interrelated" the international community must treat them "in a fair and
equal manner, on the same footing and with the same emphasis13". This means that not only
are human rights universal in their application, but also that there is no hierarchical relationship
between the various rights: one right must not be granted at the expense of another. To put it
another way, human rights are horizontally integrated and mutually supportive. This suggests
that the argument by some Asian governments that the right to development must take priority
over certain civil and political rights is, on this understanding of the universality and equal
application of all rights, unsustainable

The relationship between universality and relativity

Following the examination of universality and relativity above, it will be apparent that the two
theories in their extreme or radical forms stand diametrically opposed to each other. Absolute
universality would seem to require total uniformity in the enjoyment of all human rights by all
human beings, whereas absolute relativity implies an absence of human rights, as that term is
currently understood, since all conceptions of rights if, indeed, there are any conceptions of
rights, are completely determined and mediated by the culture in which they originate. An
analysis of both international human rights instruments and the practice of states suggests that
neither absolute universality nor absolute relativity holds sway in the treatment of human
rights. Absolute universality cannot hold true, because the wide diversity of societies and
cultures clearly interpret and apply the same rights in different ways. Neither can absolute

11
Op cit n 1, at pgh 1, 5 and 32.
12
Donnelly, op cit n 7, at 110 refers to this as "radical" universalism.
13
Op cit n 1, at pgh 5
relativity hold true, because there is a universal consensus on both the existence and the need
to implement human rights. This is evidenced by the significant number of human rights
instruments of both a legally binding and "soft law"14[24] nature now in existence. Lying
somewhere between the two absolutes is a middle way which reconciles the demands of
universality and the demands of culture.

Before it is possible to analyse where this middle way might lie, it is necessary to examine
further some of the basic terms and concepts upon which this discussion is based. First, it is
necessary to look more closely at the nature of human rights in the international system.
Second, some attempt must be made to determine the methods by which states give effect to
these human rights and to examine the roles which states and international human rights bodies
play in the mediation of the principles of universality and cultural relativity. Finally, it is
essential to ask what is meant by culture and how culture relates to states and sub-state
groupings.

The nature and extent of international human rights

If one accepts that a human right is an entitlement which is owned by a right-owner, that is, an
individual human being, then there must be a correlative duty on the part of the duty bearer, in
this case the state, to respect that right unconditionally. Since the individual is the owner of the
right, the state must give the owner what is his or her due. To use Dworkin's terminology, a
right is a "trump" to which all other considerations of social policy must yield. The ownership
of a human right, or the rights one has simply because one is a human being, places the right-
owner in a position of superiority vis-a-vis the state. Furthermore, since human rights are
inalienable they cannot legitimately be denied.

The human rights owned by individuals are set down in a number of instruments, some of
which are legally binding and some of which are not. Without engaging in a doctrinal argument
over the precise legal status of the Universal Declaration of Human Rights it is probably fair
to say that, at the very least, it represents a high degree of international consensus on those
human rights which are owned by all members of the human race. Support for this proposition
can be found both within the Universal Declaration itself which states that it is "a common
standard of achievement for all peoples and all nations" and in the 1968 Proclamation of
Teheran, paragraph 2 of which provides:

The Universal Declaration of Human Rights states a common understanding of the peoples
of the world concerning the inalienable and inviolable right of all members of the human
family and constitutes an obligation for the members of the international community.
(Emphasis added.)

14
"Soft law" refers to a wide variety of standard setting documents which are usually entitled "codes"
or "rules". They are not, strictly speaking, legally binding, but they act as a pointer to the way in
which the international community sees international law developing in particular areas. They may
also contribute to the formation of customary international law. M Shaw, International Law
(Cambridge, Cambridge University Press, 4 ed, 1997), pp 92-93.
It is also clear that the Universal Declaration of Human Rights is the progenitor of most
contemporary human rights instruments. All the regional human rights conventions - the
European, American and African Conventions - recognise this fact directly in their preambles,
while the Vienna Declaration and Programme of Actions 1993 acknowledges that the Universal
Declaration has been the basis for the UN's standard setting work, especially in its
manifestation in the two International Covenants. In the light of this it would seem difficult,
if not impossible, to deny that the Universal Declaration is a more or less comprehensive
catalogue of human rights.

Although it is possible to claim this status for the Universal Declaration, it is doubtful whether
this, in itself, is particularly helpful, since identification of the rights themselves does not reveal
their content. It is all very well to know that one has the right to life, liberty and security of the
person, but until it is possible to state with some specificity how this right will apply in concrete
circumstances, it remains a fairly abstract proposition. In this sense it is possible to view the
rights set down in the Universal Declaration as a catalogue of moral entitlements having
some pre-normative status rather than legal norms. While Donnelly takes the view that
human rights are moral entitlements and that they are thus different to rights embodied as legal
norms, that is, legal rights, it is none the less possible to argue that the value of normative
human rights is that they confer both a legitimacy on their status and establish a direct legal
relationship between the individual and the state. I would agree with Donnelly that appeal to
moral entitlements is a particularly powerful device, but the power of legal legitimacy can
provide a sharper tool if we wish both to protect and vindicate human rights when they are
violated.

In order to make human rights useful, therefore, it is necessary to move away from their
indeterminacy and to concretise them. As noted above this requires the interpretation and
application of a right in concrete circumstances. It is only when an individual claims that his
or her right has been violated and some authoritative decision making agency interprets and
applies the right to the situation at hand that human rights norms begin to manifest their true
scope and identity. This is not simply a matter of legal interpretation, it is also something much
deeper than this. The vindication of a right will often reveal a deficiency in some social policy
and the state will thus be required not only to make reparation to the victim, but to take
appropriate steps to ensure that such a violation does not happen again. In a sense, it involves
some reconstruction of the apparatus of the state to ensure that it is in line with the state's human
rights obligations. As Ronald Dworkin has commented, "the process of making an abstract
right successively more concrete is not simply a process of deduction or interpretation of
the abstract statement but a fresh step in political theory15."

15
R Dworkin, A Matter of Principle (Cambridge, Mass, Harvard University Press, 1985), p 3
Conclusion
In conclusion therefore if we examine the notion of Western culture as expounded, for example,
by one of the prime critics of the liberal- democratic approach to human rights, the Prime
Minister of Malaysia, Mahathir Mohammad, then we find the following hyperbolic statement:
“The West's interpretation of human rights is that every individual can do what he likes, free
from any restraint by governments ... The result is perhaps not quite what the original liberal
democrats expected. Individuals soon decided that they should break every rule and code
governing their society. Beginning with simple things like dress codes, they went on to discard
marriage as an institution. Extra-marital sex became the norm. The family was redefined to
mean co-habitation between a man and a woman, with frequent changes of partners, or
between a man and a man or woman and woman. Children were begotten without known
fathers, which in time will lead to incest between brothers and sisters and even father and
daughter or mother and son. But then incest to them is not wrong either, if that is what is
desired by the individuals.”

In light of my argument above the principle of universality would not allow any variation in the
application rights; there would have to be a uniform application of those rights. Furthermore, the
Vienna Declaration and Programme of action states that since human rights are "indivisible and
interdependent and interrelated" the international community must treat them "in a fair and
equal manner, on the same footing and with the same emphasis ". This means that not only are
human rights universal in their application, but also that there is no hierarchical relationship
between the various rights: one right must not be granted at the expense of another. To put it
another way, human rights are horizontally integrated and mutually supportive. This suggests
that the argument by some Asian governments that the right to development must take priority
over certain civil and political rights is, on this understanding of the universality and equal
application of all rights, unsustainable.
 BILIOGRAPHY
 Davidson, J.S. --- "East versus West: Human Rights and Cultural
Difference" [2001] CanterLawRw 3; (2001) 8 Canterbury Law Review
37

 E Hatch, Culture and Morality: The Relativity of Values in

Anthropology (New York, Guildford, Columbia University Press,
1983), p 26.

 J Morsink, the Universal Declaration of Human Rights: Origins,

Drafting, and Intent (Philadelphia, University of Pennsylvania Press,
1999).

 R Dworkin, a Matter of Principle (Cambridge, Mass, Harvard

University Press, 1985), p 357

 P R Ghandhi, the Human Rights Committee and the Right of

Individual Communication: Law and Practice (Aldershot, Ashgate,
1998), pp 311-314.

 JA Andrews, "Human Rights: A Common or Divisive Heritage"

(1994) XXI Thesaurus Acroasium, pp 72-90, at 78.

 E Evatt, "The Impact of International Human Rights on Domestic

Law". Draft paper prepared for Liberty Equality, Community:
Constitutional Rights in Conflict? A Conference on the Future of the
New Zealand Constitution. Auckland 20-21 August 1999.
 NKUMBA UNIVERSITY
SCHOOL OF LAW
COURSE WORK

AUG/2011/LLB/B9438
INTERNATIONAL HUMAN RIGHTS LAW
DR.

QTN