¹ World Conference on Human Rights, Regional Meeting for Asia, UN Doc. A/CONF.157/ASRM/7 (1993).

² Report of the Drafting Committee to the World Conference on Human Rights, UN Doc. A/CONF.157/DC/1/Add.1 (1993).

³ See Renden, Alison, “The Unanswered Challenge of Relativism and the Consequences for Human Rights,” 7 Hum. Rts. Q. 514 (1984)Google Scholar and Teson, Fernando, “Human Rights and Cultural Relativism,” 25 Va. J. of Int’l L. 869 (1985).Google Scholar

⁴ The distinction between “objectivism” and “universalism” is this: where the objectivist conceives of truths beyond human experience, the universalist may deny that such truths exist, yet assert that there are “universal” truths that are inter-subjectively applicable to all of humanity. The objectivist understands the world according to what Richard Bernstein has described as the “distinction between the subject and the object [where] what is Out there’ is presumed to be independent of us, and knowledge is achieved when a subject correctly mirrors or represents objective reality”: Bernstein, Richard J., Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis, 9 (Philadelphia: University of Pennsylvania Press, 1988).Google Scholar The universalist, on the other hand, does not necessarily make this distinction, but instead insists only that the assertion pertain to all humans. It is the viewpoint of objectivism that I will question in this paper.

⁵ Louis Sohn has noted that, before 1945, “a state’s own citizens were almost completely at its mercy, and international law had little to say about mistreatment of persons by their own government”: Sohn, , “The New International Law: Protection of the Rights of Individuals Rather than States,” 32 Am. U.L. Rev. 1 at 9 (1992).Google Scholar

It should also be noted that the exponents of human rights acting after the Second World War built upon the long-lived tradition that natural law was the arbiter of domestic law. As J. A. Andrews has written, “within the philosophical heritage [of international human rights] is contained the thought that some rights of man are so fundamental that they are reflected in a higher order which is above the authority and responsibility of the lawmaker, be he prince, governor or a democratic legislature”: International Protection of Human Rights, 5 (New York: Facts on File Inc., 1987).

⁶ As Ian Kershaw has indicated, the planning of the “Final Solution” at the Wansee Conference, Jan. 20, 1942, and during the preceding month involved the very highest levels of the German state. “[I]t is clear that not only the SS leadership but also the Foreign Office, the Ministry for the Occupied Eastern Territories and the Chancellory of the Fuhrer were in the picture”: The Nazi Dictatorship, 103 (London: Edward Arnold, 1985). See also Browning, Christopher, The Final Solution and the German Foreign Office (New York: Macmillan, 1978).Google Scholar

⁷ Roper, Hugh Trevor (ed.), Hitler’s Table-Talk, 643 (Oxford: Oxford University Press, 1988 Google Scholar).

⁸ The official aim of the Community Alien Law was the denial of all social services to those of “deficiency of mind or character.” As the explanatory text stated: “The National Socialist view of welfare is that it can only be granted to national comrades who both need it and are worthy of it In the case of community aliens who are only a burden on the national community welfare is not necessary.” Cited in Noakes, Jeremy, “Social Outcasts in the Third Reich” in Bessel, Richard (ed.), Life in the Third Rack, 92 (Oxford: Oxford University Press, 1987).Google Scholar

⁹ See e.g., Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 ( 1948); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly as an annex to resolution 39/46, UN GAOR, 39th Sess., 708 Plen. Mtg., UN Doc. A/39/708 (1984), text found at GAOR Supp. 51 at 197, UN Doc. E/CN.4/1984/72 (1984). In 1987 the Convention came into force. See also International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (1966).

¹⁰ See the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 ( 1948 ); American Convention on Human Rights, OASTS No. 36 ( 1969 ); African Charter on Human and People’s Rights, reprinted in 21 ILM 59 (1981).

¹¹ Shestack, , “The Jurisprudence of Human Rights,” in Meron, Theodor (ed.), Human Rights in International Law: Law and Policy Issues, 78 (Oxford: Oxford University Press, 1984).Google Scholar

¹² For further discussion of this point, see Alston, Philip, “The Universal Declaration at 35: Western and Passé or Alive and Universal,” 30 Int’l Com. of Jur. Rev. 60 (1983),Google Scholar and Donnelly, Jack, “Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights,” 76 Am. Pol. Sci. Rev. 303 (1986).CrossRefGoogle Scholar

¹³ Taylor, Charles, Sources of the Self: The Making of the Modern Identity,86 (Cambridge, Mass.: Harvard University Press, 1989).Google Scholar

¹⁴ Descartes, Meditations, Vol. 1 of Philosophical Works of Descartes, 144, trans. Haldane, Elizabeth S. and Ross, G.R.T. (Cambridge: Cambridge University Press, 1969).Google Scholar

¹⁵ Ibid., 16.

¹⁶ I offer this, rather bluntly, as an illustration of the contingency of Descartes’ own thought. For much more subtle and comprehensive assessments of Descartes’ work in the light of its intellectual context, see Taylor, supra note 13 and Maclntyre, infra, note 17.

¹⁷ Alisdair Maclntyre has suggested this point when he described Descartes as “a late follower of the Augustinian tradition as well as someone who attempted to refound philosophy de novo”: Whose Justice, Which Rationality, 358 (London: Duckworth’s, 1988).

¹⁸ Ibid., 4.

¹⁹ Rorty, Richard, Contingency, Irony and Solidarity, 5 (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar

²⁰ Ibid., 5.

²¹ For a good overview and critique of the correspondence theory of truth, see Davidson, , “The Structure and Content of Truth,” 87(6) J. Phil. 279 (1990)CrossRefGoogle Scholar.

²² Richard Rorty discusses this limitation in some detail in supra note 19.

²³ Davidson, Donald, “Epistemology Externalized,” unpublished lecture delivered at the University of Toronto, November 14, 1992.Google Scholar

²⁴ See also Davidson, , “Reply to Bürge,” 85 J. Phil. 664 (1988).CrossRefGoogle Scholar

²⁵ Supra note 23. It should be noted that Davidson distances himself from theories he refers to as “social externalism”: see Burge, Tyler, “Individualism and the Mental” in French, Peter, et al. (eds.), Midwest Studies in Philosophy, Vol. 4 (Minnesota: University of Minnesota Press, 1979).Google Scholar Davidson’s position is not that society simply informs us of the world about us, but rather that there is a causal interrelation between social, external, and individual factors that allows us to have perceptual knowledge.

²⁶ Berry, Christopher, Human Nature, 65 (London: Macmillan, 1986).CrossRefGoogle Scholar

²⁷ Alasdair Maclntyre has argued that, in fact, the idea of a self was developed as a means of dealing with the historical contingencies of emerging modernity. It is therefore of no more use to speak of the “self” or of the “inherent nature of the individual“ than it is to speak of “justice.” Indeed, they are different sides of the same coin. Maclntyre, , After Virtue: A Study of Moral Theory, 61 (London: Duckworth’s, 1981).Google Scholar

²⁸ For the purpose of this article, the terms “tradition” and “culture” may appear interchangeably.

²⁹ Emphasis in the original. See Smith, Barbara Herrnstein, Contingences of Value: Alternative Perspectives for Critical Theory, 90 (Cambridge, Mass.: Harvard University Press, 1988).Google Scholar

³⁰ Donald Davidson has argued that the very word “language” is deceptive because it suggests a monolithic thing that can be learned and completely understood. In Davidson’s view, language is better conceived as a fluid series of theories that are ever-adapting to their changing environs:

See “A Nice Derangement of Epitaphs” in LePore, Ernest (ed.), Truth and Interpretation: Perspectives on the Philosophy of Donald Davidson, 441 (Oxford: Blackwell, 1986).Google Scholar

³¹ For a thorough discussion of language and international politics from the perspective of structuralist and post-structuralist theory, see Hoffman, Mark, “Critical Theory and the Inter-paradigm Debate,” in Dyer, Hugh C. (ed.), The Study of International Relations: The State of the Art (London: Macmillan, 1989)CrossRefGoogle Scholar and Rosenau, Pauline, “Once Again into the Fray: International Relations Confronts the Humanities,” 19(1) Millennium: J. Internat’l Stud. 83 (1990).Google Scholar

³² Note the discussion of what Hayward R. Alker,Jr., echoing Robert Keohane, has called the “reflective tradition” in international studies. This tradition, suggests Alker, employs a “contextual and historicist conception of rationality” in approaching questions of international relations and understands language as a “constitutive force” in world politics: “Rescuing ‘Reason’ from the ‘Rationalists’: Reading Vico, Marx and Weber as Reflective Institutional-ists,” 19(2) Millennium: J. of Int’l Stud. 178-79 (1990).

³³ It might be asked why I continue to use the word “truth” when it implies the sort of objectivism against which my paper has been directed. While I accept that there is a certain ambiguity of usage, I must say that the intention of this article is, in part, to denude “truth” of the objective heritage I believe it has outlived. It is also the case, I think, that no ready replacement for the term is apparent. As Herrnstein Smith has noted, despite its compromised theoretical value, “the term ‘truth’ itself continues to be reinforced by its numerous — and it must be emphasised here, irreducibly various — idiomatic and technical uses. Indeed the term appears to be irreplaceable and indeed priceless: for its rhetorical power in political discourse alone — and there is perhaps no other kind of discourse — would seem to be too great to risk losing or even compromising”: supra note 29, at 95.

³⁴ Supra note 4, at 19.

³⁵ Supra note 4, at 19.

³⁶ I should note that there is a further possibility to this point, and that is that our understanding of truth will not apply to matters beyond the contact of our society and thus beyond our moral horizons. In more concrete terms, this would mean that our notions of truth would be inapplicable to a hypothetical society with which we have had no contact of any sort. I leave this issue aside because it is irrelevant to my present project. If we had no contact whatsoever with this hypothetical society we would not be confronted with any potential human rights concerns. And as such the limits of our truths would never arise.

³⁷ Hermeneuticists emphasize the circularity to understanding — a circularity that would allow the same phenomena to be understood in separate ways. As Martin Heidegger wrote:“Any interpretation which is to contribute understanding, must already have understood what is to be interpreted”: Being and Time, H152, trans. John Macquarrie (Oxford: Blackwell, 1962). Understanding, in this sense, operates within the confines of a tradition. And it is this tradition that provides the means of pre-understanding a given situation or thing. J. E. Malpas has explained in “Analysis and Hermeneutics,” 25(2) Philosophy and Rhetoric 93 at 97 ( 1992): “understanding is characterised by its pre-understanding, its foresight into the concepts that it seeks to understand.”

³⁸ “On the Very Idea of a Conceptual Scheme” in Davidson, Donald, (ed.), Inquiries into Truth and Interpretation, 183 (Oxford: Oxford University Press, 1984).Google Scholar

³⁹ Davidson identifies the philosopher of science, Thomas Kuhn, in this regard: ibid., 184. Kuhn has been associated with a brand of “scientific relativism.”

⁴⁰ Supra note 38, at 184.

⁴¹ It may appear that I am putting words in the mouth of the relativist in this regard. Relativism, after all, need not be confined to “traditions” — it was I who described truths in this fashion. I accept that this is the case, but argue that the relativist must attach to some form of division, whether it be ideology or tradition, for his or her claim to make sense. Were this not the case there would be no need for contrast — a thing being relative to one unit rather than the other. I therefore use tradition as a shorthand for the necessary units in relativism.

⁴² Supra note 17, at 10.

⁴³ Liberalism (Oxford: Oxford University Press, 1911).

⁴⁴ The Fontana Dictionary of Modem Thought defines this concept as follows: “Two theories or sets of beliefs are held to be incommensurable if there is no means of interpreting or understanding one in terms of the other or of comparing them.” Similarly, the Concise Oxford Dictionary defines incommensurable as “having no common measure …irrational … not worthy to be measured with.”

⁴⁵ Theories are “passing,” in this sense, as opposed to static. Davidson has provocatively suggested that in fact there is no such thing as “language” in anything more than a fleeting sense: “[W]e might try to say in what a person’s ability to interpret or speak to one another person consists: it is the ability that permits him to construct a correct, that is, convergent, passing theory for speech transactions with that person. … This characterisation of linguistic ability is so nearly circular that it cannot be wrong: it comes to saying that the ability to communicate by speech consists in the ability to make oneself understood. … There are no rules for arriving at passing theories, no rules in any strict sense, as opposed to rough maxims and methodological generalities.” Supra note 30, at 445–46.

⁴⁶ Ibid., 438 [emphasis added].

⁴⁷ Rorty has recently discussed the way in which we understand ourselves in terms of a wider group. As he says: “When we want to emphasise what binds epochs and cultures together, we mention things like birth and death, paternal power and maternal love, the cycle of seasons and the imperatives of survival, incest taboos and the starry heavens above”: “Interpreting across Boundaries,” 39(3) Philosophy East and West 332 (1989). In short, the factors that join us and inform us of our place in the world are hardly static concepts, developed through a rigorous “rule-making“ procedure. Instead, as Rorty’s passage implies, those things that place us in the world and in society — those traditions that join to nurture our selves — may amount to a loose grouping of custom and belief.

⁴⁸ Supra note 19, at 190.

⁴⁹ Monroe, Kristen R., Barton, Kristen R., and Klingemann, Ute, “Altruism and the Theory of Rational Action: Rescuers ofjews in Nazi Europe,” 101 Ethics 103 at 118 (1980).CrossRefGoogle Scholar

⁵⁰ Dimitrijevic, V., “The Place of Helsinki on the Long Road to Human Rights,” 13 Vand. J. of Transnat’l L. at 253 (1980).Google Scholar

⁵¹ I leave this definition open-ended so as to give this theory its widest application.

⁵² I use the term “wrong” advisedly in this context, for I do not wish directly to discuss the question of moral culpability in this paper.

⁵³ Bernstein, , The New Constellation, 65 (Cambridge: Polity Press, 1991).Google Scholar

⁵⁴ Taylor, , “Understanding and Ethnocentricity,” in Philosophy and the Human Science: Philosophical Papers, vol. 2, 119 (Cambridge: Cambridge University Press, 1985).CrossRefGoogle Scholar

⁵⁵ Supra note 54, at 125.

⁵⁶ An-Na’im, Abdullahi Ahmed (ed.), Human Rights in Cross Cultural Perspectives: A Quest for Consensus, 36 (Philadelphia: University of Pennsylvania Press, 1989).Google Scholar

⁵⁷ An-Na“im’s own conclusions are somewhat vague on the wider issue of cultural relativism. After fashioning the arguments set out above, and emphasizing the importance of “cross-cultural approaches,” whereby concepts may be borrowed from other cultures such as Judaism, An-Na’im concludes that, in the final analysis, “the interpretation and practical application of the protection against cruel, inhuman or degrading treatment or punishment in the context of a particular society should be determined by the moral standards of that society” [ibid., 37]. While I find An-Na’im’s analysis of Islamic culture compelling, I am unable to accept his conclusions. The theory of communication I have presented in this paper would render this conclusion meaningless by conceiving of the standards of society in a fluid manner and thus obscuring what is meant by the “final analysis.”

⁵⁸ Reprinted in 14 ILM 1292 (1975).

⁵⁹ Luers, William H., “Czechoslovakia: Road to Revolution,” 69(2) Foreign Affairs 88 (1990).CrossRefGoogle Scholar

⁶⁰ V. Dimitrijevic appeared to anticipate part of this effect when in 1980 he wrote: “Constant reminders by the public abroad and at home threaten a nation’s prestige, which is in itself an element of power to be neglected at one’s own peril”: supra note 50, at 273.

⁶¹ Franck, Thomas M., The Power of Legitimacy Among Nations, 206 (Oxford: Oxford University Press, 1990).Google Scholar

⁶² Philip Alston has put this idea into stark relief in his discussion of his campaign to have the United States act upon the International Covenant on Economic, Social and Cultural Rights. The major hurdle to this, says Alston, has been “[T]he extent to which [the ICESCR] seems to be viewed with suspicion by many Americans who tend to think of it less as an international treaty seeking to promote the satisfaction of basic material needs than as a ’Covenant on Uneconomic, Socialist and Collective Rights.’ Only by facing that reality and by taking it as a starting point for an open… public debate, is there any real prospect of securing the broad based support and momentum without which the Senate is unlikely ever to act”: “U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy,” 84(2) AJIL 365 at 366 ( 1990). In other words, the failure to seek a means of presenting the Convention in terms legitimate to the American public has led to its being ignored in the United States.

⁶³ As of Dec. 31, 1991, the following states had ratified the Torture Convention: Afghanistan, Algeria, Argentina, Belarus, Belize, Brazil, Bulgaria, Cameroon, Canada, Chile, China, Colombia, Cyprus, Czechoslovakia, Denmark, Ecuador, Egypt, Estonia, Finland, France, Germany, Greece, Guatemala, Guinea, Guyana, Hungary, Israel, Italy, Jordan, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Nepal, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russia, Senegal, Somalia, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uganda, Ukraine, United Kingdom and Northern Ireland, Uruguay, Uruguay, Venezuela, Yemen, Yugoslavia. It should also be noted that these states have signed but not ratified the Convention: Belgium, Bolivia, Costa Rica, Cuba, Dominican Republic, Gabon, Gambia, Iceland, Indonesia, Morocco, Nicaragua, Nigeria, Sierra Leone, Sudan, United States of America (Human Rights: Status of International Instruments as of 31 December 1991 (New York: United Nations Publications, 1992)).

⁶⁴ 30 UN GAOR, Supp. 34, UN Doc. A/1034 (1975). The one significant difference between the Declaration’s definition and that contained in the Convention is the former’s reference to “international standards” when referring to the use of lawful sanctions by states. I will discuss this at greater length in the coming pages.

⁶⁵ Signed Dec. 9, 1985, Cartagena, Colombia.

⁶⁶ Maxime E. Tardu has criticized the definition for what he refers to as the “pain-centred concept of torture, flowing from the medieval Inquisition.”Tardu indicates that this understanding of torture fails to address the use of mind-control techniques that cause the surrender of the individual without any pain. That the Convention does not endorse this wider definition may demonstrate, once again, a reluctance to stray too far from the core concern with painful, degrading treatment: “The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment,” 56 Nordic J. Int’l L. 303 at 304 (1987).

⁶⁷ The drafters were here reflecting the law of state responsibility as it had developed to this date. The responsibility of governments for their acquiescence to actions carried out by private or semi-private actors had been firmed by the Inter-American Court of Human Rights in the Valasquez Rodriguez Case (1988), 9/2-3 HRLJ 212. In this case, the court found that the government of Honduras was responsible for the disappearance and subsequent murder of Manfredo Valasquez: “The evidence showed a complete inability of the procedures of the state of Honduras, which was theoretically adequate to ensure the investigation of the disappearance of Manfredo Valasquez ” (ibid., para. 178 ). For further commentary on this decision, see Thomas Buergenthal, “Inter-American Court of Human Rights: Judgement in Valasquez Martinez Case (Forced Disappearance and Death of Individual in Honduras),” ILM 2gi ( 1989). For a more general discussion of state responsibility for human rights, see F. V. Garcia-Amador, “Violations of Human Rights and International Responsibility,” [1956] 2 YBILC 199, reproduced in L. B. Sohn and T. Buergenthal, International Protection of Human Rights, 124–35 (New York: Bobbs-Merrill Co., 1973); M. Forde, “Non-Governmental Interferences with Human Rights,” (1985) BYBIL 253 at 260.

⁶⁸ It should be noted that the Torture Convention adds, as a rider to the definition set out above: “[Torture] does not include pain or suffering arising only from, inherent in, or incidental to lawful sanction.” This was, perhaps predictably, a controversial provision. Amnesty International, for instance, lamented that “the exclusion of ‘lawful sanctions’ from the prohibition opens a potentially serious loophole for governments”: Torture in the Eighties, 14 (London: Amnesty International Publications, 1984). Similarly, the United States felt that the qualification itself required qualification. They proposed the following form: “Torture does not include pain or suffering arising only from, inherent in or incidental to sanctions lawfully imposed; but does include sanctions imposed under colour of law but in flagrant disregard of accepted international standards” (UN Doc CHR/XXXV/10). This suggestion failed to gain the support of sufficient delegates at the negotiations and did not appear in the following revised draft.

⁶⁹ Boulware-Miller, Kay, “Female Circumcision: Challenges to the Practice as a Human Rights Violation,” 8 Harv. Women’s L.J. 155 at 156 (1985).Google Scholar

⁷⁰ Ibid., 159.

⁷¹ Summary Record of the 19th Meeting at 2, cited in Brennan, Katherine, “The Influence of Cultural Relativism on International Human Rights: Female Circumcision as a Case Study,” 7 L. & Inequality 367 at 385, note 87 (1989).Google Scholar

⁷² Oosterveld, Valerie, “Refugee Status for Female Circumcision Fugitives: Building a Canadian Precedent,” 51 U. T. Fac. L. Rev. 278 at 283 (1993).Google Scholar

⁷³ Lightfoot-Klein, H., Prisoners of Ritual: An Odyssey into Female Genital Circumcision in Africa, 39 (New York: Harrington Press, 1989).Google Scholar

⁷⁴ Harden, B., “Female Circumcision: A Norm in Africa,” International Herald Tribune, July 29, 1985, 1, as cited in Oosterveld, supra note 72, at 281.Google Scholar

⁷⁵ See, e.g., the reasoning espoused by Oosterveld, supra, note 72 at 296 and 297.

⁷⁶ “Throwing Away the Circumcision Knife,“ [Toronto] Globe and Mail, Jan. 15, 1994, D2.

⁷⁷ To this end, it should be noted that the use of “rights language“ itself may be inappropriate or ineffective depending on the sort of circumstances within which one operates. I use the term “human right” in this context as an expression of the way we in the west conceive of the body of interests protected under this concept, rather than using it to connote transcending norms.

⁷⁸ Sieghart, Paul, The International Law of Human Rights, 19 (Oxford: Oxford University Press, 1983).Google Scholar

⁷⁹ This process of conversation has been explicitly recognized by some of those most intimately involved with the vindication of human rights. Guatemalan human rights advocate Rigoberta Menchu said, after winning the Nobel Peace Prize: “For 11 years, I’ve been going through the hallways and corridors of the United Nations, to one meeting after another. We ourselves have found it extremely difficult to accept that we have to negotiate human rights — but we have done it”: Graham Fraser “Nobel Peace Prize opens doors for Rigoberta Menchu,” [Toronto] Globe and Mail, Nov. 13, 1992, A5 [emphasis added].

⁸⁰ I do not suggest that “legal rhetoric” is at all times ineffective. There may be venues in which the best argument should be presented in a legal mode of discourse. My point is simply that this use of legalism as a means of ascertaining “objective“ meaning is misconceived and may be counterproductive to the vindication of human rights.

⁸¹ For a detailed discussion of the development of strategy when confronted with multiple perpetrators and multiple abuses of human rights, see Weissbrodt, David, “Strategies for Selecting and Pursuing International Human Rights Matters,” in Hannum, Hurst (ed.), Guide to International Human Rights Practice, 20 (Philadelphia: University of Pennsylvania Press, 1984).Google Scholar

⁸² “The End of the Twentieth Century: Historical Reflections on a Misunderstood Epoch,” Harper’s Magazine, January 1993, 54.

⁸³ A fairly recent example of this sort of creativity is the distribution by the human rights group “Lawyers Committee for Human Rights under Law” of videotaping equipment to natives of the Amazon rain forest (among other groups worldwide) so that they might document through images the abuses meted out to them by their government. The effect of this strategy has yet to be fully realized, but it may serve to isolate Brazil and indeed change the way in which other Brazilians conceive of the native situation in their country. Furthermore,