Lan Cao - Weaponizing Culture To Undermine International Women - S Rights

Hastings Law Journal
Volume 73 Issue 2 Article 3
2-2022
Weaponizing Culture to Undermine International Women’s Rights

Lan Cao
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Weaponizing Culture to Undermine International
Women’s Rights
LAN CAO†
The Universal Declaration of Human Rights (“UDHR”) remains an emblem of hope and change
in a world filled with continuing human rights violations. Its promise, enshrined in 1948, is as
relevant then as it is now—that the international community would no longer allow a state’s
brutal treatment of its own citizens to go unchallenged under the mantle of “sovereignty.”
But the UDHR is being challenged by authoritarians and dictators who rightly see the UDHR as
an international check on their tyranny. It is also being questioned by Western communitarians
who ironically see the UDHR’s enshrinement of international human rights as an intrusive
Western cultural projection onto the rest of the world. This supposedly pro-culture position is
founded on the charge that human rights has been so unduly expanded that the international
rights project has become arrogant, riding roughshod over the non-Western world.
This Article argues against the notion that international human rights has to accommodate
cultural practices that are themselves detrimental to human rights. In such instances, cultural
exceptions whittle away the very principle of human rights and equally significant, they are
especially detrimental to women’s rights. Indeed, many of the practices that deny women freedom,
equality, and basic human dignity are defended on “tradition” and “culture.”
Critics have even exploited social psychology studies showing not just cultural but even cognitive
differences between Westerners in “thin” societies (individualistic) and East Asians in “thick”
societies (individuals embedded in communities). This Article is a defense of universal values
common to all humans, regardless of politics or psychology. As noted, this is crucial for
international human rights, and more specifically for women’s rights because culture has been
singularly weaponized against women; calls for cultural preservation continue to be leveraged to
ensure traditional values and practices that subordinate women can remain outside the purview
of the UDHR. Yet, the historical record shows that the drafters scoured a wide range of non-
Western traditions, and two of its main drafters were P. C. Chang, a Confucian Chinese diplomat
and Charles Habib Malik, an Arab philosopher who were intentional in balancing pluralism with
universalism.
The concern that culture is not sufficiently accommodated rings hollow calls to protect culture
have been rejected in other areas of law such as international trade and law and development.
Moreover, cultural preservation is an oxymoron—culture itself is not homogeneous or contained
but rather has heterogeneous layers that are fluid and evolving. Paradoxically, even as critics
defend cultural pluralism and diversity, their understanding of culture is based on its most
narrow, homogeneous version, one founded on demands for purity and unchanging sameness. In
essence, the Article demonstrates that calls for cultural protection function as a proxy for ensuring
the continued subordination for women worldwide.
† Betty Hutton Williams Professor of International Economic Law, Chapman University Dale E. Fowler
School of Law.
233
234 HASTINGS LAW JOURNAL Vol. 73:2
TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 235
I. PART I: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS ..................... 243
II. PART II: THE UNIVERSALISM OF THE UDHR AND HUMAN RIGHTS .......... 259
A. INTERNATIONAL LAW AND CULTURE ............................................ 260
B. CULTURAL AND COGNITIVE DIFFERENCES .................................... 265
III. PART III: INTERNATIONAL LAW AND CULTURE....................................... 276
A. TRADE AND CULTURE .................................................................... 277
B. LAW AND DEVELOPMENT AND CULTURE ...................................... 283
IV. PART IV: HETEROGENEITY IN CULTURE.................................................. 288
CONCLUSION .................................................................................................. 297
February 2022 WEAPONIZING CULTURE 235
INTRODUCTION
Imagine a society where boys are undervalued and male infanticide and
neglect are practiced; where gender-based violence is a pandemic affecting one
in three men globally; where boys and men are kept illiterate or uneducated,
ensuring that they would be economically and socially dependent on their wives;
where very young boys are forced to marry before they reach adulthood; where
they could not own or inherit property or have equal access to capital and credit,
impeding their ability to enter or participate meaningfully in the marketplace;
where they could not vote, ensuring they would be politically voiceless and
helpless; where their bodies and sexuality are controlled for sexual and
procreation purposes, including sewing up or cutting off parts of their genitals;
where perceived sexual misconduct that brings apparent dishonor to the family
could result in honor killings meted out by female family members; where
gender inequality in education, work, and representation remains entrenched in
most parts of the world.
This system could never endure if it were brutally sanctioned by despotic
force alone. But it would most likely endure because it would be rooted in and
supported by deeply embedded cultural institutions and norms. Yet, if dissenters
and critics concerned about such deeply entrenched and pervasive inequality in
that particular society were to argue that those arrangements are in violation of
the Universal Declaration of Human Rights (“UDHR” or “the Declaration”),1
would they be derided in this hypothetical example for their so-called inability
to understand and respect cultural pluralism?
The answer would be plainly no. Quite simply because that oppressively
matriarchal society would be an outlier and would be considered abnormally
outside the parameters of the UDHR and the ensuing international human rights
framework. But because even in the twenty-first century, societies such as those
where women’s rights are violated are neither outliers nor anomalies, the
subordination of women in such societies is presented as normal. Even countries
that might have outlawed discrimination and violence against women support or
tolerate certain practices that are antithetical to women’s well-being if those
practices are deemed to be a part of those countries’ culture and tradition.
Indeed, it is rarely acceptable nowadays to defend the continued oppression
of women except by resorting to cultural claims. It is important to state at the
outset that this Article is not targeting culture or cultural pluralism. But this
1. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR].
The original title of the instrument was “International Declaration of Human Rights.” The title was changed to
reflect the fact that the Declaration was meant to be morally binding, not just on the governments that voted for
it, but on everyone. MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL
DECLARATION OF HUMAN RIGHTS 161 (2001). It was not to be an intergovernmental document but a document
to and for all of humanity. Id.
Article questions the use of culture to blunt the force and reach of international
human rights law in ways that are particularly detrimental to women’s human
dignity. Thus, this Article disputes the invocation of culture to subordinate
women. Indeed, as this Article argues, culture is often downgraded in other
areas, such as international trade, but upgraded in human rights because cultural
relativism is where women’s subordination can still be justified.
This Article also subjects the term “culture” to scrutiny and questions the
dominant premise that culture exists in some simple, singular, and homogeneous
form in a separate box that is impermeable to and insulated from dissent, change,
and heterogeneity. This Article objects to the uncritical, unquestioning deference
to a cultural status quo that fails to appreciate all the currents of change and
protest beneath the surface and that typically privileges powerful and wealthy
men and special interests. This Article will show that cultures throughout history
for various reasons have evolved, and it is inaccurate to treat culture as if there
is one authentic or sacrosanct version that needs to be preserved.
Proponents of the cultural defense framework deftly pivot the issue away
from women’s rights and leverage it towards culture, claiming in the process
that those who rely on the UDHR to oppose the constriction of women’s rights
are guilty of varying degrees of cultural imperialism. This anti-UDHR, pro-
culture camp, designed to delegitimize the UDHR, is composed of strange
bedfellows. First, the blunter, more aggressive version of the cultural
imperialism claim is one used by patriarchal leaders, dictators, and tyrants in
many parts of the world. These leaders assume a so-called defensive posture
against international human rights law even as they lob attacks against it by
exploiting the history of colonialism for their own agenda: “How dare you
Western imperialists intrude on our culture!”
A second variant of the cultural imperialism claim is a milder version of
the first and might be espoused by both Third World culturalists and Western
communitarians2: international human rights should respect and accommodate
different cultural traditions instead of insisting that cultural diversity be
sacrificed for the sake of universalism. Under this claim, the UDHR can and
should be understood as embracing a less individual, more collective space for
legitimate cultural pluralism. This version is willing to embrace cultural
practices that subordinate women in many ways, although it would tolerate
“hard” priority rights like the right not to be tortured. Both versions prevent the
2. Communitarians are critical of the classical liberal view of the person as atomized individuals,
upholding the social realm and viewing the individuals as socially embedded in the collective or the community.
See, e.g., MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 64 (1998); CHARLES TAYLOR, SOURCES
OF THE SELF 35 (1989); MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 33
(1983).
full flowering of women’s human dignity, and indeed, even the milder, more
subtle version can be just as pernicious in its impact on women.
Broadly speaking, both versions of the pro-culture claim referenced above
can be unpacked in the following way. To inflate and highlight the particularities
of culture and deflate and downplay the universality of the UDHR, the pro-
culture camp continues to misrepresent it as a “Western” document ill-suited for
non-Western countries with their own particular cultures and traditions. In
reality, the record shows that the UDHR was the result of careful, deliberate
drafting by drafters who were fully aware of the cultural traditions around the
world. The drafters were amply conscious that they were forging a document
that would be broad, ambitious, and intentional in its cultural sensitivities,
setting forth interconnected rights and duties designed to ensure human dignity
of human beings everywhere (women included).
The diverse countries that came together to adopt the UDHR emphasized
in the Preamble that “a common understanding of these rights and freedoms is
of the greatest importance . . . .”3 In other words, the pro-culture camp maligns
the UDHR by downplaying its multicultural roots founded in a “common
understanding” of human rights. It falsely portrays human rights universalists as
somehow being clueless about the importance of culture in human lives when
the historical record reveals the exact opposite.
It is hard to imagine anyone arguing that certain races in a society should
be kept subordinate because subordination is part of that society’s deep,
complex, and rich cultural tradition; or that this cultural tradition should be
substantially exempt from the scrutiny of international human rights. But that is
precisely the argument being made to explain—if not facilitate—and justify
women’s continued subordination internationally. This is not to say that every
pro-culture advocate would defend violence against women, such as domestic
violence or rape. But, rather, that some pro-culture advocates would defend less
brutal forms of subordination that are deemed to be culturally embedded and
would argue that those supposedly less brutal versions should be entitled to a
“margin of appreciation.” In the latter case, proponents would never use terms
like “subordination,” “inequality,” “oppression,” “indignity,” or “violence”
against women. Those proponents would rely on concepts like “cultural
pluralism” and “cultural diversity” instead because those terms sound more
innocuous and even respectable. Indeed, invoking “pluralism” and “diversity”
serves at least two functions—it masks the anti-female dimensions that animate
certain practices and traditions; and it allows proponents to accuse international
3. UDHR, supra note 1, pmbl.

human rights advocates as being somehow oblivious to legitimate cultural

differences.4
The anti-universalist, supposedly pro-culture argument is as follows. Rich,
thick societies, where culture and traditions are vibrant and robust, rooted in a
complex moral matrix, must be respected and should not be overridden by an
inflexible insistence on rights.5 In fact, rights themselves are considered
Western.6 Since the UDHR is about “rights,” it is a Western instrument.
Although one of the main objectives of this Article is to examine the historical
drafting record and show that the drafters sifted each clause through a cultural
lens, so to speak, it is also worth noting that rights are to be defended regardless
of their cultural origin. As a Chinese dissident, Xiao Qiang, asked of a colleague
who attacked human rights as a Western notion, “[i]f you were to voice dissent
from the prevailing view in China, you would end up in jail, and there you would
soon be asking for your rights, without worrying about whether they were
‘American’ or ‘Chinese.’”7 From Xiao’s perspective, if rights are good, then
cultural diversity will be less important, with respect to rights, at least.
But to return to the culture question, of course cultural diversity is to be
valued and culture needs to be engaged—and correctly so. The pro-culture camp
asserts that some communities are less interested in rights, and these
communities have the right to rank and subordinate different kinds of rights, and
it just so happens that women’s rights are at the bottom of the list—no matter
the UDHR. Western societies and Western concepts of human rights are “thin,”
detached from tradition and communities where human beings derive their
identity, comfort, and connectedness.8 By contrast, non-Western societies focus
on duties, not rights.9 In addition, non-Western societies are not state-centric.10
Rights (presumably to the degree they exist) and duties are not linked to a weak
4. See, e.g., Richard A. Shweder, Moral Maps, “First World” Conceits, and the New Evangelists, in
CULTURE MATTERS: HOW VALUES SHAPE HUMAN PROGRESS 160–62 (Lawrence E. Harrison & Samuel P.
Huntington eds., 2000).
5. SETH D. KAPLAN, HUMAN RIGHTS IN THICK AND THIN SOCIETIES: UNIVERSALITY WITHOUT
UNIFORMITY 69–70 (2018).
6. Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions
of Human Rights, 76 AM. POL. SCI. REV. 303, 303 (1982) (the concept of “‘rights’ (entitlements) held simply by
virtue of being a human—are quite foreign to, for example, Islamic, African, Chinese and Indian approaches to
human dignity”).
7. GLENDON, supra note 1, at 232.
8. KAPLAN, supra note 5, at 70.
9. Id. at 73 (“When non-WEIRD [Western, Educated, Industrialized, Rich Democracies] philosophers
and traditions develop moral systems, they are more likely to be based on relationships rather than rules, duties
rather than rights, and virtues rather than freedoms.”).
10. Donald J. Puchala, Some Non-Western Perspectives on International Relations, 34 J. PEACE RSCH. 129,
130 (1997) (“‘States’ . . . are not very important in non-Western thinking about world affairs but, . . . ‘peoples’,
‘cultures’, and ‘civilizations’ are important.”); KAPLAN, supra note 5, at 69–70 (describing Western societies as
“thin” and non-Western societies as “thick” where the former rely on the “state” to enforce rules and the latter
rely on “traditions and social institutions.”).
state apparatus but rather strongly bound by and embedded in “thick,” non-state,
traditional institutions. Moreover, these differences are not just a matter of
superficial paths taken by different societies. They are, to take the pro-culture
argument even further, based on fundamental differences in the very
psychological and cognitive orientation of non-Westerners, particularly East
Asians who emphasize collective rather than individual agency.
This Article aims at debunking two main attacks against the UDHR and the
international human rights framework. First, this Article shows that the UDHR
is both universal, proclaiming universal rights that belong to all human beings,
and at the same time, from its inception, richly grounded in the many cultural
traditions of the world, as evidenced by the vital contributions of diplomats and
women from different countries in the establishment of the UDHR. Second, this
Article argues that culture cannot be used to override women’s rights and ensure
their continued subordination. Curiously enough, culture is suddenly precious
and must be preserved only when it comes to pitting culture against women. In
the fight between culture and capitalism or culture and trade, culture has not
been preserved or protected but rather marginalized. The use of culture to deflect
from women’s rights is thus suspect.
Part I of this Article provides an overview of the UDHR, including the
nature and scope of human rights set forth by the drafters who came from many
different countries, cultures and philosophical traditions. The UDHR has been
broadly attacked, predictably, by tyrants and dictators and despots who rightly
see an international human rights regime as a threat to their rule. But even those
claiming to support international human rights have escalated their criticism of
the UDHR and subsequent human rights law on the grounds that human rights
advocates have become, in essence, too greedy and demanding when such
advocates insist on rights for so many people; in fact, for “everyone.” But as Part
I shows, the UDHR on its own terms has always recognized the human dignity
of all persons, not only persons from some cultures. The UDHR is unapologetic
and unequivocal about its commitment to the principles of equal rights and anti-
discrimination for all.
This Article looks only at the UDHR and not subsequent human rights
treaties such as the Covenant on Civil and Political Rights or the Covenant on
Social and Economic Rights or even the Convention on the Elimination of All
Forms of Discrimination Against Women (“CEDAW”) even though as a
declaration, the UDHR is not binding and the subsequent treaties are, at least on
state signatories. There are two reasons why I have chosen to limit my discussion
to the UDHR. First, it is proper to focus on the primary document that is of
singular significance to the post-World War II system. The international human
rights system emerged from the moral and legal framework laid by the UDHR,
which saw itself as but a first step in a progression of instruments that expand,
not restrict, the scope of human rights, reaffirming with each new iteration that
international human rights law recognizes the equal worth and equal dignity of
all human beings. Thus, although the UDHR has been supplemented by
subsequent treaties, it remains foundational and is widely and rightly recognized
as “a pillar of a new international system”11 and “the most prominent symbol[]
of changes that would amplify the voices of the weak in the corridors of
power.”12 Paying homage to the UDHR in 1986—many years after its initial
passage in 1948—Charles Malik,13 often described as an Arab philosopher and
one of the principal drafters of the UDHR, stated, “[w]henever the question of
human rights has arisen throughout the world, the appeal has been far more to
the Declaration than to the covenants . . . . [T]he morally disturbing or judging
is far more important than the legally binding.”14 Second, the essence of the
UDHR is its explicit, textual claim to universality, and universality itself has
been and still is under siege. The international human rights regime would be
less sweeping and radical in scope if universality were to be successfully eroded,
leaving the world with a patchwork of truncated, regional human rights
documents, each suitable only to its own culturally specific territory. This
Article’s main objective is to defend the foundational principle of universality
where human rights are concerned, generally, and, more specifically, where
women’s rights are concerned.
While Part I goes inside the UDHR to look at the drafting history and at
specific articles that garnered debate about cultural relativism versus
universalism, Part II looks at the uncomfortable relationship between
international human rights law and culture. This relationship has been fraught
with contentious debates about cultural particularities versus universalism,
respect for national or subnational culture versus global or cosmopolitan culture,
and individual rights versus communal duties. The pro-culture camp in essence
seeks a cultural exception or cultural escape clause from international human
rights laws on the grounds that it is in favor of a flexible, not rigid, universalism.
In a novel twist to this perennial debate, the pro-culture proponents seek to
further reinforce this dichotomy by pointing to psychological differences, not
just cultural differences between the West and the non-West. It is not just that
the West is constructed around a thin sense of community that elevates the
primacy of the individual, individual autonomy, and individual freedom; or that
the non-West is constructed around a thick sense of community composed of
interrelated beings with mutual and reciprocal obligations to others. It is rather
that these cultural differences have deep, intrinsic psychological roots.
11. GLENDON, supra note 1, at xvi.

12. Id.
13. Dr. Charles Habib Malik, UNITED NATIONS (last visited Jan. 24, 2022), https://www.un.org/en/ga/
president/bios/bio13.shtml.
14. Mary Ann Glendon, The Rule of Law in the Universal Declaration of Human Rights, 2 NW. J. INT'L
HUM. RTS. 1, 8 (2004).
International human rights law, in this view, does not have the capacity to
engage honestly or psychologically with thick communities that are founded on
a collective understanding of human life. So goes the argument for a cultural
exception, which this Article rebuts in Part III.
Part III shows that the pro-culture argument is actually an argument not so
much aimed at preserving culture because it aims at justifying women’s
continued subordination. This Article demonstrates this by showing that culture
has been relegated to the side in other instances. The world view of capitalist
accumulation has historically collided with the world view of traditional
cultures. The inherent contradictions and tensions between traditional and
capitalist modes of production have been well-documented and recognized as
one of the exacerbating factors of colonialism.15 This collision between
traditional culture and capitalist culture continues to the present day. As an
indigenous activist from the Philippines noted:
Industrialized culture regards our values as unscientific obstacles to
modernization and thus worthy of ridicule, suppression, and denigration. The
industrial world also views our political, social, and land-tenure traditions as
dangerous: our collective identities; our communal ownership of forests,
waters, and lands; our usufruct system of community sharing, and our
consensus decision-making are all antithetical to the capitalist hallmarks of
individualism and private property.16
In the war between traditional culture and capitalism, few cared about
preserving tradition when profits and capitalist accumulation were at stake.
One could also go further and say that the tension is not merely between
collective versus individual accumulation but rather a collision of two culturally
different world views. Resources are seen as sacred in the former community
and treated as commodities in the latter.17 Similarly, claimants who attempt to
justify their violation of a provision of the World Trade Organization (“WTO”)
on the grounds that such a violation should be excused due to a cultural
preservation defense have not succeeded. For example, when Canada imposed
higher tariffs on American split-run magazines imported into Canada to protect
Canadian magazines on the grounds that Canada needs to preserve Canadian
15. See ERIC R. WOLF, EUROPE AND THE PEOPLE WITHOUT HISTORY 76 (1982).
16. Victoria Tauli-Corpuz, Our Right to Remain Separate and Distinct, in PARADIGM WARS: INDIGENOUS
PEOPLE’S RESISTANCE TO ECONOMIC GLOBALIZATION 13–14 (Jerry Mander & Victoria Tauli-Corpuz eds.,
2005).
17. Arthur Manuel, Indigenous Brief to WTO: How the Denial of Aboriginal Title Serves as An Illegal
Export Subsidy, in PARADIGM WARS, supra note 16, at 206.
culture, Canada lost when the United States complained at the WTO, which
rejected cultural exceptions to trade norms.18
As Part III also demonstrates, it is quite commonplace in law and
development circles to export the rule of law in ways that implicitly, even if not
explicitly, require a transformation of traditional culture. Few inside or outside
of law and development circles object to these aspects of the rule of law. For
example, corporate law and securities laws are written to facilitate market
reform. In a country steeped in thick, relational norms that favor personalistic
exchanges, nepotism is often widespread. But to establish the rule of law where
justice is fair, nepotism is something that the new law is specifically designed to
abolish. If a corporate insider comes across inside information, it might be
expected in traditionally thick societies that this insider shares his tip with family
members. But in rule of law reform, the new securities law that reformers
advocate for would not contain a cultural exception to insider trading to preserve
a traditional culture of informal relationships above formal, legal ones. In fact,
no one has insisted that cultures that value nepotism specifically, or personal
over impersonal exchanges generally, be preserved, and no one has attacked the
establishment of rules against insider trading as a reflection of Western values
or an example of Western imperialism.
Yet, preservation of culture becomes a bugle call whenever women’s
equality is involved. Suddenly, the Third World and its culture must be
respected. Suddenly, the collective fabric of communal society is to be preserved
against the encroachment and predatory reach of international human rights law.
Since the UDHR, CEDAW19 has confronted the culture question directly, calling
on state parties to change customary, cultural, and religious laws that are
premised upon the inequality of the sexes. CEDAW took the correct approach
and did not allow culture to be used yet again as a weapon against women or to
dilute women’s full equal rights on the grounds of cultural relativism. As Arati
Rao noted, “No social group has suffered greater violation of its human rights in
the name of culture than women.”20 CEDAW’s preamble explicitly
18. Status Report by Canada, Canada–Certain Measures Concerning Periodicals, WTO Doc.
WT/DS31/9/Add.5 (Oct. 9, 1998); see also Christina F. Green, The Great Cultural Divide: The Split-Run
Magazines in the 1990s, at 35 (Aug. 1999) (M.A. thesis, Queen’s University) (ProQuest).
19. G.A. Res. 34/180, Convention on the Elimination of All Forms of Discrimination Against Women
(Dec. 18, 1979) [hereinafter CEDAW].
20. Arati Rao, The Politics of Gender and Culture in International Human Rights Discourse, in WOMEN’S
RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES 167, 169 (Julie Peters & Andrea Wolper
eds., 1995); see also AMARTYA SEN, DEVELOPMENT AS FREEDOM 31–32 (1999) (arguing that in the
“development as freedom” approach, “the liberty of all to participate in deciding what traditions to observe
cannot be ruled out by the national or local ‘guardians’—neither by the ayatollahs (or other religious authorities),
nor by political rulers (or governmental dictators), nor by cultural ‘experts’ (domestic or foreign)”). This
approach also encompasses the liberty of any group, including “female children” whose basic participation and
acknowledges that its state parties are “[a]ware that a change in the traditional
role of men as well as the role of women in society and in the family is needed
to achieve full equality between men and women.”21
In Part IV, the Article looks at culture and takes it out of the box of
homogeneity. Who gets to represent culture and which aspects of a culture
constitute “the” culture are all contested. Culture is fluid and heterogeneous and
is in flux, whether due to internal transformation or external catalyst. Even when
there are indeed authentic cultural differences between the West and non-West,
it is still worthwhile to examine such differences to determine if the differences
are exaggerated or deployed to achieve a particular agenda, in this case, an anti-
female agenda that causes harm to women’s equality, dignity, and bodily
integrity.
I. PART I: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Common moral outrage against the Holocaust was the catalyzing context
that gave rise to the UDHR. The dehumanization, affront to human dignity, and
brutal murder of six million Jews during the Holocaust22—and the murder and
inhumane treatment of other human beings by the Nazi regime, including
disabled persons,23 homosexuals,24 gypsies,25 and others viewed by the Nazis as
less than fully human—was the crucial catalyst26 for the governments that came
together to agree on the Declaration.
educational skills cannot be denied); see also id. at 82–83 (discussing “gender bias in family allocation”); id .at
88–89 (discussing traditional norm of “systematic ‘boy preference’ in the family allocation of resources” and
“sex bias” against girls as reflected in “greater mortality, morbidity, undernourishment, medical neglect, and so
on”); id. at 104–07 (discussing the phenomenon of “missing women” in China and the low female-to-male ratios
in countries in Asia and North Africa” which can only be explained by reference to social and cultural norms,
resulting in “neglect of female health and nutrition,” “hospitalization and even feeding,” and the “hiding” of
newborn girls, “higher female infant mortality” and sex-selective abortion); id. at 115–16 (discussing how
female freedom to participate in the work force “systematically denied in many cultures, and this in itself is a
serious violation of women’s liberty and gender equity. The absence of this freedom militates against the
economic empowerment of women . . . .”); id. at 187–203 (discussing how “women’s agency and social change”
is influenced by many factors, including “established conventions.”).
21. CEDAW, supra note 19, at pmbl.
22. U.S. HOLOCAUST MEM’L MUSEUM, HOLOCAUST ENCYCLOPEDIA, https://www.ushmm.org/learn (last
visited Jan. 24, 2022).
23. Nazi Persecution of the Disabled: Murder of the “Unfit,” U.S. HOLOCAUST MEM’L MUSEUM,
HOLOCAUST ENCYCLOPEDIA, https://www.ushmm.org/information/exhibitions/online-exhibitions/special-
focus/nazi-persecution-of-the-disabled (last visited Jan. 24, 2022).
24. Persecution of Homosexuals in the Third Reich, U.S. HOLOCAUST MEM’L MUSEUM,
https://encyclopedia.ushmm.org/content/en/article/persecution-of-homosexuals-in-the-third-reich (last visited
Jan. 24, 2022).
25. Genocide of European Roma (Gypsies), U.S. HOLOCAUST MEM’L MUSEUM,
https://encyclopedia.ushmm.org/content/en/article/genocide-of-european-roma-gypsies-1939-1945 (last visited
Jan. 24, 2022).
26. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE HOLOCAUST: AN
ENDANGERED CONNECTION 129–30 (2019).
These horrific realities infused the sense of purpose underlying the

Declaration. The overwhelming sense of violation and affront to human dignity
galvanized and brought people together from so many different religious and
philosophical and cultural traditions at this critical historical moment.
Animating the UDHR is a fundamental universal human cry for dignity that has
enabled it to speak powerfully, then and now, to human beings everywhere.
The UDHR proclaims universal rights to which all human beings
everywhere are entitled. It provides a “common understanding of these rights”
and a “common standard of achievement for all peoples and all nations.”27 The
Declaration’s living legacy is vast, including its influence on subsequent human
rights law, its clear language that speaks to human beings everywhere, and its
continuing inspirational power. Article 1 declares that “[a]ll human beings are
born free and equal in dignity and rights.” 28 Article 2 proclaims that “[e]veryone
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…”29
Article 7 of the Declaration—its equal protection clause—affirms that “[a]ll are
equal before the law and are entitled without any discrimination to equal
protection of the law.”30
Indeed, it is the UDHR’s powerful recognition of the equal worth and equal
dignity of all human beings—and corresponding emphasis on non-
discrimination—that animates the Declaration and continues to speak so
powerfully ever since. The idea of equal human dignity and equal human worth
is—to paraphrase McCulloch v. Maryland—so interwoven into the fabric of the
UDHR that it cannot be “separated from it, without rending it into shreds.”31
In addition, women from different countries played a vital role in shaping
the language and rights in the UDHR. Eleanor Roosevelt from the United States,
who chaired the UN Commission that wrote the UDHR, played a central role in
negotiating the Declaration and strongly supported the inclusion of economic
and social rights as well as civil and political rights.32 Moreover, thanks to the
determined efforts of female delegates33 from other countries—such as from
India and Denmark—the Declaration has powerfully inclusive language that
speaks to everyone: “All human beings…”; “Everyone…”; “No one…”;
27. UDHR, supra note 1, at pmbl.

28. Id. at art. 1.
29. Id. at art. 2.
30. Id. at art. 7.
31. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 426 (1819).
32. GLENDON, supra note 1, at 42–43, 186–87.
33. Women Who Shaped the Universal Declaration, UNITED NATIONS, https://www.un.org/en/events/
humanrightsday/women-who-shaped-the-universal-declaration.shtml (last visited Jan. 24, 2022).
“All…”34 There are only a few exceptions where masculine pronouns are used
instead.35 The fifth clause in the Preamble specifically mentions women:
“Whereas the peoples of the United Nations have in the Charter reaffirmed their
faith in fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women and have determined to promote social
progress and better standards of life in larger freedom . . . .”36 The express
inclusion of women “signals that the Declaration is not just a universalization of
the eighteenth-century ‘rights of man,’ but part of a new stage in the history of
human rights.”37
These determined female delegates successfully ensured38 that the
fundamental emphasis on equality and non-discrimination throughout the
UDHR also was reflected in specific provisions. These include Article 16 which
affirms the right of men and women “of full age, without any limitation due to
race, nationality or religion” to “marry and to found a family” and “equal rights
as to marriage, during marriage and at its dissolution.”39 Article 23 likewise
affirms that “[e]veryone, without any discrimination, has the right to equal pay
for equal work.”40
What is especially remarkable is that the diplomats who agreed on these
basic foundational ideas came from many different countries and diverse
cultures and religious and philosophical traditions. Indeed, even in the fight
between an imperial nation like Great Britain and the colonies, with the former
against the application of the UDHR to the peoples of the colonies, the latter
won; “the pro-colonial, anti-universal argument was rejected by the United

35. One version of Article 1 reads “All men are brothers. They are endowed by nature with reason and
conscience. They are born equal in dignity and rights.” GLENDON, supra note 1, at 90. Mrs. Hansa Mehta of
India had been fighting against “purdah, child marriage, polygamy, unequal inheritance laws, and bans on
marriages among different castes, striving to set these ancient customs on course of extinction” and objected to
the use of non-inclusive language. Id. Mrs. Mehta warned that the term “men” would be understood to mean
exclusively male in many countries and the UN Commission on the Status of Women, as well as the Soviet bloc
delegates agreed with her. Id. Eleanor Roosevelt, however, repeated her prior assertions that the term “men”
included everyone. Id. at 68, 112.
37. Id. at 177.
38. Johannes Morsink, Women’s Rights in the Universal Declaration, 13 HUM. RTS. Q. 229, 256 (1991).
39. UDHR, supra note 1, at art. 16.
40. Id. at art. 23.
Nations General Assembly”41 and the UDHR would thus reach colonized as well
as free peoples.42
These multicultural roots favoring universalism—for both the grounding
significance of equal human dignity and the common list of rights—are
important historically, politically, and philosophically. Historically and
politically, they provide an important corrective to those who argue that
universal human rights are a largely western concept or imposition on other
cultural traditions. Despite ideological and cultural divides, the UDHR’s framers
were able to forge a human rights instrument that was consciously and
intentionally cognizant of cultural differences. And yet, “[t]he argument against
the UDHR’s universality, however, persists as an attempt to invalidate its
accomplishments.”43
As this Part shows, universality was not just a part, or even a significant
part, of the Declaration. Rather, it “was designed with universality constantly at
the forefront of the debate.”44 The four framers who played crucial roles in the
successive drafts were all representatives from different parts of the world:
Peng-chun Chang, a Chinese philosopher and diplomat (Ambassador to Turkey
and Chile),Vice Chair of the Commission on Human Rights; Nobel Peace Prize
laureate Rene Cassin, a French-Jewish jurist of the Free French; Charles Habib
Malik, a Lebanese existentialist philosopher, chief spokesman for the Arab
League who identified as Arab and Christian, Rapporteur of the Commission;
and Eleanor Roosevelt, diplomat, activist and First Lady of the United States,
Chair of the Commission.45 Other prominent participants included Carlos
Romulo, a Filipino Pulitzer Prize winning journalist; John P. Humphrey, the
Canadian director of the United Nations’ Human Rights Division who wrote the
first draft of the UDHR; Hansa Mehta of India who insisted the Declaration use
inclusive language to include equal rights for women; Alexei Pavlov, the Soviet
41. “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.” Id. at art. 2. The phrase
“whether it be independent trust, nongoverning or under any other limitation of sovereignty” was successfully
added to Article 2 by Omar Loutfi, the Egyptian delegate, despite vehement opposition from the British delegate,
who even took it to a plenary session of the General Assembly. Opposition was derived from concern that the
UDHR would grant rights to subjects of the British Empire. Ankeith Prince Illiparambil, Eleanor Roosevelt and
Charles Malik: Titans of Peace and Architects of Post-WWII International Cooperation 34–35 (May 2020) (B.A.
thesis, University at Albany, State University of New York).
42. See PAUL GORDON LAURENT, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN
168–69 (1998).
43. Illiparambil, supra note 41, at 41.
44. Id.
45. Drafting of the Universal Declaration of Human Rights, U.N. DAG HAMMARSKJÖLD LIBRARY,
https://research.un.org/en/undhr/draftingcommittee (last updated Dec. 16, 2021).
delegate; and Chile’s Hernan Santa Cruz, who advocated for the inclusion of
socio-economic rights.46
There were sixteen member states represented at the first session of the
Human Rights Commission held between January 27 to February 10, 1947.47
One of the most charged discussions came out of differences in political
philosophy of the various representatives.48 The record reveals full and robust
debates about the relationship between the person and the community—an issue
that the pro-culture camp has elevated to the forefront in its attack against the
universalism of human rights. For example, even as Rene Cassin insisted on the
recognition of the common human nature and the basic unity of human beings,49
Yugoslavia’s Communist delegate Vladislav Ribnikar declared that the
collective interest, represented and manifested through the state, takes priority
over individual ones.50 Ribnikar’s concern about the relationship between the
individual and the collective, though couched in Marxist terminology, is similar
to that expressed by the pro-culture camp today. He decried the “psychology of
individualism . . . used by the ruling class in most countries to preserve its own
privileges,”51 and like communitarians, argued that “the social principle comes
first.”52
Malik, on the other hand, took the opposite position, characterizing
collectivism as “the deepest danger of the age”53 demanding “the extinction of
the human person as such in his own individuality and ultimate inviolability.”54
To guard against this danger, Malik suggested the Commission adhere to four
principles: first, the human person is more important than the group, national or
cultural, to which he belongs; second, a person’s mind and conscience are
inviolable; third, no state or church or other institution can pressure a person into
a form of coerced consent; and fourth, individual conscience is supreme.55
46. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND
INTENT 28–35 (1999).
48. Id. at 38; see also MORSINK, supra note 46, at 281–328.
49. U.N. ESCOR, Comm’n on Hum. Rts., 1st Sess., 7th mtg. at 4, U.N. Doc. E/CN.4/AC.1/SR.7 (June 19,
1947).
50. U.N. ESCOR, Comm’n on Hum.Rts., 1st Sess., 8th mtg. at 4, U.N. Doc. E/CN.4/SR.8 (Jan. 31, 1947).
51. Id.
52. Id.
53. The More Important Speeches and Interventions of Dr. Charles Malik, Representative of Lebanon and
Rapporteur of the Commission, Taken from the Verbatim Records 36 (Jan. 27 to Feb. 10, 1947) (unpublished
manuscript) (Box 76, Charles H. Malik Papers, Manuscript Division, Library of Congress, Washington, D.C.);
U.N. ESCOR, Comm’n on Human Rts., 1st Sess., 9th mtg. at 3, U.N. Doc. E/CN.4/SR.9 (Feb. 1, 1947).
54. The More Important Speeches and Interventions of Dr. Charles Malik, supra note 53, at 36; U.N.
ESCOR, supra note 53, at 3.
55. Ranim Salman, Meet Lebanon’s First UN Ambassador Who Left Us a Legacy to Remember, THE961
(July 31, 2019), https://www.the961.com/charles-malik-lebanons-first-un-ambassador.
In response, a delegate from the Soviet Union, Valentin Tepliakov,

reasserted the social, collectivist perspective, declaring that Malik’s proposed
four principles cannot form the basis for an international bill of rights because
individual rights must be understood in conjunction with individual obligations
to the community; it is the community that is “the main body which provides for
his existence, and the enjoyment of the human rights which belong to
him . . . . [W]e cannot divide the individual from society.”56
Rene Cassin’s position was that, although “the human being is above all a
social creature whose life and development and whose progress have been made
possible only because he could lean on his neighbors,”57 an international bill of
rights must recognize the importance of an individual’s freedom of conscience,
which is a foundational right that “gives man his value and dignity.”58
Support for the Soviet bloc position came from the United Kingdom’s
Charles Duke, from the Labour Party, who insisted individuals must be willing
to “pay the price for the advantages that result from our calling upon the State
to safeguard our liberties, both in the sense of personal freedoms and also in the
direction of a minimum degree of economic security.”59 The so-called price the
individual must be willing to pay in return for being part of a society is a
willingness to limit individual freedom to “receive the benefits of any group
organization, whether it be religious, ethical, economic, State, whatever it may
be.”60
Other delegates, such as Mrs. Hansa Mehta of India, tried to extricate the
discussion from “the maze of ideology.”61 “We are here to affirm faith in
fundamental human rights. Whether the human person comes first or the society,
I do not think we should discus that problem now.”62 Eleanor Roosevelt, as chair
of the Commission, staked out a middle ground: “It is not exactly that you set
the individual apart from his society, but you recognize that within any society
the individual must have rights that are guarded.”63 Whether government exists
to serve the individual or the group, “we do have to make sure, in writing a bill
of rights, that we safeguard the fundamental freedoms of the individual.”64
Malik reasserted his concern: “I hold it to be eminently true that the human
person, in his ultimate freedom, is in mortal danger today from the totalitarian
state, and that after every allowance is made for full social responsibility, the
56. The More Important Speeches and Interventions of Dr. Charles Malik, supra note 53, at 37–38; U.N.
ECSCOR, Commission on Human Rights, 1st Sess., 14th mtg. at 4, U.N. Doc. E/CN.4/SR.14 (Feb. 5, 1947).
57. The More Important Speeches and Interventions of Dr. Charles Malik, supra note 53, at 43.
58. Id.
59. Id. at 40.
60. Id.
61. Id. at 38.
62. Id.
63. Id.
64. Id. at 39.
state in all its functions is for the sake of the free human person, and that this
doctrine should be reflected in the proposed Bill of Rights.”65 Although he
agreed with the United Kingdom delegate that there is a price to be paid for
membership in society, sometimes “the price is too high” because the danger is
“not that the State is not strong enough . . . but that social claims are in danger
of snuffing out any real personal liberty.”66
So nuanced and thorough was the discussion within the Commission that,
even though Eleanor Roosevelt and Charles Malik were closer together on the
rights/duties spectrum, there were significant differences even between them.
Roosevelt referred to the “individual,” whereas Malik used “person” to
emphasize social connectedness and avoid inferences of autonomy, as is
evidenced by his propensity to use the phrase “There are no Robinson
Crusoes.”67
Throughout the process, Chang proved himself to be a pluralist committed
to the production of a declaration that would reflect more than just Western
ideas.68 As Eleanor Roosevelt wrote in her memoirs, Chang and Malik engaged
in deep philosophical discussions about the Declaration, with Chang even
suggesting the works of Confucius as mandatory reads for Humphrey.69
The Commission decided that Humphrey would prepare the preliminary
draft, which turned out to be a good decision because he and his staff had been
collecting and studying relevant materials from all over the world.70 There was
nothing in the record that would suggest that the drafting process or the ultimate
product, the Declaration itself, was a cultural imperialist project, or even one
that was oblivious to cultural differences. To the contrary, once appointed the
task of producing the first draft, Humphrey and his staff began the meticulous
process of studying the world’s constitutions and rights documents, as well as
receiving and parsing through the many suggestions that came from
Commission members, external organizations, and interested individuals.71
Humphrey was particularly influenced by two documents, one a draft of a Pan
American declaration being considered in Latin America—it delineates rights as
well as duties and declares that rights came not from the State but are based on
“attributes of . . . human personality.”72 The second document was the
65. Id. at 46.

66. Id. at 45.
67. Id. at 44; GLENDON, supra note 1, at 42.
68. ELEANOR ROOSEVELT, ON MY OWN 77 (1958).
69. Id.; Illiparambil, supra note 41, at 14; JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS:
A GREAT ADVENTURE 29 (1984).
70. MORSINK, supra note 46, at 5–12; GLENDON, supra note 1, at 48.
71. Peter André Globensky, The Life of a Canadian Internationalist: Dr. John Peters Humphrey and the
Universal Declaration of Human Rights, 47 U.N.B. L.J. 5, 11–14 (1998); GLENDON, supra note 1, at 56.
72. Ian Brownlie, American Declaration of the Rights and Duties of Man, 1948, in BASIC DOCUMENTS ON
HUMAN RIGHTS 488 (Ian Brownlie ed., 3d ed. 1992).
Statement of Essential Human Rights produced pursuant to a study sponsored

by the American Law Institute, which had consulted experts from “Arabic,
British, Canadian, Chinese, French, pre-Nazi German, Italian, Indian, Latin
American, Polish, Soviet Russian and Spanish” countries to “ascertain to what
extent there can be worldwide agreement respecting rights.”73
Using materials gathered and distilled from different parts of the world,
Humphrey compiled a list of forty-eight items (known as the Humphrey draft)
that constituted the common core, including first-generation civil and political
rights in the British, French, and American revolutionary declarations from the
seventeenth and eighteenth centuries, and second-generation economic and
social rights in the constitutions of Sweden, Norway, the Soviet Union, and Latin
American countries.74
The notion that rights and principles, rooted in national constitutions,
would be internationalized was itself novel and radical, prompting some
delegates, particularly Vladimir Koretsky of the Soviet Union, to object to the
move as a threat to national sovereignty.75 Humphrey blithely admitted as much:
human rights “has always been, and always will be, a struggle against
authority.”76 Cassin, who reiterated that indeed, “[t]he right of interference is
here,”77 was then chosen by the main working group to revise Humphrey’s draft.
The principle that the nation-state does not have absolute right over its own
citizens is itself the very sine qua non of a Universal Declaration of Human
Rights. Intervention is not only a result of the UDHR but lies at the core of its
creation. And as this Part shows, its creation was based on universal principles
culled from national and cultural traditions.
Cassin preserved the substantive content of Humphrey’s draft but worked
to create an internally coherent structure consisting of a Preamble to explain why
the Declaration was needed. The introductory articles affirmed the equal rights
of everyone and “embodied concepts of man and society that were neither
73. Statement of Essential Human Rights, in THE AMERICAN LAW INSTITUTE 75TH ANNIVERSARY: 1923-
1998, at 269 (1998); GLENDON, supra note 1, at 57.
74. Verbatim Record of the First Meeting of the Drafting Committee of the Commission on Human Rights
(June 9, 1947) (unpublished manuscript) (Box 80, Charles H. Malik Papers, Manuscript Division, Library of
Congress, Washington, D.C.); see also U.N. ESCOR, Commission on Human Rights, 1st Sess. at 9–10, 18, U.N.
Doc. E/CN.4/AC.1/3/Add.1 (June 11, 1947).
75. Verbatim Record of the Fifth Meeting of the Drafting Committee of the Commission on Human Rights
(June 12, 1947) (unpublished manuscript) (Box 80, Charles H. Malik Papers, Manuscript Division, Library of
Congress, Washington, D.C.); see also Beyond National Sovereignty: How to Protect Citizens from their Own
Government, FACING HIST. & OURSELVES, https://www.facinghistory.org/universal-declaration-human-
rights/beyond-national-sovereignty (last visited Jan. 24, 2022).
76. See FACING HIST. & OURSELVES, supra note 75.
77. Verbatim Record of the Fifth Meeting of the Drafting Committee of the Commission on Human Rights,
supra note 75.
individualist nor collectivist”78 but also “implicitly t[ook] sides against the
extremes of capitalist individualism and socialist collectivism.”79 Cassin sought
to avoid taking “sides on the nature of man and society, or to become immured
in metaphysical controversies, notably the conflict among spiritual, rationalist,
and materialist doctrines on the origin of human rights.”80 Cassin’s draft
highlighted the Declaration’s universalism, reflecting his belief that human
beings are part of the human family; that is, universal rights are to be
appropriately based on the “great fundamental principle of the unity of all the
races of mankind . . . . All men, being members of one family, are free, possess
equal dignity and rights, and shall regard each other as brothers.”81 When
presenting his draft to the working group, various changes were suggested and
debated, including the addition of “reason” as an essential human attribute
applicable to all human beings by nature regardless of culture.82 Chang then
suggested the inclusion of another concept, which was a Chinese word that, if
translated, literally meant “two-man mindedness,” and could be translated into
English as “sympathy” or “consciousness of one’s fellow men.”83
The drafters knew that the first draft would have to be approved by the full
Commission, sent to all member states for comments, revised, returned to the
full Commission for consideration, then submitted for review by the Economic
and Social Council for its determination of whether or not to recommend
submission to the General Assembly, where it would have to be further
examined by the Third Committee on Social, Humanitarian, and Cultural
Affairs.84 The UDHR would ultimately need to be acceptable to delegates from
all the member countries of a United Nations that was constantly expanding in
the post-WWII world.85 In preparation, the United Nations’ Educational,
78. GLENDON, supra note 1, at 64, 68 (in Cassin’s draft, Article 2 stated: “The object of society is to enable
all men to develop, fully and in security, their physical, mental and moral personality, without some being
sacrificed for the sake of others.” Article 3: “Since human beings cannot live and achieve their aims without the
help and support of society, everyone has fundamental duties to society”).
80. Id.
81. Verbatim Record of the Eighth Meeting of the Drafting Committee of the Commission on Human
Rights (June 17, 1947) (unpublished manuscript) (Box 81, Charles H. Malik Papers, Manuscript Division,
Library of Congress, Washington, D.C.).
82. Johannes Morsink, The Philosophy of the Universal Declaration, 6 Human Rts. Q. 309, 313–16 (1984).
83. Verbatim Record of the Thirteenth Meeting of the Drafting Committee of the Commission on Human
Rights (June 20, 1947) (unpublished manuscript) (Box 81, Charles H. Malik Papers, Manuscript Division,
Library of Congress, Washington, D.C.). The version that was finalized in Article 1 of the UDHR reads as
follows: “All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.” UDHR, supra note 1, at art. 1
(emphasis added).
84. GLENDON, supra note 1, at 55–56.
85. By the time the UDHR was put to a vote, in 1948, the United Nations had fifty-eight members.
Compiled by Richard Nelsson, UN Adopts Universal Declaration of Human Rights—Archive, December 1948,
Scientific and Cultural Organization (UNESCO) contacted various prominent

philosophers and historians to be part of a Committee on the Theoretical Bases
of Human Rights. To be “as useful as possible” to the Human Rights
Commission,86 this UNESCO Committee had sent a questionnaire to scholars
and statesmen around the world to solicit their views on the idea of a universal
declaration of human rights. It received more than seventy responses about
reflections on human rights from Chinese, Islamic, Hindu, customary law,
American, European, and socialist perspectives.87
Most important for the main issue considered in this Article—the
universalism versus relativism of the UDHR—many respondents to the
UNESCO query from non-Western backgrounds asserted that the concept of
human rights was in their particular traditions, even if the language of rights
might be a recent, modern European phenomenon. Chung-Shu Lo, a Chinese
Confucian philosopher, stated:
The problem of human rights was seldom discussed by Chinese thinkers of
the past, at least in the same way as it was in the West . . . . [However], the
idea of human rights developed very early in China, and the right of the people
to revolt against oppressive rulers was very early established . . . . A great
Confucianist, Mencius (372-289 B.C.), strongly maintained that a government
should work for the will of the people. He said: “People are of primary
importance. The State is of less importance. The sovereign is of least
importance.”88
This Confucian statement about the significance of the person vis-à-vis the
government or the state is as strong as any coming out of the modern, “Western”
human rights movement.
Indian political scientist S.V. Puntambekar explained that Hindu thinkers
had “propounded a code . . . of ten essential human freedoms and controls or
virtues necessary for the good life”—five freedoms, which included “freedom
from violence, freedom from want, freedom from exploitation, freedom from
violation and dishonor and freedom from early death and disease”; and five
virtues which included “absence of intolerance, compassion or fellow-feeling,
knowledge, freedom of thought and conscience, and freedom from fear,
frustration or despair.”89
THE GUARDIAN (Nov. 28, 2018), https://www.theguardian.com/law/from-the-archive-blog/2018/nov/28/un-

adopts-universal-declaration-human-rights-paris-1948.
86. U.N. ESCOR, 1st Sess., 4th mtg. at 9, U.N. Doc. E/CN.4/AC.1/SR.4 (June 13, 1947).
88. Chung-Shu Lo, Human Rights in the Chinese Tradition, in HUMAN RIGHTS: COMMENTS AND
INTERPRETATIONS 186–87 (UNESCO ed. 1949).
89. S. V. Puntambekar, The Hindu Concept of Human Rights, in HUMAN RIGHTS: COMMENTS AND
INTERPRETATIONS, supra note 88, at 195–98.
The Muslim poet and philosopher Mumayin Kabir wrote eloquently in

favor of universalism, human rights, and Islamic tradition. Kabir stated that early
Islam had “succeeded in overcoming distinction of race and colour to an extent
experienced neither before nor since.”90 Kabir was also unequivocally against
the notion of different rights for different civilizations, insisting that “‘[t]he first
and most significant consideration in framing any charter of human rights . . . is
that it must be on a global scale . . . . Days of closed systems of divergent
civilisations and, therefore, of divergent conceptions of human rights are gone
for good.’”91
The many responses to the UNESCO survey confirmed to the drafters of
the UDHR that the basic principles included in the Declaration were indeed
present in many cultural traditions, even if not always expressed in rights
terms.92 The Human Rights Commission’s report showed that, despite different
histories and cultural traditions, there was “a sort of common denominator [and
that] the members of the United Nations share common convictions on which
human rights depend.”93 Nonetheless, the accusation that the Declaration was
Western lingered, as Jamil Baroody of Saudi Arabia charged that the articles
related to marriage and religious freedom were Western.94 Chang and Santa
Cruz together defended the Declaration against Baroody’s characterization of
the UDHR as Western.95 Rebutting the Western accusation, Chang again
invoked his “two-man mindedness,” that is, the ability to see the view of oneself
as well as that of the other and encouraged each delegate towards the position
that each cultural contribution must be geared towards a document “meant for
all men everywhere.”96 Chang succeeded in getting some support from delegates
representing Islamic countries.97 Santa Cruz urged Latin Americans not fully
satisfied with the draft to see that it was in essence the result of many

91. Id. Note also that during the debate in Committee Three of General Assembly, when some South
American delegates moved to set up a subcommittee to compare the UDHR draft with the Bogota Declaration,
also known as the American Declaration on the Rights and Duties of Man, it was Santa Cruz, the Chilean
delegate who swiftly opposed such a move. His reason was that the Bogota Declaration was a regional document,
reflecting Western philosophies, and would not be suitable for the diverse countries at the United Nations. Id. at
141.
93. Jacques Maritain, Introduction, in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS, supra note 88,
at 268–71.
94. U.N. GAOR, 3d Sess., 91st mtg. at 49, U.N. Doc. A/C.3/SR.91 (Oct. 2, 1948).
95. Id.; see also The First Diary, August 1, 1948 - November 14, 1948, in 1 ON THE EDGE OF GREATNESS:
THE DIARIES OF JOHN HUMPHREY, FIRST DIRECTOR OF THE UNITED NATIONS DIVISION OF HUMAN RIGHTS, at
55–56 (A.J. Hobbins ed. 1994).
96. The First Diary, August 1, 1948 - November 14, 1948, supra note 95, at 55–56.
accommodations necessary to make the document acceptable to countries with

different economic, social, legal, and cultural traditions.98
With respect to the relationship between the person and the community,
which critics charge is too skewed toward the former in the UDHR, the record
also shows that the debate emerging at the initial meeting of committee members
remained front and center throughout, including in responses to the UNESCO
questionnaire.99 Most Asians and some European respondents urged the
inclusion of duties in the UDHR.100 Mahatma Gandhi himself wrote that rights
also depended on duties: “I learned from my illiterate but wise mother that rights
to be deserved and preserved came from duty well done. Thus the very right to
live accrues to us only when we do the duty of citizenship of the world.”101
Chung-Shu Lo expressed a similar point—that “the basic ethical concept of
Chinese social political relations is the fulfilment of the duty to one’s neighbor,
rather than the claiming of rights.”102 On this point, the Cassin draft adhered to
the view of “man in society” rather than as an atomized individual, as discussed
above.103 The question of rights and duties was further dissected at subsequent
committee meetings, with the Cuban and Soviet delegates, along with Chang,
expressing concern that the draft did not adequately balance out rights with
corresponding duties.104 Cassin, however, successfully alleviated those concerns
by pointing out that the UDHR is covered by a general reference to duties.105
Ultimately, in its final form, the Preamble itself emphasizes the inherent dignity
of “every individual and every organ of society” which is “grounded in an
understanding of human beings as both individual and social.”106 Multiple
articles reveal the drafters’ understanding of the person as embedded in society.
Article 27 states: “Everyone has the right freely to participate in the cultural life
of the community . . . .”107 Article 28 states: “Everyone is entitled to a social and
international order in which the rights and freedoms set forth in this Declaration
can be fully realized.” 108 And Article 29 states: “Everyone has duties to the
community in which alone the free and full development of his personality is
98. U.N. GAOR, supra note 94.

99. GLENDON, supra note 1, at 51, 76, 77
100. Id. at 75.
101. Mahatma Gandhi, A Letter Addressed to the Director-General of UNESCO, in HUMAN RIGHTS:
COMMENTS AND INTERPRETATIONS, supra note 88, at 18.
102. Lo, supra note 88, at 186.
103. Don Salvador de Madariaga, Rights of Man or Human Relations?, in HUMAN RIGHTS: COMMENTS AND
INTERPRETATIONS, supra note 88, at 47.
105. U.N. GAOR, 3d Sess., 95th mtg. at 87, U.N. Doc. A/C.3/SR.95 (Oct. 6, 1948), see also GLENDON,
supra note 1, at 141.
108. Id. at art. 28.
possible.” 109 The addition of the word “alone” was proposed by Alan Watt, the
Australian delegate, to highlight “the announcement of an organic connection
between the individual and the community to which he or she owes duties, not
unlike Confucius would have had it.”110 Commentators have since noted that,
given the persistent accusation by critics that the UDHR is Western and
individualistic, this insertion struck the right balance, stressing “the fact that the
individual could not fully develop his personality outside of society.”111
As an example of the meticulous care and deliberation given to the
principles underlying the UDHR and its textual language, when deliberation of
the drafted articles began, it took six full days to get through proposed Article 1
alone.112 “All human beings are born free and equal in dignity and rights. They
are endowed by nature with reason and conscience and should act towards one
another in a spirit of brotherhood.”113 For example, the Greek delegate proposed
that the second sentence be moved to the later sections that deal with duties.
However, Chang emphasized the holistic nature of Article 1, arguing that the
phrase “in a spirit of brotherhood” was needed in Article 1 itself to balance out
the first sentence and to make sure that “rights” would not appear too
individualistic.114
There was controversy also in the word “by nature.” Some delegates
wanted it removed and others wanted to substitute it with the phrase “all human
beings are created in the image and likeness of God.” Chang was able to get the
majority of the delegates to agree to eliminate “by nature” from Article 1, but
not add any reference to God, by reminding everyone that the UDHR is supposed
to be universal in application. China’s traditions are different from the Christian
West; Chinese ideals centered around values such as propriety and consideration
of others which he had nonetheless not proposed for inclusion for the UDHR.
There should be no explicit mention of God, although God could be inferred
from the first sentence and the phrase “endowed with reason and conscience.”
Mrs. Lakshmi Menon of India pointed to the conclusion of the UNESCO
philosophers’ committee that principles of human rights can be agreed upon
without having to reach consensus on their origin or foundation.115
At some point, of course, lines did have to be drawn. If a declaration of
human rights was going to include everyone, even women, then certain practices
that did not promote women’s equality or dignity would need to be explicitly
109. Id. at art. 29.

110. MORSINK, supra note 46, at 246.
111. Id. at 247.
113. UDHR, supra note 1, art. 1.
115. Third Committee, at 107, U.N. Doc A/C.3/SR.97 (1948), https://undocs.org/A/C.3/SR.97; see also
Third Committee, at 127, U.N. Doc. A/C.3/SR.100 (1948), https://undocs.org/A/C.3/SR.100.
addressed. For example, Article 16 concerned the equal rights of men and
women in marriage.116 Mexico proposed an additional “without any limitation
due to race, nationality or religion.”117 Even without Mexico’s proposed
addition, Article 16 was already provocative for delegates from predominantly
Islamic countries. Saudi Arabia complained that the drafters had imposed
Western values onto family relations and “ignored more ancient civilizations,
which were past the experimental stage, and the institutions of which, for
example marriage, had proved their wisdom through the centuries.”118 Saudi
Arabia favored replacing the “equal rights” in marriage language with “full
rights as defined in the marriage law of their country,” which in essence would
mean: if the marriage law of a country gives a woman zero rights, that would be
“full rights” under that country’s domestic law. The Saudi position did not
prevail in the Committee, not even with Pakistan and Egypt,119 both of which
declared their support for the equal rights in marriage provision.120 Ultimately,
Article 16 contained the Mexican addition and read thus: “Men and women of
full age, without any limitation due to race, nationality or religion, have the right
to marry and to found a family. They are entitled to equal rights as to marriage,
during marriage, and at its dissolution.”121
In the end, when Malik, surrounded by fifty-eight flags of the member
states of the United Nations, stood at the podium to introduce the Declaration,
he described it as a “composite synthesis” of the existing rights and cultural
traditions, and of Asian and Latin American perspectives.122 Malik took pains to
point out which parts of the Declaration were influenced by which countries and
which traditions. For example, the Latin American countries brought into the
UDHR ideas developed in the Bogota Declaration on the Rights and Duties of
Man. India was instrumental in advancing the nondiscrimination principle,
especially with respect to women. The United Kingdom and the United States

118. MORSINK, supra note 46, at 24. Saudi Arabia also objected to Malik’s proposed amendment, which
survived and was included in the final Declaration, recognizing the right to change one’s religious beliefs. Id. at
70. See also U.N. ESCOR, Comm’n on Hum. Rts., Draft Comm. Mtg., at 19–20, U.N. Doc. E/CN.4/AC.1/14
(June 23, 1947).
119. GLENDON, supra note 1, at 154. Pakistan’s delegate accepted the equal rights in marriage language as
long as equal rights did not mean identical rights. This was also the position of Eleanor Roosevelt. Pakistan also
approved the religious freedom article, including the provocative proposal by Malik that a right to change one’s
belief be part of religious freedom. Id. at 69–70. In stirring language, the Foreign Minister of Pakistan and head
of the United Nations delegation Muhammad Zafrulla Khan declared Pakistan’s support for the Malik
amendment. For him, it came down to Islam’s honor, citing a passage from the Koran: “let him who chooses to
believe, believe, and him who chooses to disbelieve, disbelieve.” Id. at 168.
120. Id. at 154.
122. Charles Malik, Speech of Thursday 9 December 1948, in THE CHALLENGE OF HUMAN RIGHTS:
CHARLES MALIK AND THE UNIVERSAL DECLARATION 117, 120 (Habib C. Malik ed., 2000).
had contributed via their political and civil liberties tradition whereas the Soviet
Union and others had championed social and economic rights. The balance
between rights and duties was struck with help from China, Greece, Latin
America, the Soviet Union, and France.123 Malik’s point was that the
Declaration rested on a “firm international basis wherein no regional philosophy
or way of life was permitted to prevail.”124 Malik was also supported by Syria’s
Abdul Rahman Kayaly, who declared that the Declaration “was not the work of
a few representatives in the Assembly or in the Economic and Social Council; it
was the achievement of generations of human beings who had worked towards
that end.”125
When the General Assembly members voted, by alphabetical order, the
result was resounding. Forty-eight states in favor, eight abstentions, no nays. 126
The Soviet abstention was primarily over Article 13, which provides that
everyone has the right to leave his country.127 Saudi Arabia also abstained,
although all the other Muslim nations had voted yes.128 Drawing upon ideas of
human dignity rooted in diverse religious and philosophical traditions, delegates
from all parts of the world came together and forged agreement on a clear,
organically connected set of rights indispensable to protecting human dignity.129
Later, as many new independent countries were born and joined the United
Nations, the UDHR was widely affirmed in new national constitutions and its
rights embedded in human rights treaties that enjoy wide ratification.130
As this Part has shown, the UDHR was a watershed moment in human
history. The thirty articles laid out the core human rights that constituted the
beginning of a journey towards expanding and enforcing human freedom and
rights. These include the right to equal protection before the law, the right to
movement within and between borders, the right to marry freely, the right to
freedom of expression, the right to assemble, the right to work, the right to
adequate health, and the right to education, among others, for everyone. The
UDHR’s concluding article prohibited actors,131 individuals, governments, or
organizations, from destroying the rights and freedoms delineated in the
Declaration.132

124. Malik, supra note 122, at 120.
126. Id. at 170.
128. GLENDON, supra note 1, at 170; MORSINK, supra note 46, at 24–26.
129. See generally MORSINK, supra note 46.
130. Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International
Law, 25 GA. J. INT’L & COMP. L. 287, 289 (1995).
131. UDHR, supra note 1, at arts. 7, 13, 16, 19, 20, 23, 25, 26.
132. Id. at art. 30.
This Part has provided a deep look at the historical context and the language
of the UDHR to underscore the Declaration’s universality. After the
Declaration’s adoption, Malik said, “the Genesis of each article, and each part
of each article, was a dynamic process in which many minds, interests,
backgrounds, legal systems and ideological persuasions played their respective
determining roles.”133
Building on this, the over 170 countries134 that have joined the International
Covenant on Economic, Social and Cultural Rights (ICESCR)135—the follow-
on treaty—have agreed to take concrete steps “to the maximum” of their
“available resources” to progressively realize those rights “without
discrimination of any kind.”136 In some countries and regional systems,137
economic and social rights—such as education138 and health139—are expressly
affirmed in law and are subject to litigation in court. Yes, justiciability issues
may arise, but there also are concrete examples of courts playing an important
and constructive role in protecting such rights, such as the Constitutional Court
of South Africa’s decision140 regarding access to antiretroviral drugs.
Particularly as the world faces the challenges and disparities of the COVID-19
pandemic, the importance of socio-economic rights to human dignity warrants a
central discussion.
The universality of the human rights proclaimed in the UDHR was crucial
to the delegates who approved it. As the Declaration makes clear, “a common
understanding of these rights and freedoms is of the greatest importance” in
order for UN member states to fully realize their pledge to promote “universal
respect for and observance of human rights.”141 Indeed, Charles Malik’s largest
contribution to the UDHR was his “constant reminders to the other
commissioners that the task at hand extended beyond boundaries; the borders
133. Charles Malik, Introduction to Otto Frederick Nolde, FREE AND EQUAL: HUMAN RIGHTS IN THE
ECUMENICAL PERSPECTIVE 11–12 (Geneva: World Council of Churches ed., 1968).
134. See U.N. Treaty Collection, International Covenant on Economic, Social and Cultural Rights, 16 Dec.
1966, 993 U.N.T.S. 3, https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-
3&chapter=4&clang=_en (last visited Jan. 24, 2022).
135. Id.
136. Id. at arts. 2(1), (2).
137. Economic, Social and Cultural Rights, INT’L JUST. RES. CTR., https://ijrcenter.org/thematic-research-
guides/economic-social-and-cultural-rights-2 (last visited Jan. 24, 2022).
138. Marselha Gonçalves Margerin, The Right to Education: A Multi-Faceted Strategy for Litigating before
the Inter-American Commission on Human Rights, 17 THE HUM. RTS. BRIEF 19, at 6 (2010).
139. See generally O’Neil Institute for National & Global Health Law, GLOB. HEALTH AND HUM. RTS.
DATABASE, https://www.globalhealthrights.org (last visited Jan. 24, 2022).
140. Minister of Health v. Treatment Action Campaign (TAC) 2002 (5) SA 721 (CC), https://www.escr-
net.org/caselaw/2006/minister-health-v-treatment-action-campaign-tac-2002-5-sa-721-cc.
that mankind had drawn did not determine the individual rights of human beings
owed to them by virtue of their humanity.”142
II. PART II: THE UNIVERSALISM OF THE UDHR AND HUMAN RIGHTS
Although the UDHR is rooted in universalism, as Part I has shown, the
effort to “delegitimize” the UDHR on the most incendiary and provocative
grounds—cultural or Western imperialism—persists. Those critics who oppose
equal rights for women cannot simply declare they favor inequality. The best
way to attack the principle of equality expressed in this historic document is to
criticize it on cultural grounds and to declare it over and over until repetition
makes it a “fact,” or at least, makes the charge stick in the air. For example,
although the right to self-determination originated in the anti-colonial principle,
it has become a “Third World version of the old national sovereignty claim,”
facilitating the “Third World critique of the whole Declaration as ‘Western.’”143
The idea is that the Third World has its regional, national, and cultural
distinctiveness which the UDHR encroaches upon.
But undermining the universalism of the UDHR is not only a Third World
effort. In a novel twist, though quite similar to the Third World human rights
critique described above, the Report of the Pompeo Commission on Unalienable
Rights, which was launched by then Secretary of State Mike Pompeo under the
Trump administration, also aimed to completely reverse this understanding of
universality. The Pompeo report puts enormous emphasis on states’ prerogative
to put their own cultural spin on the implementation and relative weight of the
UDHR rights.144 By emphasizing that the UDHR accommodates different
cultures, the report advances a pick and choose approach that elevates culture
over universality—an approach that the Trump administration (and any other
country) can invoke selectively to “accommodate” their culture.145 Yet this gets
the UDHR backwards, putting a nationalist spin on the rights articulated—what
the report calls “legitimate pluralism”146—rather than emphasizing the
universality of the Declaration’s affirmation of equal human dignity and a
“common understanding” of the rights proclaimed by representatives of many
different countries, cultures, religions, and philosophical traditions.147
Of course, this very idea goes against the universalist fabric of the UDHR
itself. The UDHR was not designed for countries to put their own nationalist or
sovereigntist spin on the rights proclaimed. Instead, the UDHR was designed to

143. GLENDON, supra note 1, at 215–16.
144. U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Report of the Commission on Unalienable
Rights 32–33, 37–39, 55 (2017). The Report uses the terms “legitimate pluralism” and “subsidiary.” Id. passim.
145. Id. at 32.
146. Id. at 56.
set forth a “common standard of achievement” for “all peoples of all nations,”148
and “to recognize humanity as a trait unfettered by national identity or
loyalty.”149
This Part moves beyond the drafting history and internal provisions of the
UDHR and zooms out, looking at the relationship between culture and
international law generally and international human rights specifically. Part II
examines efforts by Third World dictators, as well as by Western
communitarians and others, to call into question the applicability of the UDHR
to humanity itself by attacking its claims to universality, mostly by exaggerating
differences—differences in culture and even in cognition. In other words, by
using the language of difference and cultural diversity, the so-called pro-culture
set out to do the opposite of the UDHR drafters’ desire to “unite . . . humanity
at the most basic level.” 150
A. INTERNATIONAL LAW AND CULTURE

The Declaration’s insistence on universalism, on the fact that all human
beings have certain universal human rights, fundamentally changed the
relationship between the national and the international spheres. Sovereignty, a
basic principle in public international law, is no longer unlimited and can
legitimately be subject to international scrutiny. Indeed, as Part I noted, the
tension between universalizing rights on the one hand and national sovereignty
on the other was noted and discussed, with Cassin and other drafters insisting
that “the right of interference is here.”151 It is not hard to see why the UDHR has
provoked significant backlash from states unaccustomed to this brave new world
where they can no longer hide with impunity behind the sovereign’s veil of
“domestic jurisdiction.”152 The UDHR and the international human rights
regime can be seen as threatening the primacy of the statist, sovereignty-oriented
foundation of public international law itself.
But international human rights law has also had its own prickling,
contentious relationship with various states that resent the judgment of the
former on cultural grounds. In some ways, the culture-based objection is related
to the sovereignty issue. Different states are from different parts of the world
148. U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., supra note 144, at 29, 31.
150. Id. at 42. The Declaration is “‘the least common denominator’ because, as its framers hoped, it
prioritizes the rights and dignity of the individual, despite the diversity of origins, emphasizing what unites all
people: common humanity and the rights derived from it.” Id. at 49.
152. Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law,
10 AM. U. J. INT’L L. & POL’Y 717, 723 (1995). In public international law, principles of sovereignty, sovereign
equality and exclusive domestic jurisdiction are deemed “first-order international legal principles” that constitute
“safeguards of the identity and opacity of the sovereign sphere.” Id.
and may also be culturally distinct and diverse, but the principle of sovereign
equality among all states is enshrined, in dramatic departure from the colonial
era, in the United Nations Charter itself.153 Therefore, how can one state, much
less non-state actors, judge another state? At the same time, culture is valued,
not just as a subcomponent of sovereignty, but also for its own sake. Where there
are distinctive cultural traditions within a state, international human rights
instruments prohibit the state from combating, suppressing, or diluting
expressions of such cultural traditions. In fact, culturally distinctive minority
groups within the state are supposed to have the right of self-determination,
which requires that states allow people to “freely determine their political status
and freely pursue their economic, social and cultural development.”154
There are, of course, limits to this cultural right. States do not have
affirmative obligations, for example, to build a public school curriculum around
an ethnic group’s history or identity, although states cannot prohibit the group
from speaking their own language or learning their own history.155 The right of
tribal or indigenous peoples “to retain their own customs and institutions” is to
be respected as long as “these are not incompatible with fundamental rights
defined by the national legal system and with internationally recognized human
rights.”156 Moreover, even though cultural differences can be, indeed should be,
recognized by states, the recognition is assimilated only within the sovereign
form of the state in accordance with the imperatives of public international law.
In other words, the right to practice and observe one’s cultural traditions does
not mean the right to break out of the sovereign form, that is, to secede, and
damage the existing territorial integrity of a state.157
The same tug of war between culture and sovereignty exists in culture and
international human rights. There is an internal, built-in “tension between the
universalistic principles . . . and the practical realities of a club of members with
153. U.N. Charter art. 2, ¶ 1.

154. International Covenant on Civil and Political Rights, art. 1, ¶ 1, 16 Dec. 1966, 999 U.N.T.S. 171
[hereinafter ICCPR]. The same article 1 can be found in the International Covenant on Economic, Social and
Cultural Rights, supra note 134. This right of self-determination has been extended to:
tribal peoples in independent countries whose social, cultural and economic conditions distinguish
them from other sections of the national community, and whose status is regulated wholly or partially
by their own customs or traditions or by special laws or regulations [and to] peoples in independent
countries who are regarded as indigenous on account of their descent from the populations which
inhabited the country, or a geographical region to which the country belongs, at the time of conquest
or colonization or the establishment of present state boundaries and who, irrespective of their legal
status, retain some or all of their own social, economic, cultural and political institutions.
ILO Convention No. 169, Indigenous and Tribal Peoples, art. 1, ¶ 1 (June 27, 1989).
155. ICCPR, supra note 154, at art. 27.
156. ILO Convention No. 169, supra note 154, at art. 8 ¶ 1.
157. MALCOLM N. SHAW, INTERNATIONAL LAW 522 (6th ed. 2008).
diverse cultures.”158 “Attempts to resolve the tension have taken the form of
declaring a set of universal rights and principles (some of which seem
inconsistent with the ‘cultures’ of its members) and at the same time, declaring
the equal claim of every diverse culture to be respected.”159 The drafters of the
UDHR and the delegates from diverse countries that voted on the UDHR
recognized this conflict. The conflict, in other words, was not some astonishing,
unforeseeable byproduct of the UDHR. After receiving input from philosophers
and leaders from many cultural traditions of the world, the drafters opted for a
particular vision of universalism. The Declaration presented the world with a
universality—a “universality imagined by Charles Malik [that] hinged less on
navigating the intricate individualities of peoples and cultures, and more on
recognizing that below all of that is an innate humanness that commanded a
respect of individual rights and freedoms.”160
Just as cultural rights are recognized in public international law, subject to
exceptions described above (as long as not incompatible with other national and
international rights), cultural diversity is also respected in international human
rights. But there should also be exceptions. I argue that cultural traditions that
are detrimental to women’s equality and dignity cannot be accorded respect if
they themselves violate universal human rights norms.
Dictators will naturally object to the reach of international human rights
into matters they deem to be their business, in other words, their prerogative to
treat their people however they wish. Apologists for Zimbabwe’s Robert
Mugabe’s tyrannical regime resorted to the country’s traditional culture to
defend his thirty-seven-year rule, claiming that in accordance with Zimbabwean
culture, Mugabe is a king, and kings can only be replaced when they die.161
Islamic militants in conjunction with religious authorities have battled against
rights discourse because it challenges foundational restrictions such as the right
to freely marry and freely divorce.162 Objecting to the UDHR’S universal status,
the Organization of the Islamic Conference (“OIC”) adopted the Cairo
Declaration of Human Rights in Islam on August 5, 1990, claiming that the
158. Vijayendra Rao & Michael Walton, Culture in Public Action: Relationality, Equality of Agency, and
Development, in CULTURE AND PUBLIC ACTION 18 (Vijayendra Rao & Michael Walton eds. 2004).
159. Id.
161. Joseph Winter, Robert Mugabe: The Survivor, BBC NEWS (Dec. 6, 2011),
https://www.bbc.com/news/world-africa-16010171.
162. Michael Ignatieff, The Attack on Human Rights, 80 FOREIGN AFF. 102, 103 (2001); Dania Akad, The
Universal Declaration vs. The Cairo Declaration, LONDON SCH. OF ECON. AND POL. SCI.: MIDDLE E. CTR. (Dec.
10, 2012), https://blogs.lse.ac.uk/mec/2012/12/10/1569. The majority of Muslim countries such as Egypt, Iran,
and Pakistan signed the UDHR in 1948, but not Saudi Arabia (which then as now denied women the right to
vote or even to drive a car) which claimed the UDHR violated Islamic law and failed to take into consideration
the cultural and religious traditions of non-Western countries. Id.
Cairo Declaration was to be complementary to the UDHR.163 It is, in fact,

anything but. Its so-called culturally-based variant is so antithetical to the four
basic freedoms that undergird the UDHR—freedom of speech, freedom of
religion, freedom from want, and freedom from fear—that it can only be
described as undermining, not supplementing, the UDHR.164
Even so-called benevolent dictators like Singapore’s Lee Kuan Yew have
found that attacking the UDHR serves their purpose—to preempt legitimate
criticism and dissent while appearing protective of national culture.165 Hence
Lee Kuan Yew, too, has predictably proclaimed that human rights are not
universal but Western, and their enshrinement in the international human rights
regime reflects but a novel and even sneaky form of Western domination on the
non-Western world.166
Lee Kuan Yew stated that, for Singaporeans, there is “little doubt that a
society with communitarian values where the interests of society take
precedence over that of the individual suits them better than the individualism
of America.”167 This “Asian model” conveniently favored by authoritarians
ranks “community and family ahead of individual rights and order ahead of
democracy and individual freedom.”168 Even as it acknowledges that human
rights are universal, Paragraph 8 of the Bangkok Declaration on Human Rights
(“Bangkok Declaration”) smuggled “cultural relativism” into universalism. It
states that, although Asian countries “recognize . . . [that] human rights are
universal in nature, they must be considered in the context of a dynamic and
evolving process of international norm-setting, bearing in mind the significance
of national and regional particularities and various historical, cultural and
163. Id.
164. Article 18 of the UDHR states that everyone has freedom to religion, including to change religion.
Article 10 of the Cairo Declaration states converting someone from Islam to another religion is prohibited. Id.
The OIC has also been working on revising the Cairo Declaration towards better reconciliation with the UDHR
and the revision was to be presented at the OIC’s Council of Foreign Ministers meeting in April 2020. The
meeting was cancelled due to Covid-19. TURAN KAYAOGLU, THE ORGANIZATION OF ISLAMIC COOPERATION’S
DECLARATION ON HUMAN RIGHTS: PROMISES AND PITFALLS 1 (2020), https://www.brookings.edu/wp-
content/uploads/2020/09/The-Organization-of-Islamic-Cooperations-declaration-on-human-rights-promises-
and-pitfalls.pdf.
165. The former democratically elected president of South Korea, Kim Dae Jung, has objected to Lee Kuan
Yew’s assertion that democracy is antithetical to Asian values. Kim Dae Jung, The Myths of Asia’s Anti-
Democratic Values, 73 FOREIGN AFFS. 189, 189–90 (1994). The Nobel Laureate in Economics has made similar
arguments. See AMARTYA KUMAR SEN, SIXTEENTH MORGENTHAU MEM’L LECTURE ON ETHICS & FOREIGN
POL’Y HUMAN RIGHTS AND ASIAN VALUES 28–31 (2003).
166. See Fareed Zakaria, Culture Is Destiny: A Conversation with Lee Kuan Yew, 73 FOREIGN AFF. 109,
109–26 (1994).
167. Daniel A. Bell, A Communitarian Critique of Authoritarianism: The Case of Singapore, 25 POL.
THEORY 6, 7 (1997).
168. Ignatieff, supra note 162, at 105; see also Bell, supra note 167, at 7 (“Whereas Americans may prefer
more democracy and less community, Singaporeans are said to prefer less democracy and more community.”).
religious backgrounds.”169 This paradox has been referred to as “relative

universality” which dilutes universalism, supposedly not to further tyrannical
self-interest, but to oppose cultural hegemony.170
But this culturally contingent approach “is in direct conflict with the idea
of an international system of human rights, a conception which grew out of the
Holocaust and the conviction that states’ treatment of their citizens was no
longer a purely domestic concern.”171 As noted, it is quite predictable for
dictators and strong men to stake their hostility to universal human rights and
launch a counteroffensive on cultural imperialism grounds. But as observed in
the Introduction, others have also stepped into this debate to shore up the pro-
culture position, on the grounds that international human rights overreach has
endangered the human rights agenda and pull back from rigidity and arrogance
is needed to save human rights from itself.172 Acting as if the UDHR reflected
solely Western ideas, these critics call for more attention to be shifted to the
communitarian portion of the UDHR,173 such as Article 29, which highlights not
rights but duties: “Everyone has duties to the community in which alone the free
and full development of his personality is possible.”174
Going outside the drafting record of the UDHR, communitarians point to
the individual/community dichotomy rooted in cultural differences between the
East versus the West to challenge the universalism principle. For
communitarians, international human rights are associated with the thin societies
of the West. In such thin societies, characterized by liberalism and
individualism, the state is strong but the community where deep relationships
and attachments are formed is frayed and weak. Pushing a hardline, rigid
international human rights agenda onto non-Western or Southern societies175 on
the ground that rights are universal is inappropriate and additionally,
counterproductive because it will provoke backlash. The pro-culture,
communitarian camp calls this position the hardline Western universalist
position. Without jettisoning human rights altogether, this camp exhorts human
rights to adopt a flexible universalist position that accommodates culture more.
Although rooted in different concerns, it is sometimes hard to tell which
statement is by Western communitarians and which is from Asian or non-
169. G.A. 46/116, Bangkok Declaration on Human Rights, at ¶ 8 (Dec. 17, 1991).
170. Jan Kliem, Human Rights in Southeast Asia and the ASEAN Intergovernmental Commission on Human
Rights (AICHR), CPG (Apr. 2019), https://www.cpg-online.de/2019/07/01/human-rights-in-southeast-asia-and-
the-asean-intergovernmental-commission-on-human-rights-aichr.
171. Sally Engle Merry, Human Rights Law and the Demonization of Culture (and Anthropology Along the
Way), 26 POL. & LEGAL ANTHROPOLOGY REV. 55, 66 (2003).
173. Ignatieff, supra note 162, at 105.
175. Shorthand for the global South, usually also referred to as the Third World, consisting of poorer,
developing countries.
Western statesmen. For example, compare this: “although human rights are
universal, they need to be implemented in a way that takes the local social and
political context into account, especially in thick societies and communities”176
with paragraph 8 of the Bangkok Declaration mentioned above: although Asian
countries party to the Declaration “recognize . . . [that] human rights are
universal in nature, they must be considered in the context of a dynamic and
evolving process of international norm-setting, bearing in mind the significance
of national and regional particularities and various historical, cultural and
religious backgrounds.”177
But this pro-culture communitarian position is not merely one that is
anchored in differences in culture, behavior, or values. Supporters of this
position have pointed even to cognitive differences between, for example, East
Asians versus Westerners, to explain the differences between the former and the
latter in their cultural propensity towards collectivism versus individualism. East
Asian emphasis on communities and duties and Western emphasis on
individuality and rights are not “just” cultural differences but rather, are rooted
in psychological differences. Anchoring the relativism/universalism debate not
just on culture or cultural differences, but on something that is presumably
antecedent to but entwined with culture would seem to suggest that such
differences are so profound as to be natural and immutable; and furthermore,
that such differences should provide the basis for a different approach to human
rights, one that relaxes the supposedly rigid and stringent universalism strand of
the UDHR in order to accommodate, account for, and respect cultural diversity
in the non-Western world. This Article objects to using psychological
differences to justify the subordination of women not just on cultural but now
also on cognitive grounds.
B. CULTURAL AND COGNITIVE DIFFERENCES

This Section examines the contribution of cultural psychology research to
the question of differences in perception and cognition, most of which has
centered around East Asians versus Westerners, how they produce differences
in cultural values, and the ensuing differences in social organizations across
culture. This Section concludes that, although such differences may exist, they
do not justify creating or honoring a cultural exception to international human
rights which almost always “happen” to coincide with perpetuating women’s
subordination. In fact, this Section argues the opposite. If social psychologists
are correct and psychology and cognition in effect create culture, such that East
Asians perceive the world holistically and their culture reflects their holistic
perception of life, that cultural inclination towards the organic whole should

177. Id.
mean a great concern for all parts within the whole—the opposite of the current
gendered reality. In other words, if certain people from certain societies
experience themselves relationally as part of an embedded whole, it does not
follow that their cognitive propensity towards holism would justify
subordination of any part by another part (the female by the male, in our case).
Group harmony should truly mean group harmony, not superficial harmony
whereby one part of the group self-sacrifices to pacify or elevate the other part
in the name of group equilibrium and happiness. This cognitive and cultural
disposition towards holistic interconnectedness would be completely in sync
with, not oppositional to, the values of the UDHR.
Research has indeed shown that “humans tend to overstate the role of
individual disposition and underappreciate the role of situation in accounting for
human behavior.”178 In Western culture, “a person’s behavior is generally
understood to manifest, not simply her disposition, but a particular dispositionist
causal schema that presumes that behavior reflects freely willed (often
consciously made) ‘choices,’ which in turn reflect a stable set of
‘preferences.’”179 In reality, according to some scholars, there is a “vast world
of situational influence occurring outside our narrow purview;”180 and although
this tendency is the case for human beings generally, it is more pronounced in
the West. In other words, the tendency to emphasize the general disposition of
human beings—the rationality of the rational actor in economics, the free will
of the contracting party in contracts, the reasonable person in tort law, etc., and
minimize the particular situation or the context—is a more Western
phenomenon.181 The Western model assumes that the human person is disposed
to be “bounded, coherent, stable, autonomous, ‘free’ entity” with individual
“preferences, motives, goals, attitudes, beliefs, and abilities” that guide and
restrain actions.182
And yet, unseen cognitive processes, according to social psychologists,
exert profound influences on one’s thoughts and preferences.183 In reality, social
psychology tells us that human disposition is embedded in a culturally specific
situation and that “the capacity to form culturally prescribed social relationships
is essential for human survival, reproduction, and well-being . . . . People must
think, feel, and act with reference to local practices, relationships, institutions,
178. Jon Hanson & David Yosifo, The Situational Character: A Critical Realist Perspective on the Human
Animal, 93 GEO. L. J. 1, 6 (2004) (emphasis added).
179. Id.
180. Id. at 23.
181. RICHARD E. NISBETT, THE GEOGRAPHY OF THOUGHT: HOW ASIANS AND WESTERNERS THINK
DIFFERENTLY . . . AND WHY 40–45 (2003).
182. Hanson & Yosifo, supra note 178, at 27.
183. Id. at 84; see also Alan Page Fiske, Shinobu Kitayama, Hazel Rose Markus & Richard E. Nisbett, The
Cultural Matrix of Social Psychology, in THE HANDBOOK OF SOCIAL PSYCHOLOGY 915, 920 (Daniel T. Gilbert,
Susan T. Fiske & Gardner Lindzey eds., 4th ed. 1998).
and artifacts. To do this, people must use the local cultural models, which
consequently become an integral part of their psychology.”184 Non-Westerners,
such as Asian societies, are less individualistic and more situation-oriented.185
Hence, according to pro-culture communitarians opposed to “rigid
universalism” of international human rights, “the holistic thinking of Asians may
actually be more suitable than the analytic thinking used by Westerners for
interpreting human rights documents like the UDHR . . . .” 186 This is “because
of the need to balance different elements against each other and to take into
account social context in doing so.”187 These advocates favoring cultural
flexibility point to social psychology188 research that has called into question
even some of the most basic assumptions about human cognition. One of the
more prominent psychologists relied upon by so-called flexible universalists is
Richard Nisbett, whose work this section discusses because Western
communitarians have relied upon it to support their call for cultural exception.189
For example, Nisbett studied differences between ancient Greek and
Chinese societies as exemplified by differences in the teachings of Aristotle and
Confucius.190 Such differences are exemplified in the Aristotelian sense of
individual agency and debate versus the Confucian sense of community,
collectivism, harmony, and self-control.191 Certain metaphysical assumptions
184. Fiske et al., supra note 183, at 916–17.

185. This is also referred to as thick versus thin, or low context versus high context societies, with the former
composed of people with a sense of interdependent selves versus independent selves in the latter.
187. Id.
188. NISBETT, supra note 181, at 50–51. Culture psychology is defined as “the study of the way cultural
traditions and social practices regulate, express, and transform the human psyche, resulting less in psychic unity
for humankind than in ethnic divergences in mind, self, and emotion . . . It does not presume the premise of
psychic unity, that the fundamentals of the mental life are by nature fixed, universal, abstract, and
interior . . . Psyche and culture are thus seamlessly interconnected.” RICHARD A. SHWEDER, THINKING THROUGH
CULTURES: EXPEDITIONS IN CULTURAL PSYCHOLOGY 73, 97, 102 (1991).
189. See, e.g., KAPLAN, supra note 5, at 40; Hanson & Yosifo, supra note 178, at 1. Hanson and Yosifon
reject the Western emphasis on individual choice and will, in other words, individuality itself, as a driver of
human behavior. “Social psychologists who have studied self-conceptions across cultures summarize this
Western person schema as follows: “The person is believed to consist of a set of ‘internal,’ ‘personal’ attributes
such as . . . personality traits, preferences, subjective feeling states, beliefs, and attitudes. These attributes are
thought to be internal and personal in the sense that they come from within and characterize the
person regardless of the situation (that is, a person’s attributes are not generated by or relative to current social
context). Taken together, these attributes define each person as an autonomous, freely choosing, special
individual.” Hanson & Yosifo, supra note 178, at 26–27. Citing to the social psychologist Richard Nisbett, the
authors argue for explicit acknowledgment of the limits of individual action in favor of greater awareness that
“humans tend to overstate the role of individual disposition and under-appreciate the role of situation in
accounting for human behavior.” Id. at 6. This is in essence the communitarian argument that the individual is
not self-founded but socially embedded in the community; see also Mark Granovetter, Economic Action and
Social Structure: The Problem of Embeddedness, 91 AM. J. SOCIO. 481, 506 (1985).
190. Richard E. Nisbett & Takahiko Masuda, Culture and Point of View, 100 PROC. NAT’L ACAD.
SCI. 11163, 11163 (Sept. 16, 2003).
191. See generally NISBETT, supra note 181, at 1–29 for claims in this paragraph.
have led to certain quite divergent ways of seeing and understanding the
world.192 Greek philosophers looked at objects and their properties and observed
and categorized those objects by reference to their singular properties, coming
up with rules that describe or predict the behavior of the objects.193 As Nisbett
explained, Aristotle observed a stone falling and a piece of wood floating and
attached the property of gravity to the former and levity to the latter.194 The
Greeks were concerned about the attributes of a salient object, used such
attributes to create categories of objects, and then constructed rules about
them.195 Although this supposed dichotomy between Greek versus Chinese
changes neither the claims nor the arguments in this Article, it is worth noting
that Nisbett used very broad strokes, in this case, to describe Greek philosophy,
which encompasses broad, profound, and complex idea ranging from asceticism
and atomism to ethics and Hermeticism.196 There are many Greek philosophers
besides Aristotle, and Nisbett clearly failed to capture the diversity and
complexity of Greek philosophy.197 In fact, whether this psychological
demarcation exists or not, this Article argues the opposite of what the
communitarians argue: there should be no cultural exception to universal human
rights in the UDHR.198
Chinese philosophers, on the other hand, according to Nisbett, looked at
the field in which the object was situated, studied interaction between the object
and its environment, and focused on a field of forces such as magnetism and
acoustics.199 As Nisbett put it, “[t]he notion that events always occur in a field
of forces would have been completely intuitive to the Chinese.”200 The Chinese
were concerned about relationships, interactions, and context. In other words,
the Chinese were less interested in the properties of the actual objects and any
rules governing their behavior; and are more interested in “dialectical schemas,
including finding the ‘middle way’ between two apparently contradictory
propositions and recognizing the importance of the context in making judgments
192. Nisbett & Masuda, supra note 190, at 11163.

193. Id.
194. Id.
195. NISBETT, supra note 181, at 21–22.
196. Id.
197. See e.g., THOMAS A. BLACKSON, ANCIENT GREEK PHILOSOPHY: FROM THE PRESOCRATICS TO THE
HELLINISTIC PHILOSOPHERS (2011).
198. See, e.g., Minakshi Singh, Human Rights: Liberal and Communitarian Perspectives, 4 INT’L J. OF
RSCH. AND ANALYTICAL REV. 173, 173–74 (2017) (“[A]ccording to communitarian philosophers human rights
are not universal. In every culture and society, there are different sets of rights . . . . Therefore rights are also
culture bound.”). Consequently, a practice might be offensive under the UDHR under the principle of
universalism should not be if culture were taken into account.
199. NISBETT, supra note 181, at 22.
200. Id. Nisbett stated that the Chinese recognized “the principle of ‘action at a distance’ two thousand years
before Galileo articulated it. They had knowledge of magnetism and acoustic resonance, for example, and
believed it was the movement of the moon that caused the tides, a fact that eluded even Galileo.” Id.
about objects and individuals.”201 The Greeks saw discrete objects and the
Chinese saw “continuous substances, even as interpenetrating substances.”202
This difference is not surprising. As other social psychologists have pointed out,
how people from different cultures viewed the relationship between themselves
and their surroundings are derived from how those human subjects saw
themselves; in other words, are people individual actors with individual
personality dispositions internal to them or do they act in response to the broader
culturally embedded situations they find themselves in?203 That is, if one sees
oneself as embedded in a larger context, one will see objects and events
similarly.204
These are not just differences in traditions or moral beliefs. Rather, they
are differences that shape “fundamental thinking and perception.”205 Westerners
perceive the world as an agglomeration of discrete objects, leading to an
emphasis on individuality and individual actions; East Asians perceive the world
as connected, hence Asian emphasis on holistic relations and integration.206
Moreover, once these characteristics or orientations of thinking and perceiving
and observing and acting are established, they become part of “a self-
reinforcing, homeostatic system. The social practices promote the worldviews;
the worldviews dictate the appropriate thought processes; and the thought
processes both justify the worldviews and support the social practices.”207
When shown an individual cartoon fish swimming among other cartoon
fish, Chinese participants saw the individual fish as being affected by other fish,
whereas Americans saw the behavior of the individual fish as being caused by
its own characteristics.208 “The differences in causal attribution therefore
probably reflect deep metaphysical differences that transcend specific rules
about particular domains that are taught by the culture.”209 East Asians also
classify objects on the basis of their relationship, not on their individual
characteristics.210 When shown pictures of a chicken, a cow, and a patch of

202. Id.
203. ZIVA KUNDA, SOCIAL COGNITION: MAKING SENSE OF PEOPLE 442 (1999) (discussing how Western
culture’s emphasis on individual personality traits leads to the incorrect conclusion that human behavior will be
consistent across different situations); see also Fiske et al., supra note 183, at 939; LEE ROSS & RICHARD
NISBETT, THE PERSON AND THE SITUATION (1991).
204. Hazel R. Markus & Shinobu Kitayama, Culture and the Self: Implications for Cognition, Emotion, and
Motivation, 98 PSYCH. REV. 224, 246 (1991).
205. NISBETT, supra note 181, at 52.
206. Id. at 47–79.
207. Id. at xx.
208. Nisbett & Masuda, supra note 190, at 11164; see also Akahiko Masuda & Richard E. Nisbett, Attending
Holistically Versus Analytically: Comparing the Context Sensitivity of Japanese and Americans, 81 J.
PERSONALITY & SOC. PSYCH. 922, 924–25 (2001).
210. See supra notes 188–89, 194–95 and accompanying text.
grass, American children matched the chicken with the cow because both are
animals, while Chinese children put the cow and the grass together because cows
eat grass.211 A sense of aesthetic difference between Western and East Asian
sensibilities can also be attributed to the collective versus individual cultural
dichotomy.212 Eastern painting tends to miniaturize the central figure in the
painting while providing a larger spatial context; Western painting places the
horizon low so the landscape is not as prominent.213
When Japanese and American subjects were presented with twenty-second
snippets of animated underwater scenes and then asked to report on what they
had seen, American participants mentioned what the experimenters termed
salient objects (large, colorful objects), while more Japanese participants made
65% more comments about the background field (water color, floor scene, inert
objects).214 Americans observed discrete objects: big fish, small fish. Japanese
observed background environment: the aquarium itself.215
In addition, when participants were shown forty-five photos of previously
seen objects against new backgrounds or no backgrounds, Japanese participants
were more thrown off by the change than American participants.216 Other studies
confirm the following: American participants were more likely to notice changes
in the central object and Japanese participants were more likely to do so when
there were changes in the environment or the relationship between the object
and the context.217
For the Japanese, “selfness is confirmed only through interpersonal
relationships . . . .”218 The Japanese anthropologist Lebra described the Japanese
person as one who strives for “belongingness, reliance, dependency, empathy,
occupying one’s proper place, and reciprocity.”219 Exclusion would be
considered a nightmare for the Japanese because that would show a failure of
connection.220 By contrast, failure to separate, or inability to stand up for oneself
or express oneself uniquely would be the American nightmare.221 In Japanese
culture, acting in accordance with your ego is considered childish while acting
cooperatively is “an act of affirmation of the self.”222 This involves not just
trying to get your own needs met; “meeting another’s goals, needs, and desires

212. Id. at 11168.
213. Id.
214. Id. at 11166.
215. NISBETT, supra note 181, at 89–92.
217. Id. at 11167.
218. Markus & Kitayama, supra note 204, at 228.
219. Id.
220. Id.
221. Id.
222. Id. at 229 (citation omitted).
will be a necessary requirement for satisfying one’s own goals, needs, and
desires.”223 This is different from “I attend to my needs and when I can, also to
others’ needs.” It is, rather that, attending to others’ needs is part and parcel of
attending to my own needs, since I am interdependent with, and connected to,
others.
Even though it may indeed be true that the East/West dichotomy pivots on
individualism and autonomy versus collectivism and holism, there are two
caveats this Article needs to highlight. First, moral sense can be rooted in
something other than psychology or culture, so the picture painted by social
psychologists which this Article has described in this Section is not the only
picture worth noticing. For example, some scholars have posited and defended
the idea that human dignity can be rooted in innate human nature.224 It is by no
means uniformly accepted that “one’s deepest moral convictions . . . depend
exclusively on culture, myth, or ideology.”225 Indeed, researchers from many
different academic fields have begun to develop a “scientific theory of human
moral cognition”226 supporting the following claim: “that an innate moral
faculty or conscience and with it principles of justice, fairness, empathy, and
solidarity are written into the very frame of human nature.”227 These studies
support the idea of a “universal moral grammar” that children across the globe
believe in and subscribe to, and yes, although this set moral compass may indeed
be expressed in different cultural forms, it is a universal and thus shared moral
intuition228 about “human rights-related norms”229 ranging from intentional
battery to international homicide.230
Second, the East/West dichotomy can be overstated, and nuances that
narrow the gap and reveal some common ground between these two polar
extremes are missed. For example, even within the West, studies have shown
that women are grounded in the ethics of care and relationships.231 For example,
in her landmark work, In a Different Voice: Psychological Theory and Women’s
223. Id.
224. John Mikhail, Moral Grammar and Human Rights, Some Reflections on Cognitive Science and
Enlightenment Rationalism, in UNDERSTANDING SOCIAL ACTION, PROMOTING HUMAN RIGHTS 160 (Ryan
Goodman, Derek Jinks & Andrew Woods eds., 2012).
225. Id. at 162.
226. Id. at 164.
227. Id. at 165.
228. Shared moral judgments might be unconsciously acquired and developed, akin to “other cognitive
capacities such as vision, depth perception, musical cognition, and face recognition, all of which also depend on
unconscious mental operations.” Id. at 173.
229. Id.
230. Id. at 180.
231. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT
18–19 (1982). See generally NEL NODDINGS, CARING: A RELATIONAL APPROACH TO ETHICS AND MORAL
EDUCATION (2013); VIRGINIA HELD, FEMINIST MORALITY: TRANSFORMING CULTURE, SOCIETY, AND POLITICS
(1993).
Development, the noted feminist psychologist Carol Gilligan challenged the

dominant accounts of the various stages of moral development as being male
centered because they fail to capture girls’ moral experiences.232 Gilligan found
that prominent psychologists, such as Sigmund Freud, Jean Piaget, Erik Erikson,
and Lawrence Kohlberg, had presented women as being somehow “deficient in
development”;233 that it was “normal” to select men and boys as subjects in
psychology studies; that it was common to portray “men as humans and women
as different,”234 and therefore that “autonomy and rationality (‘masculine’
qualities) were the markers of maturity.”235 Without belaboring the point,
because it is not central to this article, Gilligan demonstrated that women (even
in the individualist-oriented West) exhibit qualities that reflect “moral
goodness” in “relational sensitivity and empathetic concern”—qualities that
Nisbett deemed representative of East Asian culture (but which Gilligan also
showed are considered in the West as “deficient in development.”).236 Others
have illustrated that seemingly opposite cultural values actually exist in a
continuum across societies.237 As observed, “the concept of Jen, the central
concept of Confucian ethics, and the concept of care, the central concept of
feminist care ethics”238 are in fact compatible and mutually reinforcing.
Thus, while social psychology research reveals that basic cognitive
differences do exist in people from different cultures, it is also important to
refrain from exaggerating these differences. It is fair to say that the above
discussion supports the conclusion exhorted by Western communitarians that
“‘basic’ psychological processes depend substantially on cultural meanings and
practices”;239 that ‘“culture and psyche make each other up’”;240 and that
“[p]sychological processes, in turn, generate and transform cultural processes,
232. GILLIGAN, supra note 231, at 18–19.

233. Carol Gilligan, Looking Back to Look Forward: Revisiting in a Different Voice, CTR. FOR HELLENIC
STUD. HARV. U. (2011), https://archive.chs.harvard.edu/CHS/article/display/4025.
234. Id.
235. Id.
236. Id.
237. See Joel J. Kupperman, Feminism as Radical Confucianism: Self and Tradition, in THE SAGE AND THE
SECOND SEX: CONFUCIANISM, ETHICS, AND GENDER (Chenyang Li ed., 2000); see also Chenyang Li, The
Confucian Concept of Jen and the Feminist Ethics of Care: A Comparative Study, 9 HYPATIA 70 (1994); Ranjoo
Seodu Herr, Is Confucianism Compatible with Care Ethics? A Critique, 53 PHIL. E. W. 471, 471–89 (2003);
Sandra Harding, The Curious Coincidence of Feminine and African Moralities, in WOMEN AND MORAL THEORY
296, 296–312 (Eva Feder Kittay & Diane Meyers eds., 1989); Thaddeus Metz, The Western Ethic of Care or an
Afro-communitarian Ethic? Specifying the Right Relational Morality, 9 J. GLOB. ETHICS 77, 77 (2013).
238. Li, supra note 237, at 70 (showing how Confucian ethics is similar to feminist care ethics). For
feminists, “[t]he perspective of care requires that conflict be worked out without damage to the continuing
relationships. Moral problems can be expressed in terms of accommodating the needs of the self and of others,
of balancing competition and cooperation, and of maintaining the social web of relations in which one finds
oneself.” Id. at 78. Confucian ethics would lead to the same conclusion.
239. KAPLAN, supra note 5, at 50 (citation omitted).
240. Id.
shaping the very social institutions, practices, and meanings that will in turn
influence them.”241 However, this Article rejects the conclusion drawn by
Western communitarians who rely on this research to argue that cognitive
differences and consequently cultural differences should legitimately provide
any basis for diluting the universalism of the UDHR.242 While “moral diversity
within and across countries ought to be considered natural, a normal product of
human evolution,”243 moral diversity that impinges on human dignity and
human rights cannot be condoned. This Article also rejects the argument that,
from an instrumental or strategic standpoint, the human rights movement should
abandon “moral monism” so it can be more appealing to more people across
different societies and cultures.244
It is also important to note that, although this Article devotes much of this
Section to discussing social psychology research relied upon by Western
communitarians, none of the cognitive and perception differences should matter
in the question addressed in this Article, namely, equal rights for women. It is
true that Asian proclivity towards the holistic might explain certain
organizational or methodological preferences.245 But this proclivity should have
no impact on human rights generally and women’s rights particularly.
As Part I showed, there was broad participation in the drafting of the
UDHR by people from diverse cultural traditions, including East and West.246
In addition, although the social psychology literature does demonstrate that
culture, perception, and social structures are intertwined, it does not show that
there is anything inherent in or intrinsic to any particular way of perceiving one’s
self, one’s place in the world, or the relationship between the self and the world
that would inevitably create the male-dominated societies that we have today.
To claim that some cultures subscribe to a different set of ethics—the “autonomy
ethic” of the West, the “community ethic” of East Asia, or even the “divinity
ethic” of the Middle East247—does not explain why, within the “autonomy
ethic,” men get to be autonomous and women get to be dependent on
autonomous men; or why within the “community ethic,” women are to get their
241. Id. at 51.

242. Id. 70; Sirkku Kristiina Hellsten, Pluralism in Multicultural Liberal Democracy and the Justification
of Female Circumcision, 16 J. APPLIED PHIL. 69, 74 (1999) (“Those people who promote tradition and
established common values are often labelled as communitarians, because it is the communitarian theorists who
have made the point that liberalism’s individualist premises are unacceptable. Communitarians see that any
conception of an individual always presupposes some view of society and community, since all individuals are
social beings — and that ethical pluralism appears primarily in the practices of different communities rather than
in the ‘free choices’ of individuals.”).
244. Id.
245. See NISBETT, supra note 181, at 191–92.
246. See infra Part I.
247. KAPLAN, supra note 5, at 56–57.
identity from the community, and their husbands and children, while men derive
their identity from the community plus whatever they choose; or why, within the
“divinity ethic,” the divine being as well as those in the top echelon of the divine
institutions are male. Nothing about an interdependent orientation in which a
person is viewed as being part of a group inevitably leads to female
subordination for the sake of maintaining group harmony. Why not
institutionalize and celebrate suppression of male identity and concomitantly
male sacrifice for the sake of family cohesiveness? While it is true that different
societies adopt different conceptions of the good life, this difference between or
among societies does not mean that within each society, these different
conceptions should uniformly result in the subordination of women to men.
Traditions might very well be crucial to a person’s sense of identity in societies
that are “thick” and rooted in relationships and communities. But there is nothing
in that observation that should dictate that the inequality of women or patriarchal
authority is an intrinsic part of human cognition and traditions.
Indeed, if we are to use a holistic framework, what would explain the
subordination of women within embedded, holistic communities except
patriarchy? There is nothing about embeddedness that would intrinsically create
and perpetuate female inequality. Indeed, if we are to use a truly holistic
framework, why would the concern for context not spill out into context itself to
address injustices within that context? In fact, if one were to care only about
men, and ignore injustice against women, that very perspective, which looks
only at men (the equivalent of Nisbett’s Westerner looking only at the big
colorful fish248), and ignore the context in which men can exert power over
others, for example, women, is more representative of an individualistic than a
holistic perspective that should supposedly be acknowledged and respected. If
the context were truly respected and valued, injustice and oppression in one part
within the whole should be addressed, not sidestepped. Indeed, holistic
perception should be an argument in favor of, not against, rectifying inequities
within the whole.
In addition, international human rights law is appropriately concerned
about individual rights. The language of duties and relationships works only
when both parties within the collective participate justly in a reciprocal set of
duties; that is, when there is compliance by both parties. If one party, the male
party, invokes the language of obligations and duties against the female party,
but does not impose the same or equivalent obligations and duties he owes
because gender equivalency is not in the cultural fabric of the community,
imbalance and injustice will continue unabated. We need to supplement duties
with rights.
248. See NISBETT, supra note 181, at 89–91.

And the language of international human rights must be a universal

language if it is to be capable of providing protection for women and children
who are at the mercy of patriarchal culture. Take the example of female genital
mutilation. About four million girls are subjected to it, even though it is banned
in many countries, such as Kenya.249 When it is perpetrated, it is done
surreptitiously, with the knowledge and participation of community participants
but kept hidden from law enforcement.250 At times when officials are less likely
to discover the practice, for example, during the present covid quarantine,
traditional communities have revived it, viewing it as a “cultural transition into
adulthood,”251 and confident that isolation at home will mean that when a girl is
cut by a local “cutter,” at times without anesthesia or painkillers, no one outside
the home or community will know. Only when the bleeding could not be
stopped, and the victimized girl would be brought to a hospital, would the wider
society discover what had gone on in the community.252 In this case, despite the
romanticized version that Western communitarians extol, it is hard to imagine
the community as a source of comfort or sanctuary for these victims because it
is the community itself that is the rights violator. Does a UDHR stripped of the
principle of individual rights have the moral force necessary to help a girl subject
to this practice in the secrecy of her own home or community? How does “duty”
apply to this situation?253
Under human rights law, rights are important for everyone, and “everyone”
must include those most vulnerable. Rights entitle rights holders to have their
rights “enforced against institutions such as the family, state, and the church”254
or other religious institutions. As Michael Ignatieff so aptly put it:
[Rights language] is the only universally available moral vernacular that
validates the claims of women and children against the oppression they
experience in patriarchal and tribal societies; it is the only vernacular that
enables dependent persons to perceive themselves as moral agents and to act
against practices – arranged marriages, purdah, civic disenfranchisement,
genital mutilation, domestic slavery, and so on – that are ratified by the weight
and authority of their cultures.255
249. Sambrian Mbaabu, “We Want Justice for These Girls”: The Kenyan Helpline for Victims of Gender
Violence, UN NEWS (Oct. 17, 2020), https://news.un.org/en/story/2020/10/1075522.
250. Id.
251. Id.
252. Id.
253. See id. It is not duty that is the relevant principle here, but rather, enforcement of rights to protect
victims of assault, rape, child abuse and child marriage. Id. In Kenya, the government has set up 24-hours-a-day
hotlines for victims of gender-based violence. Id. The help line is run by counselors who stay with callers until
the police, medical or child protective personnel arrive at the home. Counselors are also trained to provide legal
aid. Id.
254. Ignatieff, supra note 162, at 108.
255. Id. at 109.
Patriarchy cannot be justified or defended by referencing the very

patriarchal culture that has supported patriarchy itself.
III. PART III: INTERNATIONAL LAW AND CULTURE

The subordination of women worldwide is maintained by patriarchy,
perpetuated by a combination of political and economic power, and punitive and
coercive measures. Undergirding it all, the enforcement of women’s
subordination is in the name of an all-pervasive culture itself. As Gilligan
observed:
[C]ulture appears in the unspoken. Culture is the way of seeing and speaking
that is so much a part of everyday living that it never has to be articulated.
Fish don’t know they are swimming in water, until they are a fish out of water.
It is when culture shifts that we recognize the ocean in which we have been
drenched. What we had taken as natural or taken for granted becomes instead
one way of seeing and speaking.256
Those working to elevate, protect, and preserve culture argue that culture
is valuable and “the law” must protect it, in our case, from overreach by
international human rights law. To test whether culture protection is a code for
perpetuating women’s inequality, this Part looks at select areas of law to see if
culture is indeed preserved and protected in the non-international human rights
arena. Part III briefly examines instances in the international realm where claims
of cultural protection have been rejected. The World Trade Organization
(“WTO”), for example, has not allowed a state to rely on cultural preservation
arguments as a basis for violating some other trade obligations.257 And in law
and development, where predominantly Western lawyers aim to export the rule
of law to the Third World, whether explicitly or not, local culture is changed and
not preserved when new laws are introduced. Indeed, some laws are designed to
counteract local traditions that are deemed antithetical to the law and
development agenda.258
This examination is not meant to be exhaustive. This Article includes it
merely to illustrate the main point, which is that culture has been routinely
sidestepped and even overridden in certain areas of law, and that the vociferous
and righteous call for cultural exceptions to international human rights is
suspect. For example, it is noteworthy that the indigenous communities in
Canada have battled the government to prevent pipelines from running through
their land, which endangers culturally and historically significant markers. The
Kweese War Trail that constitutes a “Cultural Heritage Resource” for the
Wet’suwet’en Nation in Canada is threatened with destruction to make way for
256. Gilligan, supra note 233.

257. See infra Part III.
258. See infra Part III.
a 6.6 billion Coastal GasLink pipeline to move fracked gas from British
Columbia.259 For the tribe, the battle is about the right “to defend their cultural
heritage from destruction.”260 First Nations are fighting for a greater voice
because, as a representative for the Wet’suwet’en Nation said, “If not, then we
are going to lose our culture.”261
A. TRADE AND CULTURE

A basic principle of international trade, as encapsulated in the WTO, is that
it is good to remove trade barriers such as tariffs, quotas, and, subject to certain
restrictions, subsidies because they distort normal trade.262 Eliminating barriers
allows each country to specialize in the production of goods and the provision
of services in which it has the greatest comparative advantage. Where it lacks
comparative advantage, it can turn to imports. The WTO contains three
foundational pillars to facilitate the free flow of trade.263 First, national
treatment. In a nutshell, each Member must treat imported products, after they
have crossed the border, no less favorably than like domestic products.264 What
is considered “like” is subject to much litigation.265 The national treatment
principle prohibits discrimination against imported products. Second, the Most
Favored Nation (“MFN”) treatment prohibits discrimination by WTO Members
favoring imports of like products from certain Member countries.266 Third, tariff
259. Amber Bracken, They Are Erasing Our History, THE NARWHAL (Jan. 14, 2020),
https://thenarwhal.ca/they-are-erasing-our-history-indigenous-sites-buried-under-coastal-gaslink-pipeline-
infrastructure. It is not surprising that critical cultural markers would be sacrificed to protect and promote the
pipeline, which is critical to Canada’s export of liquified natural gas, a formidable industry valued at 18 billion
dollars. Id.
260. Id.
261. Cherise Seucharan, Indigenous Artifacts Found in the Path of a B.C. Natural Gas Pipeline Could Be
Destroyed—and Provincial Permits Allow for It, TORONTO STAR (Dec. 26, 2019), https://www.thestar.com/
vancouver/2019/12/26/indigenous-artifacts-found-in-the-path-of-a-bc-natural-gas-pipeline-could-be-
destroyed-and-provincial-permits-allow-for-it.html.
262. John A. Finlayson & Mark W. Zacher, The GATT and the Regulation of Trade Barriers: Regime
Dynamics and Functions, 35 INT’L ORG. 561, 566–78 (1981); CHAD P. BOWN, SELF-ENFORCING TRADE:
DEVELOPING COUNTRIES AND WTO DISPUTE SETTLEMENT 15–19 (2009); WTO In Brief, WORLD TRADE ORG.,
https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr_e.htm (last visited Jan. 24, 2022); MICHAEL K.
YOUNG, UNITED STATES TRADE LAW AND POLICY 68–70 (2001). For a discussion and critique of “normalcy” in
trade, see Lan Cao, Toward A New Sensibility for International Economic Development, 32 TEX. J. INT’L L. 209,
252–55 (1997); Daniel K. Tarullo, Beyond Normalcy in the Regulation of International Trade, 100 HARV. L.
REV. 546, 546–47 (1987).
263. Principles of the Trading System, WORLD TRADE ORG., https://www.wto.org/english/thewto_e/
whatis_e/tif_e/fact2_e.htm (last visited Jan. 24, 2022); see also Finlayson & Zacher, supra note 262, at 580.
264. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 206 [hereinafter
GATT]; Peter M Gerhart & Michael S. Baron, Understanding National Treatment: The Participatory Vision of
the WTO, 14 IND. INT’L & COMPAR. L. REV. 505, 507 (2004).
265. Gerhart & Baron, supra note 264, at 507; Edward S. Tsai, “Like” is a Four-Letter Word—GATT Article
III’s “Like Product” Conundrum, 17 BERKELEY J. INT’L L. 26, 27 (1999).
266. GATT, supra note 264, at 196–200; Finlayson & Zacher, supra note 262, at 566; Principles of the
Trading System, supra note 263.
bindings. Absent certain allowed exceptions, a Member applying a tariff to an

import of another Member cannot exceed the tariff that the importing Member
has agreed to or “bound” for the relevant product.267 Article XX of the WTO
provides strict rules for Members seeking exceptions to the above WTO
disciplines on the grounds of environmental protection or human health, among
others.268
Globalization and the spread of Western culture have led to an increase in
anxiety about cultural homogenization.269 Some WTO members have thus
sought exceptions from WTO discipline described above in the name of culture,
which would allow the imposition of trade-restrictive measures on imports to
protect local culture and its producers and presumably, also to forestall foreign
influence.270 A cultural exception in trade law is premised on the notion that
“cultural products are vehicles for symbolic messages that transcend the
products’ purely commercial value, such that normal market processes will not
be capable of fully capturing their value to society.”271
There has been an ongoing global movement to get the international trade
community to allow culture-based exemptions from free trade norms.272 In
convening the first meeting of the International Network on Cultural Policies in
1998 to recognize culture-based exceptions to free trade, the then Canadian
Culture minister argued, “[w]e can’t treat culture like any other commodity in
the world . . . [it is] at the very heart of our national identity.”273 The cultural
ministers of seventeen countries proclaimed that “cultural goods and services,
267. GATT, supra note 264, at 198–200; Daniel A. Farber & Robert E. Hudec, Free Trade and the
Regulatory State: A GATT’s Eye View of the Dormant Commerce Clause, 47 VAND. L. REV. 1401, 1418 (1994);
Types of Tariffs, WITS (2010), https://wits.worldbank.org/wits/wits/witshelp/content/data_retrieval/p/intro/
c2.types_of_tariffs.htm.
268. See Farber & Hudec, supra note 267, at 1419.
269. HARRY REDNER, CONSERVING CULTURES: TECHNOLOGY, GLOBALIZATION, AND THE FUTURE OF
LOCAL CULTURES 2 (2004).
270. TANIA VOON, CULTURAL PRODUCTS AND THE WORLD TRADE ORGANIZATION 11 (2007) (erecting trade
barriers through additional tariffs and other forms of cultural protectionism stem from the “desire to protect local
culture”); J. P. Singh, Tania Voon, Cultural Products and the World Trade Organization, 33 J. CULTURAL
ECON. 161, 162 (2009) (book review) (“The case for restricting cultural trade has been made and will continue
to be made directly and indirectly with reference to US dominance.”); see id. at 164 (“My concerns are rooted
in the underlying politics of cultural products where it is hard to disentangle the argument regarding the special
nature of these products from the knee-jerk reactions to US dominance in these products and the international
coalitional politics that call attention to them.”); Report of the Panel, Panel on Japanese Measures on Imports
of Leather, ¶ 7–9, 21 L/5623 (May 15/16, 1984), GATT B.I.S.D. (31st Supp.), at 94, 95–96, 100 (1985) (Japan’s
use of import quotas and import licenses to quantitatively restrict U.S. leather from entering Japan was made on
the grounds that import restriction was necessary to defend a cultural minority community, the Dowa, who
specialized in making leather products).
271. DAVID THROSBY, ECONOMICS AND CULTURE 159 (2001).
272. See supra notes 267–69 and accompanying text.
273. Joel Richard Paul, Cultural Resistance to Global Governance, 22 MICH. J. INT’L L. 1, 37 (2000).
including audiovisual means, deserve special treatment, since they reflect

national and regional cultural identities.”274
This effort to carve out a cultural exception has been more successful in
regional rather than international agreements.275 The WTO has rejected a
cultural exception.276 The WTO’s primary agreement, the GATT, imposes strict
free trade disciplines and eliminates quantitative restrictions across the board,
subject to narrow, specified exceptions.277 There is no cultural exception under
the GATT, as explained below.278 For trade in services, there is somewhat of an
accommodation: cultural services are sidestepped—they have “neither been
expressly excluded nor included under the national treatment provisions of
GATS.”279 Nonetheless, it is reaffirmed, in Article XIX:1 of GATS, that GATS
274. Id.
275. For example, Article 107(1) of the EC Treaty prohibits subsidies if they distort competition, an
exception is provided for aid to “promote culture and heritage conservation.” Consolidated Versions of the
Treaty on European Union and the Treaty on the Functioning of the European Union, Mar. 30, 2010, 2010 O.J.
(C83) 91–92. Canada and Mexico have worked to limit cultural imports in bilateral and regional agreements
with the United States. Paul, supra note 273, at 39. Canada succeeded in inserting a cultural exception in the
US-Canadian Free Trade Agreement (“CFTA”) and the North American Free Trade Agreement (“NAFTA”).
See VOON, supra note 270, at 30–31. Article 2012 of the CFTA defines cultural industries to include the
production and distribution of books, periodicals, film, video and audio recordings, radio, television, and cable
television. Canada-U.S. Free Trade Agreement, January 2, 1988, 27 I.L.M. 293. Note, however, that the United
States is entitled to “offset” the exception in ways acceptable to the United States. VOON, supra note 270, at 31.
For example, the United States could retaliate against any cultural exception by taking measures against
Canadian products in an equivalent amount to the harm suffered by U.S. cultural industry. Id. In Nafta II or
United States-Mexico-Canada Agreement, Canada has retained an exclusion from national treatment and MFN
treatment for its cultural industries. CONG. RSCH. SERV., R44981, THE UNITED STATES-MEXICO-CANADA
AGREEMENT (USMCA) 31 (2020), https://fas.org/sgp/crs/row/R44981.pdf. The Canadian “government imposes
Canadian content (“Cancon”) requirements on radio and television broadcasts, cable and satellite diffusion, the
production of audio-visual material, film or video recording, and on various print media.” Id. The U.S. retains
the provision allowing it and Mexico to take reciprocal action. Id.
276. Liz Schere, The Culture War: A Look at the Cultural Exception in International Trade Law,
40 FORDHAM INT’L L.J. 561, 564 (2017) (“[T]here is no explicit, conspicuous mention of the “cultural
exception” in the different WTO agreements.”); see also id. at 568–69 (discussing the famous 1997 case,
Canada-Certain Measures Concerning Periodicals, and the Panel’s as well as Appellate Body rulings rejecting
Canadian claim for a cultural exception); id. at 572–73 (discussing the 2009 case, China—Measures Affecting
Trade Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products where
China’s restrictive regulations of certain imported entertainment products were struck down because the WTO
essentially refused to recognize a cultural exception); Paul, supra note 273, at 51.
277. VOON, supra note 270, at 225.
278. See supra notes 270, 264–67, 276–77; see also infra notes 278–94 and accompanying text.
279. Paul, supra note 273, at 36. The GATS which deals with trade in services, as opposed to products,
recognizes that trade in services “relate to fundamental domestic regulatory choices.” MICHAEL J. TREBILCOCK
& ROBERT HOWSE, THE REGULATION OF INTERNATIONAL TRADE 273 (2nd ed. 1999). Barriers to trade in services
are complex and GATS disciplines are less stringent in GATS than in GATT. VOON, supra note 270, at 23.
There is more protectionism in trade in services, particularly cultural services. Id. at 23–24. Members that want
to claim an exception for cultural services are allowed to exercise this option by not placing certain services on
a liberalization schedule. Id. at 225. In other words, the “GATS framework primarily involves a ‘bottom up’ or
‘positive list’ approach, with Members choosing the service sectors in which they are willing to make national
treatment or market access commitments.” Id.
members are to enter into rounds of negotiations to continue to achieve greater

liberalization and that “[t]here shall be no a priori exclusion of any service
sector,”280 including service sectors that are at the heart of the culture exception
debate: the audiovisual sector.281
Because an in-depth examination of trade and culture is beyond the scope
of this Article, this Article includes but a few representative cases to make the
main point, which is that the WTO’s gestalt is one that favors free trade norms
over cultural norms. One of the more well-known cases involves a Japanese law
restricting imports of certain types of leather through the use of import licenses
and quotas.282 The case was brought by the United States, which was joined by
Australia, the European Communities, India, New Zealand, and Pakistan as
exporters of leather to Japan.283 Japan’s system violated GATT Article XI
prohibiting quantitative restrictions; its defense rested on the grounds of cultural
exemption, that is, that these import restrictions were needed to protect a cultural
minority community, the Dowa, who were considered to be the lowest social
class since the early seventeenth century and whose traditional tanning and
leather work industries were inefficient and uncompetitive and thus needed
protection on cultural grounds.284 Japan itself framed its system as a way to
reconcile the culture versus trade dilemma. “This was a most serious and
important social problem deriving from the fact that a segment of the Japanese
people, owing to discrimination based on a class system formed in the process
of the historical development of Japanese society, was placed in an inferior
position economically, socially and culturally.”285 Scholarly commentary on the
case has centered around Japan’s assertions about trade and culture. “Japan
contended that without import quotas, the Dowa leather industry would collapse
causing severe social and economic dislocation to this oppressed minority
community and destroying traditional Dowa culture.”286 Others have noted that
Japan’s assertion could be viewed as an attempt to help a threatened group and
preserve its cultural way of life.287
The GATT panel held:
[The] special historical, cultural and socio-economic circumstances referred
to by Japan could not be taken into account . . . [by the Panel] . . . since its
terms of reference were to examine the matter ‘in the light of the relevant

281. Id. (“[T]he audiovisual sector is open to negotiation like any other.”).
282. Panel on Japanese Measures on Imports of Leather, supra note 270, ¶ 7–9 at 95–96.
283. Id. ¶ 4, at 95.
285. Panel on Japanese Measures on Imports of Leather, supra note 270, ¶ 21(i) at 100.
286. Paul, supra note 273, at 52.
GATT provisions’ and these provisions did not provide such a justification for
import restrictions.288
In a different case, Japan made another culture-based argument to justify
its differential (and lower) tax rates for shochu, a traditional Japanese drink,
versus “spirits,” such as vodkas, by claiming that the Japanese treated shochu
differently.289 Under WTO law, if spirits such as vodkas were considered “like”
shochu, then Japan must treat the two alike.290 The European Community
argued that European spirits were “like” or “directly competitive” with
traditional Japanese alcoholic beverages and thus should be granted “national
treatment” as required by Article III of the GATT.291 Japan argued that the two
products were not “like” or “directly competitive” even if objective factors like
end use, physical properties, such as alcoholic content, nature, quality, or similar
manufacturing and composition processes of the products would make them
look as if they are “like” products.292 The Panel concluded that Japanese shochu
and imported spirits were in fact “like” products based on objective criteria and
rejected Japan’s focus on consumer perspectives and preferences, which are
themselves based on tradition.293 As some scholars observed, “[a]lthough Japan
did not specifically refer to ‘cultural’ concerns, the differential tax scheme could
be described as simply a reflection of cultural values and practices with respect
to alcohol.”294
There is a range of other claims that could be viewed as implicitly about
culture or cultural tradition that certain WTO Members wish to protect from free
trade norms even if they are not framed in cultural terms.295 “[I]t is highly
unlikely that a WTO Member would try to defend its measure on the basis of
culture. The reason for this may be primarily that . . . the WTO agreements
288. Panel on Japanese Measures on Imports of Leather, supra note 270, ¶ 44 at 111.
289. Report of the Panel, Japan - Customs Duties, Taxes and Labeling Practices on Imported Wines and
Alcoholic Beverages, ¶ 2, L/6216 (Nov. 10, 1987), GATT B.I.S.D. (34th Supp.), at 83, 85–86 (1988). The Panel’s
conclusions were affirmed by the WTO Appellate Body. Appellate Body Report, Japan–Taxes on Alcoholic
Beverages, WTO Doc. WT/DS8/AB/R (adopted on Nov. 1, 1996) at 32.
290. GATT Article 1 states in relevant part “any advantage, favour, privilege or immunity granted by any
contracting party to any product originating in or destined for any other country shall be accorded immediately
and unconditionally to the like product originating in or destined for the territories of all other contracting
parties.” GATT, supra note 264, at 198.
291. Japan–Customs Duties, Taxes and Labeling Practices on Imported Wines and Alcoholic Beverages,
supra note 289, ¶ 3.2(a)–(g) at 88–92.
292. Id. ¶ 3.12 at 106.
293. Id. ¶ 5.7 at 116.
295. Schere, supra note 276, at 570–73. China attempted to defend its import restrictions where certain
audiovisual products are concerned without ever asking explicitly for a “cultural exception.” Id. at 572–73. It
claimed instead that certain cultural products such as audiovisuals can have an impact on public morals and
through the public morals exception provided in GATT Article XX(a), its restrictions of such cultural products
should be allowed. Id. The claim did not succeed. Id. at 573.
contain virtually no explicit recognition of culture or the legitimacy of Members’

cultural interests or policies.”296
In another culture versus trade case before the WTO, Canada—Certain
Measures Concerning Periodicals, involves Canada’s protection of its
magazines because of their “intellectual or cultural content.”297 The WTO
Appellate Body summarized the Canadian position as “[t]he Government
reaffirms its commitment to protect the economic foundations of the Canadian
periodical industry, which is a vital element of Canadian cultural expression.”298
To achieve its stated purpose, Canada restricted the publication of “split-run
magazines”299 marketed in Canada by imposing an 80% excise tax on
advertising in split-run editions. The United States sued Canada, arguing that the
differential tax treatment violated the National Treatment provision of the GATT
because it discriminated between two “like” or in the alternative, directly
competitive or substitutable products—domestic non-split-run periodicals and
imported spit-run periodicals.300 Canada argued that the two categories of
magazines were not “like” or directly competitive or substitutable products and
thus, it could treat the imported (basically American) split runs differently than
the domestic magazines.301
For Canada, the end use of a magazine rests on the transmission of ideas
and culture; for the United States, the end use of a magazine is more than that
and includes style, appearance, paper, size, texture, thickness, even scent.302
Thus, the U.S. position is that “there was no essential difference between cultural
commodities like magazines or books and other commodities . . . .”303
The WTO Appellate Body reversed the GATT Panel holding that imported
split-run periodicals and domestic non-split-run periodicals were “like” products
but found that they were directly competitive or substitute products; as such,
Canada still could not treat the two products differently, discriminating against
the American product.304 Although the dispute was framed in technocratic
terms, the underlying issue was one that pitted trade against culture. Using
different rationales, both the Panel, which found like products, and the Appellate

297. Canada–Certain Measures Concerning Periodicals, supra note 18, at ¶ 3.84.
298. Appellate Body Report, Canada–Certain Measures Concerning Periodicals, WT/DS31/AB/R (June
30, 1997) at 31.
299. Split-run magazines have the same content as the foreign publication (in this case, American) but with
advertisements aimed at the Canadian market. See id. at 6, 17.
300. See Richard L. Matheny III, In the Wake of the Flood: “Like Products” and Cultural Products After
the World Trade Organization’s Decision in Canada Certain Measures Concerning Periodicals, 147 U. PA. L.
REV. 245, 260 (1998). See generally Canada–Certain Measures Concerning Periodicals, supra note 18.
301. See generally Canada–Certain Measures Concerning Periodicals, supra note 18.
302. Id. at ¶ 3.64–3.70, 3.78.
304. Canada–Certain Measures Concerning Periodicals, supra note 273, at 35; Matheny III, supra note
300, at 247.
Body, which found directly competitive or substitutable products, rejected the

Canadian claim that cultural goods should be exempt from free trade norms and
as some have observed, the decision could also be seen as a rejection of
“economic protectionism masquerading as cultural.”305
Trade and culture, as are “trade and . . .” issues—trade and environment,
trade and labor, trade and human health—is complicated because it entails a
clash of, as well as trade-offs between, different sets of values. The discussion
in this section is by necessity shorter than a fully nuanced examination of the
subject warrants, but again, as previously stated, the purpose is a narrow one—
to show that it is not uncommon for culture to be marginalized in international
law and to provide a specific instance—trade and culture in the WTO, in which
that has been the case.
B. LAW AND DEVELOPMENT AND CULTURE

This Section shows that in law and development, there have been few calls,
if any, to preserve traditional culture. As this Subpart will demonstrate, even if
not explicitly, rule of law exports,306 whereby “experts” from developed
countries exported Western laws to the Third World, have had a culture change
component. In other words, when Western laws are transplanted into developing
countries, it is not just laws that are exported but sometimes even culture. Yet,
there is no outcry from the pro-culture camp that, for example, the establishment
of contracts law, corporate law, or securities law, is disrespectful of local culture,
as there is in the international human rights area.
These projects have more or less followed a standard trajectory that focuses
on enacting formal laws and establishing robust institutions to support political
and economic development.307 But as this Part will show, despite the appearance
of a contained and restricted framework in which “only” laws and institutions
will be dealt with, there was, nonetheless, an implicit cultural undercurrent to
the rule of law agenda in which culture would at the very least be changed as a
byproduct of newly introduced laws.
Development economists questioned “whether traditional institutions,
attitudes and values are likely to block or to promote economic growth.”308 “Not

306. Rule of law reforms have also been referred to as law and development. That is, can law be used to
support economic and political development in the Third World. See generally David M. Trubek, Toward a
Social Theory of Law: An Essay on the Study of Law and Development, 82 YALE L.J. 1 (1972).
307. JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS? BUILDING THE
RULE OF LAW AFTER MILITARY INTERVENTIONS 75 (2006); RACHEL KLEINFELD BELTON, COMPETING
DEFINITIONS OF THE RULE OF LAW: IMPLICATIONS FOR PRACTITIONERS 16–17 (2005).
308. Jean-Philippe Platteau, The Role of Culture in Development: An Overview, in CULTURE, INSTITUTIONS,
AND DEVELOPMENT: NEW INSIGHTS INTO AN OLD DEBATE 3 (Jean-Philippe Platteau & Robert Peccoud eds.,
2011).
only must economic organization be transformed, but social

organization . . . must also be modified so that the basic complex of values and
motivations may be more favourable for development.”309 Development
economists like Sir Arthur Lewis believed traditional culture would evolve with
economic development: “traditional values and attitudes, whenever they are
hostile to economic advancement, will eventually adapt themselves to new
economic opportunities.”310 Against this economic backdrop, law and
development lawyers in the first wave of law and development efforts, spanning
from the 1960s to the 1970s, strived to replace traditional legal systems with
more modern rules and institutions.311 Western reformers saw traditional legal
systems, encompassing different laws for different villages, tribes, or classes, as
lacking in purposiveness and rationality,312 “historically obsolete and culturally
inapposite,”313 and thus sought to replace traditional law with modern law—fair,
rational, and universal rules314—which reformers saw as the “functional
prerequisite of an industrial economy.”315 It was widely recognized among first
wave law and development experts that modernization of culture was synergistic
with the introduction of modern law.316 Law was a tool to create and maintain
markets and to change traditional societies.317 Modern law would be an
instrument and a “force which can be molded and manipulated to alter human
behavior and achieve development.”318 First wave reformers also wanted to
introduce not only formal law but also a sense of legal culture which they believe
is necessary to create cultural buy-in and support for law.319
309. Id. (citation omitted).

310. Id. at 4.
311. Trubek, supra note 306, at 5.
312. Id.
313. Jorge L. Esquirol, The Failed Law of Latin America, 56 AM. J. COMPAR. L. 75, 92 (2008).
314. Rene David, A Civil Code for Ethiopia: Considerations on the Codification of the Civil Code in African
Countries, 37 TUL. L. REV. 187, 192, 203 (1962–1963); Trubek, supra note 306, at 9.
315. Trubek, supra note 306, at 6.
316. Samuel Huntington, The Change to Change: Modernization, Development, and Politics, 3 COMPAR.
POL. 281, 285 (1971) (discussing modernity versus tradition and the duality as “the latest manifestation of a
Great Dichotomy between more primitive and more advanced societies which has been a common feature of
Western social thought for the past one hundred years.”); Brian Z. Tamahana, The Lessons of Law-and-
Development Studies, 89 AM. J. INT’L L. 470, 472 (1995) (book review) (describing how Western experts
prescribed the establishment of Western institutions in traditional societies to change those societies); Mary
Packard-Winkler, Putting the Culture Back into Development, 13 FLETCHER F. WORLD AFF. 251, 252 (1989)
(describing legal development as a form of cultural intervention, whether legal experts recognized it or not);
David M. Trubek, The “Rule of Law” in Development Assistance: Past, Present , and Future, in THE NEW LAW
AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 74, 76 (David M. Trubek & Alvaro Santos eds., 2006)
(describing how first wave practitioners sought “to transform legal culture and institutions through educational
reform and selected transplant of ‘modern’ institutions.”).
317. Trubek, supra note 306, at 6–7.
318. Elliot M. Burg, Law and Development: A Review of the Literature & a Critique of “Scholar in Self-
Estrangement,” 25 AM. J. COMPAR. L. 492, 505–06 (1977).
319. Lawrence M. Friedman, Legal Culture and Social Development, 4 L. & SOC’Y REV. 29, 34 (2000).
But even when such cultural objective is not plainly acknowledged,

cultural transformation is likely to be the result, intended or not, of exporting
laws.320 For example, when first wave reform failed and the second wave took
hold in the 1980s with the fall of the Soviet Union, legal reformers focused less
on the modern culture aspects of reform and more on market development to
bring former Soviet-bloc countries into the international economic system.321
The laws of corporation and other business associations, securities, contract, and
property rights were and are regularly included in the conventional rule of law
template.322 Reformers might believe they are “only” doing law. However, in
reality, they are in fact doing “law and culture” because the laws they are
working to establish in a country implicitly create changes in values and
traditions, even deeply entrenched ones.323
Securities and contract laws, for example, which are relatively
uncontroversial exports in law and development circles, actually have deep
implications for certain societies.324 One of the main differences between the
developed and the developing world is not just that one is economically
advanced and the other economically less advanced. It is, rather, that:
[That] difference lies in the absolutist objectivity of the developed world
versus the relativist subjectivity of the developing world. In other words,
developed societies have the demonstrated capability to create, grasp, and rely
on a belief system of abstract ideals (e.g., equal justice for all, equal
320. See Trubek, supra note 306, at 21–22; see also infra notes 321–30 and accompanying text. In addition,
law’s relationship with culture has been amply discussed by various scholars. See, e.g., KENT GREENAWALT,
LAW AND OBJECTIVITY 165 (1992) (“Does law within a society reflect dominant cultural norms? In one sense,
to ask this question is to answer it. Unless law is imposed from outside by an alien power, a society’s law will
reflect its patterns of life and morality.”); OSCAR G. CHASE, LAW, CULTURE AND RITUAL: DISPUTING SYSTEMS
IN CROSS-CULTURAL CONTEXT 46 (2005) (“[I]nstitutions reflect the deeply held normative values, authority
relations, and metaphysics of the society that produced them.”); LAWRENCE ROSEN, LAW AS CULTURE: AN
INVITATION xii (2006) (“[L]aw is so deeply embedded in the particularities of each culture that carving it out as
a separate domain and only later making note of its cultural connections distorts the nature of both law and
culture.”).
321. THOMAS CAROTHERS, AIDING DEMOCRACY ABROAD: THE LEARNING CURVE 165, 168 (1999)
(describing the “Rule of Law Assistance Standard Menu” that includes reforming institutions, rewriting laws,
upgrading the legal profession through bar association support); Stephen Holmes, Can Foreign Aid Promote the
Rule of Law? 8 E. EUR. CONST. REV. 68, 68 (1999). Notice the technical nature of the work. See RUMU SARKAR,
DEVELOPMENT LAW AND INTERNATIONAL FINANCE 113 (2002). Contrast this with the first wave reformers who
were influenced by development economists and modernist theorists who were interested in the cultural aspects
of development, asking questions such as “whether traditional institutions, attitudes, and values are likely to
block or to promote economic growth.” Platteau, supra note 308, at 3; see also id. at 4 (discussing Sir Arthur
Lewis, the Nobel Laureate economist who stated: “traditional values and attitudes, whenever they are hostile to
economic advancement, will eventually adapt themselves to new economic opportunities.”).
322. CAROTHERS, supra note 321, at 168; Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal
Empowerment Alternative 10–11 (Carnegie Endowment for Int’l Peace, Working Paper No. 41, 2003).
323. See supra notes 319–22 and accompanying text; see infra notes 324–32.
application of the law, due process, democratic representation and

governance.)325
By contrast, developing societies are organized around relationships, not
abstract principles, which means that it is expected that loyalty is to be reserved
for “families, patrons, rulers, and ethnic or religious identities . . . .”326
In fact, as communitarian critics of the UDHR have repeatedly claimed,
there are thick and thin societies.327 So when Western-style securities laws are
introduced into developing countries and trading on the basis of inside
information is prohibited, in a hypothetical posed by the law and development
scholar Rumu Sarkar, a Jordanian corporate insider who comes into possession
of inside information would be faced with a dilemma:
It may be the perceived duty of such a corporate insider to provide his family
and associates with the information and the means by which to enrich
themselves. …. Thus, adhering to a legal regime where insider trading is a
criminal offense may be seen as incomprehensible, alien, bizarre, and in
conflict with the mores and expectations of Jordanian society.328
Sarkar explained that Western lawyers should not assume that
criminalizing insider trading is self-evident; and that for the new law to be
accepted and take root in Jordanian society, Western experts need to come “to
terms with the underlying cultural mores that are affected (or offended) by this
proposed new legal practice.”329
As this Article shows below, similarly, contract law interfaces with
traditional cultural values as well. For example, a Vietnamese law professor I
interviewed in Hanoi insisted that personal trust still is a core principle in
contracts, and he would not enter into a contract with any person unless the other
person had acted dutifully towards her or his parents.330 And yet, going by that
traditional standard, contracts could not be widely entered into and commercial
transactions would be limited.331 It is obvious that contract law facilitates the
transition from gemeinschaft to gesellschaft,332 from community to society, and
325. RUMU SARKAR, INTERNATIONAL DEVELOPMENT LAW: RULE OF LAW, HUMAN RIGHTS & GLOBAL
FINANCE 13 (2009).
326. Id.
328. SARKAR, supra note 325, at 13.
329. Id.
330. Interview with Vietnamese law professor, Hanoi Law School, Hanoi, Vietnam (1991).
331. Michael Trebilcock & Jing Leng, The Role of Formal Contract Law and Enforcement in Economic
Development, 92 VA. L. REV. 1517, 1519 (2006) (“We argue that at low levels of economic development,
informal contract enforcement mechanisms may be reasonably good substitutes for formal contract enforcement
mechanisms. At higher levels of development, however, informal contract enforcement may become an
increasingly imperfect substitute due to the presence of large, long-lived, highly asset-specific investments, as
well as the prevalence of increasingly complex trade in goods and services that often occurs outside of repeated
exchange relationships.”).
332. See generally FERDINAND TÖNNIES, COMMUNITY AND CIVIL SOCIETY (Jose Harris ed., 2001).
in the process loosening the traditional bonds so that people can enter into
economic transactions even with those from outside their clans or familiar
circles and with whom they have no prior relationship of trust. Contract law
introduced into thick societies facilitates market participation between and
among strangers, loosening thick society relational bonds.333
“Merely” reforming institutions or introducing formal laws into developing
countries implicitly entails a cultural agenda and “is highly dependent on
cultural factors.”334 Even an impartial judicial system, which is one of the most
noncontroversial rule of law agenda items, requires a culture that values
impartiality because impartiality is a culturally-embedded value, as shown in the
following encounter. For example, Confucianism values personalistic
relationships based on status and social ranking335 over abstract principles. In
the Analects of Confucius, the Duke of Sheh recounted that his subjects were
morally upright using the following example: “If their father have [sic] stolen a
sheep, they will bear witness to the fact.”336 But Confucius disapproved, as
shown in the following quote: “Among us, in our part of the country, those who
are upright are different from this. The father conceals the misconduct of the
son, and the son conceals the misconduct of the father. Uprightness is to be found
in this.”337
It is known in law and development circles that “[l]egal systems do not
float in some cultural void, free of space and time and social context; necessarily,
they reflect what is happening in their own societies. In the long run, they assume
the shape of these societies . . . .”338 Thus, whether implicitly or explicitly, legal
reformers are changing traditional cultural values when they work to export and
establish new legal systems, laws and institutions included.339 It is usually seen
as a virtue to strive for the principle of equality before the law, even if doing so
might shake up traditional cultural values.340 Take a concrete example: poverty.
333. Trebilcock & Leng, supra note 331, at 1520–23; Robert E. Scott, The Death of Contract Law, 54 U.
TORONTO L.J. 369, 388–89 (2004) (formal contract law diluting informal contractual relationships).
334. BELTON, supra note 307, at 10.
335. Li Ruohui, The Era of Prefectures and Counties: An Inquiry into the Power Structure and State
Governance in Ancient Chinese Society, 1 J. CHINESE HUMANITIES 67, 70 (2015) (describing how Confucianist
principles favor “treat[ing] people differently according to their superior or inferior social status, noble or humble
position, senior or junior age, or closeness of relation to someone else” whereas legalist principles favor the
establishment of “a uniform and standardized law, which aims at equality and homogeneity”).
336. LAO-TSE [LAO ZI], CONFUCIUS, THE ANALECTS – 13 (James Legge trans., 1901), https://china.usc.edu/
confucius-analects-13.
337. Id.
338. Lawrence M. Friedman, Borders: On the Emerging Sociology of Transnational Law, 32 STAN. J. INT’L
L. 65, 72 (1996).
339. See id.
340. Susan Rose-Ackerman, Corruption: Greed, Culture and the State, 120 YALE L.J. FORUM (Nov. 10,
2010), https://www.yalelawjournal.org/forum/corruption-greed-culture-and-the-state. Rose-Ackerman studied
It is not just economic but also has a cultural dimension.341 As Martha Nussbaum
explained:
Poverty alone does not cause women to die in greater numbers than men.
When there is scarcity, custom frequently decrees who gets to eat the little
there is, and who gets taken to the doctor. And custom is always crucial in
determining who gets to perform wage labour outside the home, an important
determinant of general status in the family and community.”342
There is no normatively sound defense of this kind of cultural preference
and, not only should it be critiqued as a violation of obligations under the UDHR,
it should be changed as exhorted by CEDAW.
The failures of many rule of law projects can be attributed to many factors,
but this debate has not revolved around whether or not traditional culture should
be preserved against changes wrought by the establishment of new laws and new
institutions. Rather, critique, from inside and outside the field, has centered on
why changes have not been ushered in and taken root,343 not on how to insulate
developing countries from change, culture or otherwise.
IV. PART IV: HETEROGENEITY IN CULTURE

This Part examines the idea of culture itself. This Part shows that culture is
a loaded word and subject to contestation. It is not monolithic or homogeneous,
with buy-in from everyone within it.
This Part has two primary objections to the way culture has been
understood and deployed. First, culture is not “pure” in the sense that there is
one “authentic” culture that must be guarded from change. Culture is not fixed
but is fluid and ever-changing. Rather, it is layered in heterogeneity, its
boundaries pushed and pulled from within by those seeking voice,
representation, and inclusion. To lob the word culture as if it were one solid,
how “payments or gifts given to officials and the mutual exchange of favors, including electoral quid pro
quos . . . [may be derived from] traditions that emphasize loyalties to friends, family, region, tribe, religion, or
ethnic group. These practices privilege informal, friendly social contacts over arms-length, rule-bound
transactions.” Id. Modern states and rule of law projects attempt to institute formal rules that would lessen corrupt
practices, for example, even if those practices have as their impetus a desire to benefit in-group members. See
id. Equality and non-discrimination would mean that judges who rule cannot favor in-group members who
appear before them. As Rose-Ackerman noted, “All modern states are dominated by a formal set of rules and
laws administered by public officials and influenced by the choices of political leaders, whether elected or
appointed. States may incorporate values and practices that clash with a society’s traditions. If nepotism and
payments in money or in kind are formally illegal, there may be a mismatch between traditional practices, on
the one hand, and efforts to develop impersonal bureaucratic processes and democratic electoral systems, on the
other.” See id.
341. See id.
342. Martha C. Nussbaum, Introduction, in WOMEN, CULTURE AND DEVELOPMENT 3 (Martha Nussbaum &
Jonathan Glover eds., 1995).
343. David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflection on the Crisis in Law
and Development Studies in the United States, 1974 WIS. L. REV. 1062, 1062–64.
insular, and discrete entity is to miss the very thing about culture that makes it
worth appreciating—its richness, its evolution, its complexity. Thus, there is no
one guardian of culture or one leader whose proclamation of culture is
sacrosanct.
Second, because culture is not one homogeneous mass but rather subject to
dissent, reevaluation, and reinterpretation, there is no good normative reason
why the version of culture that international human rights law needs to kowtow
to is the version that results in the perpetuation of inequality contrary to the
universal norms of the UDHR.
In today’s globalized world especially, the notion that there is an
“authentic” culture is not only wrong, but also anachronistic, and as the
philosopher Martha Nussbaum put it, “the ideas of every culture turn up inside
every other, through the internet and the media. The ideas of feminism,
democracy, and egalitarian welfarism, are now ‘inside’ every known
society.”344 The Nobel Laureate in Economics, Amartya Sen, has also examined
the relationship between culture and freedom and has concluded as follows:
culture is not “independent, unchanging and unchangeable”345 and is instead
“nonhomogeneous, nonstatic, and interactive.”346
Indeed, even before the age of globalization, culture did not exist in its own
impermeable space, as culture is porous and available for “borrowing.”347 It
would be difficult to take one culture and separate out what is “real” to it and
what is “foreign.” Even when one uses a shorthand term like Indonesian culture,
it does not mean that it is monolithic. Indonesia, geographically situated along
ancient trading routes, is steeped in Islamic tradition but has also been influenced
by Hindu, Buddhist, and Confucian cultures.348 Indonesia itself has 300 ethnic
groups and has been “shaped by long interaction between original indigenous
customs and multiple foreign influences.”349 A culture like that of Indonesia has
accumulated centuries of culturally disparate and diverse strands and layers, and
344. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 49
(2000).
345. Amartya Sen, How Does Culture Matter?, in CULTURE AND PUBLIC ACTION 37, 44 (Vijayendra Rao
& Michael Walton eds., 2004).
346. Id. at 44.
347. The Nobel Laureate in economics Amartya Sen argued convincingly that cultures are not insular even
if ‘there seem to be many supporters of the belief—held explicitly or by implication—that the fates of countries
are effectively sealed by the nature of their respective cultures.” Sen, supra note 345, at 42. “[C]ultures interact
with each other and cannot be seen as insulated structures.” Id. at 44. Because culture is multi-layered and subject
to influence from within and without, it is false to claim that there is one authentic culture. This claim should
have “no bite in the modern world, where the ideas of every culture turn up inside every other, through the
internet and the media. The ideas of feminism, of democracy, of egalitarian welfarism, are now ‘inside’ every
known society.” NUSSBAUM, supra note 344, at 49 (2000).
348. Cultural Heritage, BINUS U. GLOB., https://global.binus.ac.id/about-indonesia/cultural-heritage (Nov.
22, 2016); Sen, supra note 345, at 42.
349. Cultural Heritage, supra note 348.
it is impossible to pick out one practice and proclaim it to be authentic and the
others inauthentic.350 As Sen put it, “[c]ultural determinists often underestimate
the extent of heterogeneity within what is taken to be ‘one’ distinct culture.”351
Cultures throughout history have changed and evolved, and their evolution
can be the result of many causes, including foreign.352 Cultures have mixed and
mingled through hybridization and creolization.353 Ideas might originate from a
certain culture, but they do not belong only to that culture. For example:
[The] ideas of Marxism, which originated in the British Library, have
influenced conduct in Cuba, China and Cambodia. The ideas of democracy,
which are not original to China, are by now extremely important Chinese
ideas. The ideas of Christianity, which originated in a dissident sect of Judaism
in a small part of Asia Minor, have by now influenced conduct in every region
of the globe, as have the ideas of Islam.354
Even encounters that are initially threatening, coming from an external
source, can result in changes that are now part of the internal cultural fabric.
Turks, for example, no longer view as alien or anti-Turkish French transplants
such as specialized secular courts for commercial disputes.355
The idea that culture needs to be protected gained traction in 1947 when
the Executive Board of the American Anthropological Association (the “AAA”)
declined to endorse the UDHR because it was concerned about ethnocentrism,
citing the history of colonialism and Western exaggeration of and intolerance of
differences.356 As discussed below, it is important to understand the imperial
and colonial context in which this repudiation of the UDHR occurred. The 1947
350. Sen, supra note 345, at 42; see also id. at 49–52 (discussing multi-layered cultural and religious strands
in India, Korea, China, Japan).
351. Sen, supra note 345, at 43.
352. See JOHN W. DOWER, EMBRACING DEFEAT: JAPAN IN THE WAKE OF WORLD WAR II 66 (1999)
(describing how the Japanese responded to American occupation and viewed American-imposed changes as
derived from “the agents of a revolution from above.”). Indeed, the Americans, supported by the defeated
Japanese, “set about doing what no other occupation force had done before: remaking the political, social,
cultural, and economic fabric of a defeated nation, and in the process changing the very way of thinking of its
populace.” Id. at 78; see Timur Kuran, Cultural Obstacles to Economic Development: Often Overstated, Usually
Transitory, in CULTURE AND PUBLIC ACTION 115, 131 (Vijayendra Rao and Michael Walton eds., 2004)
(describing how “foreign contacts perceived as cultural threats” have created changes in cultural attitudes and
preferences as well as setting “the stage for a series of reforms critical to economic development.”); Sen, supra
note 345, at 47 (describing how South Korea intentionally refused to “rely just on its traditional culture . . . [and]
followed lessons from abroad to use public policy to advance its backward school education.”). See generally
SHELDON GARON, MOLDING JAPANESE MINDS (1997).
353. SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW
INTO LOCAL JUSTICE 15 (2006).
354. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 48–49
(2000).
355. Kuran, supra note 352, at 131–32.
356. Executive Board, American Anthropological Association, Statement on Human Rights, 49 AM.
ANTHROPOLOGIST 539, 542–43 (1947); Karen Engle, From Skepticism to Embrace: Human Rights and the
American Anthropological Association 1947-1999, 23 HUM. RTS. Q. 536, 536–37 (2001).
AAA saw how Europeans exploited differences to justify colonial conquest: “In
the history of Western Europe and America, however, economic expansion,
control of armaments, and an evangelical religious tradition have translated the
recognition of cultural differences into a summons to action.”357
Since 1947, even as the AAA has reiterated its “ethical commitment to the
equal opportunity of all cultures, societies, and persons to realize this capacity
in their cultural identities and all social lives,”358 it has also committed in a 1991
Declaration to:
Build[] on the Universal Declaration of Human Rights (UDHR), the
International Covenants on Civil and Political Rights, and on Social,
Economic, and Cultural Rights, the Conventions on Torture, Genocide, and
Elimination of All Forms of Discrimination Against Women, and other
treaties which bring basic human rights within the parameters of international
written and customary law and practice.359
Indeed, the AAA additionally declared: “People and groups have a generic
right to realize their capacity for culture, and to produce, reproduce and change
the conditions and forms of their physical, personal and social existence, so long
as such activities do not diminish the same capacities of others.”360 As Karen
Engle noted in her assessment of the 1991 Declaration, “the idea here is twofold,
that cultures are not static or monolithic and that the limit of tolerance is
intolerance.”361
International human rights law should not succumb to dubious cultural
protection claims, allowing itself to be
Enlisted on the side of traditionalists and fundamentalists who turn to law to
reinforce their traditional stronghold over a community. Seeing their power
threatened by forces such as globalization and modernization, increasingly
leaders of cultural groups seek to use the ‘right to culture,’ the ‘right to
religion,’ the ‘freedom of association’ and the right to ‘self-determination’ to
suppress internal change and preserve the status quo.362
In 2003, the South African Law Commission, recognizing that South
Africa has a tradition of tribal/customary courts alongside modern statutory
courts, urged that customary courts be expanded.363 But in deference to
universal human rights norms, it also urged that although the composition of
357. Executive Board, American Anthropological Association, supra note 356, at 540.
358. Declaration on Anthropology and Human Rights, AM. ANTHROPOLOGICAL ASS’N (June 1999),
https://www.americananthro.org/ConnectWithAAA/Content.aspx?ItemNumber=1880.
359. Id.
360. Id.
361. Engle, supra note 356, at 556.
362. Madhavi Sunder, (Un)disciplined Response, 26 POL. & LEGAL ANTHROPOLOGY REV. 77, 83 (2003).
363. SOUTH AFRICAN LAW COMMISSION, PROJECT 90, CUSTOMARY LAW: REPORT ON TRADITIONAL
COURTS AND JUDICIAL FUNCTIONS OF TRADITIONAL LEADERS xi (2003).
customary courts should “be in accordance with the customary law of the area,”
it is imperative that consideration be accorded to “the constitutional values of
democracy and equality.”364
Cultural norms that prefer boys over girls in myriad ways, ranging from
access to education, food, medical care, life’s opportunities, labor force
participation, etc., cannot be beyond the scope and scrutiny of human rights law
merely because those norms are considered by cultural traditionalists to be
authentic and immutable. While one might expect authoritarian leaders to “assert
that human rights violate the fundamental cultural principles of a nation or a
religion and therefore cannot be adopted,”365 one would also expect the
international human rights community to object to such assertions whenever
culture is used as a weapon against equality, freedom, and human dignity or to
preserve the status quo at the expense of women and children,366 or enforce
cultural homogeneity and orthodoxy over cultural dissent.367 The Turkish
American economist Timur Kuran has written extensively about the dangers of
“cultural lock-in”368 and argued that “[t]here are sound reasons . . . for denying
present cultures the blanket protections often demanded in the name of
multiculturalism.”369 For example, footbinding of women was a longstanding
tradition in China; it began fifteen hundred years after the death of Confucius
and was considered a sign of privilege.370 Although the Qing dynasty tried to
eradicate it when it came to power in 1644, the practice became even more
popular despite multiple imperial edicts banning it.371 This seemingly
entrenched cultural practice finally ended when China became more engaged
with the outside world and Chinese elites turned against it “because it was a
source of national shame.”372 As China tried to take its place on the global stage,
footbinding, once supposedly a revered tradition, became associated with the
old, mangled China, and Chinese reformers and modernists succeeded in
changing the meaning of this long-lasting cultural norm.373
Cultural traditionalists deem challenging such oppressive norms wrong and
illegitimate and insulate changes in the name of cultural diversity, even if these
364. Id.
365. MERRY, supra note 353, at 14.
366. See Janet E. Halley, Culture Constraints, in IS MULTICULTURALISM BAD FOR WOMEN? 100, 100–04
(Joshua Cohen, Matthew Howard & Martha C. Nussbaum eds., 1999); see also Susan Moller Okin, Part 1: Is
Multiculturalism Bad for Women?, in IS MULTICULTURALISM BAD FOR WOMEN? 7 (Joshua Cohen, Matthew
Howard & Martha C. Nussbaum eds., 1999).
367. Yael Tamir, Siding with the Underdogs, in IS MULTICULTURALISM BAD FOR WOMEN? 47–48 (Joshua
Cohen, Matthew Howard & Martha C. Nussbaum eds. 1999).
368. Kuran, supra note 352, at 117.
369. Id.
370. KWAME ANTHONY APPIAH, THE HONOR CODE: HOW MORAL REVOLUTIONS HAPPEN 65 (2010).
371. Id. at 69.
372. Id. at 91–102.
373. Id.
norms are practices that curtail women’s autonomy, mobility, freedom, or

equality.374 Despite claims to the contrary, it is the cultural traditionalists who
are in fact in favor of cultural homogeneity (one authentic culture), ironically
defending homogeneity and so-called purity using the language of cultural
diversity.
The insistence on and promotion of cultural purity are supported by claims,
usually by so-called cultural leaders, that culture change means exploitation by
outsiders and that internal dissenters are illegitimate if they receive external
support.375 And yet, cultural encounters are bound to involve actors who are both
internal to, and external from, the culture at issue, to be “analyzed in the context
of national and transnational processes . . . .”376 To return to the footbinding
example, the push to change the thousand-year-old tradition of female
footbinding had internal as well as external stakeholders.377 The Chinese knew
full well that “foot-binding produced suffering and debility. Foot-binding was
done to young girls, crushing the four smaller toes under the sole and
374. The notion that anti-female traditional or cultural practices should be changed has been met with much
resistance among many states. The fact that such practices need to be eradicated is reflected in the ratification
by many states of the Convention on the Elimination of Discrimination Against Women, Dec. 18, 1979, pmbl.,
opened for signature, Mar. 1, 1980, 1259 U.N.T.S. 13. CEDAW, supra note 22. CEDAW obligates state parties
to change customary, cultural and religious laws premised on the inequality of the sexes. See id. States are 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 the sexes or on stereotyped roles for men and women.” Id. The fact that resistance to such changes is
strong and entrenched can be seen in the fact that many ratifying states have nonetheless made reservations from
many CEDAW obligations. See UNITED NATIONS, DECLARATIONS, RESERVATIONS, OBJECTIONS AND
NOTIFICATIONS OF WITHDRAWAL OF RESERVATIONS RELATING TO THE CONVENTION ON THE ELIMINATION ON
ALL FORMS OF DISCRIMINATION AGAINST WOMEN (May 20, 2008), https://digitallibrary.un.org/record/
630774?ln=en. Middle Eastern and Islamic countries such as Bangladesh, Egypt, Iraq, Kuwait, Malaysia,
Maldives and Morocco claimed their reservations were necessary because parts of CEDAW were contrary to
sharia. See id. India, Kuwait, Morocco, Niger, Singapore, and Tunisia made reservation based on customary and
cultural mores. See id. Even as the United Nations have called for states to ratify CEDAW without reservations,
see Report of the Fourth World Conference on Women, section 230c, U.N. Doc.A/CONF.177/20 (1995), the
states subject to this pressure have retaliated by lobbing charges of cultural imperialism. Ann Elizabeth Mayer,
A “Benign” Apartheid: How Gender Apartheid Has Been Rationalized, 5 UCLA J. INT’L L. & FOREIGN
AFF. 237, 271 (2000). The Algerian-based nongovernment organization Women Living Under Muslim Laws
observed, “in the name of the right to difference, they are prepared to support any practice, be it totally unjust
and against the common understanding of human rights, if so-called ‘authentic leaders’ of the community justify
it by reference to culture or religion.” Madhavi Sunder, Piercing the Veil, 112 YALE L.J. 1399, 1440 (2003).
375. Kuran, supra note 352, at 126 (describing how local cultural protectionists work to impede change by
delegitimizing it as Western, “[g]iven the West’s influence on global intellectual trends, such interpretations
have given cultural protectionists within underdeveloped countries a rationale for resisting modernization”); Sen,
supra note 345, at 52–55 (describing how opponents of cultural change use the language of “imperialism” and
Westernization to delegitimize change).
376. Merry, supra note 171, at 67.
377. Kwame Anthony Appiah, The Art of Social Change, N.Y. TIMES (Oct. 22, 2010),
https://www.nytimes.com/2010/10/24/magazine/24FOB-Footbinding-t.html (describing Chinese intellectuals’
efforts to eradicate the practice as early as the Song and Qing dynasties, in the years 960–1279 and 1644–1911
respectively); see supra notes 374–76 and accompanying text.
compressing the rear of the anklebone.”378 Ninety-nine percent of women in

China born before 1890 had bound feet—they were
[a] sign of status for women who could afford not to work in the fields or walk
to market; the bound foot was a sign and instrument of chastity too, by limiting
the movements of women. And you can’t overstate the force of convention:
Chinese families bound their daughters’ feet because that was the normal thing
to do.379
A cultural practice that began as early as the Song dynasty in 960 was met
with serious and effective resistance only in the 1860s when Christian
missionaries worked with Christian women who agreed to join the Quit-
Footbinding Society.380 A few years later, the Confucian scholar and reformer
Kang Youwei founded the Unbound Foot Association which allied itself with
other anti-footbinding English organizations like the Natural Foot Society.381
Members agreed not to bind their daughters’ feet and to not allow their sons to
marry women with bound feet; thus, “a mixture of campaigning outsiders and
modernizing insiders built a national movement for change.”382 The synergy
between the two groups made success possible, and it would be inaccurate to
describe a process as inauthentic just because there were external stakeholders
to the movement.383
In an even more problematic way, the argument that “traditional” culture
must be defended from Western encroachment is based on a false foundational
assumption—that certain values (such as those in the UDHR) are external to
certain traditional societies and belong only to the West.384 Even the categories
“Islamic” versus “Western” reveals “an impoverished vision of humanity as
unalterably divided. In fact, civilizations are hard to partition in this way, given
the diversities within each society as well as the linkages among different
countries and cultures.”385 In the Islamic world, for example, there were two
Muslim emperors, Akbar and Aurangzeb, of the Mogul dynasty in India.386
Aurangzeb instituted strict policies to convert Hindus into Muslims, using the
taxing system to tax non-Muslims.387 By contrast, Akbar, in the 1500s, ensured
that his court was pluralistic and multiethnic and proclaimed that no one “should
be interfered with on account of religion” and that “anyone is to be allowed to
378. Appiah, supra note 377.

379. Id.
380. Id.
381. Id.
382. Id.
383. APPIAH, supra note 370, at 71–72.
384. SEN, supra note 20, at 232–48.
385. Amartya Sen, A World Not Neatly Divided, N.Y. TIMES (Nov. 23, 2001), https://www.nytimes.com/
2001/11/23/opinion/a-world-not-neatly-divided.html.
386. Id.
387. Id.
go over to a religion that pleases him.”388 For cultural purists or fundamentalists,

would Akbar be considered inauthentic? Is it possibly true that tolerance and
religious diversity are not and have never been part of Islamic tradition or that
they are incompatible with Islam? During Europe’s so-called Dark Ages, the
Iberian Peninsula flourished and “the Ottoman Empire prospered not simply
because of its armies, but because it was also an empire of ideas, in which
Muslim art and technology were enriched by Jewish and Christian
contributions.”389
Ideas associated with the international human rights movement are not
solely ideas that belong to the West. As already discussed in Part I, the drafters
of the UDHR and members of UNESCO consulted with leaders and
philosophers from many cultural traditions who agreed that the rights and values
in the UDHR were those that also existed in their traditions.390 Emperor Akbar
was a supporter of religious freedom and tolerance during a period of history
when Europe was in the midst of the Inquisitions.391 In India, in the third century
BC, Emperor Ashoka mandated respect for all religious sects.392 He also
adopted the principle of judicial independence and appointed “dharma
ministers” who were exhorted to pay heed to the needs of women and those in
marginalized communities.393 Religious freedom is not only a Western value,394
but also has been part of Islam’s history. That it is now an issue again in many
Islamic countries is not because of Western imposition of Western values, but
because of an “internal struggle within Islam to re-examine its texts and
articulate a path for how one can accept pluralism and modernity.”395 Kofi
Annan, former Secretary-General of the United Nations who was from Ghana,
has also condemned the notion that only certain societies have a monopoly on
the values expressed in the UDHR such as human freedom and basic equality
under the law.396 The notion that certain societies are so culturally different that
they cannot accept the UDHR is, as Secretary-General Annan stated, “truly
388. Id.
389. Kofi Annan, Kofi Annan Calls for End to Resentment, Stereotypes, Preconceptions Upon Receiving
Alliance of Civilizations Report (Nov. 13, 2006), https://www.un.org/sg/en/content/sg/speeches/2006-11-
13/kofi-annan-calls-end-resentments-stereotypes-preconceptions-upon.
390. See supra Part I.
391. SEN, supra note 20, at 238–39; Sen, supra note 385.
392. SEN, supra note 20, at 235–36.
393. LAN CAO, CULTURE IN LAW AND DEVELOPMENT: NURTURING POSITIVE CHANGE 490 (2015).
394. See generally NOAH FELDMAN, AFTER JIHAD: AMERICA AND THE STRUGGLE FOR ISLAMIC DEMOCRACY
(2003).
395. Thomas L. Friedman, Foreign Affairs: The Real War, N.Y. TIMES (Nov. 27, 2001),
https://www.nytimes.com/2001/11/27/opinion/foreign-affairs-the-real-war.html.
396. Kofi Annan, Nobel Lecture, UNITED NATIONS (Dec. 10, 2001), https://www.un.org/sg/en/content/sg/
speeches/2001-12-10/nobel-lecture-delivered-kofi-annan.
demeaning . . . of the yearning for human dignity that resides in every African
heart.”397
Moreover, one can take the position that if something is good, does it really
matter where it came from? As a Chinese dissident rhetorically asked, if one is
imprisoned, would one not ask for one’s rights because rights might be a
Western concept?398 Whether or not a value or a right is indigenous to Indian
culture did not weigh heavily on the minds of the drafters of India’s
Constitution.399 They viewed certain basic rights as universal and incorporated
basic egalitarian and pluralistic commitments into the Constitution, drawing
from so many constitutions in the world that critics cautioned that such a
Constitution “will ‘break down soon after being brought into operation.’”400
Despite such criticism, India’s Constitution drafters believed that “India should
be rightfully able to benefit from the world’s intellectual heritage.”401 “What the
Indian Constitutionalists recognized is that the Enlightenment ideals of
democracy, equality, reason, and dissent are not and cannot be the intellectual
properties of Western nations alone, but are rightfully the treasures of the
world.”402 A principle or value is judged not by its cultural origin but “by its
manifest use and enjoyment.”403
Rabindranath Tagore, who received the Nobel Prize in literature in 1913,
said: “Whatever we understand and enjoy in human products instantly becomes
ours, wherever they might have their origin.”404 According to Sen, Tagore too
refused to peddle in the theme of inevitable civilizational clashes and opposed
insulating cultures from outside influence.405
As Part I demonstrated, this basic view—that differences between what is
“inside” a culture and what is “outside” a culture has been exaggerated and what
is common among all human beings has not been sufficiently understood and
acknowledged and supported—was one of the driving forces that unified drafters
of the UDHR and solidified their commitment to forge a document that provides
a basic floor of universal rights.406 The UDHR rests on a confidence in the
397. Kofi Annan, Address by Kofi Annan to the Annual Assembly of Heads of State and Government of the
Organization of African Unity (OAU), UNITED NATIONS (June 2, 1997), https://www.un.org/sg/en/content/sg/
speeches/1997-06-02/address-kofi-annan-annual-assembly-heads-state-and-government.
398. See sources cited supra note 10.
399. Madhavi Sunder, Enlightened Constitutionalism, 37 CONN. L. REV. 891, 892–93 (2005).
400. Id. at 899.
401. Id.
402. Id.
403. Sen, supra note 345, at 54.
404. Amartya Sen, Banquet Speech at the Nobel Banquet (Dec. 10, 1998), https://www.nobelprize.org/
prizes/economic-sciences/1998/sen/speech.
405. Id.
406. Sen, supra note 385 (“To talk about ‘the Islamic world’ or ‘the Western world’ is already to adopt an
impoverished vision of humanity as unalterably divided. In fact, civilizations are hard to partition in this way,
human capacity to know and understand—including through conscience—that

all human beings are entitled to dignity and equal rights.407
As Article 1 affirms: “All human beings . . . are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.”408 In
Chinese, the word “ren” was used in lieu of “conscience”—the idea of “two-
man mindedness” or being able to empathize and put oneself in the other
person’s shoes.409 The discussions underlying this Article 1—including the use
of the word conscience and various interpretations in different languages—
reflects a fundamental sense of human solidarity and connection.410 It would
flow from this premise that whether a value originated in a certain culture first
is less important than whether it promotes human dignity. Philosophically, this
resonates with important contemporary research on innate moral grammar that
reinforces the idea of common human capacities, regardless of cultural
differences, for moral reasoning, empathy, and understanding.411
CONCLUSION
The clear, devastating wrongs of the Holocaust and the struggles of
ordinary human beings informed the deliberations of the Declaration’s drafters,
and remarkably, notwithstanding their diverse cultural, religious, or
philosophical orientations, they agreed on a basic and interrelated list of
universal human rights that “everyone” is entitled to, simply by virtue of being
human.412
In 1998, fifty years after the Declaration came into being, the Chinese
democracy activist Xu Wenli, who had served a twelve-year prison term for his
part in the 1978 “democracy wall” movement, was again jailed for trying to
register a new political party in China.413 As his daughter wrote in an op-ed for
the Boston Globe, “Beijing attempts to justify its departure from universal norms
by claiming that the Declaration of Human Rights is a Western instrument not
applicable to the unique characteristics of Chinese civilization. But Beijing has
given the diversities within each society as well as the linkages among different countries and cultures.”); see
supra Part I.
407. See supra Part I; UDHR, supra note 1.
408. UDHR, supra note 1.
409. GLENDON, supra note 1, at 67–68, 75–76, 142.
410. Id.
411. Mikhail, supra note 224, at 196–98.
412. UDHR, supra note 1. Article 2 states that “[e]veryone 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.” Id.
413. Xu Jin & Gregg Carr, A Loving Farther Jailed in China for Loving Democracy, BOS. GLOBE, Dec. 9,
1998, at A27.
its history wrong.”414 She recalled that her father had remembered P.C. Chang
as the Vice-Chair of the eighteen-member Commission on Human Rights that
drafted the UDHR; that
Chang was a Confucian expert, lover of traditional Chinese high culture, and
one of the most influential members of the drafting committee. Chang
believed that rights were for everyone, not just Westerners, and in one of the
first discussions, he suggested that liberties of the person be grouped together
near the front of the declaration.”415
She specifically invoked the UDHR and claimed on behalf of him and other
Chinese political prisoners “their right to all of the universally acknowledged
human liberties, not to a list impoverished by some supposed peculiarity of their
culture.”416
This Article is a defense of the principle of universalism at the foundation
of the UDHR. It has shown that far from being Western or even Western
dominated, the UDHR reflects a universal consensus on basic rights that are
rooted in a commitment to human dignity. It embodies a vision of equality and
nondiscrimination based on the common bonds of humanity that transcend
cultural and other divisions. Critics cannot credibly argue against equality and
nondiscrimination and so the next best strategy is to lob accusations that it is the
result of a culturally imperial project and hence illegitimate.
This accusation has been used by both dictators and authoritarians as well
as by Western communitarians who propose that, because universalism is
actually a mask for Westernization, it should be replaced with varying degrees
of cultural pluralism.417 Different cultures will adapt the UDHR differently to
their particular circumstances, so the argument goes.418 This is in essence an
argument in favor of a cultural exception to the UDHR, or to certain provisions
of the UDHR, as deemed necessary by the state asserting the need for an
exception. It goes against the very grain of universalism, distilled from a
multiplicity of cultural traditions, that the drafters of the UDHR meticulously
established and that the UNESCO philosopher report affirmed: the existence of
basic universal rights that are “implicit in man’s nature as an individual and as a
member of society.”419
414. Id.
415. Id.
416. Id.
417. See supra notes 2–7 and accompanying text; see also Kuran, supra note 352, at 126 (“[W]estern-based
philosophies of cultural relativism are serving to bolster economically dysfunctional social structures.”).
418. U.S. DEP’T OF STATE COMM’N ON UNALIENABLE RIGHTS, REPORT OF THE COMMISSION ON
UNALIENABLE RIGHTS 32–33, 37–39, 55 (2020), https://www.state.gov/report-of-the-commission-on-
unalienable-rights; KAPLAN, supra note 5, at 112–21 (arguing against human rights monoculturalism where
supposedly Western values are forced upon other cultures in the name of universalism and arguing in favor of
more cultural flexibility and so-called cultural pluralism).
419. Maritain, supra note 93, at 259.
Ironically, even as cultural preservation is sought for in the area of

international human rights, culture is sidelined in many other areas of
international law, such as international trade and law and development.420 As
this Article shows, cultural exceptions to universalism have been urged in ways
that are particularly detrimental to women’s equality and dignity.421 Ironically,
this call for cultural pluralism and cultural diversity is in fact based on the
narrowest, least pluralistic, least diverse understanding of culture—cultural
uniformity and homogeneity. As this Article has shown, efforts to undermine
common, universal principles—“the recognition of one common
humanity”422—forged in the UDHR cannot be cloaked under the mantle of
culture.
420. See supra Part III.A.

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Hastings Law Journal

Volume 73 Issue 2 Article 3

Weaponizing Culture to Undermine International Women’s Rights

Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal

Part of the Law Commons

3. UDHR, supra note 1, pmbl.

human rights advocates as being somehow oblivious to legitimate cultural

11. GLENDON, supra note 1, at xvi.

I. PART I: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

These horrific realities infused the sense of purpose underlying the

27. UDHR, supra note 1, at pmbl.

34. UDHR, supra note 1, at pmbl.

In response, a delegate from the Soviet Union, Valentin Tepliakov,

65. Id. at 46.

Statement of Essential Human Rights produced pursuant to a study sponsored

Scientific and Cultural Organization (UNESCO) contacted various prominent

THE GUARDIAN (Nov. 28, 2018), https://www.theguardian.com/law/from-the-archive-blog/2018/nov/28/un-

The Muslim poet and philosopher Mumayin Kabir wrote eloquently in

90. GLENDON, supra note 1, at 74.

accommodations necessary to make the document acceptable to countries with

98. U.N. GAOR, supra note 94.

109. Id. at art. 29.

116. UDHR, supra note 1, at art. 16.

123. GLENDON, supra note 1, at 165.

142. Illiparambil, supra note 41, at 31.

A. INTERNATIONAL LAW AND CULTURE

153. U.N. Charter art. 2, ¶ 1.

Cairo Declaration was to be complementary to the UDHR.163 It is, in fact,

religious backgrounds.”169 This paradox has been referred to as “relative

B. CULTURAL AND COGNITIVE DIFFERENCES

176. KAPLAN, supra note 5, at 5.

184. Fiske et al., supra note 183, at 916–17.

192. Nisbett & Masuda, supra note 190, at 11163.

201. Nisbett & Masuda, supra note 190, at 11163.

211. Nisbett & Masuda, supra note 190, at 11164.

Development, the noted feminist psychologist Carol Gilligan challenged the

232. GILLIGAN, supra note 231, at 18–19.

241. Id. at 51.

248. See NISBETT, supra note 181, at 89–91.

And the language of international human rights must be a universal

Patriarchy cannot be justified or defended by referencing the very

III. PART III: INTERNATIONAL LAW AND CULTURE

256. Gilligan, supra note 233.

A. TRADE AND CULTURE

bindings. Absent certain allowed exceptions, a Member applying a tariff to an

including audiovisual means, deserve special treatment, since they reflect

members are to enter into rounds of negotiations to continue to achieve greater

280. VOON, supra note 270, at 28.

contain virtually no explicit recognition of culture or the legitimacy of Members’

296. VOON, supra note 270, at 18.

Body, which found directly competitive or substitutable products, rejected the

B. LAW AND DEVELOPMENT AND CULTURE

305. Paul, supra note 273, at 43.

only must economic organization be transformed, but social

309. Id. (citation omitted).

But even when such cultural objective is not plainly acknowledged,

application of the law, due process, democratic representation and

IV. PART IV: HETEROGENEITY IN CULTURE

norms are practices that curtail women’s autonomy, mobility, freedom, or