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Hastings Law Journal

Authors

Lan Cao

Abstract

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.

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