Download Relying on local culture to further human rights: the receptor approach

Relying on local culture to further human rights: the receptor approach
Tom Zwart
1. Introduction
The dominant discourse on international human rights is based on the misconception that the
only way to implement human rights treaties is by according enforceable rights and by relying
on law.
Those who take this mistaken view believe that international human rights law require states
in Asia and Africa to give up their traditions and institutions. They should make way for the
Western values and institutions which are supposed to underlie human rights. The assumption
then is that international human rights will only be implemented effectively if local cultural
values and social institutions are pushed to the side.
My lecture today is aimed at demonstrating that these assumptions are unfounded. I will lay
out an alternative view on international human rights, the so-called receptor approach, which
assumes that the culture and the existing social institutions of Asian and African countries can
actually contribute to meeting international human rights obligations. The receptor approach
assumes that by relying on local socio-cultural arrangements during the implementation stage
human rights protection will be enhanced and reinforced rather than diminished.
The receptor approach towards human rights is built on two pillars.
First, states are bound by the obligations laid down in the human rights treaties to which they
have signed up. In other words, states may not water down nor compromise such obligations
unilaterally while invoking local cultural values, but should implement them diligently and in
good faith.
Second, in order to enable states to fulfill their treaty obligations to the full, they are
encouraged to rely as much as possible on their own cultural values and social institutions
during the implementation stage.
The receptor approach is currently being conceptualized in close cooperation with a team of
Chinese scholars working at the Institute of International Law of the Chinese Academy of
Social Sciences, led by its Director, Professor Zexian Chen, and the Research Center for
Human Rights of Shandong University School of Law, led by the Dean of the Law School,
Professor Yanping Qi.
2. Human rights treaties do not require implementation through granting individual,
enforceable rights
Western activists, government officials and academics often take the view that human rights
treaties ought to be implemented through recognizing or according individual, enforceable
rights or by using other legal means. Many African and Asian societies, which have a
communal nature, prefer other social institutions than rights to provide texture to society. In
the West this reluctance to translate human rights obligations into rights is often seen as a
failure to implement them.
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The question therefore is whether international law and human rights treaties require
implementation by taking legal steps or by conferring enforceable rights, or whether they do
allow the states parties to rely on other social arrangements.
Under general international law states enjoy discretion with regard to the implementation of
treaty obligations within the municipal order. As long as they meet the obligations laid down
in the treaty to which they have signed up, they are free to choose the most appropriate way of
doing so at the domestic level. In other words, domestic application is an obligation of result
rather than an obligation of means. Therefore, the implementation of treaties, including
human rights conventions, is a matter of ‘domestic primacy’.The principle of domestic
primacy has been reconfirmed by the implementation clauses of international human rights
treaties.
As a result, Asian and African states are perfectly free to implement these treaty obligations
without using rights but by relying on other social arrangements, like kinship, the community,
solidarity, duties, and harmony, which fit better into their culture and traditions.
Western countries may prefer rights, but others may opt for functional equivalents.
Therefore, if a state chooses to implement a human rights provision not through rights, but
through other social arrangement, it is not failing its duties under human rights treaties, but
using one of several legitimate courses of action open to it.
3. The matching phase of the receptor approach: relying on ethnology rather than legal
transplants
The receptor approach is based on ethnology. It identifies the core elements of the
international human rights regime and looks for analogous phenomena in the societies of the
states parties to the human rights treaties. Consequently, the duty to implement a particular
right may be matched by social institutions other than law, like family, kinship, education,
community, solidarity, or self-help. If there is a full match, then the state is living up to its
international human rights obligations, despite the fact that it is not relying on rights. If there
is no match or only a partial one, the state has to extend existing social arrangements to meet
its international obligations.
Many social institutions exist in China today which can assist in fulfilling international human
rights obligations. It is the aim of the project conducted together with the Institute of
International Law of the Chinese Academy of Social Sciences and the Research Centre for
Human Rights of Shandong University School of Law to identify them. The following issues
can serve as starting points.
In the West, when an employer is exploiting his workers, the employer will be criminally
prosecuted. In China, family members help such workers into new jobs.
In China, mental patients are being taken care of by their family members, rather than being
put in care facilities as is the case in the West.
Since the establishment of the People’s Republic, local residents committees have been
performing important social functions, such as maintaining community order and delivering
social services to residents. Their role is increasingly being complemented by the home
owners’ committees, which represent the interests of property owning residents. These
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committees, which were originally set up to negotiate with property management companies,
have become important stakeholders by investing in the upkeep of residential complexes and
joint facilities and by assisting home owners to enjoy their properties.
4. The amplification phase of the receptor approach
4.1 The existing social-cultural context should be taken as the point of departure
Under the receptor approach, states parties to human rights treaties are encouraged to meet
their obligations with the help of existing social arrangements. If these existing social
institutions fall short of the treaty requirements, they will have to be adjusted or amended in
order to bring them into line with these standards. Therefore, under the receptor approach
reforms which are meant to bring existing social arrangements into line with international
human rights standards should also as much as possible be linked to cultural receptors. This
presumes that reformers have a clear understanding of the socio-cultural setting.
The campaign against female circumcision, or Female Genital Mutilation (FGM) as it is
frequently called, is a case in point. Female circumcision is a culturally motivated practice in
parts of Africa, which is often regarded as being contrary to the ban on inhuman and
degrading treatment. In order to find a way to eradicate this practice, one should start by
understanding its socio-cultural context.
Female circumcision often serves to enhance marriagabilty through preservation of virginity.
Under those circumstances a so-called pledge society is likely to be an effective remedy.
In the countries were female circumcision serves marriagability, the mothers of the girls
subjected to the practice usually are the strongest advocates of its preservation. Mothers
usually insist that their daughters undergo circumcision, which will allow them to get married
and to have children. Having a husband and children will allow the daughter to maintain
economic security. Without a husband there may be barriers to or limitations on access to
land, cattle, grazing rights, or cash income. The grandchildren will contribute labour to the
family enterprise, and they will support the grandparents when they reach old age.
In such a cultural setting the practice may be abandoned if parents of boys pledge that their
sons will only marry uncircumcised young women, as a result of which parents of girls can
safely pledge not to circumcise their daughters. By encouraging the members of the entire
intermarrying community to make such pledges, the practice can be eradicated. This is what
an NGO called Tostan is doing with considerable success in Senegal. The concept of the
pledge society actually is a Chinese invention, which was introduced successfully to bring the
practice of foot binding to an end at the beginning of the Twentieth Century.
4.2 Reforms should be based on home-grown solutions
On the basis of the receptor approach adjustments made to meet international human rights
standards should respect local culture and make use of home-grown remedies as much as
possible. The receptor approach is based on the idea that reforms should add to but not replace
the existing social arrangements. It opposes the introduction of Fremdkörper into customary
law if home-grown remedies can be found which, while undoing the violation, remain loyal to
the social relations existing in that particular society.
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Judges should not use Eurocentric concepts if customary law can be tailored to meet the
requirements. The local values should serve therefore as sources for solutions which meet
human rights obligations, like stem cells. This microsurgery will ensure that these reforms
will take root and become embedded in the society concerned. Changes that add to the
existing arrangements stand a far better change of being supported and carried by the
community than those which are enforced top-down.
This approach finds support in the semi-autonomous field theory developed by Sally Falk
Moore. Moore assumes that social fields are semi-autonomous. This means that informal
rules, i.e customs, develop within the social field, but that the social field is also governed by
official rules, i.e. state law. The relationship between these customary and state-enacted rules
is crucial. According to Moore, there is a widespread belief in social engineering, i.e. the
ability to control social arrangements with the help of state rules. Legislation is often passed
with the intention of altering the social arrangements in specified ways, but the existing social
arrangements are often stronger than the new laws and they are often resistant to alteration.
The need to rely on home-grown solutions is exemplified by the fight against HIV/AIDS in
Malawi. International agencies, like the World Bank, have developed a strategy consisting of
abstinence, being faithful and using condoms, the so-called ABC strategy. However, this
strategy does not fit well into the local culture: abstinence does not lead to the necessary
offspring; having extramarital affairs is quite common among men in Malawi; and married
couples regard using condoms often as a vote of no confidence. By pushing such a strategy
these actors ignore and deny the importance of the strategies Malawian women have
developed themselves. They often discuss the risk of contracting HIV/AIDS as a result of
extramarital relations with their husbands; they confront their husbands’ girlfriends about this
risk; and they threaten with divorce. Although on paper these indigenous strategies may look
less effective than the ones that were designed internationally, they need to be enhanced rather
than replaced because they are rooted in local society.
The HOPE experiment conducted in the South African Cape region to combat HIV/AIDS
offers a very good example of seeking home-grown solutions. The public health care system,
which is based on Western medicine, is only able to reach a fraction of the target group. This
limited coverage is caused by the fact that the system is under-resourced, and more
importantly, that it does not relate to the beliefs about illness which are part of South African
culture.
It is therefore estimated that 80% of black South Africans regularly consult traditional healers
to receive healthcare. In light of their large numbers and strong community ties, traditional
healers need to be included to be able to offer large scale HIV/AIDS care and prevention
efforts.
The HOPE experiment which has been set up in the Cape region links biomedicine to
traditional healing. To be able to reach and treat patients who shun Western medicine, the
HOPE project recruited a number of traditional healers who were willing to include
counseling, testing and antiretroviral treatment into their divination practice. Consequently,
the patients who would usually avoid western medicine but were attracted to traditional
healing, were exposed to the benefits of biomedicine nonetheless. Rather than replacing the
local approach towards healing across the board by scientific medicine, which would probably
had driven away the patients, the experiment added to the indigenous system.
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