In creating a shared sense of any ‘universal’ human rights there is a gulf of ‘otherness’ which must be transcended in order for differing ideologies to meet at, or agree upon, any one point. The ‘1993 Australian-Asian Perceptions Project Working Paper Number 2: Perceiving “Human Rights”’ (AAPP) stressed the importance of coming to an understanding of the ideas and values that underpin various states’ approaches to the world (Milner, ed., 1993: i). The AAPP attempted to tackle Asian-Western ‘otherness’ by defining how a national character and position are viewed by those outside that society, and how attempting to conceive of a different ‘world view’ could cause misunderstanding. A primary exponent breeding such misunderstanding between those of differing human rights perspectives was identified by the AAPP as ‘cross-cultural reporting’, for rarely do news stories based upon human rights incursions give the whole story (Milner, ed.. 1993: 12). The problem of comprehending the ‘other’ must deal not only with divergences in definitions between societies, but also with how culture may shape the portrayal and apprehension of human rights abuses. It is important to remain aware of the different belief systems, histories and cultural assumptions that provide a context for any human rights issue. Further it must be recognised that “all parties involved in the reportage of a rights abuse have values, mores and political agendas from which they work” (Milner, ed. 1993: 12). Thus on all sides there exists a shaping of the ‘truth’, a subtle element of invention that ensures there is unlikely to be any single ‘truth’ regarding complex social or political issues.
The fact that that there is so much room for misunderstanding the ‘otherness’ of varying cultural differences and that there is often no single approach or perspective regarding human rights issues, means that it is necessary to view these issues within their historical and ideological contexts. Differing values and concepts inform human rights perceptions that are indelibly linked to historical and cultural contexts. Further, it must be recognised that cultural values and perceptions are neither monolithic nor static. For not only are there multiple concepts of culture and tradition between various states’, but also within them. It is important to avoid national stereotypes for this reason, as traditional or reformist ideological trends may be at play. In Australia, the main human rights discourse may be divided in perception between ‘left’ or ‘right’ notions or even be divided between social groups, a problem highlighted by Australia’s multicultural status.
Such cultural interpretations will also determine the resulting differing cultural child-rearing and educational practices, each based upon various global ideologies. On an American Kindergarten Delegation tour of the People’s Republic of China for psychologists, educators and sociologists, William Kessen noted the difference in child-rearing and educational practices between China and Western countries (Kessen, 1978: 73). He was concerned with how beliefs and assumptions had the power to mould and condition children, with how ideology was involved in shaping character. In Chinese children he noted lower levels of learning disabilities, hyperaction and neurosis to those found in the West; he further found them more attentive, orderly and able to work concertedly in large numbers (Kessen, 1978: 74-75). Amongst these phenomenon, he notes that few Chinese children wear eyeglasses, as twenty minutes each day of their school-life they perform eye exercises; this myopia prevention becoming an illustration of how ideology becomes a fact in human societies (Kessen, 1978: 74). The Western social definition of children is complex, for as children are defined by those they meet, they are perceived to have different identities for their parents, teachers, doctors, peers, etc., thus they receive many contradictory messages from adults. In opposition, Kessen notes the Chinese have developed a “shared sense of what a child is”, that there is consistency in regard to what is expected of children as appropriate behaviour; this Kessen believes responsible for the socially calm, adept and dutiful adults that are produced as these children invariably rise to their expectations (Kessen, 1978: 76, 77).
As Kessen described between Asian and Western philosophies, indeed there do exist vast cultural differences. However, whilst it must be acknowledged that there are many such real differences to be bridged, as in the case of cross-cultural reporting, their authenticity must still be ensured. For although there are genuine cultural differences, it is possible that an issue may merely be used to deflect criticism of a regime, to in fact exploit children’s rights in ideological battles that make it difficult for the possible beneficiaries to realise their legal significance (Douglas and Sebba, 1998: 18). The AAPP notes that many of the protests against Western human rights activism that took place during a March, 1993 Asian states’ meeting on human rights were viewed as often disguising ulterior motives (Milner,ed., 1993: 4-5). For example, The Bangkok Declaration which arose from this meeting insisted human rights should 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”. (FEER, 1993:17).
However, this Declaration, with its stress on a distinctive Asian human rights philosophy was viewed by a number of commentators, including representatives of Asian human rights activist groups, as “a political ploy by certain ruling elites to preserve their existing methods of rule” (‘Cultural Divide’ in FEER, 1993: 20). It indeed is possible for various groups within society to manipulate culture to suit their own interests. For example when Muslims place prohibitions on some activities of women and girls, they are adopting a selective interpretation of their religious doctrines, for according to certain readings of the Koran there is nothing to prevent them from assuming key roles in public life (Milner, ed., 1993: 15).
Indeed, it is important to acknowledge the political agenda behind the advocacy of stability or change when considering any human rights claims, yet the anti-Western claims surrounding The Bangkok Declaration still cannot be dismissed lightly. For Western human rights can also be seen to have a political agenda, indeed the very foundations of human rights discourse is essentially European. Such a critique was made of the following statement by the Australian Foreign Minister, Senator Evans:
“Australia’s level of activity on human rights issues is, on most reckonings, greater than that of any other country in the world…the level of our activity, its non-discriminatory and universal approach and our willingness to accept international scrutiny of our behaviour have all given us real credibility as a country with genuine, non-political objectives in the human rights field” (Evans, 1991).
There were many in the Asian region who put forth the accusation that Australia was not as vigilant as it claimed to be and denied the notion of Australian policy as non-political. Further discomfort was made apparent with the apparently easy assumption that it was possible to talk of ‘non-discriminatory’ and ‘universal’ approaches (Milner, ed., 1993: 3). As the AAPP makes clear, Australian human rights motives have been questioned and branded as hypocrisy for many reasons, including our historic links to Western imperialism and because of the way Australia’s Aborigines have been treated (Milner, ed., 1993: 28). There is even suspicion as to whether Australia uses human rights diplomacy as a modern substitute for imperialism, for as Western powers withdraw politically from the region, human rights issues provide the opportunity to recruit Western assistance. Further, this allows Australia to use the pressure of international opinion to encourage Asian neighbours to accept the same human values as operating in Australia, thus making these neighbours less threatening (Milner, ed., 1993: 28).
The moralistic and universalistic claims of Western countries in regard to human rights issues have long been a basis for cynicism. The accusation of imperialist domination has resulted in a sustained perception of Western didacticism in the human rights arena. Thus Lee Kuan Yew states:
“Let’s get the history right. The Universal Declaration was written up by the victorious powers at the end of World War II…The Russians did not believe a single word…The Chinese…were espousing the inalienable rights and liberties of man to get American aid to fight the communists” (Yew, 1993: 21).
Indeed the 1948 Declaration may be seen as an attempt by the originally Western dominated UN to impose normative consensus and a frame for international legal rule over those states emerging from colonialism as new states seeking international acceptance (Milner, ed., 1993: 24). For those who may indeed doubt the legitimacy and sincerity of human rights activism, Western stances assumed during the imperialist past may allow for an unflattering equation. Such historical context provides legitimacy to such fears, which is why The Bangkok Declaration was determined to create an ‘Asian’ approach to human rights issues, for it was felt that in order to protect Asian ‘independence’, such policies should be developed from within, not imposed from outside (Milner, ed., 1993: 4). The Christian and European origins of much human rights thinking also furthers the accusations of western domination in the international human rights arena, hence the argument that the West is attempting to impose alien views derived from “post-Renaissance liberal Western traditions” (FEER, 1993: 16).
Even the aims of international human rights law can be seen as based upon Western ideology, for in attempts to raise the value of the individual in the state’s eyes and to improve the quality of individual daily life (Douglas and Sebba, 1998: 15), those cultures who perceive of human rights in a collective sense are asked to redefine their values. In the dominant Western human rights discourse, the Liberal Tradition, the rights of the individual are privileged as it is assumed that only the individual has the ability to define their interests and make rational choices. The role of the state is to act as an unbiased arbiter in conflicts of interest, and also to play a minimal (as the state’s role is seen as necessarily antagonistic to individual rights) and ‘neutral’ part in the guarding of ‘public interests’ (Milner, ed., 1993: 9). This type of cultural individualism has been criticised by Asian leaders as hedonistic and self-serving, generating rampant consumerism, an absence of familial responsibilities and an unnecessary burden upon the state (Milner, ed., 1993: 9). In the very production of ‘welfare states’ has been linked to this legal emphasis on the ‘rights of individuals’, as social and economic disadvantages result in claims against the state. This view of the West as individualistic and lacking social responsibility conflicts with collectivist cultural traditions that see it fit limit the rights of individuals in favour of the collective well-being, which the state serves to protect. The state invests not in welfare, but in infrastructure and community programs and it is viewed as a communal responsibility to help the needy (Milner, ed., 10). The opposition of individual and group perceptions of human rights results in diverging political practices and perspectives on what constitutes human rights abuse which must be recognised when considering human rights issues.
It has been argued that criticism of certain human rights approaches and instruments as being under the influence of western industrialised nations ideologies is less appropriately applied to many of the international children’s rights standards (Douglas and Sebba, 1998: 15). This is argued upon the basis of near universal ratification of UNCROC, however this does not dissociate it from the atmosphere of suspicion, regarding national independence and treatment of cultural differences, that any such international document receives as it attempts to define ‘universal’ principles. The importance of UNCROC in reconciling traditional values and international rights lies in that it was not primarily a product of the industrialised West. It attempts to encapsulate an ethos of cultural plurality and universalism, yet whilst the UNCROC does not want to champion a single fixed universal image of childhood, paradoxically it does attempt to promote ‘universal’ opportunities for children (Douglas and Sebba, 1998: 19).
There are a number of theories regarding sources of value, including the cultural plurality that the UNCROC attempts to promote. Pluralism accepts that there are many reasonable conceptions of a good life and likewise multiple values upon which the realisation of the good life depend (Freeman, 1997: 136). There is no measuring rod to compare values by, they are considered incommensurable and require political ethics to resolve any conflicts. For example, a 1987 English child abuse case in which the practices of a Vietnamese mother were judged against the “reasonable objective standards of the culture in which the children had hitherto been brought up”, of course the judge quantified: “ so long as these do not conflict with our minimal acceptable standards of child care in England” (Freeman, 1997: 132). Pluralists employ the notion of a reasonable ranking of values to solve conflicts, yet also recognise that a plurality of reasonable rankings also exists. This philosophy of cultural pluralism that is employed in UNCROC is paradoxically therein mixed with an alternative theory regarding the sources of value, monism. Monism is the theory of universalism, it supposes that there is a single shared value, or set of values that can be compared in a manner acceptable to all. This conflicts with the pluralist notion that there is no overriding value that takes precedence above all others. The main difficulty with assuming that universalism is a possibility can been found in those cases of moral conflict where no standard can legitimately claim it is the only ‘truth’, as in the case of abortion (Freeman, 1997: 133).
The UNCROC attempts to link the value systems of cultural plurality and universalism. The problem it attempts to counter is of how to resolve a commitment to promoting universal opportunities for children whilst simultaneously upholding multiple conceptions of childhood. It asserts that a broad set of universal values based upon shared interests (such as human dignity, freedom and equality) and common afflictions (such as disease, famine and poverty) can be interpreted and implemented without abstracting them from their context (Lopatka, 1992: 48). Douglas and Sebba suggest that perhaps as international law, such as UNCROC, slowly becomes part of various national and cultural psyches, plurality may come to be viewed as an opportunity rather than an obstacle, for universals may evolve through a shared dialogue which respects diversity (Douglas and Sebba, 1998: 26). Further complicating UNCROC in the international arena, is that whilst most states acknowledge that children’s rights exist, debates over the content of such rights continue.
Much of the debate regarding the content of universal children’s rights doctrines regards the issue of consent and the age of consent. These concepts are important because they distinguish childhood from adulthood, thus children are traditionally widely denied the right to give, or withhold, their. There is little binding international law regarding consent and that which does exist gives little guidance as to how a child’s consent shall be acquired and weighed consent (Douglas and Sebba, 1998: 20). Article 12 of UNCROC obliges states’ to:
“Assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child”.
This right to freedom of expression then is based upon both the objective criterion of age and the subjective notion of maturity, making it difficult define in reality (Douglas and Sebba, 1998: 20). Law revolves around reason and maturity, thus as children are traditionally perceived to be less rational and autonomous than adults, the child’s wishes are rarely given the credit Article 12 called for. Children are forced to remain partial citizens, without full-rights to consent until an arbitrarily appointed age deems them mature enough to accept the mantle of adulthood and make rational decisions on their own behalf.
Whilst most international human rights law pertains to children, UNDROC and UNCROC evolved to delineate those rights (such as that of full consent) reserved for adults only and that may be denied to children, but also to define specific rights that pertain to the special requirements of children. Most adult-only rights are autonomy rights, for example the right to vote or to imbibe; shared child-adult rights pertain largely to not being directly mistreated, for example physically abused; whilst children’s rights can be classified as two sub-classes: ‘dependency rights’ and ‘rights in trust’ (Feinberg, 1980: 125). Dependency rights involve those basic goods of life for which the child is dependent upon others, for example food, shelter and protection. Rights in trust are those that relate to the eventual autonomy the child will gain as an adult but is not yet capable of exercising rationally. These rights in trust may be violated if the child is subjected to any situation or decision that may limit their future life opportunities (Feinberg, 1980: 127). The child’s right to an open future is a right that often comes into conflict with parent’s rights to control the child’s upbringing and to determine their own lifestyles. Since in a situation wherein the rights of parents and the rights of children are in conflict the child is unable to defend their interests against their parents, the state is called in to resolve the issue. The existence of the child’s right to an open future imposes duties upon the state to act in the role of ‘parens patriae’ in seeking to protect the child’s future self-determination and self-fulfilment against the conflicting interests of those with the power to effect them in the present (Feinberg, 1980: 140). In order to ensure the parent’s right to decide their child’s upbringing and to allow a proliferation of cultural pluralities, state intervention is limited to those cases where the child may encounter serious harm or risk to future self-fulfilment. Thus the resulting arrangement, like so many children’s rights, hinges upon a concept of subjective quality providing further fuel for the debate regarding the very content of ‘universal’ children’s law (Feinberg, 1980: 142).
So many factors enter the relationship between a commitment to universal children’s rights and cultural differences that the resulting paradoxes may seem insurmountable. However, the global commitment to, and ratification of, UNCROC does display a willingness to overcome diverging value systems, at least to a point wherein broad principles may be universally agreed upon. These broad principles are often of a subjective nature, and whilst this may present its own set of difficulties, is necessary to avoid accusations of cultural domination. The most perplexing and ultimate problem in the arena of international children’s rights remains that of how to reconcile the conflicting value evaluation methods of cultural pluralism and monism. Indeed in Herodotus was correct in assuming that where people have a choice they will always prefer their own customs (Douglas and Sebba, 1998: 16), it will always prove extremely difficult to derive universal principles that will none-the-less converge with various cultural customs. The problem lies in that there is no one ‘tried and true’ method for creating an international community regarding any issue, however global commitment to children’s rights is such that with due caution regarding respecting cultural differences, universal principles may yet be (indeed increasingly are) viewed less with suspicion. It must be recognised that children live in a world of pre-conceived ideology, they must endure the effects of concepts that they had no part in forming. Thus it remains important to ensure that whilst they benefit from a diverse range of ideologies, they must be protected by universal and common concepts that ensure they are not exploited in the ideological battles of adults, even where such concepts are fraught with paradox.
Bibliography:
-
Abrahms, Natalie. ‘Problems in Defining Child Abuse and Neglect’ in Whose Child? Children’s Rights, Parental Authority, and State Power, William Aiken and Hugh LaFollette (eds.), 1980, Littlefield, Adams & Co., New Jersey.
-
Archard, David. Children: Rights and Childhood, 1993, Routledge, New York.
-
Douglas, Gillian and Leslie Sebba, ‘Children’s Rights: Balancing Traditional Values and Cultural Plurality’, in Children’s Rights and Traditional Values, Geraldine Van Bueren, 1998, Ashgate, Aldershot.
- Evans, address to Amnesty International Australia, Sydney, 2 August 1991.
- (FEER) Far Eastern Economic Review, 17 June, 1993.
-
Feinberg, Joel. ‘The Child’s Right to an Open Future’, in Whose Child? Children’s Rights, Parental Authority, and State Power, William Aiken and Hugh LaFollette (eds.), 1980, Littlefield, Adams & Co., New Jersey.
-
Freeman, Michael. The Moral Status of Children: Essays on the Rights of the Child, 1997, Kluwer Law International, Cambridge.
-
Kessen, William. ‘The Chinese Paradox’ in Whose Child? Children’s Rights, Parental Authority, and State Power, William Aiken and Hugh LaFollette (eds.), 1980, Littlefield, Adams & Co., New Jersey.
-
Lopatka, Adam. ‘The Rights of the Child Are Universal: The Perspective of the UN Convention on the Rights of the Child’ in The Ideologies of Children’s Rights, Michael Freeman (ed.), 1992, Kluwer Academic Publishers.
-
Maley, Barry. Children’s Rights: Where the Law is Heading and What it Means for Families, 1999, the Centre for Independent Studies.
-
Milner, Anthony (ed.), Australian-Asian Perceptions Project Working Paper Number 2: Perceiving Human Rights. 1993, Australian-Asia Institute, UNSW
-
Veerman, Philip E. The Rights of the Child and the Changing Images of Childhood. 1992, Martinus Nijhoff Publishers, London.
-
Yew, Lee Kuan, interview, Time, 14 June 1993.
