By Byung Sook Pattinaja-de Vries and Otto Spijkers
In today’s debate it is often suggested that there is a fundamental difference of opinion between two opposing approaches to the domestic implementation of international human rights:
The two approaches are less far apart from each other than might appear. International law always tries simultaneously to give a description of the ideal situation (a kind of human rights utopia), and to propose feasible and step-by-step methods to bring reality closer to the ideal. The law must therefore be simultaneously idealistic and realistic.
The receptor approach is currently very popular among politicians because of its realistic character. It emphasizes the finding of a stepwise implementation method for human rights, and is thus only half of the solution: what is missing is the promotion of the ideal of universal validity human rights.
When it comes to the ideal of human rights, there are many questions to which everyone will give the same answer, without knowing exactly what both question and answer are referring to exactly. One such question is: Are human rights universal? The answer is: Yes. But what does the question entail ? And what does the answer mean?
Human rights have universal validity. They serve a higher purpose, i.e. the protection of human dignity. It began with the promulgation of the Universal Declaration of Human Rights by the United Nations. This declaration proclaimed that everyone is born free and is – and remains – equal in dignity and rights. To ensure the universal acceptance of the value of human dignity and the human rights derived there from, the United Nations has deliberately omitted a detailed definition of this value of human dignity. The UN has preferred to use a more intuitive approach to the value of human dignity. Individuals have rights simply by virtue of being human.
The same intuitive approach is used to derive human rights from the value of human dignity. Because we are all human beings, human rights apply to everyone, without distinction of any kind, such as race, gender, political or other opinion, or any other circumstance. This ideal is also underlined by the many international human rights treaties.
The reality, however, often gives a different picture and the question is how the reality can be brought closer to the ideal.
About the ideal itself there exist relatively few differences of opinion, especially since the ideal is always described in fairly abstract terms. Once the ideals have to be put in practice, it often becomes evident that human rights issues almost always deal with difficult and often insoluble moral dilemmas. In the Netherlands we had the debate on freedom of expression versus religious freedom, for example.
Disagreements over the proper way to implement international human rights in domestic practice take place both within and between States. Similar human rights dilemmas can be resolved differently by different States. As long as the universality of human rights is taken into account, it is not problematic that differences exist between States when it comes to the implementation of human rights.
In Europe there is the margin of appreciation doctrine, which gives the European States certain flexibility in the application of the European Convention on Human Rights. This means that States have some room for interpretation on the basis of their own particular circumstances and situation. Political, economic, social and cultural elements play a role. The influence of different cultures does not necessarily affect the validity of universal human rights. On the contrary, cultural diversity can enrich the human rights discourse.
That is why the receptor approach, which takes the practice as starting point and seeks to link international human rights with local traditions, is not immediately in violation of the universal approach, which begins with the proclamation of the ideal.
This idea of looking for local connections is not new. NGOs, working with local partners to improve human rights from below, have always recognized the importance of the local context.
Despite certain positive aspects the receptor approach may have, there is good reason for caution when taking this approach in human rights policy. There is the threat of a deadlock which is difficult to break. Attachment of human rights policies to local cultures must be done in a critical manner. This can lead to the conclusion that some local practices do not – and will never – meet international human rights standards and should thus be abolished. Such harsh objections from the international (or mostly Western) community targeting cultural or social aspects of a more traditional society may have as a consequence that the State concerned will view such criticism as a form of moral imperialism. On the other hand, failure to utter this criticism affects the universality of human rights in a negative way. Criticism cannot always be avoided, even though dialogue between States is preferred. States should not lecture other States with a "wagging finger," but instead use that finger to point out that international human rights treaties with various obligations have been ratified by almost all States.
A certain degree of confrontation also appears necessary to complement the receptor approach. What are the implications when local culture provides no possibilities to link human rights, i.e., when there are no receptors? The local context may never be used as an excuse to not fulfill the universal human rights standards.
Human rights are based on human dignity. On that basis, everyone always has human rights. While the receptor approach adheres to the universal validity of human rights, and only complements the existing legal system that serves to promote human rights with alternative locally-based methods, the approach is not problematic. The approach becomes problematic when the practice and the local receptors for human rights are not compatible with universal human rights. It is therefore critical to consider the pitfalls of the approach. Furthermore, the innovative character of the “receptor approach” should not be over exaggerated. It does not revolutionize the way in which human rights are implemented in the domestic context.