Human Rights: Eye for CulturalDiversity

Human Rights: Eye for CulturalDiversity

Inaugural lecture

delivered upon appointment to the chair ofProfessor of International Human Rights and Cultural Diversity

at the University of Amsterdamon June

by

Yvonne M. Donders

This is inaugural lecture , published in this series of the University of Amsterdam.

Lay-out: JAPES, Amsterdam

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Mevrouw de Rector Magnificus,Mijnheer de Decaan,Collega’s, familie, vrienden en zeer gewaardeerde toehoorders

Donders’ Law

“...het moeilijker is te bepalen of hij grooter en vruchtbaarder was als on-derzoeker, dan wel helderder en invloedrijker als leermeester, dan eindelijkmedelijdender en hulprijker als geneesheer van dat orgaan, dat de poortenopent van het paradijs, omdat het de poort is der wijsheid en der liefde”

This was said about Professor Franciscus Donders, the famous Professor Don-ders. A statute was erected in his honour in Utrecht, at the Janskerkhof, andportraits of him are displayed in the Academy Building of Utrecht University.Several academic institutions bear his name and there are Professor Donders

Streets in Amsterdam, Bennekom, Bussum, Haarlem, Nijmegen, Tilburg andUtrecht.

Professor Donders lived from to . He was a Professor of Medicineand Physiology, and his main field of research was eye physiology. His specia-lisation in ophthalmology made him one of the most important Dutch physi-cians of his time. He developed the current distinction, explanation and treat-ment of eye disorders, as well as tests to detect colour-blindness.

What inspires me most in Professor Donders, apart from his name, is hisdedication to science as well as to society. He used his academic talent to fur-ther science, but also to teach and to help people at all levels of society. This isthe way I want to shape my academic role and it is one of the reasons why Iwork on human rights.

Therefore, today, we will look at human rights and cultural diversitythrough his lens, by applying “the law of Donders” to international humanrights in a creative and liberal way. To put it simply, Donders’ law states thatno matter how the eye turns or moves, the three-dimensional position of theeye is always the same because of a correction mechanism in the brain. I hopeto show you that the international human rights system, including its stan-dards, norms and monitoring mechanisms, is the brain that ensures a steadymultidimensional view, while allowing for the moves and turns that are neces-sary to accommodate cultural diversity.

Human Rights and Cultural Diversity

In the coming years I will continue along a path that started with my PhD inMaastricht and led me via UNESCO’s Human Rights Division in Paris here, tothe University of Amsterdam. My research has focused and will focus on therelationship and interaction between international human rights law and cul-tural diversity. This is a current topic, as is shown by the recent debates in TheNetherlands on, for instance, the proposed ban on wearing facial coverage, orburqas, and the proposed ban on ritual slaughter without anaesthesia. Humanrights and cultural diversity further concern issues such as whether a personshould be permitted to speak Frysian instead of Dutch in court, whether dou-ble nationality implies an undesirable loyalty problem, or whether Sinterklaasshould be acknowledged as intangible Dutch cultural heritage or be dismissedas a racist celebration. One can also think of issues such as to what extentstates should facilitate and fund education in minority languages, to what ex-tent non-formal marriage rituals should be recognised, how land rights forindigenous communities can be reconciled with the economic benefit of

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mining and logging operations, and the wearing of religious symbols, such asheadscarves, turbans and kippas in public schools.

All of these issues are crucial to many individuals and communities, becausethey are expressions of their culture and consequently their identity. And tothe extent that those cultural identity elements are associated with human dig-nity, there is a link with human rights.

The Concept of Culture

The analysis of cultural diversity clearly involves working with the concept of‘culture’. There are hundreds of definitions of ‘culture’, but a much used one is‘the set of distinctive spiritual, material, intellectual and emotional features ofsociety or a social group,(...) [which] encompasses, in addition to art and lit-erature, lifestyles, ways of living together, value systems, traditions and be-liefs.’

Culture is a concept of which the dynamics and complexity do not easilytranslate into legal terms. Culture is not an inactive notion, but somethingthat can develop and change over time. It is not static, but dynamic; it is not aproduct, but a process, which has no well-defined boundaries and is influencedby internal and external interactions. Culture can refer to many things, varyingfrom cultural products, such as arts and literature, to the cultural process orculture as a way of life. Culture has an objective and a subjective dimension.The objective dimension is reflected in visible characteristics such as language,religion, or customs, while the subjective dimension is reflected in shared atti-tudes, ways of thinking, feeling and acting. In addition, culture has an indivi-dual and a collective dimension. Cultures are developed and shaped by com-munities. Individuals identify with several of these cultural communities –ethnicity, nation, family, religion, etc. – and in that way shape their personalcultural identity.

In general, culture is considered to be important to human beings and tocommunities. Or, to put it in the words of the World Commission on Cultureand Development: ‘culture shapes all our thinking, imagining and behaviour.It is the transmission of behaviour as well as a dynamic source for change,creativity, freedom and the awakening of innovative opportunities. For groupsand societies, culture is energy, inspiration and empowerment.’

At the same time, culture is not an abstract or neutral concept: it is shapedby its instrumentalisation, in which negotiation, contestation and power struc-tures play a role. Culture is not necessarily an intrinsically dignified concept. Itmay be a mechanism for exclusion and control. Culture may harm people orbe oppressive to them and hinder their personal development. Some harmful

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aspects of culture are reflected in cultural practices that are very questionablefrom a human rights perspective. Examples of such harmful practices, whichoften affect women, include female genital mutilation, widow cleansing andforced prostitution.

An important question therefore is who decides to what extent cultural di-versity should be promoted and which cultural aspects should be protected?As cultures are dynamic, which interpretation of a certain culture, including acultural practice or activity, should be accepted? These are not easy questionsto answer. The broadness, complexity and sensitivity of the concept of cultureare serious challenges in the integration of this concept into international hu-man rights law.

Universalism and Cultural Relativism

At an international level, many human rights treaties and declarations havebeen adopted and ratified by states. These instruments provide a frameworkof universal human rights norms to be implemented by states at a national andlocal level. At the same time, there are many differences between and withinstates and this cultural diversity is cherished as an important value for states,communities and individuals.

It is broadly agreed that human rights and cultural diversity have a mutuallyinterdependent and beneficial relationship. In the Universal Declaration onCultural Diversity, adopted by the Member States of UNESCO in , it isstated that ‘the defence of cultural diversity is...inseparable from respect forhuman dignity’ and ‘implies a commitment to human rights and fundamentalfreedoms’. The UNESCO Convention on the Protection and Promotion ofthe Diversity of Cultural Expressions states that ‘cultural diversity can be pro-tected and promoted only if human rights and fundamental freedoms...areguaranteed’.

Human rights and cultural diversity have been discussed extensively in thecontext of the universalism and cultural relativism debate. This debate hasbeen conducted from the very moment international human rights law wasbeing formed and has been dealt with in great detail by many human rightsscholars. Its essence can be summed up as follows: supporters of the univer-sality of human rights assert that every human being has certain human rightsby virtue of being human. Consequently, all persons should equally enjoy hu-man rights, because these rights are inalienable and meant to protect humandignity. Supporters of cultural relativism emphasise the empirical fact of im-mense cultural diversity in the world. Cultural relativists, accordingly, claimthat there are no cross-cultural universal human values and that the variety of

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cultures implies that human rights can and should be interpreted differently.In between, moderate forms of both theories exist.

Moving away from the deadlock between the universalism and cultural re-lativism, the idea has taken hold that respect for cultural diversity can verywell be consistent with the notion of the universality of human rights. Culturalrelativism, in the sense of asking for respect for cultural diversity, not ofmerely challenging the legitimacy of international human rights norms assuch, and universality do not have to mutually exclude each other. The dichot-omy can be overcome by making a distinction between formal universality andsubstantive universality, between universality of application and universality ofimplementation and between universality of the subjects (beneficiaries) anduniversality of the norms (content).

The idea that human rights should be universally enjoyed – by all personson the basis of equality – is not very controversial. In general, formal univers-ality, or the universality of the subjects of human rights, does not present anyproblems. No one will argue that some people in the world do not have humanrights. International human rights instruments clearly endorse this universalapproach. The Universal Declaration of Human Rights (UDHR), for exam-ple, not only refers to universality in its title, but also states in Article that ‘allhuman beings are born free and equal in dignity and rights.’ The UDHR aswell as the international human rights treaties speak of ‘everyone’, ‘all persons’or ‘no one’, affirming that all human beings have these rights and freedoms,no matter where they were born or to which community they belong.

The universality of the normative content of human rights and the univer-sality of the implementation of human rights are, however, subject of debate.In my view, the correct approach to this is that the universal value and appli-cation of human rights does not necessarily imply the uniform implementationof these rights. In other words, while human rights apply universally to eve-ryone on the basis of their human dignity, the implementation of these rightsdoes not have to be uniform.

The Advisory Commission of the Ministry of Foreign Affairs speaks in thisrespect of the “universalisation” of human rights. By recognising diversity andallowing for cultural-specific implementations, ‘cultures and States might bemore willing to embrace the universal appeal of the international humanrights framework’. Donnelly has called this the “relative universality of hu-man rights” and he argues that ‘universal human rights, properly understood,leave considerable space for national, regional, cultural particularity and otherforms of diversity and relativity’. Brems speaks of “inclusive universality”,pleading for more openness to cultural differences and for the accommodationof some cultural claims in a flexible and dynamic human rights system. An-

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Na’im focuses on enhancing the universal legitimacy of human rights by inter-nal cultural discourse and external cross-cultural dialogue. Kinley argues that‘human rights are inherently pluralistic’, even though international humanrights law, with its system of obligations and instructions and its institutiona-lised dispute settlement regimes, may give an impression of rigidity.

It is now broadly acknowledged that universal human rights do not have tobe implemented in a uniform way, thereby leaving room for cultural diversity.

Cultural Diversity and Cultural Pluralism

Cultural diversity is defined in article of the UNESCO Convention on theProtection and Promotion of the Diversity of Cultural Expressions as referringto ‘the manifold ways in which the cultures of groups and societies find ex-pression. These expressions are passed on within and among groups and so-cieties. Cultural diversity is made manifest not only through the varied ways inwhich the cultural heritage of humanity is expressed, augmented and trans-mitted through the variety of cultural expressions, but also through diversemodes of artistic creation, production, dissemination, distribution and enjoy-ment, whatever the means and technologies used.’

Cultural diversity describes the factual situation of cultural differences exist-ing between and within states. It is an umbrella notion that covers culturaldiversity at different levels: between individual states, regions, communitiesand individuals, but also within states, regions and communities.

Cultural diversity should be distinguished from the related notion of cultur-al pluralism. The difference and the connection between cultural diversity andcultural pluralism are explained in the Universal Declaration on Cultural Di-versity. Article states that ‘cultural pluralism gives policy expression to thereality of cultural diversity’. In other words, cultural diversity, also termed‘plurality’, reflects the factual situation. Cultural pluralism refers to the waycultural diversity is appreciated and translated into laws and policies.

Cultural pluralism implies that cultural diversity is considered to be good, adesirable and socially and politically beneficial condition. It implies that in-dividuals and communities are given the opportunity to maintain their specificcultural identity, provided that it is consistent with the laws, policies and va-lues of the wider society. Consequently, although cultural diversity is the termmainly used in relation to international human rights law, what is often meantis cultural pluralism. Perhaps we should reconsider the title of my Chair...

Let us explore the scope of international human rights law for promotingand protecting cultural diversity, both at a global and at a regional level. Forthat purpose we will look at the human rights standard-setting by states, at the

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human rights norms themselves and at the monitoring of human rights byinternational supervisory bodies. I will not be able to discuss all these dimen-sions at great length. I will therefore give examples that show the dynamic andflexible character of the international human rights system, including its stan-dards, norms and monitoring mechanisms, which allows to have eye for cul-tural diversity, while at the same time ensuring a steady, balanced, multidi-mensional focus and view.

International Human Rights Standard-Setting

States as sovereign entities and the main subjects of international law negotiateand draft treaties. They may decide for themselves whether they wish to be-come parties to international human rights treaties. The process of creatinginternational human rights standards gives a state ample opportunity to de-fend or promote its cultural interests. Two possible ways of introducing cultur-al diversity in the standard-setting process are the formulation of so-calledcultural reservations and the adoption of regional human rights treaties.

Cultural Reservations to Human Rights Treaties

When a treaty is being adopted and signed, some states may feel that theirspecific interests are not sufficiently reflected or they may disagree with certainspecific provisions. A state may choose not to become party to the treaty at all.Or, at the moment it ratifies a human rights treaty, it may, up to a certainpoint, decide to what extent it wishes to become party to this treaty. A statemay submit an explicit notification that it does not consider itself to be boundto certain aspects or provisions of the treaty, without having to reject the treatyas a whole. This is done in the form of reservations, some of which may have acultural justification. A state may, for example, find a particular provisionincompatible with certain cultural, religious or historical specificities or rulesthat are applicable in that state. Such ‘cultural reservations’ reflect cultural dif-ferences between and within states that the state party intends to keep. Assuch, reservations may form ‘a legitimate, perhaps even desirable, means ofaccounting for cultural, religious, or political value diversity across nations.’

Reservations, especially those made to human rights treaties, are, however,controversial. Concern has been expressed that reservations, in particularthose based on cultural arguments, would undermine the universality of hu-man rights treaties. As outlined above, universality and cultural diversity donot have to mutually exclude each other. However, if states, by making reser-

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vations, express not to be bound by a certain norm, this norm is not applieduniversally to all beneficiaries. If these reservations relate to rights that arecentral to the treaty, this might undermine the effect of the treaty, whichwould be most problematic for the individuals and communities that are sup-posed to benefit from its human rights protection.

Human rights treaties are a special kind of multilateral treaties. Unlike othermultilateral treaties, on for example trade or the law of the sea, human rightstreaties have as main beneficiaries not so much states, but individuals andcommunities. The contractual dimension of human rights treaties, includingthe important element of reciprocity, is complemented by the moral, broaderdimension of fulfilling certain legal obligations, not only towards the contrac-tual counterparts, but also to third parties, namely individuals and commu-nities.

The possibility of making of reservations is therefore limited. Reservationsmay, for instance, not go against the object and purpose of the treaty. Theobject and purpose are, however, not easy to define, which makes it difficult toassess whether certain cultural reservations are compatible or not. Such assess-ment is primarily done by other states parties, which may object to reserva-tions made by other states parties.Also, international monitoring bodies su-pervising the treaties have involved themselves in assessing reservations.

To illustrate these issues, I will give you two examples of cultural reserva-tions to the Convention on the Rights of the Child (CRC). This is the inter-national human rights treaty with the most states parties, , showing broadsupport for it. At the same time, it is one of the treaties with the most reserva-tions: states parties have made reservations.

When ratifying the CRC, Djibouti submitted the following reservation: ‘theGovernment of Djibouti shall not consider itself bound by any provisions orarticles that are incompatible with its religion and its traditional values.’

This reservation is of a general nature and has a very broad scope. Similarreservations were made by other Islamic states, including Brunei Darussalam,Iran, Mauritania, Oman, Qatar, Saudi Arabia and the Syrian Arab Republic.These states do not categorically reject the provisions of the CRC, but theyonly consider themselves bound to them insofar as they do not conflict withtheir religion or Islamic law. A problem, however, is that these states have notspecified the religious aspects or traditional values that may be incompatiblewith the CRC.

Several European states parties have objected to these reservations. Roughly,two types of arguments were used: ) these reservations raised doubts on thecommitment of the other state party, and ) these reservations were consid-ered to be incompatible with the object and purpose of the treaty. While states

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parties did not express a general opinion on the compatibility of religious lawswith the CRC, they indicated that the general references were too broad andvague, as they did not specify the possible conflict between these religious lawsand the CRC. This raises the question to what extent reservations based onIslamic law would be accepted by other states parties if they were more speci-fic.

A large majority of states parties did not object to these cultural reserva-tions. This does not necessarily mean that they agree with them. One reasonfor not making objections could be that states parties aim for an inclusiveapproach and prefer states to participate in the treaty, even with general orbroad reservations, as this allows for international supervision. States may alsoconsider objecting a politically unfriendly act. Moreover, objecting to a reser-vation does not have much practical effect. Because the reciprocity betweencontracting parties is less prominent in human rights treaties, objections byother states parties have mainly symbolic significance. Most states partiesthat have objected to these reservations, have clearly indicated that their objec-tion does not preclude the entry into force of the treaty between them.

Another example of a cultural reservation, one which does not relate toreligion, is the reservation made by Canada on article concerning childadoption: ‘the Government of Canada reserves the right not to apply the pro-visions of article to the extent that they may be inconsistent with customaryforms of care among aboriginal peoples in Canada.’ It added the statementthat ‘in assessing what measures are appropriate to implement the rights re-cognized in the Convention for aboriginal children, due regard must be paid tonot denying their right, in community with other members of their group, toenjoy their own culture, to profess and practice their own religion and to usetheir own language.’

Canada explained that it considered it appropriate to enter this reservation,because Article (a), according to which adoption should be authorized onlyby competent authorities, might prevent custom adoption among certain indi-genous communities, in which adoption took place within extended families,for example by the child’s grandparents. Such a practice might be regarded asinconsistent with the strict terms of article (a). None of the other statesparties has objected to this reservation.

Apart from other states parties, which may have various reasons for object-ing or not objecting, monitoring bodies play a crucial role in evaluating the useof reservations. Although they cannot formally object to a reservation, theyhave contributed to convince states parties to adjust or withdraw their reserva-tions on a number of occasions. The supervisory body of the CRC, the Com-mittee on the Rights of the Child, systematically pays attention to reservations

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in its dialogue with States Parties under the periodic reporting procedure. Itconsiders general and broad reservations to be contrary to the object and pur-pose of the Convention. The Committee thereby focuses on the possible lackof respect for and protection of the rights. It has urged the Islamic states, butalso Canada, to specify, reconsider or withdraw their reservations. Interest-ingly, pressure on states has sometimes been successful. Djibouti and Qatar,for example, withdrew their general reservations in .

These examples show that states parties may make reservations to certainprovisions in a human rights treaty with reference to their specific cultural orreligious background. Reservations therefore may be a useful or even essentialreflection of cultural pluralism. Such cultural reservations, however, must beformulated in concrete and specific terms. They must state which specific(parts of) provisions of the treaty the state party does not consider itself boundto and explain the cultural or religious reasons behind the reservation, whichdetermine the scope, content and consequences of the reservation. Moreover,cultural reservations have to be able to pass the object and purpose test, toprevent them from going against the essential parts of the treaty or undermin-ing the effect of the treaty as a whole. While some research has been conductedon cultural reservations, there remains a lot to be studied.

Regional Human Rights Treaties

The adoption of regional human rights treaties presents another way of intro-ducing cultural diversity at the level of international standard-setting. In addi-tion to global treaties on human rights, several regional intergovernmental or-ganisations have adopted regional human rights treaties. These regionaltreaties include, for example, the African Charter on Human and Peoples’Rights, the American Convention on Human Rights and the European Con-vention on Human Rights.

Regional human rights treaties are a valuable addition to global humanrights treaties, precisely because they may echo cultural pluralism among re-gions and States. States and the United Nations have applauded the develop-ment of regional human rights standards and regional monitoring systems asreinforcing the universal standards. There is a lot to say and to study aboutthe interaction between the global and regional standards and monitoring me-chanisms. Today I will by giving some examples briefly explain the role ofregional human rights systems in accommodating cultural diversity.

It should be noted that the regional human rights treaties mirror the globalones to a large extent. A certain set of rights are common to all of them. At thesame time, regional human rights treaties reflect the specific historical and

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cultural context of that region and may therefore include norms that are not ordifferently included in global treaties. The African Charter on Human andPeoples’ Rights, for instance, contains collective rights for peoples to develop-ment and to peace and security (Articles -). The African Charter furtherincludes, apart from rights, duties towards other human beings, family andsociety (Articles -). The American Convention also contains a provisionon the responsibilities to family, community and mankind (Article ).

As regards the categories of rights, in Europe and the Americas separateinstruments were adopted for civil and political rights and for economic, socialand cultural rights. The African Charter, however, incorporates all categoriesin a single instrument, reflecting that these rights are considered of equal va-lue. Apart from the general human rights treaties, treaties were adopted onissues of specific relevance to a region, such as the American Convention onViolence Against Women, the American Convention on Forced Disappea-rance of Persons and the Protocol to the African Charter on the Rights ofWomen in Africa. Europe does not have a specific treaty on women’s rights,but it does have treaties that protect the rights of minorities.

These short examples serve to show that regional treaties can be importanttools for the promotion of cultural pluralism. The interrelation and interactionbetween regional human rights standards and their monitoring and globalones offer plenty of opportunities for further study.

International Human Rights Norms

International human rights law contains many norms and provisions that di-rectly or indirectly promote and protect cultural diversity. The two main ave-nues that I will explore here are that of equality and that of cultural rights.

Diversity within Equality

Respect for cultural diversity has always been part of the human rights dis-course. However, in developing international human rights law, states at firstmainly emphasised the principle of equality. Equality between them as sover-eign states and equality as the basis for the enjoyment of rights by differentindividuals and communities within states. Although diversity was recognisedas a fact, it was maintained that human rights should first and foremost pro-mote and protect equality. This emphasis on equality formed the startingpoint for the UDHR. While several proposals concerning cultural diversity or

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the special position of certain cultural communities, such as minorities andindigenous peoples, were discussed, no provision to that effect was included.

During the drafting processes of the various human rights treaties adoptedafter the UDHR, cultural diversity was increasingly emphasised as a value tobe respected and promoted. This was broadly done in two ways: by developingthe equality concept, acknowledging that it also implies the right to be differ-ent, and by adopting specific rights promoting and protecting cultural diver-sity.

Firstly, it was recognised that respect for cultural differences can be fully inline with the principle of equality. Having equal rights is not the same as beingtreated equally. Indeed, equality and non-discrimination not only imply thatequal situations should be treated equally, but also that unequal situationsshould be treated unequally. At the international level, it was understood that‘the enjoyment of rights and freedoms on an equal footing...does not meanidentical treatment in every instance’. Consequently, not all difference intreatment constitutes discrimination, as long as the criteria for differentiationare reasonable and objective and serve a legitimate aim. Difference in treat-ment may also involve affirmative or positive action to remedy historical in-justices, social discrimination or to create diversity and proportional grouprepresentation.

One area where positive action may be needed to obtain factual equality iseducation. States may have to take special measures to promote girls, minoritychildren, or disabled children to go to school. If needed, separate educationalsystems or institutions may even be permissible, as long as these do not lead toseparate sets of standards for different groups. At the European level, theECtHR has argued that the right to education does not impose positive stateaction to establish or finance a particular type of education in a certain lang-uage. However, the right might impose positive obligations to ensure the equalenjoyment of the right to education, including measures to facilitate primaryeducation in a certain language.

Cultural Rights and the Cultural Dimension of Human Rights

Apart from respect for diversity within the equality principle, many interna-tional human rights instruments include rights that specifically promote andprotect cultural diversity. These rights are broadly classified as ‘cultural rights’.Cultural rights are human rights that directly promote and protect culturalinterests of individuals and communities and that are meant to advance theircapacity to preserve, develop and change their cultural identity. As such they

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truly echo the importance of cultural pluralism in international human rightslaw.

Which rights are cultural rights? The categorisation of human rights, in-cluding cultural rights, is based on the titles of two international human rightstreaties that were adopted in : the International Covenant on Civil andPolitical Rights (ICCPR) and the International Covenant on Economic, Socialand Cultural Rights (ICESCR). However, although cultural rights are menti-oned in the title of the ICESCR, the text of this treaty does not make clearwhich provisions in the treaty belong to the category of cultural rights. In fact,none of the international legal instruments provides a definition of ‘culturalrights’ and consequently, different lists could be compiled of international le-gal provisions that could be labelled ‘cultural rights’.

There are several international human rights provisions that explicitly referto ‘culture’. One example is the right of everyone to participate in cultural life,as laid down in Article UDHR and Article ()(a) ICESCR. Another exam-ple is the right of members of minorities to enjoy their own culture, practisetheir own religion and speak their own language, as laid down in Article

ICCPR. The scope, normative content and state obligations of these rightshave evolved over the years. For instance, the right to take part in cultural lifewas originally aimed at making culture available and accessible to all people,whereby culture was considered in its narrow scope as referring to nationalculture and as equivalent to cultural material(s), such as arts and literature.Other aspects of a broader concept of culture, such as language, religion andeducation, were dealt with in separate provisions in the ICESCR and theICCPR. Nowadays, it seems that the right to take part in cultural life is broad-er, incorporating a broad notion of culture, as well as a wide range of corre-sponding rights and positive and negative state obligations. The dynamicsand complexity of the right to take part in cultural life are reflected in the Ge-neral Comment of the Committee on Economic, Social and Cultural Rights onthis right. This General Comment became the longest general comment so far.Its pages contain paragraphs, outlining in detail what the right to takepart in cultural life entails in terms of scope, normative content and state obli-gations and its relationship with other human rights.

Apart from rights explicitly referring to culture, many human rights have adirect link with culture. It might be defensible to claim that almost every hu-man right can be linked to culture. However, the rights with the most obviouslink with culture are the right to self-determination, the rights to freedom ofreligion, freedom of expression and freedom of association and the right toeducation. It has, for instance, been recognised that artistic expressions suchas novels, poems and paintings fall within the scope of freedom of expression

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and that the right to freedom of association also protects cultural organisati-ons.

Apart from rights explicitly or directly related to culture, it appears thatmany human rights have a strong cultural dimension. Although some humanrights may at first glance have no direct link with culture, most of them haveimportant cultural implications.

The right to health, for instance, may have important cultural connotationsas far as certain treatments, the use of certain (traditional) medicines or theavailability of male and female doctors is concerned. Culture also plays a deci-sive role in sexual and reproductive health, in which information and educa-tion are crucial. The Committee on Economic, Social and Cultural Rights hasrecognised that the right to health includes that ‘all health facilities, goods andservices must be...culturally appropriate, i.e., respectful of the culture of indivi-duals, minorities, peoples and communities.’ What does this mean in practi-ce? Should the state offer language facilities in all public hospitals? Are womenentitled to be treated by a female doctor upon request? Should minority wo-men be allowed to bring a traditional midwife when giving birth to a child ordrink coca tea while dilating? Most probably, individuals do not have suchrights under international human rights law and states do not have such far-reaching positive obligations, but it cannot be precluded that states may haveto find ways to accommodate certain cultural interests as part of the right tohealth.

Another example is the right to adequate food. The preparation and con-sumption of food have a clear cultural connotation. The importance of thecultural dimension of food is also shown by the fact that several food tradi-tions, such as the French cuisine, the Mediterranean diet, and the traditionalMexican kitchen, have been recognised as intangible cultural heritage, whichhas to be promoted and protected by states. The Committee on Economic,Social and Cultural Rights has stated that the guarantees concerning the rightto food should be culturally appropriate and acceptable. Here, also, statesmay have to find ways to accommodate cultural diversity, while at the sametime balancing different interests. The issue of (non-anaesthetised) ritualslaughtering is illustrative in this respect.

Civil and political rights may also have a cultural dimension. For instance,the right to a fair trial includes the right to be informed of the charges in alanguage that one can understand, as well as the right to free assistance of aninterpreter if a person cannot understand or speak the language used in courtand such translation needs to be adequate. Specific ways of living related toculture, such as living in a caravan, which is the traditional way of living ofgypsies, may fall within the scope of the right to respect for private life and

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home. Although states may not necessarily have positive obligations, theyhave to respect the cultural dimension of these rights and have to balance thedifferent interests involved. The implementation of cultural rights and of thecultural dimension of rights, as well as the balancing of different interests ne-cessitates further study.

Most cultural rights in international human rights instruments, just likeother rights, are defined as individual rights. These rights are, however, forthe most part enjoyed in connection with other individuals or within the con-text of communities. Article ICCPR, which guarantees the right of membersof minorities to enjoy their culture, explicitly includes that persons can do so‘in community with other members of their group’. Other cultural rights, suchas the individual right to take part in cultural life, do not contain a reference totheir shared enjoyment, but it is clear that these rights are generally enjoyedtogether with other members of a cultural community. The rights to freedomof expression, association and religion also have a strong collective dimension.In other words, although international human rights law is individually orien-ted, it has a collective dimension which is important for the promotion andprotection of cultures. The collective dimension of cultural rights is, however,not only supported but also criticised. The concern is that individual freedommay be repressed within the cultural community. This is why the collectivedimension of human rights should in my view be supported only to the extentthat individuals remain autonomous and free in developing their own culturalidentity.

Cultural rights, in particular the cultural dimension of rights, need furtherstudy and elaboration, in order to be better implemented and supervised.

Monitoring Human Rights and Cultural Diversity

An important role in supervising the performance of states is played by na-tional and international supervisory bodies. These bodies have various me-chanisms at their disposal and use various techniques to define the boundarieswithin which international human rights law, including cultural rights and thecultural dimension of human rights, should be implemented. Cultural diver-sity at the level of monitoring is the next level that I would like to discuss.

As concluded earlier, universal human rights norms do not imply uniformimplementation. International human rights law entails a ‘culturally plural no-tion of implementation’. At the level of the implementation of human rightsnorms, states have a certain freedom to interpret and apply the rights in theway that they think fits their national context best. States are allowed to take

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national, cultural circumstances into account when they implement internati-onal human rights law, to accommodate cultural diversity between states, butalso to balance different cultural interests within states.

This is because cultural rights cannot be enjoyed unlimitedly. The generalframework of such limitations is outlined in Article () UDHR, in which it isstated that ‘in the exercise of his rights and freedoms, everyone shall be subjectto only such limitations as are determined by law solely for the purpose ofsecuring due recognition and respect for the rights and freedoms of othersand of meeting the just requirements of morality, public order and the generalwelfare in a democratic society.’ These limitation clauses can be found in mosthuman rights instruments. Sometimes they apply to the instrument as a whole,sometimes they are linked to a particular provision. These international hu-man rights provisions therefore directly allow for diversification in implemen-tation between states. States are allowed to limit the enjoyment of the right inquestion for reasons of morality, security, health, public order and the rightsand freedoms of others. Cultural and religious particularities may well be partof these reasons.

Giving states unlimited freedom to interpret and implement internationalhuman rights law in totally different ways, would, however, undermine theuniversal character and application of the norms and would lead to unaccep-table differences in rights protection for different individuals and commu-nities. Therefore, the states’ discretion in implementing international humanrights law must be balanced by national and international supervision. At theinternational level, there are monitoring bodies of a judicial and a quasi-judi-cial character.

Supervision at the international level is performed by the UN treaty bodies

and at the regional level by the European Court of Human Rights, the Inter-American Commission and Court of Human Rights and the African Commis-sion and Court of Human and Peoples’ Rights. They interpret the scope, nor-mative content and state obligations of international human rights norms andassess the balancing of regional, national and local cultural interests with theuniversality of human rights.

International and regional supervisory bodies roughly have two means ofsupervision at their disposal: regular state reports and complaints procedures.The state reporting procedure mainly takes place within the UN system andentails that states parties have to regularly report on how they implement hu-man rights treaties. The supervisory committees, composed of independentexperts, enter into a dialogue with the states parties and provide them withrecommendations on how to improve their performance. Some UN bodies aswell as the regional human rights bodies also have an individual complaints

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procedure, which means that individuals, after having exhausted the remediesat national level, can file a complaint against a state on an alleged violation oftheir rights. These procedures involve a broad variety of situations and cases inwhich cultural diversity may play a role. Two practices developed by the in-ternational supervisory bodies that can serve as examples of how cultural di-versity enters the monitoring procedures are the doctrine of the margin ofappreciation and the assessment criteria of prior and informed consent andimpact on the enjoyment of cultural rights.

Margin of Appreciation

The margin of appreciation or margin of discretion refers to the room formanoeuvre national authorities have in fulfilling their obligations under inter-national human rights law. It is most developed in the European context bythe European Court of Human Rights. It builds on the idea that it should beleft to the states parties to implement the rights and that the European Courtshould only intervene if it clearly finds that the state party has failed in thateffort. The European Court expressed this position for the first time in theHandyside case, arguing that there is no uniform European conception of mo-rals and that the view on this in states parties varies and may change. There-fore, the Court found that ‘state authorities are in principle in a better positionthan the international judge to give an opinion on the exact content of theserequirements as well as on the necessity of a restriction.’

The margin of appreciation doctrine is a means of judicial constraint anddeference, of expressing the subsidiarity of the European Convention to na-tional legislation and of demarcating the room left for national sovereigntyvis-à-vis supranational control. It is mainly used for assessing the limitationsof rights by states, in situations where the Court finds itself less competent todetermine whether a certain limitation is necessary in a democratic society andwhether there is a pressing social need.

Some see the margin of appreciation doctrine as a danger to the universalityof the norms. Others, including myself, consider the margin of appreciationas a valuable means for supervisory bodies to allow states to diversify in theimplementation of international norms. This should, as is also emphasisedby the institutions themselves, always go hand in hand with international su-pervision, to make sure that national implementation and supervision meetminimum standards. That the European Court sometimes uses the margin in-consistently is a matter of concern in this regard. Also, the supervisory bodiesshould ensure that the use of the margin of appreciation does not merely pro-tect majority interests in a state.

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A lot of research has been done on the margin of appreciation in the contextof the European Convention on Human Rights. Additional research could bedone on the way the UN treaty bodies have explicitly or implicitly used themargin of appreciation doctrine.

Interestingly, global and regional supervisory bodies may sometimes disagreeand reach opposite conclusions in similar cases. This happened in two similarcases against France, one of which was brought before the UN Human RightsCommittee (HRC) while the other was brought before the European Court ofHuman Rights (ECtHR). Both cases concerned persons of Sikh origin livingin France wearing a turban. They were forced to remove their turban for thepurpose of taking a photo, in the ECtHR case for a driving licence and in theHRC case for a residence permit. The Sikhs refused, because taking off theirturbans in their eyes was a rejection of their faith and made them feel deeplyhumiliated and degraded. Both the HRC and the ECtHR agreed that the requi-rement to appear bareheaded on identity photos interfered with these persons’rights to freedom of religion. France, however, justified this interference byreferring to security and public order. The European Court accepted theFrench argument and found that this fell within the margin of appreciation ofthe state. It declared the case inadmissible. The HRC, however, found thatFrance had not sufficiently explained why wearing a turban, which leaves theface clearly visible, would make it difficult to identify a person and how photosin which people appear bareheaded help to avert the risk of fraud or falsifica-tion of official documents. It therefore concluded that the right to freedom ofreligion had been violated.

Participation and Impact Assessment

Several international supervisory bodies have dealt with cases concerning cul-tural diversity issues and indigenous peoples. Interestingly, they have extendedthe scope of certain human rights norms to accommodate land rights. TheHRC, as well as the regional institutions in Europe, the Americas and Af-rica have acknowledged that land rights for indigenous peoples, which arenot included in any of the global or regional human rights treaties, may fallwithin the scope of several human rights provisions, such as the right to life,the right to health and the right to enjoy culture, precisely because of the cul-tural dimension of land to indigenous peoples. In assessing whether an inter-ference with these rights by the state amounts to a violation, the different in-stitutions broadly apply two criteria: the involvement and consultation of thecommunity concerned and the impact on the actual enjoyment of the rights.

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Let me illustrate this by the caselaw of the HRC on Article ICCPR. Re-gional institutions have done a similar assessment. The cases before the HRCbroadly concerned indigenous peoples and their rights to land, which wereinterfered with by the state to promote economic development by grantingpermissions to companies for logging, mining, etc. As a consequence, indige-nous peoples were prevented from using the land for their traditional ways ofhunting, fishing and reindeer and llama herding. The HRC has consistentlyargued that such traditional ways of living fall within the scope of ‘the enjoy-ment of culture’ as protected by Article . Interestingly, it has taken a dyna-mic approach on the concept of culture and argued that Article ICCPR notonly protects the traditional economic activities or means of livelihood of acommunity. The fact that, for example, technological innovations are used inthese economic activities or that means are adapted to the modern way of lifeand technology, does not imply that Article is no longer applicable.

The cases further show that the HRC assesses the interference by the stateaccording to two criteria: first, has the community effectively participated inthe decision making process, taking into account that effective participation‘requires not mere consultation, but the free, prior and informed consent ofthe members of the community.’ Second, are the measures taken proportional,in other words, do they not have such a negative impact on the culture of thecommunity, that they endanger the very survival of the community and itsmembers. The impact and proportionality assessment show interesting simi-larities with the assessment of proportionality and the use of the margin ofappreciation by the European Court of Human Rights.

The above shows that international monitoring bodies play a crucial role inassessing whether states have found a proper balance between universal normsand national implementation, including the accommodation of cultural diver-sity. More research could be done in the coming years on these issues, in par-ticular on the UN treaty bodies, especially those with a relative short history ofsupervision, such as the Committee on Migrant Workers, or the ones with newindividual complaint procedures, such as the Committee on Economic, Socialand Cultural Rights and the Committee on the Rights of the Child.

Eye for Cultural Diversity but not Blind

Although international human rights law has eye for cultural diversity, itshould not be blind to the challenges posed by cultural diversity. As statedabove, culture may have negative effects as well. Culture can be used as a justi-fication for harmful practices that are in conflict with or limit the enjoyment of

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human rights. Cultural practices are very diverse, which makes it impossible tomake general, abstract statements about their acceptability in relation to hu-man rights. However, it should be emphasised that cultural practices that areclearly in conflict with international human rights law cannot be justified as areflection of cultural diversity. Respect for cultural diversity cannot be an argu-ment to systematically or grossly deny international human rights law. Inother words, in order for cultural practices to be accepted, they should not bein conflict with the values underlying international human rights law: humandignity, integrity and equality. In the Universal Declaration on Cultural Diver-sity and the Convention on the Protection and Promotion of the Diversity ofCultural Expressions it was clearly laid down that no one may invoke culturaldiversity in order to infringe upon human rights as guaranteed by the UDHRand by international law, or to limit the scope thereof.

It should be noted that harmful cultural practices are often formally prohib-ited by law. Even so, they may be practised, and sometimes even condoned bystates. This also shows that law alone cannot solve all issues and cannot byitself change cultural practices. Changes in cultural practices are most success-ful if they arise within the cultural community itself and are not imposed fromoutside, by law or by the state. This does of course not relieve states from theresponsibility to find ways to promote such changes.

Several treaties emphasise this role of the state in eradicating harmful cul-tural practices. The UN Convention on the Elimination of All Forms of Dis-crimination Against Women, for example, states in Article that ‘States Par-ties shall take all appropriate measures: (a) To modify the social and culturalpatterns of conduct of men and women, with a view to achieving the elimina-tion of prejudices and customary and all other practices which are based onthe idea of the inferiority or the superiority of either of the sexes or on stereo-typed roles for men and women.’ The CRC contains in Article () that‘States Parties shall take all effective and appropriate measures with a view toabolishing traditional practices prejudicial to the health of children.’

Several treaty bodies have also emphasised the role of the state in abandon-ing cultural practices that are against human rights. The Committee on theElimination of All Forms of Discrimination Against Women (CEDAW) hasadopted a specific recommendation on female circumcision, urging States toeradicate this practice harmful to the health of women. In its General Com-ment on the equal enjoyment of rights, the HRC has also stated that ‘StatesParties should ensure that traditional, historical, religious or cultural attitudesare not used to justify violations of women’s rights to equality before the lawand to equal enjoyment of all Covenant rights.’ It has also listed a number ofharmful cultural practices as violations of human rights. It maintains that fe-

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male infanticide, widow burning and dowry killings are violations of the rightto life, that forced abortion, forced sterilisation and forced genital mutilationare violations of the right not to be subjected to inhumane and degradingtreatment, and that forced male guardianship is a violation of the freedom ofmovement.

UN treaty bodies further systematically encourage states to promotechanges in harmful cultural practices in their dialogue with states under theperiodic reporting procedure. Studies have shown that states during this dialo-gue often – at least formally – agree on the harmfulness or unacceptability ofsuch practices, which is why they are prohibited by law. These states point out,however, that changing the deeply rooted cultural convictions of certain com-munities is difficult and requires time and patience. Formal legislation prohi-biting harmful practices and culturally motivated violence is not sufficient toeliminate the practice altogether.

What becomes clear is that the adoption of laws prohibiting harmful cultur-al practices may be necessary, but that it is not always the most effective way toget rid of them: education, awareness raising are other important elements inthis regard. And sometimes a law can even be counterproductive, especially ifit is itself in violation of human rights.

A good example of this, in my view, is the proposed ban on the wearing offacial coverage in public buildings, public transport and educational andhealth institutions in The Netherlands. Although other forms of facial cover-age are also covered by this law, it is primarily aimed at women wearing fullbody and face coverage, popularly referred to as a burqa. The reason for thelaw is that a burqa or niqaab would be an obstacle to open communicationand would not fit in a social order in which women have their own, equalposition in public life. Furthermore, the law aims to protect women, because‘it cannot be excluded’ that these women do not wear a face cover out of theirown choice, but are forced to do so by their relatives or tradition. Although itis admitted that this law implies a limitation of the right to freedom of religion,the government finds such limitation necessary and proportionate to achievethe aim of protecting public order, which includes open communication andequality between men and women. It is also admitted that this law impliesindirect discrimination on the basis of sex and religion, but the Dutch gover-nment finds a reasonable justification in the interest of a general norm allo-wing all to equally participate in public life.

The Council of State rejected the law, as it did with earlier similar proposals.It concludes that the government aims to solve a principal problem with legalmeans and asks the crucial questions: is there a principle problem and can andshould this problem be solved by this law? It answers both questions in the

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negative. Its arguments, in a nutshell, are these: it cannot be assumed thatwomen are forced to wear facial coverage; feelings of safety are mainly subjec-tive and cannot be a basis for a general prohibition; and the limitation of thefreedom of religion does not meet a pressing social need and is not propor-tionate to the aim pursued. The government did not agree with the Councilof State and has decided to send the law to the Lower House anyway. TheMinister of the Interior will defend the law, even though after the fall of theDutch government last April she stated that she would not shed a tear if thelaw would never pass.

It will not come as a surprise that I agree with the Council of State. Themost important argument is that this law is too much of an exercise for some-thing of which it is not clear what the problem is. And if there is a problem,there are other, more appropriate ways to solve it. Let us first try to unveil theproblem. Many premises are put forward in the law, but not all of them areproven by facts. Professor Moors of the University of Amsterdam has done avery interesting study on women wearing face coverage in The Netherlands.

I advise everyone to read this study, because it really is an eye-opener.Moors firstly criticises the use of the term ‘burqa’. In fact, hardly any wo-

man in The Netherlands wears a burqa. The term burqa refers to the blue fullbody dress that is worn by women in, for instance, Afghanistan. Women inThe Netherlands mostly wear a black, loose veil covering their faces. Moorsestimates from her study that around women regularly wear a face veil andaround women do so occasionally. This means that our ‘problem’ iscaused by about women. Moors further eliminates or nuances a lot of theprejudices surrounding the wearing of the face veil. She argues that a face veilcould indeed be an obstacle to open communication and participation in so-ciety. However, women wearing face veils are not the only ones creating suchobstacles. There are a number of other groups in society that do not want toparticipate in social life for religious or other reasons. And is communicationwith a woman wearing a face veil more difficult then, for instance, with aperson whose face is fully covered with tattoos? Moreover, communication isfull of means that are used without people actually seeing each other, such astelephone, email and social media. Moors further argues that there is nocausal relationship between the wearing of a face veil and the neglect or sup-pression of women. The women involved do not consider the veil as a symbolnor as a means of suppression. Most women indicate that they are not forcedat all by their husbands or family members to wear the face veil. It is more theopposite, husbands and family members discourage or disapprove of it. Sheconcludes that the attention for the face veil is disproportionate and that thereis no real social problem.

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I could not agree more. And I would like to add that even if there is a realproblem, it is questionable whether a law prohibiting this practice would actu-ally solve it. If women were really forced to wear a face veil, criminalising themis likely to have an adverse effect. If we really can say that women wear the faceveil because they feel subordinate to men, it seems better to address this issueby dialogue and education than by forcing them to change their views by law.Cultures and identities are not static, change is possible and human rights canbe instrumental in such change.

Concluding Remarks

I have tried to show that the international human rights system, includingstandards, norms and supervisory mechanisms, allows for the flexibility to bereceptive to cultural pluralism, between and among states, communities andindividuals. Individuals and communities can use international human rightslaw to develop and maintain cultures and promote and protect their own cul-tural identity. States, while implementing international human rights law, haveto balance different cultural interests. States’ performance in this regard ismonitored by national and international supervisory bodies.

At the same time, the flexibility of the international human rights system isnot unlimited and not all expressions of cultural diversity are protected byinternational human rights law. There is no room for flexibility in cases ofgross human rights violations. Accommodation of diversity cannot condoneharmful cultural practices or the exclusion of certain categories of persons,such as women, from the enjoyment of human rights.

International human rights law and cultural diversity require mutual re-spect: the reception of cultural diversity can only take place in a context inwhich the cultural community involved shows respect for international humanrights law. Cultural communities may have a certain amount of freedom toarrange their internal structure and institutions, but they should always guar-antee and respect the rights and freedoms of their individual members, includ-ing, among other things, the right to take part in the decision-making pro-cesses that determine and develop the community's cultural life, as well as theright and freedom to leave the community. They should also respect the rightsof their members to participate in society at large, e.g. through education, elec-tion processes and labour.

To conclude: The international human rights system offers many entrypoints to accommodate and promote cultural diversity. The flexible characterof international human rights law should not be seen as a sign of weakness,

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but as an acknowledgement of the necessity to incorporate the large variety ofsituations of individuals, communities and states in a universal system. Inter-national human rights law provides many possibilities for individuals andcommunities to enjoy, maintain and develop their culture, which is so crucialfor them to be able to live their lives in dignity.

Returning to Donders’ law: the international human rights system serves asthe brain that promotes a steady multidimensional focus, while allowing forthe moves and turns that are necessary to accommodate cultural diversity atdifferent levels and among different states, communities and individuals.However, just as the real brain is still largely a mystery to us, there is still a lotof research to be done in the area of human rights and cultural diversity. Ihope, together with others within and outside this Faculty, to contribute tosuch research in the coming years.

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Notes

. This constitutes an expanded version of my inaugural lecture spoken at June, with full citation references. The author would like to express her thanks toJanneke Gerards and Nicola Jägers for their valuable input and Celine Vossen forher help in collecting documents.

. J. Molenschot, ‘La morte di Francisco Cornelio Donders’, L’opinione, Giornalequotidiano, Marzo , No. , in: B.J. Stokvis, ‘Levensbericht F.C. Donders’,in: Jaarboek, , Amsterdam, pp. - at , made available by the digital libraryof the Royal Netherlands Academy of Arts and Sciences (KNAW).

. Donders’ Law: ‘for any determinate position of the line of fixation with respect tothe head, there corresponds a definite and invariable angle of torsion, independentof the volition of the observer and independent of the manner in which the line offixation has been brought to the position in question’, Medical Encyclopedia, :http://www.uu.nl/NL/universiteitsmuseum/collectie/humanegeneeskunde/oog-heelkunde/Pages/PhaenophthalmotroopvanDonders.aspx (last accessed June)

. Universal Declaration on Cultural Diversity, proclaimed by the General Conferen-ce of UNESCO, Paris, November , preamble.

. Y.M. Donders, Towards a Right to Cultural Identity?, School of Human RightsResearch Series, No. , Intersentia, Antwerp, , pp. -; W. Kymlicka,Multi-cultural Citizenship – A Liberal Theory of Minority Rights, Clarendon Press, Ox-ford, , p. ; B. Parekh, Rethinking Multiculturalism – Cultural Diversity andPolitical Theory, Macmillan Press, Basingstoke, , pp. -, .

. World Commission on Culture and Development, Our Creative Diversity, UNES-CO Publishing, Paris, , p. .

. Universal Declaration on Cultural Diversity, proclaimed by the General Conferen-ce of UNESCO, Paris, November , preamble.

. Convention on the Protection and Promotion of the Diversity of Cultural Expres-sions, adopted by the General Conference of UNESCO on October , entryinto force on March , Article ().

. ‘Statement on Human Rights’, American Anthropologist , , , submit-ted to the UN Human Rights Commission drafting the Universal Declaration ofHuman Rights. See on universalism and cultural relativism, inter alia, J. Donnelly,Universal Human Rights in Theory and Practice, Cornell University Press, London,, pp. -; Douglas Lee Donoho, ‘Relativism Versus Universalism in Hu-man Rights: The Search for Meaningful Standards’, Stanford Journal on Inter-national Law, -, pp. -; Fernand de Varennes, ‘The Fallacies in the“Universalism versus Cultural Relativism” Debate in Human Rights Law’, AsiaPacific Journal on Human Rights and the Law , , pp. -; Eibe Riedel, ‘Uni-versality of Human Rights and Cultural Pluralism’, in: Ch. Starck (ed.): Constituti-onalism, Universalism and Democracy: A Comparative Analysis (Studien undMaterialien zur Verfassungsgerichtsbarkeit), Vol. , , pp. -; Ann-Belinda

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S. Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’, Hu-man Rights Quarterly, Vol. No. , , pp. -.

. Universal Declaration on Human Rights, adopted and proclaimed by General As-sembly resolution A (III) of December .

. The European Court of Human Rights has adopted this approach by stating that,while the purpose of the European Convention on Human Rights was to lay downinternational standards, ‘this does not mean that absolute uniformity is required’.See ECtHR, Sunday Times v. United Kingdom, Appl. No. /, decision of November , para. .

. Advisory Council on International Affairs, Universality of Human Rights. Princi-ples, Practice and Prospects, Advice No. , The Hague, November , p. .

. Jack Donnelly, ‘The Relative Universality of Human Rights’, Human Rights Quar-terly , , pp. -, at and .

. Eva Brems, ‘Reconciling Universality and Diversity in International HumanRights: A Theoretical and Methodological Framework and Its Application in theContext of Islam’, Human Rights Review, Vol. , No. , April-June , pp. -, at-; Eva Brems, ‘Reconciling Universality and Diversity in International HumanRights Law’, in: Andras Sajo (ed.), Human Rights with Modesty: the Problem ofUniversalism, Koninklijke Brill, , pp. -, at -. Other authors agreethat the international human rights system should be or is flexible enough to inte-grate cultural differences: Niels Petersen, ‘International Law, Cultural Diversityand Democratic Rule: Beyond the Divide Between Universalism and Relativism’,Asian Journal of International Law, , , pp. -, at -; David Kinley,‘Bendable Rules: The Development Implications of Human Rights Pluralism’, in:B. Tamanaha, C. Sage and M. Woolcock (eds.), Legal Pluralism and Development– Scholars and Practitioners in Dialogue, CUP, , pp. -. Other authors,however, also emphasise the need for a flexible and dynamic approach of cultures,see Preis, , supra note , pp. -; Brems in Sajo, , pp. -.

. Abdullahi Ahmed An-Na’Im (ed.), Human Rights in Cross-Cultural Perspectives: AQuest for Consensus, University of Pennsylvania Press, Pennsylvania, , pp. -.

. Kinley, , supra note , pp. -.. Convention on the Protection and Promotion of the Diversity of Cultural Expres-

sions, adopted by the General Conference of UNESCO on October , entryinto force on March .

. The European Court of Human Rights has maintained that pluralism is crucial fordemocratic societies. It has stated that ‘the existence of minorities and differentcultures in a country is a historical fact that a democratic society has to tolerateand even protect and support according to the principles of international law.’ SeeECtHR, Sidiropoulos and others v. Greece, Appl. No. /, July , paras. and . It has furthermore stated that the State should not oppose possible ten-sion between different communities by eliminating pluralism, but should ensurethat different communities tolerate each other, see ECtHR, Serif v. Greece, Appl.No. /, December , paras. , , , -. See, also ECtHR, Kjeldsen,Busk, Madsen and Pedersen v. Denmark, Appl. Nos. /; / and /, December , para. , in which the Court confirmed that pluralism in educa-tion is crucial in a democratic society.

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. The term ‘pluralism’ is also used to describe differences in legal systems and pro-cedures or in institutional structures between and within States. Here I focus oncultural pluralism in relation to the substantive aspects of international humanrights law.

. Research shows that these reservations often reflect the same issues as expressedduring the drafting of the treaty. See J. Klabbers, ‘On Human Rights Treaties, Con-tractual Conceptions and Reservations’, in I. Ziemele (ed), Reservations to HumanRights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconci-liation, , pp. -, at .

. Seibert-Fohr, ‘The Potentials of the Vienna Convention on the Law of Treatieswith respect to Reservations to Human Rights Treaties’, in I. Ziemele (ed), Reser-vations to Human Rights Treaties and the Vienna Convention Regime: Conflict,Harmony or Reconciliation, , pp. -, at .

. Eric Neumayer, ‘Qualified Ratification: explaining reservations to internationalhuman rights treaties’, () Journal of Legal Studies, , pp. - at .

. Ibidem, p. ; V. Pergantis, ‘Reservations to Human Rights Treaties, Cultural Re-lativism and the Universal Protection of Human Rights’, in K. Koufa (ed), Multi-culturalism and International Law, , pp. -, at -, , .

. Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. ,p. , done at Vienna on May , entry into force on January , article(c).

. Vienna Convention on the Law of Treaties, article .. Convention on the Rights of the Child, United Nations, Treaty Series, vol. , p. ,

done at New York, November , entry into force on September .. The texts of the reservations and objections were taken from the website of the UN

Office of the High Commissioner for Human Rights www.ohchr.org and the UNtreaty collection database, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-&chapter=&lang=en (last accessed on June).

. See the objections by Austria, Denmark, Germany, Ireland, The Netherlands, Nor-way, Portugal and Sweden.

. As the Human Rights Committee stated: ‘because the operation of the classic ruleson reservations is so inadequate for the Covenant, States have often not seen anylegal interest in or need to object to reservations. The absence of protest by Statescannot imply that a reservation is either compatible or incompatible with the ob-ject and purpose of the Covenant’, see Human Rights Committee, General Com-ment No. : ‘Issues Relating to Reservations Made Upon Ratification or Accessionto the Covenant or the Optional Protocols Thereto, or in Relation to Declarationsunder Article of the Covenant’, Fifty-Second Session, November (UNDoc. CCPR/C//Rev./Add.) para.. See, also, Christine Chinkin, ‘Reservationsand Objections to the Convention on the Elimination of All Forms of Discrimina-tion Against Women’, in J.P. Gardner (ed.), Human Rights as General Norms anda State’s Right to Opt Out – Reservations and Objections to Human Rights Conven-tions, , pp. -, at ; L. Lijnzaad, Reservations to UN Human Rights Treaties– Ratify or Ruin?, Martinus Nijhoff Publishers, Dordrecht/Bostons/London, ,p. .

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. This is in line with Article ()(b) of the Vienna Convention on the Law of Trea-ties.

. The latter is also included in Article of the Convention on the Rights of theChild.

. Committee on the Rights of the Child, Consideration of Reports of States Parties –Canada, May , UN Doc. CRC/C/SR., para. .

. Committee on the Rights of the Child, Concluding Observations Canada, June, UN Doc. CRC/C//Add., para. ; Concluding Observations Canada, October , UN Doc. CRC/C//Add., para. ; Concluding Observations Dji-bouti, October , UN Doc. CRC/C/DJI/CO/, paras. -; Concluding Obser-vations Qatar, October , UN Doc, CRC/C/QAT/CO/, paras. -.

. African (Banjul) Charter on Human and Peoples' Rights, adopted June ,OAU Doc. CAB/LEG// rev. , I.L.M. , entry into force on October ;American Convention on Human Rights (Pact of San José, Costa Rica), adopted on November , entry into force on July ; Convention for the Protectionof Human Rights and Fundamental Freedoms, CETS No. , adopted on No-vember , entry into force on September .

. UN World Conference on Human Rights, Vienna Declaration and Programme ofAction, June , para. , ILM, , ; UN Doc A//, , GA Res./, Regional arrangements for the promotion and protection of human rights, U.N. GAOR Supp. (No. ) p. . See, also, Christoph Schreuer, ‘Regionalism v.Universalism’, EJIL, , pp. -, at .

. On the issue of duties and collective rights in the African Charter as a reflection ofAfrican history and culture, see Makau Wa Mutua, ‘The Banjul Charter and theAfrican Cultural Fingerprint: An Evaluation of the Language of Duties’, VirginiaJournal of International Law, Vol. , -, pp. -.

. The Inter-American Convention on the Prevention, Punishment and Eradication ofViolence against Women (Convention of Belém do Pará), adopted on June ;entry into force on March .

. The Inter-American Convention on Forced Disappearance of Persons, adopted on June ; entry into force on March .

. Protocol to the African Charter on Human and Peoples' Rights on the Rights ofWomen in Africa, adopted by the nd Ordinary Session of the Assembly of theUnion, Maputo, CAB/LEG/. (Sept. , ); reprinted in Afr. Hum. Rts. L.J., entry into force on November .

. Council of Europe Framework Convention for the Protection of National Minorities,adopted on February , entry into force on February , CETS No. ;European Charter on Regional and Minority Languages, adopted November, entry into force on March , CETS No. .

. I focus on general international human rights instruments, not on the specific in-struments adopted for certain peoples or communities, such as indigenous peoplesor minorities. Such instruments, for example the UN Declaration on the Rights ofPersons belonging to National or Ethnic, Religious and Linguistic Minorities() and the UN Declaration on the Rights of Indigenous Peoples (), con-tain several provisions recognising and valuing their specific cultural characteris-tics and giving them rights to preserve and promote them.

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. Donders, , supra note , pp. -.. Human Rights Committee, General Comment No. , Non-Discrimination, No-

vember , para. . The European Court of Human Rights has reaffirmed this inmany cases, including the cases of Thlimmenos v. Greece, Appl. No. /, April , para. and D.H. and others v. the Czech Republic, Appl. No. /, February , para. .

. Legal doctrine generally distinguishes between differentiation, distinction and dis-crimination. Differentiation is difference in treatment that is lawful; distinction is aneutral term which is used when it has not yet been determined whether differencein treatment is lawful or not; and discrimination is difference in treatment that isarbitrary and unlawful. Consequently, only treatment that results in discrimina-tion is prohibited. See M. Bossuyt, Prevention of Discrimination – The Conceptand Practice of Affirmative Action, June , UN Doc. E/CN./Sub. //,para. , p. .

. See, also, Article () of the International Convention on the Elimination of RacialDiscrimination, adopted by General Assembly resolution (XX) of Decem-ber , entry into force on January : ‘Special measures taken for the solepurpose of securing adequate advancement of certain racial or ethnic groups orindividuals requiring such protection as may be necessary in order to ensure suchgroups or individuals equal enjoyment or exercise of human rights and fundamen-tal freedoms shall not be deemed racial discrimination, provided, however, thatsuch measures do not, as a consequence, lead to the maintenance of separate rightsfor different racial groups and that they shall not be continued after the objectivesfor which they were taken have been achieved.’ The Human Rights Committee hasfurther stated that the principle of equality under Article ICCPR may someti-mes require States parties to take affirmative action to diminish or eliminate con-ditions which cause or help to perpetuate discrimination prohibited by the ICCPR.Human Rights Committee, General Comment No. , Non-Discrimination, No-vember , para. .

. Committee on Economic, Social and Cultural Rights, General Comment No. ,The Right to Education, December , paras. -.

. ECtHR, Belgian Linguistics case or Roger van de Berghe v. Belgium, Application No./, European Court of Human Rights, Decision of July , YEHR,, p. . See, also, the Council of Europe Framework Convention for the Protec-tion of National Minorities, adopted on February , entry into force on Fe-bruary , CETS No. , Article which includes that persons belonging to anational minority have the right to set up and manage their own private educatio-nal establishments, but that this shall not entail any financial obligation for statesparties.

. For a long time, it was argued that cultural rights were a neglected and underdeve-loped category of human rights. The last decades, more interest is shown by acade-mics, States and monitoring bodies. See, inter alia: Y.M. Donders, Towards a Rightto Cultural Identity?, Antwerp: Intersentia, ; F. Francioni & M. Scheinin (eds.),Cultural Human Rights, Leiden: Martinus Nijhoff Publishers, ; S.A. Hansen,‘The Right to Take Part in Cultural Life: Towards Defining Minimum Core Obli-gations Related to Article ()(a) of the International Covenant on Economic, So-

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cial and Cultural Rights’, in: A. Chapman & S. Russell (eds.), Core Obligations:Building a Framework for Economic, Social and Cultural Rights, Antwerp: Inter-sentia, , pp. -; S. Marks, ‘Defining Cultural Rights’ in: M. Bergsmo(ed.), Human Rights and Criminal Justice for the Downtrodden – Essays in Honourof Asbjorn Eide, Leiden: Martinus Nijhoff Publishers, , pp. -; P. Meyer-Bisch, (ed.), Les Droits Culturels, une catégorie sous-développée de droits del’homme, Actes du VIIIe Colloque interdisciplinaire sur les droits de l’homme, Fri-bourg: Editions Universitaires, ; Laura Reidel, “What are Cultural Rights? Pro-tecting Groups with Individual Rights”, Journal of Human Rights, :, , pp. -. See, also, the Déclaration des droits culturels, drafted by the Fribourg Group ofexperts and launched in Geneva on May , see (http://www.unifr.ch/iiedh/fr/publications/declaration-de-fribourg). An important development in the furtherelaboration of cultural rights is the mandate of the Special Rapporteur in the Fieldof Cultural Rights, which was extended in April by the Human Rights Coun-cil: UN Doc. A/HRC/RES//, April .

. International Covenant on Civil and Political Rights, adopted by General Assemblyresolution A (XXI) of December , entry into force March ; In-ternational Covenant on Economic, Social and Cultural Rights, adopted by GeneralAssembly resolution A (XXI) of December , entry into force January.

. Y.M. Donders, ‘The legal framework of the right to take part in cultural life’, in: Y.Donders & V. Volodin (eds.), Human Rights in Education, Science and Culture:Legal Developments and Challenges, Paris: UNESCO/Ashgate Publishing, Decem-ber , pp. -.

. Committee on Economic, Social and Cultural Rights, General Comment No. onThe Right of Everyone to Take Part in Cultural Life (Article para. (a) of theInternational Covenant on Economic, Social and Cultural Rights), UN Doc. E/C./GC/, December . The Council of Europe Parliamentary Assemblyadopted a Recommendation on the right of everyone to take part in cultural life,Recommendation , adopted by the Assembly on January (th sitting).

. ECtHR, Müller and others v. Switzerland, Appl. No. /, May ;ECtHR, Vereinigung Bildender Künstler v. Austria, Appl. No. /, January; ECtHR, Ulusoy and others v. Turkey, Appl. No. /, May ;ECtHR, Kar and others v. Turkey, Appl. No. /, May ; ECtHR, EkinAssociation v. France, Appl. No. /, July ; ECtHR, Akdas v. Turkey,Appl. No. /, February .

. ECtHR, Sidiropoulos and others v. Greece, Appl. No. /, July ;ECtHR,Stankov and the United Macedonian Organisation Ilinden v. Bulgaria,Appl. Nos. / and /, October and ECtHR, Gorzelik and othersv. Poland , Appl. No. /, December .

. Committee on Economic, Social and Cultural Rights, General Comment No. ,The Right to the Highest Attainable Standard of Health (Article ), August, para. c.

. These have been added to the list of intangible heritage in under the Conven-tion for the Safeguarding of the Intangible Cultural Heritage, adopted on Octo-

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ber , entered into force on April , UNESCO Doc. MISC//CLT/CH/. See: http://www.unesco.org/culture/ich/index.php?lg=en&pg=

. Committee on Economic, Social and Cultural Rights, General Comment No. ,The Right to Adequate Food (Article ), May , paras. , and .

. ECtHR, Chaáre Shalom ve Tsedek v. France, Appl. No. /, June . Inthis case the European Court argued that ritual slaughtering falls within the scopeof article (freedom of religion) and that interferences have to be assessed by thelimitation criteria of Article () ECHR.

. See Article ICCPR and Article ECHR and ECtHR, Kamasinski v. Austria,Appl. No. /, December , para. .

. ECtHR, Buckley v. the United Kingdom, Appl. No. /, September and ECtHR, Chapman v. the United Kingdom, Appl. No, /, January .

. An important exception is the right to self-determination in Article ICESCR andArticle ICCPR, which is defined as a right of peoples. The African Charter onHuman and Peoples’ Rights () includes the collective right of peoples to cultu-ral development (Article ). The UN Declaration on the Rights of IndigenousPeoples () includes collective rights to self-determination and cultural auto-nomy (Articles and ).

. Donders, , supra note , pp. -; Brems in Sajo, , supra note , p. .. Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds.), International Hu-

man Rights Law, OUP, , p. .. According to Kinley, the limitation clauses were originally not meant to reflect or

allow for cultural pluralism. They were included for political pragmatic reasons, toensure that States kept their competence to curtail or suspend rights if necessary.However, they have always been used as a vehicle for protecting cultural differen-ces. See Kinley, , supra note , pp. -.

. Monitoring is also performed by the Human Rights Council, for instance throughthe Universal Periodic Review Process, but as this is a political body, composed ofstates’ representatives, it is not dealt with here.

. See, for an overview of the practice of the treaty bodies Michael Ado, ‘Practice ofUnited Nations Human Rights Treaty Bodies in the Reconciliation of Cultural Di-versity with Universal Respect for Human Rights’, Human Rights Quarterly, Vol., No. , August , pp. -. An overview of cases for the European Courtof Human Rights is given in Council of Europe, Research Division, Cultural Rightsin the Caselaw of the European Court of Human Rights, January ; Eva Brems,‘Human Rights as a Framework for Negotiating/Protecting Cultural Differences –An Exploration of the Case-Law of the European Court of Human Rights’, in:Marie-Claire Foblets, Jean-Francois Gaudreault-Desbiens and Alison Dundes Ren-teln (eds.), Cultural Diversity and the Law – State Responses from Around theWorld, Brussels, , pp. -. See, also, Yvonne M. Donders, ‘Do CulturalDiversity and Human Rights make a Good Match?’, International Social ScienceJournal , , UNESCO, Blackwell Publishing, pp. -.

. ECtHR, Handyside v. the United Kingdom, Appl. No. /, December ,publications ECHR, Series A, Vol. , para. .

. Brems, , supra note , pp. -; Janneke Gerards, ‘Pluralism, Deferenceand the Margin of Appreciation Doctrine’, European Law Journal, Vol. , No. ,

.

January , pp. -, at p. ; Yuval Shany, ‘Toward a General Margin ofAppreciation Doctrine in International Law?’, EJIL Vol. No. , , pp. -.

. Eyal Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’, NYU Journal of International Law and Politics, Vol. , -, pp. - atpp. -.

. Sweeney shows convincingly that cultural variations permitted by the use of themargin of appreciation do not amount to cultural relativism and do not under-mine universality. See J.A. Sweeney, ‘Margins of Appreciation: Cultural Relativityand the European Court of Human Rights in the Post-Cold War Era’, ICLQ, Vol., , pp. -.

. Benvenisti, -, supra note , pp. -; Brems, , supra note , pp., .

. An example of the HRC explicitly using the margin of appreciation doctrine is thecase of Hertzberg and Others v. Finland, Comm. No. /, April (UNDoc. CCPR/C//D//), para. .: ‘public morals differ widely. There is nouniversally applicable common standard. Consequently, in this respect, a certainmargin of discretion must be accorded to the national authorities.’ An examplewhere the HRC explicitly stated not to apply the margin doctrine is the case ofIlmari Länsman et al. v. Finland, Comm. No. /, October (UN Doc.CCPR/C//D//), para. .: ‘A State may understandably wish to encouragedevelopment or allow economic activity by enterprises. The scope of its freedom todo so is not to be assessed by reference to a margin of appreciation, but by referen-ce to the obligations it has undertaken in article .’ An example of a case in whichthe HRC did not explicitly apply the margin doctrine, but used a similar method isthe case of Mahuika et al v. New Zealand, Comm. No. /, October (UN Doc. CCPR/C//D//), paras. . and . in which the HRC elabora-ted on the national context in which the limitations were to be considered.

. Human Rights Committee, Ranjit Singh v. France, Communication No. /, September (UN Doc. CCPR/C//D//); ECtHR, Mann Singh v.France, Appl. No. /, November , inadmissibility decision. See, alsoECtHR, Phull v. France, Appl. No. /, January , inadmissibility deci-sion (concerning security checks at airports).

. Human Rights Committee, Ranjit Singh v. France, Communication No. /, September (UN Doc. CCPR/C//D//) para. ..

. ECtHR, case of G. and E. v. Norway, Appl. Nos. / and /, October.

. Inter-American Commission on Human Rights, Yanomami Indians in Brazil ,Case No. , Inter-American Commission Res. No. /, March , concer-ning the protection of culture in relation to the right to health OAS Doc. OEA/Ser.l/V/II., doc. , rev. ; Inter-American Court of Human Rights,Mayagna (Sumo)Indigenous Community of Awas Tingi versus the Republic of Nicaragua, Ser. C,Case No. , judgment of August , concerning the collective dimension ofthe right to property to be respected by States in accordance with indigenous cus-toms.

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. The African Commission on Human and Peoples’ Rights has for some time beenhesitant to deal with indigenous peoples’ rights, because it found the common useof the term ‘indigenous peoples’ not to be applicable to the African context, be-cause it considered all Africans to be indigenous to Africa, being pre-colonial andoriginal to the continent. It did, however, deal with indigenous land rights in thecase of Centre for Minority Rights Development (Kenya) and Minority RightsGroup International on Behalf of Endorois Welfare Council v. Kenya, Communica-tion /, decision adopted by the African Commission on Human and Peo-ples’ Rights in May and endorsed by the African Union in January . See,Kaeleboga N. Bojosi and George Mukundi Wachira, ‘Protecting Indigenous Peo-ples in Africa: An Analysis of the Approach of the African Commission on Humanand Peoples’ Rights’, African Human Rights Law Journal, , , pp. -;Jeremie Gilbert, ‘”Indigenous Peoples” Human Rights in Africa: The PragmaticRevolution of the African Commission on Human and Peoples’ Rights’, ICLQVol. , January , pp. -.

. Ivan Kitok v. Sweden, Comm. No. /, July (UN Doc. CCPR/C//D//); Ilmari Länsman et al. v. Finland, Comm. No. /, October (UN Doc. CCPR/C//D//); Jouni E. Länsman et al. v. Finland, Comm. No./, October (UN Doc. CCPR/C//D//); Anni Äärelä andJouni Näkkäläjärvi v. Finland, Comm. No. /, October (UN Doc.CCPR/C//D//); Angela Poma Poma v. Peru, Comm. No. /, April (UN Doc. CCPR/C//D//) .

. Ilmari Länsman et al. v. Finland, Comm. No. /, October , para. ... Angela Poma Poma v. Peru, Comm. No. /, April , para. ... The Optional Protocol to the ICESCR (UN Doc. A/RES//) was adopted on

December and has ratifications out of the needed to enter into force. TheOptional Protocol to the CRC (UN Doc. A/RES//) was adopted on Decem-ber and has no ratifications yet. Ten ratifications are needed to enter intoforce.

. Universal Declaration on Cultural Diversity, UNESCO, , Article ; Conventionon the Protection and Promotion of the Diversity of Cultural Expressions, UNESCO,, Article ().

. A similar provision can be found in Article () of the Protocol to the AfricanCharter on Human and Peoples’ Rights on the Rights of Women in Africa ():‘States Parties shall commit themselves to modify the social and cultural patternsof conduct of women and men...with a view to achieving the elimination of harm-ful cultural and traditional practices and all other practices which are based on theidea of the inferiority or the superiority of either of the sexes...’ See, also, RikkiHoltmaat and Jonneke Naber, Women’s Human Rights and Culture-From Dead-lock to Dialogue, Intersentia, , pp. -.

. Although ‘traditional practices’ are not defined, it becomes clear from the draftingdocuments that this provision was targeted against FGM. See Sonia Harris-Short,‘International Human Rights Law: Imperialist, Inept and Ineffective? Cultural rela-tivism and the UN Convention on the Rights of the Child’, Human Rights Quar-terly, Volume , No. , February , pp. -, at -.

.

. Committee on the Elimination of All Forms of Discrimination Against Women,General Recommendation No. , Female Circumcision, ninth session, .

. Human Rights Committee, General Comment No. , Equality of Rights BetweenMen and Women (Article ), March , UN Doc. CCPR/C//Rev./Add. ,para. .

. Ibidem, paras. , .. Harris-Short, , supra note , pp. -, p. ; Ado, ,supra note , pp.

-.. Tweede Kamer der Staten-Generaal, Vergaderjaar -, item Instelling

van een algemeen verbod op het dragen van gelaatsbedekkende kleding, nr. Me-morie van Toelichting, p. .

. Ibidem, pp. -.. Ibidem, p. .. Tweede Kamer der Staten-Generaal, Vergaderjaar -, item Instelling

van een algemeen verbod op het dragen van gelaatsbedekkende kleding, nr. Ad-vies Raad van State en nader rapport, pp. -.

. NRC Handelsblad, Spies verdedigt boerkaverbod niet langer, geen trek in PVV plan, May ; Volkskrant, Spies wil ideeën PVV niet meer verdedigen, boerkaverbodin de prullenbak, May . The Minister later denounced those remarks, arguingthat she made them in her capacity as a candidate for the leadership of the Chris-tian Democratic Party (CDA).

. Prof. dr. Annelies Moors, Gezichtssluiers. Draagsters en Debatten, AmsterdamSchool for Social Science Research, January .

. Ibidem, pp. -.. Ibidem, p. .. Ibidem, pp. -, .. Ibidem, pp. -, .. Ibidem, p. .. Ado, , supra note , pp. -; Brems, , supra note , p. ; Brems in

Sajo, , supra note , pp. , ; Donders, , supra note , p. ; Reidel,, supra note , pp. -, .

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