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Unrecognized cultural assumptions

Misapplication of International Legal Norms in Socially Abnormal Situations (Part #6)

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International norms are also subject to challenge from cultures who perceive bias in the international norms that have been formulated during the Cold War period. This is most evident in the challenge by Asian countries to Western concepts of human rights. The acclaimed universality of human rights may in practice be seen to be a result of two forces:
  1. political pressures from major powers on certain client states to approve essentially Western concepts of human rights (a phenomenon noted even at the 1993 UN Conference on Human Rights in Vienna)
  2. political opportunism by certain countries in cases where little importance was attached to signature of an international convention

Preoccupation with the legal perspective has been used as a convenient instrument, notably by the West, to place pressure on countries with other cultures and traditions. To some degree at least, the West has been deluded by the willingness of such countries to accede to international conventions. This is notably the case with the smaller countries of Eastern Europe who have naturally been anxious to show their willingness to act as good citizens following their recent changes of regime.

What has not been effectively explored is the status of written agreements in different cultures and in contrast to that prevailing in the West. From a legal perspective, necessarily insensitive to cultural nuances, the attitude towards legal instruments is assumed to be uniform. This is a dangerous and unfruitful assumption in these turbulent times.

It may be useful to contrast:

  • countries where signature and ratification embodies principles in law which is then automatically, and unquestionably, enforced
  • countries where signature and ratification result in laws which may, or may not, be enforced according to circumstances and political convenience
  • countries where signature (with or without ratification) is treated as a diplomatic public relations gesture totally unrelated to intentions regarding any form of enforcement

It is a Western assumption that legal documents are worth the paper they are written on. In other countries and cultures, such documents may either be of questionable significance or completely worthless as a constraint on behaviour. Governments may not consider themselves bound by agreements made by their predeccessors, especially when circumstances change significantly. This is even true to some degree in the West. The fact that commercial contracts can be conducted between cultures may have less to do with any legal document than with the need to continue to do business and maintain credit-worthiness within the international financial system. The number of contractual difficulties may be as much evidence of differences of cultural interpretation.

It is worth noting that on the occasion of a survey of signatures and ratifications of international human rights treaties in the middle of the Cold War, the two countries which had 'performed' best in this respect were Yugoslavia and Ecuador, far exceeding countries such as Switzerland or the USA (Judge, 1971). If such indicators were to be taken seriously, they gave rise to the results indicated in Table 2 (reproduced from the 1971 study).

It is clear that certain countries place far less emphasis on legal documents and legal procedures than is typically the case in the West. Examples include Japan and Indonesia. Of far greater importance than the written document is trust in the contractual partner. This is also characteristic of some economic sectors, such as the diamond industry. What are the implications for such cultural attitudes in the case of international legal norms? Why has the Council of Europe chosen not to explore such matters in endeavouring to deal with countries such as Russia?

Given Yugoslavia's earlier willingness to sign human rights conventions during the Cold War period, it might be asked whether recent Western concentration on negotiation and signature of peace plans for Bosnia has not been completely naive. The lack of significance attached to such signed agreements is indicated by the frequency with which cease-fire agreements have been broken there. Such naivety inhibits the development of more fruitful ways of formulating the challenge and the necessary response.

The challenge of such cultural assumptions have been of some concern for a number of years within the business community. This is illustrated by the pioneering work of Edward Hall (1966-1984), Geert Hofstede (1984) and, more recently by Ronnie Lessem (1994) and Fons Trompenaars (1993). These authors have all been concerned with the implications of cultural diversity for practical agreement or collaboration. The challenges have even become apparent between Western cultures.

These issues have not been explored in relation to the significance attached to international legal conventions. It is not difficult to see that this would introduce additionaldimensions which would be embarrassing to deal with within the present conceptual frameworks. Embarassing or not, such differences have consequences for the manner in which legal principles are approached in different countries.

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