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Title: Cultural values and human rights : a matter of interpretation
Author: McGrogan, David
ISNI:       0000 0004 2745 5961
Awarding Body: University of Liverpool
Current Institution: University of Liverpool
Date of Award: 2012
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This thesis addresses a neglect of legal analysis in the scholarship on cultural relativism, international human rights law, and Asian values. While a wealth of scholarship exists on cultural relativism as a philosophical or political question, and while the cultural rights of members of minority groups are often addressed from a legal perspective in the context of the European Court of Human Rights, the interaction between broader cultural values – those operant at the societal level – and human rights standards has not been adequately analysed as a question of law. Chapter I provides an overview of the debates on cultural relativism to detail how questions of law have been neglected, and how they would complement the existing scholarship if fully addressed. It concludes there is a need to examine how far international human rights law permits cultural values to affect the manner and extent of implementation as an empirical issue. Chapter II makes it clear that the core question is one of interpretation – i.e., in seeking to establish whether cultural values are permitted to affect implementation of human rights norms in any fashion, this hinges on how the terms of international human rights treaties are interpreted so as to permit it, or not. Chapter III then takes this principle and sets out what the accepted rules of treaty interpretation are, and how international human rights treaty terms in particular are to be interpreted in light of their unique character. This leads us to what is sometimes argued to be the legal basis for the programmatic interpretation of human rights treaties: Article 31(3)(b) of the Vienna Convention on the Law of Treaties, or subsequent practice establishing the agreement of the parties on a given interpretation. We postulate that the interpretations given by the United Nations human rights treaty bodies are potentially constitutive of subsequent practice under the Vienna Convention, and, if so, we argue that this would be the most appropriate focal point for answering our core question. The rules guiding the use and formation of subsequent practice, however, are not clear. Chapter IV examines what guidelines have been developed in other contexts; in particular, this involves surveying the jurisprudence of the International Court of Justice and the World Trade Organization’s Dispute Settlement Procedure, and drawing some inferences from that jurisprudence to arrive at a method for assessing the development of subsequent practice in international human rights law. Using this pattern of analysis, Chapter V then illustrates how it can be applied by using a case study – the interpretive practice of the Committee for the Elimination of Discrimination Against Women regarding Singapore, Malaysia, and Indonesia – and draws preliminary conclusions to demonstrate how this mode of analysis addresses the gap in the scholarship.
Supervisor: Pentassuglia, Gaetano; Sattorova, Mavluda Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: K Law (General)