Emalus Library Online Documents Collection - Customary Law


Source:  E Law - the online journal of the School of Law, Murdoch University;  http://www.murdoch.edu.au/elaw/issues/v2n1/garkawe.txt

Sam Garkawe [*] [*] B.Sc., LL.B.(Mon), LL.M.(London), Attorney-at-Law (Cal.), Lecturer in Law, Southern Cross University.

The writer is grateful to Mr. Brian Opeskin for his valuable comments on an earlier draft of this article.

SUMMARY *Cultural relativist theory argues that because all individuals see the world through the filtered eyes of their own culture, attempts to impose a majority viewpoint on people with different cultural perceptions are unjust. Clearly, this has implications at both the international law level and the domestic legal level in multicultural societies such as Australia. The first part of this article addresses the theoretical issue of whether the doctrine of cultural relativism has validity. After determining that it does, the second part of the article addresses the practical question of how an acceptance of cultural relativism should affect the Australian legal system. During this discussion, topical issues are examined such as female circumcision and the Aboriginal customary punishment of spearing . While cultural relativism could have significant implications for our legal system, whether the doctrine can be successfully accommodated will depend upon the willingness of judges, legal practitioners, administrators and governments to realise the importance of "expert" evidence of cultural practices. They must be prepared to accept the expense and inconvenience of obtaining such evidence, and be willing to undergo cross-cultural training in order to understand the different cultural perceptions of the world. A lack of commitment to this will perpetuate the unfairness of the law in respect of minorities and the indigenous people of Australia, and make a mockery of our commitment to a just multicutural Australia.*


The last twenty years have seen many significant changes in Australian society. Among the most important has been a notable shift in its ethnic composition; Australia is now home to an ever growing number of peoples from all over the world[1]. As a consequence, there is a growing awareness and recognition that now not all Australians think and behave as white Anglo-Saxon Europeans. This has led successive Federal governments over the last twenty years to adopt the policy of multiculturalism[2], abandoning the former policy of assimilation. A further consequence of these changes has been a greater recognition of the intrinsic worth of Aboriginal culture, and the damage inflicted to this culture by over two hundred years of colonisation. The culmination of this realisation, from a legal point of view, occurred in 1992 when the High Court finally abandoned the notion of *terra nullius* and recognised native title as part of the common law[3]. In other ways the Australian legal system has tried, with various degrees of success, to adjust to and accommodate the growing influence of this recent multicultural policy[4]. A related development in the Australian legal system (and many others) is the growing importance and awareness of international law. This is evidenced by the expanding list of Treaties the Federal government has acceded to[5]; the increasing use of the external affairs power which allows the Federal government to legislate in respect of these Treaties[6] and the number of other mechanisms Australia has acceded to which allows its human rights laws to be scrutinised by international bodies[7],. Furthermore, there is a growing legal consensus that international human rights standards are relevant in interpreting our domestic law at least where it is ambiguous[8], and possibly also where there is a gap in our common law[9]. Also of significance is the recent ruling against Australia by the Human Rights Committee[10], the body that scrutinises state compliance with the *International Covenant on Civil and Political Rights* (hereafter "ICCPR"), in respect of the provisions of the Tasmanian Criminal Code that make homosexuality an offence[11]. All these developments lead to the conclusion that although Australia still lacks a domestic Bill of Rights, an amorphous de facto Bill of Rights, based upon international human rights legal norms, is gradually being incorporated into the Australian domestic legal system. In 1989 the Australian Law Reform Commission (hereafter the "ALRC"), as part of the National Agenda for a Multicultural Australia, was directed to review the state of the law in a number of important areas[12]. The purpose of this review was to determine whether these laws were: "appropriate to a society made up of people from differing cultural backgrounds and from ethnically diverse communities"[13]. Its important report, entitled *Multiculturalism and the Law*[14], was released in early 1992. The clear link between the policy of multiculturalism and the acceptance of the principles of international law was established in the Terms of Reference, which referred specifically to the ICCPR[15] and the *International Convention on the Elimination of All Forms of Racial Discrimination*. The First Chapter of the Report confirmed this link when the Commission stated: "One source of principles to guide the Commission in dealing with competing values are the international human rights instruments to which Australia is a party."[16] The ALRC then made this important assumption: "The international covenants and other instruments declare fundamental rights and values which transcend cultural, political and economic differences."[17] The ALRC thus emphatically declared its acceptance of the universality of international human rights standards and the appropriateness of these standards in multicultural Australia. But is it that simple? Are these fundamental assumptions of the ALRC correct? The notion of the universality of international human rights has been held to be sacrosanct by many international legal scholars. However, the doctrine of cultural relativism in recent years has presented a major challenge to this notion, and that challenge is increasing[18]. The purpose of this article is to examine the doctrine of cultural relativism and assess its possible impact on the Australian legal system. In order to properly carry out such an assessment, it will be necessary to consider both the growing influence of multiculturalism and the incorporation of international human rights legal norms into the Australian domestic legal system. It can been deduced from the above discussion that these are inter-related considerations. Two important questions will need to be answered. What does the acceptance of the doctrine of cultural relativism suggest in terms of where Australian law should draw the dividing line between acceptable and unacceptable cultural practices? Would this acceptance deny the incorporation of international human rights legal norms into Australian domestic law? In order to answer these questions, first the doctrine of cultural relativism will be explained. Secondly, the common critiques of cultural relativism will be illustrated and analysed in order to decide whether the doctrine has validity. After concluding that cultural relativism does have validity, the article will explore the possible applicability of the doctrine to multicultural Australia. In relation to immigrant practices and culture, the doctrine does not deny the incorporation of international human rights standards into Australian law, but calls for a sensitive and culturally aware approach to the question of the prohibition of these practices. However, in relation to Aboriginal practices and customs, it will be shown that the doctrine of cultural relativism does make out a case for denying the applicability of international human rights standards to those practices and customs. This will lead in the next part of the article to a closer examination of the relationship between international human rights standards and Aboriginal practices and customs, and what the appropriate legal response should be in circumstances where the two may clash. The article will conclude with some observations as to the consequences that an acceptance of the doctrine of cultural relativism entails for both the Australian legal system and the international legal system.


Initially the major advocates of cultural relativism were, not surprisingly, anthropologists who were heavily engaged in the study of indigenous cultures[19]. The first substantial piece of scholarly work supportive of the doctrine written from an international lawyers perspective is found in the 1971 book by Adda Bozeman, entitled *The Future of Law in a Multicultural World*[20]. Joyner and Dettling paraphrase Bozeman's major contentions as follows: 1) "Profound differences between Western legal theories and structures and those of Africa, China, India and Islam must preclude attainment of a universalistic legal system of predominantly Western orientation."[21] 2) "In order to fully understand a culture, one must be a product of that culture. A culture produces its own unique mode of thought that acts as a schematic guide for conceptual thinking...cross-cultural equivalents for certain moral, legal and political concepts may not exist...Even if one culture were to borrow a concept from another culture, that concept's meaning would be filtered through the first culture's unique linguistic-conceptual structure."[22] 3) "As a consequence, arriving at a universal meaning in an international legal text containing moral and political values is futile since all political and legal principles are determined and informed 'by substratal cultural forces'."[23] Later international legal scholars have also attempted to explain the doctrine of cultural relativism, even though their work indicates that they are opposed to the concept[24]. Other scholars have referred to the various dimensions of the doctrine, such as notions of ethical[25], epistemological, linguistic and historical relativism[26]. Yet others point to a continuum of cultural relativist perspectives, with 'radical' relativism at one end, and radical universalism at the other[27]. While these questions are beyond the scope of this paper, it must be recognised that cultural relativism is a complex doctrine, traversing the boundaries of anthropology, moral philosophy, history and sociology. International lawyer have only begun to take it seriously recently. It is submitted that the type of cultural relativism that Bozeman and later international lawyers[28] refer to has two key arguments in common. Firstly, as there is infinite cultural variety, one cannot make moral judgments about a particular culture because such judgments are relative to the culture in which the person was raised. Secondly, modern international human rights law is essentially based upon western moral conceptions deriving from judaic/christian perspectives, and thus should not be imposed on non-Western societies (including nations that may even embrace forms of Christian thinking). Before asking how cultural relativism may apply to multicultural Australia, it is first necessary to see if the doctrine is valid. It is to this question that the article now turns.


As stated above, the cultural relativist doctrine is dependant on two basic assumptions. The first assumption is that one cannot make moral judgments about another culture as such judgments are relative to the culture in which the person was raised. In short, this constitutes a plea for mutual tolerance and acceptance. This has been strongly criticised by many international legal scholars as an excuse for inappropriate and repressive behaviour by those making the cultural relativist claim. For example, Vincent states: "Should the rest of the world have no say about a society in which the rulers practice slavery or starve their own people? If this is what the doctrine of cultural relativism allows, then there is some doubt about whether it should be called a moral doctrine at all. It is certainly not a doctrine that has ever been part of the orthodoxy of international society".[29] As evidence of the statement contained in the final sentence, critics point to the example of apartheid in South Africa. The imposition by the United Nations of mandatory sanctions in 1977 on the South African regime[30], meant that the international community was not of the view that apartheid was simply a matter of South Africa's internal affairs. The Security Council does have the power to declare any particular matter a threat to international peace and security[31], regardless of whether the state most affected considers it part of its "domestic affairs"[32]. Other international legal scholars, such as Donnelly, have also focused on the cynical manipulation of the cultural relativist paradigm to also strongly criticise the concept: "We must not be misled by complaints of the inappropriateness of 'western' human rights made by repressive regimes whose practices have at best only the most tenuous connection to the indigenous culture."[33] However, the fact that the doctrine has been manipulated by those in power in Third World[34] countries does not necessarily prove that cultural relativism lacks validity. What the above arguments confirm is that the bona fides of those making a cultural relativist claim need to be assessed closely. Is the claim based upon a proven record of cultural practices, or is it being used as an excuse for repressive behaviour? The doctrine of cultural relativism has most force when argued by the people with the least power, ability and opportunity to present their views; namely, by indigenous peoples. Those that cynically manipulate the cultural relativist paradigm rarely are indigenous peoples. Furthermore, it should be noted that universal human rights paradigms, and other western notions embedded in international law have also been throughout history cynically manipulated by those in power in order to justify interventions and other oppressive actions[35]. This does not necessarily make these notions wrong. Thus, provided one is careful about who is making the claim, and cultural relativism is argued with care and precision, the theory cannot so easily be dismissed. Many international legal scholars, such as Donnelly, have now come to acknowledge the force of its claims[36]. Other critics of cultural relativism explore the moral and philosophical arguments in more detail than Donnelly. For example, Bryan concludes that what is desperately needed: "is what relativism rejects: *that which is true*", and the fact that the truth is problematic to find: "is no reason to embrace the relativist assertion of the impossibility of knowing truth. For without truth we are forced to live in a world where all human dignity is a function of power.."[37]. This does not, however, really deal with the cultural relativist argument of how one can find the objective 'truth' where one's perceptions are always coloured by the filter through which one sees the world. Some writers take a more conciliatory approach to the moral dilemmas imposed by cultural relativism. For example, Hatch agrees with the principle of tolerance, but draws a line when a society uses coercion[38]. However, as Renteln says: "Surely this is a value judgment. Human freedom and specifically freedom from violence are not universally agreed upon standards"[39]. In summary, none of the above moral arguments against cultural relativism are convincing enough to categorically deny its validity. The fact that the doctrine has been misused does not constitute conclusive evidence that it is invalid. Turning to the second major assumption of relativist thought, that modern international human rights law is essentially based upon western moral conceptions, there are a number of inter-related critiques of this assumption. Firstly, it assumes that modern international human rights law is of Western origin. This has been disputed by a number of writers, who have analysed the origins of the drafting of the Universal Declaration of Human Rights (hereafter "UDHR"), which is the foundation of modern international human rights law. After some discussion of the input by non-western states during the drafting stages of the Declaration, Cassese concludes that: "The Universal Declaration is the *fruit of several ideologies: the meeting point of diverse conceptions of man and society*." [40]. Alston makes a similar claim[41]. However, none of these arguments is compelling. The Declaration clearly does primarily reflect Western style liberal concepts, and the reality of its drafting was that: "the membership of the drafting committee, the Commission on Human Rights, and the UN as a whole were predominantly Western...When the Commission began its work, it had eighteen drafts to consider. It is noteworthy that all the drafts came from the democratic West and all but two were in English."[42] The second critique of the assumption that international law is dominated by the West is that even if it is true that the origins of modern international human rights law are Western, international law has since developed significantly, and is thus no longer dominated by Western thought and legal concepts[43]. It is argued that the numerical supremacy of non-Western States since the 1970s (at least in the General Assembly) has meant a significant shift towards Third World concerns by international law. It is thus pleaded that international law has in fact integrated the concerns of the Third World. Many Third World States have in fact initiated, contributed to, and participated in modern international law. This is evidenced by the number of important resolutions of the General Assembly, such as the 1974 Declaration on the Establishment of a New Economic World Order[44], instigated by, and specifically favouring, the Third World. Many Third World writers have expressed the view that Third World countries "..do not reject international law itself (but) only part of traditional international law...and, in fact, have unquestionably accepted the validity of the bulk of international law."[45] The above arguments ignore the fact that western powers are still dominant economically, and politically in the UN system through the Security Council. Thus, financial and economic pressures can be brought to bear on Third World states in order to coerce them to consent to matters which may not necessarily turn out to be in their best interests. It is also clear that non-Western dominance of the General Assembly has not brought about any significant alteration in the world's power balance. In particular, hopes for a new economic world order have not materialised; in fact, if anything, the disparity between the Third World and the West appears to have increased[46]. Another common argument often used to show that international law is no longer dominated by the west is that many Third World states have ratified human rights Treaties and agreed to have their internal practices scrutinised by international bodies, such as the Human Rights Committee. These arguments are based largely upon the doctrine of positivism, which emphasises the significance of the ratification process. For example, Donnelly states that: "virtually all states today have embraced - in speech if not in deed - the human rights standards enunciated in the UDHR and the International Human Rights Covenants."[47] Renteln convincingly dismisses the significance of ratification in the following manner: "First, those who ratify are the elites whose views may not correspond to those of the rest of the citizenry in a given state. Second, ratification may simply serve political and not humanitarian interests. Third, the claim that by ratification a nation-state demonstrates its commitment to and belief in a particular concept depends upon a legalistic understanding of ratification."[48] In summary, while it may be true to say that international law has been forced to become more receptive to Third World concerns, the reality still is that when it comes to matters of importance, such as the Gulf War, western views predominate[49]. The end of the cold war and the demise of the Soviet Union in recent years have probably accentuated this. While the numerical supremacy of the Third World certainly has meant that the West can no longer force a consensus on international law, the same can be said the other way around. In other words, without the support of the West, new rules desired by the Third World cannot come into effect[50]. In the absence of the ability of the Third World to change the law effectively, the status quo is maintained, whereby the western powers still hold the trump cards. On this basis, it is difficult to accept the argument that international law has changed so significantly that it no longer reflects Western conceptions of human rights.


The above discussion has shown that the cultural relativist paradigm does have validity. Before turning to see how it may be applicable in multicultural Australia, it is first necessary to provide some historical background of its use in international law. Proponents of cultural relativism have usually argued its merits in the political context of the Western powers not imposing their moral, legal and intellectual views and values, as expressed by the international legal order, on Third World nations. Prior to and during the 1960s, it represented a way in which oppressed nation states could argue for their own communal autonomy and self-determination. Once these Third world states were liberated from colonial domination, in the sense of becoming independent states, they continued to assert the cultural relativist argument (as well as others) in order to deny international legal scrutiny of their internal practices. As argued above, many international legal commentators thus maintained that the doctrine was being cynically manipulated by Third World ruling elites as an excuse for their repressive practices. Even though many of these newly independent states were largely western constructs, imposed on populations and having little regard for their ethnic composition, many of the ruling elites chose to support those aspects of international law which helped them to preserve the unity of their states, and thus their own power[51]. There was deliberately no acknowledgement of cultural relativism as a means by which different cultural and ethnic groups *within a state* could make claims for their own self determination, or even empathic and equal treatment. It was feared that such arguments could lead to secession[52]. In other words, the notion of self-determination was limited to the duty of non-intervention in the internal affairs of a state, and, according to Teson: "under this view, a people exhausts its right to self-determination when it achieves the status of a sovereign state"[53]. He then proceeds to argue that: "this version of internal self-determination is at best a misconception, and at worst it can be a rationalization for oppression..."[54]. It is beyond the scope of this article to discuss the complex issue of whether Third World states may use arguments based upon cultural relativism to deny that their internal practices should comply with international human rights standards. This is also the case for the vexed question of the role of cultural relativism in a Third World multi-ethnic nation state, wherein various ethnic and cultural minorities may find themselves belonging due to forces beyond their control. Rather, the question this article is concerned with is how the doctrine of cultural relativism may apply in multicultural Australia. Some basic propositions need to be stated at the outset. Firstly, Australia since colonisation clearly has been a nation state firmly founded in western political, legal and moral thought. Thus the stated Third World arguments would not apply to deny the applicability of international legal norms in Australia. In fact, as referred to in the introduction, Australia has already ratified many international human rights Treaties and agreed to other mechanisms of international scrutiny, and has incorporated some Treaties into its domestic law by means of legislation[55]. These steps have been carried out at various times by both political parties, and have generally attracted bipartisan support[56]. A second basic proposition that needs to be understood is that the large majority of immigrants to Australia came voluntarily, and by the doctrine of implied consent or the notion of social contract, it cannot be argued that they should not be subject to the laws of Australia[57]. If Australia chooses to incorporate elements of international law into its domestic law, it follows that immigrants and their descendants cannot complain about having to abide by these international legal norms. Again, this situation is different from the position of minorities in the Third World who had nation states imposed upon them. Of course, this does not mean that people from divergent cultures should not be treated with empathy and understanding. What it does mean is that if particular cultural practices clash with Australian law (including that part of Australian law that has incorporated international law), Australian legislators have the ultimate right to prohibit the practice. This accords with the basic understanding of multiculuralism as including: " the right of all Australians, *within carefully defined limits*, to express and share their individual cultural heritage, including their language and religion (emphasis added)"[58]. What are these "carefully defined limits?" Where should Australian law draw the line between acceptable and unacceptable immigrant cultural practices? While it would be beyond the scope of this article to provide a precise answer to these complex questions, some tentative answers can be articulated. Firstly, it is too simplistic to set the appropriate dividing line as being the prohibition of any form of physical coercion without consent. This is the point of view that writers such as Hatch suggest[59]. In order to illustrate the reasons for this, it is useful to look at the topical question of female circumcision[60]. This issue provides a concrete example of the clash between international human rights standards and cultural relativism. Feminist writers also have had much to say on the issue[61]. It would seem that in the context of the above arguments, which acknowledge the ultimate right of Australian law to prevail over immigrant cultural practices, recent moves by the NSW, Victorian and Federal governments to clearly outlaw female circumcision may constitute a valid response[62]. However, to simply draw a blanket dividing line at the prohibition of any form of physical coercion without consent would also preclude most forms of male circumcision and beneficial forms of medical interventions such as immunisations and emergency medical situations. A preferable and more culturally sensitive approach would be to weigh up the level and the long term effects of the particular physical violence or coercion against the benefits of preserving the practice for the maintenance of the culture in question. On this basis it would be acceptable for Australian law to outlaw female circumcision, as the proven long term negative effects and the high level of the intervention (loss of sexual satisfaction; permanent and irreversible damage; physical and psychological health problems[63]) outweigh any beneficial cultural effects[64]. On the other hand, taking male circumcision in the Jewish religion as an example, it can be argued that the benefits to Jewish culture and religion outweigh the level of the intervention and the long term effects (while there is some dispute over the medical evidence, any potential negative effects and the level of intervention are not on the same scale as female circumcision[65]). Such a utilitarian approach would explain any apparent inconsistency between the proscription of female circumcision and the lack of proscription of cultural practices and medical procedures such as those described above. By attributing the benefit to the culture as an important balancing factor in each case shows sensitivity and awareness of the particular culture in question. Appropriate community and religious leaders need to be consulted in order to assess the degree of benefit that the cultural practice in question entails. For practices such as female circumcision, these will not be enough to outweigh the human rights objections, using the above utilitarian weighing up process. In such circumstances, it will then be important to explain in a sensitive and culturally appropriate manner to the relevant community leaders the reasoning that was involved in arriving at the conclusion to outlaw the practice. In all these circumstances, meaningful community consultation needs to takes place and, in cases of prohibition of cultural practices, effective education programs need to be established to explain why the practice has been outlawed. Such educational programmes, in combination with the powerful message that legislative prohibition can provide, should minimise the possibility that prohibited cultural practices will be driven underground. Also, a sensitive approach to discretion needs to take place in order that such legislation would not punish women who have been the victims of the practice[66]. The third basic proposition is that the same "social contract/implied consent" arguments applicable to immigrant cultural practices do not pertain to Australia's Aboriginal[67] communities. This was expressly acknowledged by the ALRC, when in its earlier Report, *Recognition of Aboriginal Customary Laws*[68], it stated: "...valid distinctions do exist between the recognition of Aboriginal customary laws on one hand and of immigrant customs and traditions on the other, so that it is not arbitrary nor discriminatory to give special recognition to the former in appropriate ways...(Migrants) came to a community with its own laws and legal culture...But the position of the members of Aboriginal communities is different. This is their country of origin...they exist not merely as individuals but as a prior community (or series of communities) inhabiting territory to which the general community itself migrated (*without their agreement and without their ever having any control over that process* [emphasis added])."[69] These are precisely the arguments that those supporting the doctrine of cultural relativism make regarding the people of a particular culture having laws imposed upon them, allegedly based upon claims of universal applicability, but which they characterise as being solely reflective of western values. As traditional Aboriginal cultural practices can be seen in a similar light as the practices of other Third World communities, the doctrine of cultural relativism may well be applicable to these communities. It is thus conceivable for these communities to argue that they should not necessarily be forced to accept international human rights legal norms. Such an argument finds some support in the work of the ALRC. In its comprehensive and exhaustive analysis of Aboriginal customary law, it concluded that recognition should be given to aspects of this law on a case by case basis[70]. The ALRC agreed that Australian law or its administration is at times insensitive to the traditional cultural practices of Aboriginal peoples[71], and it would follow from this that it should not be imposed on Aboriginal peoples. Given that international law and Australian law are mutually based upon predominantly western moral and legal concepts (despite some important differences), this suggests that it may well also be inappropriate to impose international law upon Aboriginal communities. This is the question to which this article turns.


The last part of this article shows that the application of the cultural relativist doctrine to Australia may make the imposition of international law problematic only as far as Australia's Aboriginal communities are concerned. In a practical sense, how does this limit the incorporation of international human rights legal norms in Australia? The question of the imposition of international law on Australia's indigenous communities needs to be differentiated from the question of whether Australian law should be so imposed. While few in the past have questioned the jurisdiction of Australian law over Aboriginal people, argument against this is primarily based upon notions of Aboriginal sovereignty and self-determination[72], and not cultural relativism. It could now also be argued that a further consequence of the rejection of *terra nullius* by the High Court is that customary Aboriginal law survives[73]. In examining the relationship between Aboriginal customs and practices and international law, particularly international human rights standards, it must be noted that there are circumstances when the two are not in conflict. For example, those aspects of international human rights law which only place limitations on states in respect of their power over individuals or communities cannot be problematic for Aboriginal communities. This is because they do not impose laws on individuals or communities, but act rather as a restraint on states. An important example of this are the laws regarding criminal procedural guarantees for accused persons, such as those found in the *ICCPR*[74]. It must also be acknowledged that the important international norms of non-discrimination and self-determination, found throughout international human rights law[75], can potentially be of considerable benefit to Aboriginal communities. In this respect, it should be pointed out that these norms do not prevent Australian governments from enacting laws that discriminate in favour of Aboriginal communities or individuals. For example, in _Gerhardy_ v _Brown_[76] the High Court upheld South Australian legislation that discriminated against non-Aboriginals, on the basis that it constituted a "special measure" as permitted by Sections 8(1) of the _Racial Discrimination Act 1975_ (Cth). This section has been interpreted broadly by the High Court[77]. For these reasons, the incorporation of international human rights legal norms into Australian domestic law is seen as providing at least a positive influence on Australian law. International law has thus achieved much support. Many recent important government inquiries and reports relating to Aboriginal communities recommend that international law would benefit Aboriginal communities. The ALRC's *Multiculturalism and the Law* has already been mentioned above. Other examples are the Deaths in Custody Report[78], the National Inquiry into Racist Violence[79], the Report of Advisory Committee to the Constitutional Commission[80], and the Review of Australia's Efforts to Promote and Protect Human Rights[81]. While the collective opinions of all these inquiries does not prove anything, together they must constitute considerable authority. More importantly, Aboriginal people themselves appear to strongly endorse international law, particularly in preference to Australian law, which has been perceived as inadequate and racist in its application to Aboriginal people. While it would be impossible to provide precise proof of this without conducting a detailed poll of Aboriginal people, anecdotal evidence points to this conclusion. Aboriginal spokespersons, and those working with the Aboriginal Legal Service, are particularly attracted to the self-determination and non-discrimination norms found throughout international human rights law, as well as the criminal procedural guarantees for accused persons found in many international human rights Treaties and other instruments. However, all the above arguments are not necessarily conclusive, as the inquires and Aboriginal spokespersons have not directly addressed the issue of what should happen when Aboriginal customs or practices clash with international human rights norms[82]. In particular, it can be argued that tribal Aboriginal peoples have not really been heard, and those spokespersons who are presently endorsing international law, do so only as they perceive that it is presently in their interests. This may not be the case in the future, if the application of international human rights norms are seen to clash with particular Aboriginal customs or practices. Thus the question still remains - what should be the law's response to these situations? If the acceptance of the cultural relativist paradigm is recognised, as the writer advocates, then international human rights legal principles should not override Aboriginal traditional practices. Given the validity of the cultural relativist paradigm, the logic and justice of this position needs to be acknowledged by the Australian legal system. This is not to suggest that the writer necessarily agrees that international human rights laws should be violated. However, until such time as Aboriginal people voluntarily change their own perceptions, the cultural relativist argument implies that Australia has no right to impose its moral views upon them. Only by the slow process of contact with the white community may Aboriginal communities eventually agree to refrain from some of their practices that conflict with international human rights standards. While it must be acknowledged that such "contact" can constitute a form of paternalism, provided Aboriginal communities are not forced to change their practices, this is a far preferable alternative than outright coercion or legislation banning these practices. To date, both international law and Australian law have largely taken the opposing view. Both have acknowledged that international human rights norms should take precedence over indigenous cultural practices. Looking at international law first, despite greater sensitivity and awareness of the rights of indigenous peoples, international human rights legal discourse has consistently argued that international human rights norms are paramount over indigenous practices. For example, Article 33 of the recent Draft Declaration on the Rights of Indigenous Peoples[83] states: "Indigenous peoples have the collective right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, *in accordance with internationally recognized human rights standards* (emphasis added)" The inclusion of this last phrase, while being consistent with earlier international Declarations and Conventions[84], can be criticised on the ground of not recognising the validity of the cultural relativist paradigm[85]. The reason international law has to date adopted this approach is that the international legal regime is still largely controlled by states, which remain concerned by the possibility of secession, or by minorities within their boundaries making claims for some form of autonomy and self-government. One possible way to keep such claims within bounds is to prescribe universal human rights norms as a limitation - often this would constitute a paternalistic attitude of the dominant majority. The approaches of the ALRC and Australian law in general to the question of possible clashes between Aboriginal customary law and international human rights norms have been similar. For example, the ALRC in its Report on the *Recognition of Aboriginal Customary Laws*[86], was dictated by its Terms of Reference to find that human rights norms will prevail over Aboriginal customary practices[87]. These insisted on: "the need to ensure that every Aborigine enjoys basic human rights" and: "the need to ensure that no person should be subject to any treatment, conduct or punishment which is cruel or inhumane[88]" (a common expression in many human rights instruments[89]). This meant that the ALRC was restricted to endorsing only those Aboriginal customary practices that were consistent with human rights norms[90]. The ALRC's Terms of Reference thus pre-empted the difficult question of what should be the response of the Australian legal system to situations where there is a clash between Aboriginal practices and human rights norms. As a consequence, the ALRC was prepared to only recognise those Aboriginal customs or practices which did not conflict with international human rights norms. This was clearly a major factor which prevented it from recommending the complete recognition of all Aboriginal customary laws. However, while accepting the paramountcy of international human rights standards, the ALRC also recognised that these standards are themselves subject to culturally relativist interpretations. Chapter 10 of the Report analysed in some detail the possible effect of Article 27 of the ICCPR[91] on the way the ICCPR is construed. Article 27 refers to the right of minorities to "enjoy their own culture". If interpreted broadly it can be used as a means of clarifying the substantive clauses of the Covenant in a manner allowing for cultural tolerance. This is in fact the approach of the Human Rights Committee[92]. The ALRC stated that the presence of Article 27: "draws attention to the possibility that evaluative terms used in the Covenant may have to be applied with some caution, taking into account the wide variety of views and cultural responses to particular conduct or treatment, in differing societies and traditions." [93] Such an approach represents a compromise position between the paradigms of universal human rights and cultural relativism. Many international lawyers have now shown support for this way of interpreting international human rights instruments. For example, Donnelly articulates a: "weak cultural relativist position that permits limited deviations from 'universal' human rights standards primarily at the levels of form and interpretation"[94]. While this means that: "the cultural variability of human nature not only permits but requires significant allowance for cross-cultural variations in human rights"[95], he would: "insist on a strong, authentic cultural bias, as well as the presence of alternative mechanisms guaranteeing human dignity, before we justify cultural derogations from 'universal' human rights."[96]. This approach also finds support in the work of Joyner and Dettling[97]. In order to illustrate the above theoretical discussion it is instructive to examine a topical example of when an Aboriginal custom may clash with "universal" human rights legal norms. This is when a traditional Aboriginal punishment is enforced for a breach of Aboriginal criminal customary law. While there is a variety of such traditional Aboriginal punishments[98], the particular punishment which involves the spearing of the offender by one of more members of the victim's family best illustrates the clash between traditional Aboriginal customs and international human rights norms. Does this practice conflict with the international human rights prohibition against "cruel, degrading and/or unusual" punishment found in many human rights instruments[99]? While at first sight it appears that it may, this does not take into account the fact that the words "cruel" or "degrading" are culturally relative. The ALRC make the point that: "what would be degrading in one community or culture might not be degrading, indeed, might be fully accepted in another"[100]. In particular, an "unusual" punishment from an Aboriginal point of view may be placing someone in jail for long periods of time, away from their family and community. Thus, to some Aboriginal people, a one-off spearing would be less cruel or degrading than a lengthy jail term[101]. Australian law has not been in the past sympathetic to such views. While in general the courts have taken into account tribal punishments in sentencing, until recently they have always refused to incorporate traditional punishments into sentencing practices[102]. Both the courts and the ALRC[103] have been careful to distinguish between recognition of traditional punishments when sentencing Aboriginal defendants, and the incorporation of these punishments as a sentencing option, or as part of a sentencing option. The former is justified on the basis that: "... to acknowledge that some form of retribution may be exacted by an offender's own community is not to sanction that retribution: it is to recognize certain facts which exist only by reason of that offender's membership of a particular group."[104] In contrast, both the ALRC and the Australian courts have refused to incorporate these punishments into sentencing options, as it is argued that this would condone such practices, in conflict with generally held perceptions that it constitutes "cruel" or "unusual" or "degrading" punishment. This represents a lack of acknowledgement and acceptance of the cultural relativist paradigm, and a western view of what is "cruel" or "degrading". The law appears to be discounting the possibility that what may appear to be universal notions of "cruel" or "degrading" may not in fact coincide with what other cultures may think. In particular, the reluctance of Australian law to incorporate traditional Aboriginal punishments as a sentencing option is unfair in view of the above discussion of the validity of the cultural relativist paradigm in the case of Aboriginal peoples. Paradoxically, this failure also conflicts with the ALRC's own acknowledgment that basic concepts of human rights can be culturally relative; in particular, the notion of "cruel" or "degrading" punishment[105]. The recent case of Wilson Jagamara Walker[106] has received much media attention[107] and may represent a turning point in Australian law. Chief Justice Martin of the Supreme Court of the Northern Territory is the first judge in Australia to incorporate a traditional customary punishment as part of the sentencing options available to the Court. Wilson Jagamara Walker was an Aboriginal man from Central Australia who was convicted of manslaughter and sentenced initially to three years jail. Chief Justice Martin released Walker on a bond, the basis of which being that he would be speared in both thighs by the younger brother of the man he had killed. If this did not occur within the allocated time, Walker would have to return to the court and have the sentence reviewed. He thus did not merely discount Walker's sentence on the basis that he would be speared later on, but actually incorporated the traditional Aboriginal punishment as part of Walker's sentence. In this respect, Chief Justice Martin's decision went further than Australian courts to date have been prepared to go, by making the traditional punishment a sentencing option available to the court. The decision of Chief Justice Martin, although problematic in other respects[108], does represent an acknowledgement that western perceptions of human rights should not necessarily predominate over Aboriginal practices. Knowingly or unknowingly, what Chief Justice Martin's ruling has done is to allow the cultural relativist paradigm to be given full effect, by incorporating well-established and genuine customary Aboriginal punishments as a sentencing option available to the Court. It is however difficult to say at this stage whether this decision will create a new direction in the law, or will simply be overturned or ignored in the future[109].



What are the practical implications for the Australian legal system that an acceptance of the cultural relativist paradigm would have? The above discussion points to an important dichotomy. Firstly, with respect to situations that are "purely internal" to Australia's Aboriginal communities, cultural relativism calls for recognition of their traditional practices, regardless of whether or not they conflict with international human rights norms. This also accords with notions of Aboriginal self-government, self-determination and sovereignty. A problematic aspect of the above analysis is deciding what matters are "purely internal" to Aboriginal communities. This is an important question, as in situations where a member of the non-Aboriginal community is effected, it would be unjust to apply laws based upon Aboriginal customary law, when the application of Australian law would lead to a different result. The ALRC was particularly careful to stress that creating different laws for different people within Australia is unacceptable[110]. Where a matter is "purely internal" to Aboriginal communities it is submitted that this argument is not valid. The doctrine of cultural relativism and notions of Aboriginal self-government, self-determination and sovereignty, all call for these situations to be treated differently[111]. While it may be difficult in practice to articulate an exact definition of what are matters that are "purely internal", initially at least a cautious, limited approach to the issue would need to be adopted. For example, in criminal law matters, perhaps only where both the offender and the victim are from traditional Aboriginal backgrounds, each holding similar perceptions of customary law, should customary law be given full recognition. Another possibility is to confine such laws to incidents committed within designated Aboriginal community areas[112]. Queensland[113] and Western Australian[114] legislation already provide for the constitution of courts presided over by Aboriginal justices of the peace with limited jurisdiction in relation to specified offences committed within community boundaries[115]. The second part of the dichotomy covers all other situations. This would include matters relating to Aboriginal circumstances that are not "purely internal", and questions of immigrant cultural practices. The above analysis suggests that Australia does have a right to determine which practices should be outlawed, and to incorporate international human rights norms should it desire to do so. However, cultural relativism does suggest that considerable cultural sensitivity and awareness needs to always accompany such determinations. Specific immigrant practices should only be outlawed on the basis of the utilitarian balancing process referred to above. Furthermore, apart from "purely internal" Aboriginal community situations, the writer would agree with the basic premise of the ALRC, that one law should apply to all Australians[116]. However, what is not often understood is that the words, expressions and phrases used in the law can be interpreted in a cultural relativist manner. This would allow for greater flexibility in the law, away from the mono-cultural assumptions of the Australian legal system. This greater flexibility already takes place to an extent in some areas of the law, most significantly in the criminal law. The cultural background of a defendant is a relevant consideration in pleading the defence of provocation[117]. Furthermore, whenever the reasonable or ordinary person test is invoked in any area of the law, it has been widely acknowledged that the cultural background of the person is relevant in deciding the standard to be set[118]. Australian lawyers, judges and academics need to become more aware of these considerations. This will involve more education and cross-cultural training of lawyers, and greater reliance on "experts" from ethnic communities will be needed[119]. This would quite probably add to the time and expense of trials and the legal system in general. Such cost and inconvenience is fully justified in the interests of justice and Australia's commitment to a fair multicultural society.



Finally, what would be the effect on international law of an acceptance of the cultural relativist paradigm? This question has important repercussions also for Australian law because, as was stated in the introduction, a de facto Bill of Rights, based upon international human rights norms, is being incorporated gradually into the Australian legal system. The above discussion has shown that the cultural paradigm does have validity, and can serve to deny the incorporation of international human rights law into Australia in certain situations where these laws may clash with traditional Aboriginal customary law. The acceptance of cultural relativism, even in these limited circumstances, does present a real challenge to the notion of universal human rights; in fact, the logical consequence is that it is a threat to international law itself. If there are infinite cultures in this world, and each culture cannot be forced to accept a majority view of the world, then how can a "universal" international legal system have legitimacy? While cultural relativism has much in common with other deconsructionist critiques of international law, such as critical legal studies and postmodernism, it is submitted that the doctrine needs to be accommodated within the present framework of the international human rights regime. This is because there is a strong necessity to preserve international law. As Joyner and Dettling state: "Minimum standards for international cooperation are required for transnational activities, whether they concern arms control and disarmament, diplomats and consular relations, the process of treaty-making, conservation of natural resources, protection of the global environment ..."[120] These important forms of international co-operation are reliant on international law being effective[121]. Thus, international law must find a pragmatic method of incorporating cultural relativist concerns. What is required is that the cultural relativist paradigm should be integrated into international law. How can this be achieved? The writer would advocate, rather than Donnelly's "*weak* (emphasis added) cultural relativist position that permits limited deviations from 'universal' human rights standards primarily at the levels of form and interpretation"[122], a *strong* cultural relativist position that would interpret all of the words, expressions or phrases found in international law in a culturally sensitive manner. For example, the words "cruel" or "unusual", when referring to punishment, could be interpreted according to the cultural perceptions of the relevant person or state alleged to be violating this human rights norm. Thus, a genuine Aboriginal understanding of "cruel" and "unusual" punishment may well allow for a ritual spearing, as the Aboriginal community's perception may be that this is not "cruel" or "unusual"[123]. Such an approach would also clearly involve considerable reliance on expert evidence in order to determine what are the genuine cultural perceptions of the words, phrases or expression in question. The progressive development of international law does show that it is, albeit only tentatively, moving towards a position of allowing for cultural relativist interpretations of international legal norms. Recent international Treaties and their interpretation do allow for more consideration of diverse cultural practices. The broader use of Article 27 in interpreting the ICCPR is an example of the possibilities here[124]. Another encouraging development is that the organs of the United Nations are acknowledging the cultural relativist paradigm, and are also attempting to integrate it into their interpretations of international law. For example, Katherine Brennan describes the manner in which the problem of female circumcision in the Sudan was handled by the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities in the following terms: "The nature of the Sub-Commission's actions with regard to this practice suggests that the members were influenced by cultural relativism....After determining that female circumcision is a violation of human rights, the resolutions adopted by the Sub-Committee did not condemn the practicing cultures. Rather, those resolutions called on the human rights system to engage in education efforts and other measures to persuade the practicing cultures to stop performing these operations. The Sub-Committee demonstrated awareness of the cultural significance of female circumcision by these actions."[125] These developments need to be consolidated and accelerated. International law is still dominated by states, and by the notion of state consent. Naturally, states remain cautious and suspicious of what appear to be the activist interpretations by international bureaucrats and judicial officials, such as those that sit on the Human Rights Committee. In order for the cultural relativist paradigm to be included and integrated into international law in the future, international judges, bureaucrats, academics and practitioners increasingly will need to be aware of divergent cultural perspectives of the world. This will involve more education and training of international lawyers, and greater reliance on experts in these cultures will be needed. This will be an essential task of international law in the future. For despite significant progress, international law is still yet to convince many indigenous peoples, and peoples of the Third World, of its moral and legal validity. The challenge that the doctrine of cultural relativism provides both Australian law and international law is immense. The proposals for reform discussed in this article can only be considered preliminary. It is hoped that they will provide a useful starting point to a realistic discussion of how the many cultural beliefs and perspectives that make up Australian society can be properly reconciled within the framework of Australian law.


1. Immigration over the last twenty years can be contrasted to post world war two immigration, the focus of which was predominantly European and expressly excluded non-whites. It also encouraged immigration solely for economic reasons. Post 1976 immigration focused on Asia and has included people from Africa, South America and the Middle East. The acceptance of these new immigrants was based, in part, on reasons other than economic (e.g.. humanitarian). See Federal Race Commissioner, *State of the Nation: A report on people of non-English speaking backgrounds*, AGPS, 1993, particularly Chapter 6, "Immigration policy after 1976", at pp95-102 2. For the most recent restatement of this policy see Department of the Prime Minister and Cabinet, Office of Multicultural Affairs,* National Agenda for a Multicultural Australia: Sharing our future*, AGPS, 1989. See p17 for a definition of multiculturalism. 3. _Mabo_ v _Queensland_ (No. 2) (1992) 175 CLR 1 4. For example, the legal system has realised that people from different cultural backgrounds need to be treated with a degree of empathy; it has acknowledged that interpreters are needed during court proceedings where one or more of the parties cannot understand English; it has made allowances in sentencing for criminal offences committed due to cultural differences or ignorance of Australian law; and whenever the reasonable or ordinary person test is invoked in an area of the law, it has been widely acknowledged that the cultural background of the person is relevant in deciding the standard to be set. See G. Bird, *The Process of Law: Intercultural Perspectives*, 1993 (2nd ed.), Law Book Co. 5. See the yearly *Australian Treaty Series* (1958 onwards) for an indication of the increasing number of Treaties Australia has acceded to. 6. The most well known examples of such legislation are the _Racial Discrimination Act_ 1985 (Cth.), bringing some of the provisions of the *International Convention on the Elimination of Racial Discrimination* into Australian domestic law, and the *Sex Discrimination Act* 1984 (Cth.), implementing some of the provisions of the *International Convention on the Elimination of all Forms of Discrimination Against Women* 7. In particular reference is made to Australia's accession to the First Optional Protocol of the *International Covenant on Civil and Political Rights* made on the 25 December 1991, and Australia's Declarations under Articles 21 and 22 of the *Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment* made on 28 January 1993. 8. This was the opinion of most of the judges in _Dietrich_ v _R_ (1992) 67 ALJR 1. See Mason CJ & McHugh J at 7; Brennan J at 15; Dawson J at 25; and Toohey J at 31. 9. For a detailed discussion of these issues, see M. Kirby, "The Australian Use of International Human Rights Norms: From Bangalore to Balliol - a View from the Antipodes", (1993) 16 *UNSW Law Journal* 363. 10. See decision of the Human Rights Committee of 31 March 1994, regarding Nicholas Toonen (the victim) and Australia (the State party), CCPR/C/50/D/488/1992 11. Sections 122 (a) and (c) and Section 123 of the _Tasmanian Criminal Code_ 1924 (Tas.) 12. Family law, consumer contracts and criminal law. 13. Terms of Reference for Multiculturalism, Lionel Bowen, Attorney-General, 2 August 1989. These are reproduced on page xxii of Australian Law Reform Commission, Multiculturalism and the Law, Report No. 57, 1992. 14. Australian Law Reform Commission, *Multiculturalism and the Law*, Report No. 57, 1992. 15. In particular, Articles 14, 26 and 27. See Terms of Reference for Multiculturalism, note 13 *supra* 16. *Multiculturalism and the Law*, note 14 *supra*, at [1.25], p12 17. Ibid, at [1.26], p13. Peter Bailey also makes a similar claim: "Human rights are universal both in concept and in application", P Bailey, *Human Rights: Australia in an International Context*, Butterworths, 1990, at xii 18. See AD Renteln, "The unanswered challenge of relativism and the consequences for human rights" (1985) 7 *Human Rights Quarterly* 514, at 520 19. The first major work was written in 1903 by WG Sumner, entitled *Folkways* (Boston: Athenaeum Press, 1960) 20. Princeton University Press, 1971 21. C. Joyner & J. Dettling, "Bridging the cultural chasm: cultural relativism and the future of international law" (1990) 20 *California Western International Law Journal* 275, at 278 22. Ibid at 279 23. Ibid at 280 24. Three examples are worthy of mention. Firstly, Teson states: "a central tenet of relativism is that no transboundary legal or moral standards exist against which human rights practices may be judged acceptable or unacceptable" [F. Teson, "International Human Rights and cultural relativism" (1985) 25 *Virginia Journal of International Law* 869, at 871]. Secondly, Vincent characterises cultural relativism in the following manner: "There is no universal morality, because the history of the world is the story of the plurality of cultures, and the attempt to assert universality...as a criterion of all morality, is a more or less well-disguised version of the imperial routine of trying to make the values of a particular culture general." [RJ. Vincent, *Human Rights and International Relations* Cambridge University Press, 1986, at 37/8] And finally, Bryan defines cultural relativism as: "any judgment one makes about any topic is based upon the experience(s) of the person making the judgment. One's experience is a function of the culture in which one lives...Thus any judgment must necessarily be, at least in part, a function of culture." [D. Bryan, "Cultural relativism - power in the service of interests: the particular case of Native American education" (1983) 32 *Buffalo Law Review* 643, at 650] 25. Which is itself divided into descriptive, metaethical and normative relativism. Teson, note 24 *supra* at 886-888 26. Joyner & Dettling, note 21 *supra* at 280-6 27. J. Donnelly, "Cultural relativism and universal human rights" (1984) 6 *Human Rights Quarterly* 400-419 28. Such as those referred to in note 24 *supra* 29. Vincent, note 24 *supra* at 55. See also the views of Bryan, note 24 *supra* at 660-663 30. See Security Council Resolution 418 (1977), S.C.O.R., 32nd Year, *Resolutions and Decisions*, p5 31. See Article 39 of the *Charter of the United Nations* 32. See Article 2(7) of the *Charter of the United Nations*. For a comprehensive discussion of these issues see G Jones, The United Nations and the Domestic Jurisdiction of States, Cardiff University of Wales Press, 1979 33. Donnelly, note 27 supra at 411 34. As attempted definitions of the "Third World" have all proven to be problematic, it is not fruitful for the purposes of this article to articulate a precise definition. "Third World" is simply assumed to be, in general, the economically poorer "non-Western" nations of the world. This would now include many of the former republics of the former Soviet Union. 35. For example, one can think of countless invasions and interventions throughout recent history in Latin America by the United States of America, all on the so called basis of human rights or democracy, when the real aims have been the restoration or preservation of American interests. The same can equally be said for other powers in many other areas of the world. 36. See Donnelly note 27 *supra*. It is illuminating to compare this article with an article he wrote earlier, which was far more critical of cultural relativism, entitled: "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights", in *Third World Attitudes Toward International Law: An Introduction*, F. Snyder & S. Sathirathai (eds.), Martinus Nijhoff Publishers, 1987. 37. Bryan, note 24 *supra* at 695 38. E. Hatch, *Culture and Morality: The Relativity of Values in Anthropology*, Columbia University Press, 1983 39. Renteln, note 18 *supra* at 523 40. A. Cassese, *Human Rights in a Changing World*, Temple University Press, Philadelphia, 1990, at 46 41. P. Alston, "The Universal Declaration at 35: Western and Passe or Alive and Universal", (1983) 31 *International Commission Of Jurists Review* 60 42. AD Renteln, *International Human Rights: Universalism Verses Relativism*, Frontiers of Anthropology, Vol. 6, Sage Publications, 1990, at 28, 30. See Chapter 1 generally. See also A Pollis and P Schwab, "Human Rights; A Western Construct of Limited Applicability", in A Pollis and P Schwab (eds.), *Human Rights: Cultural and Ideological Perspectives*, New York, 1980. 43. See J Crawford, "Recognition of Aboriginal Customary Laws", in B Hocking (ed.), *International Law and Aboriginal Human Rights*, 1988, Law Book Co., 43 at 60/1 44. UNGA Resolution 3201 (S-VI), 1 May 1974. See W. Tieya, "The Third World and International Law", in MacDonald & Johnston (eds.), *The Structure and Process of International Law*, 1983, Nijhoff, 955 at 964 45. Ibid at 961/2 46. See J Makarczyk, *Principles of a New International Economic Order*, Martinus Nijhoff Publishers, 1988 47. Donnelly, note 27 *supra* at 414 48. Renteln, note 42 *supra* at 10 49. See M. Bustelo & P. Alston (ed.), *Whose New World Order: What Role for The United Nations?*, Federation Press, 1991 50. One of the most important examples of this in recent years is the failure of many important western powers to agree to the concept of the common heritage of mankind in regards to mining the sea bed beyond the territorial waters of each state, as understood in Article 136 of the 1982 *United Nations Convention on the Law of the Sea*. 51. "The new States, with all their different cultural niceties and nuances have not rejected or repudiated Eurocentric international law in the main. Instead, these States have opted to work within that legal framework in order to change facets of the international legal system to better suit their particular national interests". Joyner & Dettling, note 21 *supra* at 303. In particular, the Organisation of African Unity's Preamble stressed the determination of its members to "safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity of our States". For a detailed discussion of these issues in the African context see M.G.K. Nayar, "Self-determination Beyond the Colonial Context: Biafra in Retrospect", (1975) 10 *Texas International Law Journal* 321 52. The international legal principle that many nations rely upon to counter claims for secession is uni possidetis i.e.. respect for established colonial boundaries. 53. Teson, note 24 *supra* at 881 54. *Ibid*, at 882/3 55. See notes 5 to 9 *supra*, and the accompanying text. 56. There is now significant opposition by the Coalition parties to Australia acceding to mechanisms of international scrutiny of its domestic laws (see "Coalition to scrap UN legal avenue", *The Australian*, 21 April 1994). The question of whether Australia should have its own domestic Bill of Rights has been a politically controversial topic. However, none of the arguments to date against a Bill of Rights have, to the writers knowledge, specifically argued cultural relativism. 57. Perhaps it may be argued that some Cambodian and Vietnamese boat people were forced to leave their countries, and had little choice in coming to Australia. Apart from this argument being problematic, it would be difficult to ascertain exactly which people fall into this category, nor have any of these groups of immigrants expressed support for this concept. 58. See *Multiculturalism and the Law*, note 14 *supra*, [1.15], p8; quoting from *National Agenda for a Multicultural Australia*, note 2 *supra*, p vii. 59. See note 38 *supra* 60. Female circumcision is now more commonly referred to as female genital mutilation. 61. See A Bunting, "Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies", (1993) 20 *Journal of Law and Society* 6; V Kirby, "On the Cutting Edge: Feminism and Clitorectomy", (1987) 5 *Australian Feminist Studies* 35; A Slack, "Female Circumcision: A Critical Appraisal", (1988) 10 *Human Rights Quarterly* 437; N. El Saadawi, *Coming Out! Women's Voices, Women's Lives*, "Prisoner of Conscience"; A. Funder, "De Minimis Non Curat Lex: The Clitoris, Culture and the Law", (1993) 3 *Transnational Law and Contemporary Problems* 1, Iowa College of Law 62. See Family Law Council, *Female Genital Mutilation*, Discussion Paper, 31 January 1994 63. *Ibid*, Part 3 "The Effects of Female Genital Mutilation", pp15-19 64. The exact scope of the alleged beneficial cultural effects in the case of female circumcision are a matter of some debate. See Family Law Council, note 62 supra, at [2.20], p10; K. Magarey & E. Evatt, *Genital Mutilation: A health and human rights issue*, October 1990, Australian Development Studies Network, Briefing Paper No. 18, pp3-6; *El Saadawi*, note 61 *supra*, at 84 65. See Family Law Council, note 62 *supra*, at [2.07-2.09], p7/8. Whether or not a practice has beneficial or adverse medical effects is an important factor in assessing whether there has been a human rights violation. Article 24(3) of the *United Nations Convention on the Rights of the Child* states: "State parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children". 66. See N. Marshall, *Response to Family Law Council Discussion Paper on Female Genital Mutilation/Circumcision*, March 1994, Ecumenical Migration Centre 67. Reference to "Aboriginal" and related expressions are intended to also include Islanders from the Torres Strait. 68. Australian Law Reform Commission, *Recognition of Aboriginal Customary Laws*, Report No. 31, 1987. 69. *Ibid*, at [164], p121 70. *Ibid*, at [193], p141 71. *Id*. 72. See H Mc.Rae, G Nettheim & L Beacroft, *Aboriginal Legal Issues*, Law Book Co, 1991, particularly part of Chapter 3 entitled, "Jurisdiction of Australian Courts", at 94-100 73. For a discussion of this issue in relation to Aboriginal customary criminal law, see S Yeo, "Native Criminal Jurisdiction after *Mabo*" (1994) 6 *Current Issues in Criminal Justice* 9 74. See Articles 7, 9, 10 and 14. 75. For example, see the Preamble and Articles 1 and 2 of the UDHR, the ICCPR and the *International Covenant on Economic, Social and Cultural Rights*; and Article 1 of the *International Convention on the Elimination of All Forms of Racial Discrimination*. Some have also argued that the principle of self-determination is now *jus cogens*. See Gros-Espiell, Special Rapporteur, *Implementation of United Nations Resolutions relating to the Right of Peoples under Colonial and Alien Domination to Self-Determination*, UN Doc E/CN.4/Sub.2/40, 5 June 1978 76. (1985) 159 CLR 70 77. See N. Nygh, "Implications of Recent High Court Decisions for State Laws Dealing with Aborigines and Aboriginal Land: _Gerhardy_ v _Brown_ and _Mabo_ v _Queensland_", (1990) 1 *Public Law Review* 329 78. Royal Commission into Aboriginal Deaths in Custody, *National Report*, 1991, Canberra, AGPS. See, in particular, Volume 5, Chapter 36, entitled "Conforming With International Obligations", at 3-45 79 Human Rights and Equal Opportunity Commission, *Racist Violence: Report of the National Inquiry into Racist Violence in Australia*, 1991, Canberra, AGPS 80. In particular, see the Report of the Advisory Committee, *Individual and Democratic Rights*, 1987, Canberra, AGPS 81. Parliament of the Commonwealth of Australia, The Joint Committee on Foreign Affairs, Defence and Trade, *A Review of Australia's Efforts to Promote and Protect Human Rights*, December 1992, Canberra, AGPS, at 59-62 82. The main exception perhaps being the ALRC in its report on *The Recognition of Customary Aboriginal Laws*, note 68 supra 83. Annexed to the *Report of the United Nations Working Group on Indigenous Peoples on its Eleventh Session*, UN Doc. E/CN.4/Sub.2/29 (23 August 1993), Annex 1. 84. Article 25 of the *Draft Universal Declaration on Indigenous Rights* as contained in Document E/CN.4/Sub.2/1985/25 gave indigenous people: "The right to determine the responsibilities of individuals to their own community, consistent with universally recognised human rights and fundamental freedoms". See also International Labour Organisation, *Convention Concerning Indigenous and Tribal Peoples in Independent Countries* (No. 169), Articles 8(2) and 9(1) 85. See C. Iorns, "The Draft Declaration on the Rights of Indigenous Peoples", (1993) 64(3) *Aboriginal Law Bulletin* 4 at 4/5 86. Note 68 *supra*. 87. This is also the view expressed by Peter Bailey (Bailey, note 17 *supra* at 203) and the Department of Foreign Affairs and Trade (Department of Foreign Affairs and Trade, *Human Rights Manual*, 1993, AGPS, Canberra, at 17: "The Australian approach to human rights takes as a basic premise the insistence that human rights are both universal and divisible...") 88. Paragraph (c) of the Terms of Reference, RJ Ellicott, Attorney-General. 89. See for example Article 7 of the ICCPR; Article 3 of the *European Convention for the Protection of Human Rights and Fundamental Freedoms*, 1950; Article 5(2) of the *American Convention on Human Rights*, 1969; and the Eighth Amendment to the Constitution of the United States of America 90. *Ibid*, at [193], p141 91. For a detailed discussion of Article 27, see P Thornberry, *International Law and the Rights of Minorities*, Clarendon Press: Oxford, 1991, particularly Part IV, "The Right to Identity", pp141-256 92. See the Lovelace case, *Human Rights Committee*, Communication NoR.6/24 (30 July 1981) 93. Recognition of Aboriginal Customary Laws, note 68 *supra*, at [185], p136 94. Donnelly, note 27 *supra* at 401 95. *Ibid* at 403 96. *Ibid* at 414 97. Joyner & Dettling, note 21 supra 98. See Recognition of Aboriginal Customary Laws, note 68 *supra*, at [500], p361 99. The ALRC has suggested that it does. See ALRC, *Aboriginal Customary Law - Recognition?*, Discussion Paper No. 17, November 1980 at 51-6 100. *Recognition of Aboriginal Customary Laws*, note 68 supra, at [192], p140 101. See the many submissions to the ALRC which supported the continuation of traditional punishments, *Recognition of Aboriginal Customary Laws*, note 68 *supra*, footnote 125 at pp376/7 102. For a detailed analysis of the approach of Australian Courts, see Mildren J. in _R_ v _Minor_ (1992) 2 NTLR 183, at pp193-197 103. See *Recognition of Aboriginal Customary Laws*, note 68 *supra* , at [512], p372 104. _Jacky Anzac Jadurin_ v _R_ (1982) 44 ALR 424 at 429 105. See note 100 *supra* and the accompanying text 106. Supreme Court of the Northern Territory, Unreported 10 February 1994, SCC No.46 of 1993. See G. Zdenkowski, "Customary Punishment and Pragmatism: Some Unresolved Dilemmas. _The Queen_ v _Wilson Jagamara Walker_", (1994) 68(3) *Aboriginal Law Bulletin* 26 107. See "Spearing decision makes history", *The Australian*, 25 February 1994, "Spearing penalty causes concern", *Sydney Morning Herald*, 25 February 1994; G. Zdenkowski, "Violent Justice", *The Bulletin*, 29 March 1994; D. Foster, "Bloody Justice", *The Independent Monthly*, May 1994; W. Jamrozik, "White Law, Black Lore", *The Independent Monthly*, May 1994 108. See Zdenkowski, note 106 *supra* at 26/7 109. See "NT may recognise Aboriginal paybacks", *The Age*, 25 August 1994, but see "High Court strikes out black law bid", *The Australian*, 17-18 December 1994. In November, 1994, Australia's Attorneys-General have set up a working party to examine ways in which Aboriginal customary law can be given recognition in the Australian legal system. 110. See *Multiculturalism and the Law*, note 14 *supra*, at [1.24], p 11/12 111. See F. Brennan, "Indigenous Australians: the choices", *The Weekend Australian*, 16/17 July 1994; MJ. Detmold, "Law and Difference: Reflections on Mabo's case", (1993) 15 *Sydney Law Review* 159. The sections of the _Racial Discrimination Act_ 1975 (Cth.) that allow for "special measures" in favour of Aboriginal people can also be used to support such an argument (see notes 76 & 77 supra and the accompanying text). 112. See Yeo, note 73 *supra*, at p23 113. See _Community Services (Aborigines) Act_ 1984 (Qld) and _Community Services (Torres Strait) Act_ 1984 (Qld). These Acts have been modifies recently. See J. Higgins & L. Beacroft, "The Final Report: Recommendations of the Legislation Review Committee, (1992) 55(2)_ Aboriginal Law Bulletin_ 8 114. See _Aboriginal Communities Act_ 1979 (WA) 115. See M. Flynn, *Laws of Australia*, Vol. 1 "Aborigines", Part 5 "Criminal Justice Issues", at [10], p13 116. *Multiculturalism and the Law*, note 14 *supra*, at [1.24], p11/12 117. See _Stingel_ v _The Queen_ (1990) 171 CLR 312; New South Wales Law Reform Commission, Provocation, *Diminished Responsibility and Infanticide*, Discussion Paper No. 31, August 1993, at [3.76], p47/8; S Yeo. "Ethnicity and the Objective Test in Provocation", (1987) 16 *Melbourne University Law Review* 67 118. In relation to the criminal law, see *Multiculturalism and the Law*, note 14 *supra*, at [8.37], p186/7 119. This poses some difficult problems. In respect of Aboriginal customs see Flynn, note 115 *supra*, at [30], p35/6. In respect of the criminal law, see *Multiculturalism and the Law*, note 14 *supra*, at [8.35], p184/5, and the comments of Lush J in _Dincer_ [1983] 1 VR 460 at 468 120. Joyner & Dettling, note 21 *supra* at 313 121. An excellent example of this is the issue of whaling, where Japan has used cultural relativist arguments to deny having to comply with internationally agreed limitations. 122. See note 94-97 *supra*, and the accompanying text 123. See note 101 *supra* 124. See note 92 *supra* and the accompanying text 125 K. Brennan, "The influence of cultural relativism on international human rights law: female circumcision as a case study"(1989) 7 *Law & Inequality: a Journal of Theory and Practice* 367 at 395/6

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