OUVRAGE : F. Cowell, Defensive Relativism: The Use of Cultural Relativism in International Legal Practice

Frederick COWELL

Defensive Relativism describes how governments around the world use cultural relativism in legal argument to oppose international human rights law. Defensive relativist arguments appear in international courts, at the committees established by human rights treaties, and at the United Nations Human Rights Council. The aim of defensive relativist arguments is to exempt a State from having to apply international human rights law, or to stop international human rights law evolving, because it would interfere with cultural traditions the State deems important. It is an everyday occurrence in international human rights law and defensive relativist arguments can be used by various types of States. The end goal of defensive relativism is to allow a State to appear human rights compliant while at the same time not implementing international human rights law.

Drawing on a range of materials, such as State reports on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and cases from the European Court of Human Rights involving freedom of religion, this book provides a definitive survey of defensive relativism. Crucially, Frederick Cowell argues, defensive relativism is not about alternative practices of human rights law, or debates about the origins or legitimacy of human rights as a concept. Defensive relativism is instead a variety of tactical argument used by States to justify ignoring international human rights law. Yet, as Cowell concludes, defensive relativism can’t be removed from the law, as it is a reflection of unresolved tensions about the nature of what it means for rights to be universal.

TABLE OF CONTENTS

Acknowledgments
Introduction. What Is Defensive Relativism? 

PART I. DEFINING DEFENSIVE RELATIVISM

1. The First Element of Defensive Relativism: Antiuniversalism
2. State Construction of Culture: The Second Element of Defensive Relativism
3. Legal Exemption: The Final Element of Defensive Relativism

PART II. DEFENSIVE RELATIVISM AT WORK: THREE CASE STUDIES

4. The ASEAN Human Rights Declaration: Defensive Relativism by Design
5. Defensive Relativism in State Submissions to the European Court of Human Rights on the Freedom of Religion
6. Defensive Relativism in the Justification of CEDAW Reservations in Universal Periodic Review

PART III. SITUATING DEFENSIVE RELATIVISM

7. Conceptually Positioning Defensive Relativism
8. End-States: How Defensive Relativism Protects Sovereignty

Conclusion

Defensive Relativism: The Human Rights Practitioner's Conundrum

Notes
Bibliography
Index

Frederick COWELL, Defensive Relativism: The Use of Cultural Relativism in International Legal Practice, Philadelphia, University of Pennsylvania Press, 2022 (328 pp.)