¹ ASIL has sponsored panels addressing similar issues, e.g., “Comparative Approaches to the Study of International Law” at its 80th Annual Meeting and a panel on the influence of religion on the development of international law at its 82nd Annual Meeting. In England there was also a seminar devoted to related issues. See J.G.S., , International Law and Cultural Differences between Western and Non-Western countries, 59 Austl. L. J., 735, 735-36 (1985)Google Scholar.

² Alan Dundes, Cracking Jokes: Studies of Sick Humor Cycles and Stereotypes 109-10 (1990). After writing the present essay, I was surprised to find that another scholar had used the elephant text to make the point about divergent conceptions of norms. See Beg, Mirza Hameedullah, Human Rights and Asia, 20 Santa Clara L. Rev. 322 (1980)Google Scholar: “[T]he divergent expositions of [the] meaning and significance [of the Universal Declaration of Human Rights] by jurists and the varying attitudes of both governments and peoples of different countries around the world on human rights issues remind one of an amusing story of how writers of different nationalities, each setting out to write a book on ‘The Elephant, ’ revealed their particular approaches to the same subject.”

³ The word culture has many connotations, including “mold.” For a discussion of different definitions of culture, see UNESCO, Cultural Rights As Human Rights (1977).

⁴ Canadian Commission on UNESCO, A Working Definition of Culture, 6 Cultural Trends 83 (1977)Google ScholarPubMed.

⁵ George P. Murdock. Et Al., I Outline of Cultural Materials (1965).

⁶ See Kluckhohn, Clyde & Kelly, William H., The Concept of Culture, in The Science of Man in the World Crisis 78–106 (Linton, Ralph ed., 1980)Google Scholar.

⁷ For an essay explaining enculturation, see Shimahara, Nobuo, Enculturation—A Reconsideration, 11 Current Anthropology 143, 143-54 (1970)CrossRefGoogle Scholar. For other insightful works on culture theory, see Richard A. Shweder & Robert A. Levine, Culture Theory: Essays on Mind, Self, And Emotion (1984); Bohannan, Paul, Rethinking Culture: A Project for Current Anthropologists, 14 Current Anthropology 357-72 (1973)CrossRefGoogle Scholar.

⁸ Vice-President Richard M. Nixon was unaware of the different interpretation; he landed in South America in the 1950s and emerged to greet a crowd with hands in a double “A.-O.K.” What ‘s A-O.K. in the USA Is Lewd and Worthless Beyond, N.Y. Times, Aug. 18, 1996, at E7.

⁹ Matsuda, Mari J., Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L. J. 1329, 1329-1407(1991)CrossRefGoogle Scholar. James Nafziger makes the point that judges express themselves differently even if they speak the same language, because they come from different linguistic backgrounds. See Nafziger, James A. R., Some Remarks on the Writing Style of the International Court of Justice, in Contemporary Issues in International Law 325-45 (Buergenthal, Thomas ed., 1984)Google Scholar.

¹⁰ The scientific study of spatial relations is known as proxemics.

¹¹ Hazard, John N., Furniture Arrangement as a Symbol of Judicial Roles, in Folk Law: Essays in the Theory and Practice of Lex Non Scripta 459-65 (Renteln, Alison Dundes & Dundes, Alan eds., 1994)Google Scholar.

¹² R.P. Anand makes this distinction: “It is this conflict of interests of the newly independent States and the Western Powers, rather than any differences in their cultures or religions, which has affected the course of international law at the present juncture.” Anand, R.P., Attitudes of the Asian-African States Toward Certain Problems of International Law, in Third World Attitudes Toward International Law 17 (Snyder, Frederick E. & Sathirathai, Surakiart eds., 1987)Google Scholar.

¹³ Major studies of national character include the seminal work by J.C.H. Duijker & J.H. Fridja, National Character and National Stereotypes (1960). See also the special issue National Character in the Perspective of the Social Sciences, 370 Annals Am. Acad. Pol. & Soc. Sci. (1967).

¹⁴ A related problem in determining cultural influences is deciding who can speak on behalf of the culture. In international law, it is government officials or elites who claim to represent the “culture,” and hence it is unclear whether their statements are actually based on cultural considerations or political expediency.

¹⁵ For an example of this type of cultural critique, see Smith, Robert J., Culture as Explanation: Neither All Nor Nothing, 22 Cornell Int’l. L. J. 425, 425-34 (1989)Google Scholar.

¹⁶ With respect to gender-based characteristics, women in these patriarchal societies may vigorously defend traditions that westerners find repugnant.

¹⁷ Culture is not static, either, but many of its core aspects endure over time. Scholars who dislike aspects of cultures engage in wishful thinking when they deny that traditions are “cultural” in order not to have to address the value conflict.

¹⁸ See, e.g., The Best Interests of the Child: Reconciling Culture and Human Rights 20 (Philip Alston ed., 1994).

¹⁹ I use this term in Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism (1990).

²⁰ Sarin, Manohar L., The Asian-African States and the Development of International Law, in Third World Attitudes Toward International Law: An Introduction 33, 43 (Snyder, Frederick E. & Sathirathai, Surakiart eds., 1987)Google Scholar.

²¹ Samuel Huntington, The Clash of Civilizations (1996); see also Samuel Huntington, The Clash of Civilizations?, For. Affairs, Summer 1993, at 22.

²² Adda B. Bozeman, The Future of Law in a Multicultural World (1971); see also Bozeman, Adda B., American Policy and the Illusion of Congruent Values, 15 Strategic Rev. 11–23 (1987)Google Scholar. See also the more current debate about Samuel Huntingtons thesis regarding the clash of civilizations.

²³ Judging the World: Law and Politics in the World’s Leading Courts (Garry Sturgess & Philip Chubbeds., 1988); See, e.g., Rengger, Nicholas J., Culture, Society, and Order in World Politics, in Dilemmas of Worldpolitics: International Issues in a Changing World 85–103 (Baylis, John & Rengger, N.J. eds., 1996)Google Scholar; Pasic, Sujata Chakrabarti, Culturing International Relations Theory: A Call for Extension, in The Return of Culture and Identity in IR Theory 85–104 (Lapid, Yosef & Kratochwil, Friedrich eds., 1976)Google Scholar; Levi, Werner, Cultural Heterogeneity and International Law, in Law and Politics in the International Society (Levi, Werner ed., 1976)Google Scholar; Vincent, R.J., The Factor of Culture in the Global International Order, in The Year Book of World Affairs 252-64 (1980)Google Scholar; Piscatori, James & Wright, Moorhead, Cultural Diversity and International Law: Problems of Normative Order in International Relations, in Community, Diversity, And a New World Order: Essays in Honor of Inis L. Claude, Jr. 21–45 (Thompson, Kenneth W. ed., 1994)Google Scholar.

²⁴ Most of the judges from regional human rights tribunals, interviewed for the book, also denied that cultural differences matter. For a statement to the contrary by Judge Thijmen Koopmans of the European Court of Justice, see Judging the World: Law and Politics in the World’s Leading Courts, supra note 23, at 501.

²⁵ The Appendix to the present article includes examples of statements to this effect. See infra at 242.

²⁶ Some analysts assume that a trend toward “globalization” will minimize the significance of value differences. See, e.g., Seita, Alex Y., Globalization and the Convergence of Values, 30 Cornell Int’l. L. J. 429 (1997)Google Scholar. This type of claim ignores empirical evidence to the contrary.

²⁷ Lyndell V. Prott, The Latent Power of Culture and the International Judge (1979); see also Goutal, Jean Louis, Characteristics of Judicial Style in France, Britain, and the U.S.A., 24 Am. J. Comp. L. 43 (1976)CrossRefGoogle Scholar.

²⁸ PROTT, supra note 27, at 116.

²⁹ Id. at 220. Mohamed Shahabuddeen, Judge of the World Court, concurs. See Mohamed Shahabuddeen, Precedent in the World Court 203-08 (1996). Philip Jessup, also a Judge of the World Court, pointed out an interesting common law/civil law difference. See Jessup, Philip C, Diversity and Uniformity in the Law of Nations, 58 AJIL 341, 341-58CrossRefGoogle Scholar. Although both systems recognize legal consequence following the outbreak of war, in the common law system transactions with the enemy are immediately illegal, whereas in the civil law system they are only illegal if specifically prohibited. Id. at 345-46.

³⁰ PROTT, supra note 27, at 221.

^3l ”The typical American international lawyer regards his English counterpart as rigid, narrow, and making little contribution to the needs of contemporary society; while the average English international lawyer regards his American colleague as having become obsessed with politics and jargon, and increasingly indifferent to the standards of meticulous scholarship.” Higgins, Rosalyn, Diverging Anglo-American Attitudes to International Law: Introductory Statement, 17 Int’l. Comp. L. Q. 58 CrossRefGoogle Scholar. One manifestation of the difference between British and American world views is reflected in their senses of humor. See DUNDES, supra note 2, at 150-58.

³² Prott, supra note 27, at 225.

³³ Id. at 206. Robert Seidman’s essay, The Inarticulate Premise, about a hypothetical witchcraft case in a fictitious state, illustrates how a judge’s view of his role affects interpretation: There are three decisions, one by a British colonial judge, one by an African judge, and one by a socialist judge. See Robert Seidman, The Inarticulate Premise, in Folk Law: Essays in the Theory and Practice of Lex Non Scripta, supra note 11, at 805.

³⁴ PROTT, supra note 27, at 230.

³⁵ See, e.g., IISuh, Ro, Voting Behaviour of National Judges in International Courts, 63 AJIL 224 (1969)CrossRefGoogle Scholar. For an interesting study of national bias, see Hensley, Thomas R., National Bias and the International Court of Justice, 12 Midwest J. Pol. Sci. 568, 568-86CrossRefGoogle Scholar. Hensley argues that national bias includes “culturally inculcated values,” and national interests and should be distinguished from partiality, the narrower concept, which includes only national interests. Hensley concludes that justices show “a definite tendency to support their countries” but not because of overt pressure; rather, he attributes this to subtle cultural influences. His study does not offer any precise analysis of the components of cultural influences.

³⁶ Weiss, Edith Brown, Judicial Independence and Impartiality: A Preliminary Inquiry, in The International Court of Justice at a Crossroads 134 (Damrosch, Lori Fisler ed., 1987)Google Scholar. The relatively small size of Weiss’s sample may provide insufficient support for her conclusions. See Vagts, Detlev F., The International Court of Justice at a Crossroads, 87 Mich. L. Rev. 1712 (1989)CrossRefGoogle Scholar (book review).

³⁷ Surya Prakash Sinha, Legal Polycentricity and International Law 137 (1996).

The development of human rights norms has involved some degree of value conflict. For instance, Saudi Arabia abstained from voting from the Universal Declaration of Human Rights because it “does not explicitly acknowledge God as the source of all rights.” See Nafziger, James A.R., The Functions of Religion in the International Legal System, in The Influence of Religion on the Development of International Law 162 (Janis, Mark W. ed., 1991)Google Scholar.

³⁸ For a series of case studies exploring these issues, see the Best Interests of the Child: Reconciling Culture and Human Rights (Philip Alston ed., 1994).

³⁹ Stephens says: “To what extent does the UN Convention, in the name of universal children’s rights, actually assert one dominant cultural historical framework as the matrix for subordinate ‘ cultural minorities’? Consider, for example, the rights of the child, rather than the rights of children.” See Sharon Stephens, Children and the Politics of Culture 36 (1996).

⁴⁰ The most prominent advocate of the Children’s Convention, Cynthia Price-Cohen, acknowledges the challenge of applying this standard cross-culturally. See Price-Cohen, Cynthia, Book Review, 89 AJIL 854 (1995)Google Scholar.

⁴¹ See Barsh, Russell Lawrence, The Draft Convention on the Rights of the Child: A Case of Eurocentrism in Standard-Setting, 58 Nordic J. Int’l. L. 24–34 (1989)CrossRefGoogle Scholar.

⁴² LeBlanc, Lawrence, Developing Countries and the United Nations Convention on the Rights of the Child, in 4 Pol’y Stud. Developing Nations 131–43 (Forsythe, David P. et. al., eds., 1996)Google Scholar; see also Leblanc, Lawrence, The Convention on the Rights of the Child: United Nations Lawmaking on Human Rights 25–62 (1995)Google Scholar.

⁴³ Sometimes new states have claimed that they should not be bound by international standards which they did not have the opportunity to help develop. They advocated the so-called clean slate doctrine, according to which they would not be bound by customary international law rules that developed prior to their existence as states. If new states now participate in international conferences, then this type of challenge to the legitimacy of international law ought to diminish.

⁴⁴ The right to freedom of religion does not allow for the right to adopt a religion of one’s choice or to change one’s religion. LeBlanc says: “Provisions to this effect were deleted from previous versions of the article upon the insistence of Islamic states in 1989.” LeBlanc, Developing Countries and the United Nations Convention on the Rights of the Child, supra note 42, at 138.

⁴⁵ LeBlanc states this bluntly: “The significant alterations that the Islamic states were able to secure in some articles of the convention reflect the importance of cultural factors in drafting international human rights instruments.” Id.

⁴⁶ See Leblanc, The Convention on the Rights of the Child, supra note 42, at 8-88.

⁴⁷ LeBlanc interprets this “compromise” as “a significant concession to Third World States. It is one of the most important examples of how the cultural diversity of the United Nations forced a compromise that, rather than making advances in the area of children’s rights, actually resulted in the adoption of very weak norms.” Id. at 88-89.

⁴⁸ See Jenefsky, Anna, Permissibility of Egypt ‘s Reservations to the Convention on the Elimination of Discrimination against Women, 15 Md. J. Int’l. L. & Trade 199 (1991)Google Scholar. This note examines whether reservations of this kind are compatible with principles of international law. See also Hossain, Sara, Equality in the Home: Women ‘s Rights and Personal Laws in South Asia, in Human Rights of Women: National and International Perspectives 465-94 (Cook, Rebecca ed., 1994)Google Scholar.

⁴⁹ Abdullahi An-Na’im has analyzed the prohibition against torture or cruel, inhuman or degrading treatment or punishment. He observes that the early history of Article 7 of the International Covenant on Civil and Political Rights, which contains this phrase, provides little guidance as to its meaning. Interestingly, the proposal that the word unusual be inserted between “inhuman” and “or degrading” was rejected because unusual was deemed too vague. An Na’im found it remarkable, considering that the vagueness objection was not also made to “cruel, inhuman, and degrading,” because he recognizes that there will be cultural variation in the interpretation of this phrase.

⁵⁰ See J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman Or Degrading Treatment of Punishment 32 (1988).

⁵¹ Id. at 103.

⁵² For the interpretation of amputation as torture, see Newman, Frank & David Weissbrodt, International Human Rights: Law, Policy, And Process 130-41, 166 (2d ed. 1996)Google Scholar. For a defense of amputation as a powerful deterrent to crime, see Soural, Sam S. & Potts, Dennis W., The Penalty of Hand Amputation for Theft in Islamic Justice, 22 J. Crim. Justice 249-65 (1994)CrossRefGoogle Scholar.

⁵³ Like religion, language is one of the most significant aspects of culture that can be expected to influence international law.

⁵⁴ The Russian judge of the ICJ, Nikolai Tarassov, said, “Not only I but some other judges of our court feel such disadvantage. It is a very, very serious difficulty because we have to speak only foreign languages while other judges speak in their native language. In the argumentation and formulation of your opinion, it’s very important to express yourself clearly, with all the nuances which may be very important. But of course for non-English and non-French speaking members it is a very serious problem.” Judging the World: Law and Politics in the World’s Leading Courts, supra note 23, at 88, 480; see also Prott, supra note 27, at 51.

⁵⁵ For some examples of this, see Curran, Michael R., On Common Ground: Using Cultural Bias Factors to Deconstruct Asia-Pacific Labor Law, 30 Geo. Wash. J. Int’l. L. & Econ. 349, n. 12 (1996/1997)Google Scholar.

⁵⁶ The presence at the conference of delegates from diverse racial and ethnic backgrounds in which non-verbal elements like gesture and facial expression may not have the same connotation, would sharply increase the risk of misreading of such elements, and of generating resistance to the speaker’s message.” Pinto, M.C.W., Modern Conference Techniques: Insights from Social Psychology and Anthropology, in The Structure and Process of International Law: Essays in the Legal Philosophy, Doctrine and Theory 316-19 (MacDonald, R. St. J. & Johnston, Douglas M. eds., 1983)Google Scholar.

⁵⁷ Christopher Weeramantry, in Judging the World: Law and Politics in the World’s Leading Courts, supra note 23, at 483.

⁵⁸ Wang Tieya, The Third World and International Law, in The Structure and Process of International Law: Essays in the Legal Philosophy , Doctrine and Theory, supra note 56, at 973-74.

⁵⁹ Aspiration and Control: International Legal Rhetoric and the Essentialization of Culture, 106 Harv. L. Rev. 723-40 (1993).

⁶⁰ This type of argument is sometimes made about general principles of law recognized by “civilized” nations. The non-European nations resent, quite rightly, the idea that they are considered “uncivilized.”

⁶¹ More than one commentator has bemoaned the relative lack of use of the ICJ by non-European states.

⁶² Abdullahi An Na’im has argued eloquently for cross-cultural dialogue to establish normative consensus on international human rights law. See Human Rights in Cross-Cultural Perspectives: A Quest For Consensus (An-Na’im ed., 1992).

⁶³ Commentators have long noted the issue of representation. See, e.g., Padelford, Norman J., The Composition of the International Court of Justice: Background and Practice, in The Relevance of International Law: Essays in Honor of Leo Gross 219-50 (Deutsch, Karl W. & Hoffman, Stanley eds, 1968)Google Scholar.

⁶⁴ See the thought-provoking essay by Weeramantry, C.G., The International Court in a Multicultural World, 36 Indian J. Int’l. L. 17–38 (1996)Google Scholar. Justice Weeramantry laments the “largely one-way traffic of ideas from the West to the East” and argues for a “two-way traffic of ideas,” so that the ICJ can develop “a jurisprudence for the world.” Id. at 21. He emphasizes the need for the court to be truly representative of the world’s population to ensure the credibility of the international court. Id. at 35-37. The consideration of other legal approaches will enrich the World Court’s analysis. See Weeramantry, C.G., The Importance of Philosophical Perspectives to the Judicial Process, 6 Conn. J. Int’l. L. 612-15 (1991)Google Scholar.

⁶⁶ Judging the World: Law and Politics in the World’s Leading Courts, supra note 23, at 453.

⁶⁶ Id. at 459.

⁶⁷ Id. at 471.

⁶⁸ Id. at 230.

⁶⁹ Id. at 512.

⁷⁰ Id. at 519.

⁷¹ Id. at 536.

⁷² Id. at 501.