Cultural Relativity, Human Rights and the International Regulation of Broadcasting
When a broadcaster broadcasts directly to people living in another state disputes can arise. The audience may find the programmes offensive. The programmes may foment disorder and rebellion and corrupt the values and traditions of the inhabitants of the receiving state or even threaten their very survival. The problem is not new. It has been a source of international tension since the inception of broadcast technology. The problem has however become more pointed as that technology has become ever more sophisticated. The power of radio is aptly illustrated by recalling the panic caused in 1938 by Orson Welles' famous hoax broadcast announcing the invasion of Earth by Martians. More recently commentators such as James Miles, BBC correspondent in Peking at the time, have suggested that the rebellion in China before and after the massacre at Tianamen Square was fomented, prolonged and to a degree coordinated by programmes broadcast on overseas radio stations such as Voice of America and the BBC. Television has a much greater graphic capacity than radio and is also vulnerable to abusive techniques such as subliminal suggestion and advertising. The impact of television is set for another great leap ahead as the development of High Definition Television technology proceeds apace. The development of communications satellites has greatly increased the range and quality of broadcasts. There have been a number of attempts to address this problem but none have met with much success. The international community has polarised into two camps, one taking a position based on a very strict view of the right to freedom of expression, and the other insisting that that right yield to a degree at least to accommodate peoples' rights to determine their own economic, social and cultural development. This paper offers a solution to this impasse. It offers guidelines to help resolve international broadcasting disputes. The guidelines are based on the international human right to freedom of expression as viewed particularly by the two bodies responsible for drafting that right's most famous exposition in the Universal Declaration of Human Rights and in the host of other international and constitutional instruments which it inspired. It is argued that cultural relativity in the human rights context is consistent with the sources of international law specified in article 38 of the statue of the International Court of Justice, and that by incorporating a degree of cultural relativity the guidelines advocated herein are similarly consistent with current international law. It is also shown that the view of human rights the guidelines evince is consistent with a version of constructivist human rights theory which accords with observable practice and which enjoys widespread academic support. Some alternative methods for addressing the problem arising from international broadcasting are examined and their shortcomings identified. This leads to the conclusion that the method proposed in this paper for regulating international broadcasting, notwithstanding that it is most surely within the realm of de lege ferenda, is both consistent with current international law and jurisprudentially defensible, and therefore better than the alternatives.