Introduction construct upon others.[4] Passionate arguments based on

Introduction

Intellectual
sparring among scholars on the homogeneity of human rights is not a new
phenomenon.1
The contest has been going on for decades between two juxtaposing schools of
thought; universalism and the relativism, which are sometimes seen as mutually
exclusive and at times as a complex grading of rights.2 Universality
is anchored on the understanding that no matter where we come from, we are all
human beings and as such enjoy the same inherent rights.3 While
relativity posits that people come from different parts of the world with
differing ways of life hence any attempt at universality only serves to impose
a foreign supposedly superior construct upon others.4
Passionate arguments based on anthropology, religion, and sovereignty, among
others, have been advanced by either spectrum.

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This
paper begins by looks at the concept of human rights and critically analyzes
some of the arguments advanced for and against universalism and relativism. The
paper concludes that…

Human Rights and its sources

To
contextualize the topic, it is important to first appreciate the concept of
human rights.

Universality of Human Rights

Concept:
Although rights differ in many aspects, the concept of human rights is a
universal one.5
Every nation or society believes in a value system that it seeks to preserve
based on certain standards, which may include a set of morals attracting either
“praise” or “rebuke” and “honor or shame”.6
Accordingly, “All societies cross-culturally and historically manifest
conceptions of human rights”7
with some concepts of Human Rights being traced for example to religion8 where
sharia incorporates a general “system of law and ethics”.9 Further,
in the United States, while referring to human rights, Thomas Jefferson
famously proclaimed, “we hold these truths to be self-evident; that all human
beings are born free and equal…”.10
This argument however only holds true when human rights are looked at within a
specified class (horizontal application), for while Thomas Jefferson was
writing, slave trade was flourishing, the words were therefore only applicable
to what was perceived as human at the time. While sharia law had moral notions
of right and wrong, standards were different for women and men (vertical
discrimination).

Theory:
Global application of any theory hinges on its universal acceptability. Universalism
presupposes universal moral principles upon which human rights are based, such
as freedom and equality for all human beings.11 Relativity
on the other hand seeks universal acceptability of cultural differences; which
is a paradox of sorts. As Tesion argues “if no universal moral principle
exists, then the relativist contradicts himself by seeking universal
application of relativism”.12 Thus
in seeking universal acceptance, cultural relativism proponents unwittingly
acknowledge universalism. However, it can be argued that this acceptance is
only inasmuch as it relates to the general theory of universality, and not
specifically to the universality of human rights.

Possession:
Many nations13
in the world voluntarily acceded to the Universal Declaration of Human Rights,
in the belief that all human beings possess fundamental human rights and
freedoms worth protecting.14 Though
not binding, it aids in construction of many human rights issues by the United
nations and is a basis for two binding international covenants.15
This uncoerced supranational consensus is testament to the acceptance of the
universality of Human Rights. Its however worthwhile to dig deeper into the
issue of why some nations especially in developing countries sign international
instruments. Take for instance the stance of some African States to withdraw
from the Rome Statute establishing the International Criminal Court. It is
therefore not too farfetched to argue that such ratifications are based on a
need for international political recognition as opposed to innate concerns for
the protection, let alone belief in the universality, of human rights.

Evolution:
Human rights have evolved out of necessity. According to Henry Shue, “the
concept of human rights developed due to threats imposed on the cultural way of
life by capitalism, sovereignty and bureaucracy; new “standard threats” to
human dignity provoked new remedial responses.”16 Even
in the west, socio economic and political transformations of modernity rather
than cultural superiority informed the human rights discourse.17 The
UDHR itself emerged as a response to the untold human suffering during the
second world war.18 Consequently,
the argument that human rights are a codification a way of life of a section of
the globe and its desire to impose it on the rest of the world may not be
tenable. If that be the case, there is no need to reinvent the wheel, we should
accept and enjoy the fruits of these historical lessons.

International
human rights law: human rights are universal by virtue
of international human rights law in treaties and conventions such as the
international Convention on Civil and Political Rights and the international
Convention on Economic Social and Cultural Rights. Thus, insofar as
international instruments seek to convert morals into legal rules binding on
all parties, they take a universalist approach; not with parts of the UDHR now
becoming customary international law and the two covenants speaking in
universal terms such as “everyone”, “all persons”, “no one” etc.19 But,
these instruments are not binding on all the nations of the world20
and are subject to reservations, understandings and declarations21
excluding the application of certain rights in some countries.22
This therefore means that even under international human rights law,
universality is only applicable to certain and not all human rights or
countries.

Ontology: Ontological Universality: Presupposes
that human rights come from one superior historical origin. Weak because of
historical failures to agree between philosophies and religion. All prominent
comprehensive doctrines have either ignored or denied human rights, would mean
virtually all religions have been immoral.

Cultural
dynamism: Culture is not static but dynamic
thus can be adjusted or changed to suit circumstances. This means that what was
obtaining 50 years ago is certainly not applicable now. In Denmark, women
participation was significantly increased by the creation of day care centres
for children, proper homes for the elderly and an efficient transport system in
order to free up women from some of the traditional cultural roles.23
Further, discrimination against women in Islam was based on the historical
context at the time “…equality between men and women in the eighth and ninth
centuries in the middle east or anywhere else at the time would have been inconceivable
and impracticable” given the physical nature of work at the time24…but
in a modern world “the rule of law prevails over might”. Women have also become
economically powerful as a result.25 Thus
with a little creativity, differences in the enjoyment of fundamental rights
based on cultural roles and stereotypes can be plugged and a universal human
rights culture created. Of course, this is dependent on the ability of each
nation in terms of the resources necessary to effect to change. With many
nations in developing countries very poor and struggling to provide even basic
social services, it may not be that easy to replicate what happened in Denmark.
Thus, while this argument is theoretically plausible, it may not be practicable
for many nations at present.

Protection
of the weak: universalists also present a
pragmatic albeit controversial approach of the strong versus the weak. A kind
of natural selection process of survival for the fittest if you wish. That the so-called
superiority of western culture is justified because it emerged strongest and
conquered the weaker cultures during colonialism. That relativism is an
argument advanced by “toxic oppressors” seeking equality and preservation of “poverty
stricken, powerless and oppressed” cultures. That “instead of leaving cultures
as they are, as museum pieces, we should help to bring about change-or better,
we should help the oppressed bring about change”.26
While it is true that some cultural practices such as Female Genital Mutilation
are harmful, slavery, racial discrimination and indeed colonialism cannot be a
yardstick for a human rights culture. The strength of a culture or nation is
not a license to colonize and or dehumanize others, just as the strength of a
man does not give him the right to go about raping every woman he comes across.

Cultural Relativism

Origin:
the origin of human rights is rooted in different aspects of life such as
religion, politics and culture. “comprehensive doctrines” based on
religion, philosophy, or morals, and “political conceptions of
justice,” under pin human rights development.27 This
is reechoed by Philip Aston when he states that “Rights and rules of morals are
encoded in culture thus depend on cultural context, with culture understood to
mean more than indigenous traditions and customary practices but also political
and religious ideologies and institutional structures.28
Political systems play an important role in prioritization of rights, with
countries such as the United States that are based on capitalism tending to
give more weight to Civil and Political Rights while Russia with a history of
communism tend to value social and economic rights.29 Religious
origins of human rights also make human rights harmonization monumentally
difficult, nowhere is this more apparent than on the issue of same sex
relationships, which is resoundingly rejected in both Islam and Christianity. These
foundational biases fetter global consensus on the universality of human rights
and invariably makes relativity more credible especially in the Middle East and
Africa where religion still plays a critical role in defining morality.

Enforcement:
Another aspect of relativity manifests in the latitude of enforcement of rights
under the covenant. The UN treaty bodies do not have the means to enforce
covenants. They can only play a monitoring role while relying heavily on
individual states for enforcement. Only the Europe has a functional enforcement
body in the European Court of Human Rights.30
The African Court31is
only applicable to 8 out of 54 African Countries as of July 2017.32
The reliance on individual nations still rooted in culture to enforce universal
human rights points to the relativity of human rights and it safe to conclude
that most governments will not enforce rights that are lashing with their
cultural or political interests. For instance, rights relating to Protection,
physical security, fair trial, free speech, freedom of religion, and freedom of
association is the same everywhere at least in general context. But forms of
implementation vary according to history and culture.33
Another example case is the passing of the culturally sensitive
Anti-Homosexuality Bill in Uganda in 2014 due to cultural and religious
pressure from a conservative society.34

Sovereignty:
another dilemma for universalism is the issue of sovereignty and
self-determination. How can universal principles be applied in a world that
recognizes that all states are sovereign and frowns upon interference with that
sovereignty by another nation? Most nations are more concerned with bilateral
agreements protecting specific interests and will practice tolerance in order
to deescalate conflict even in the face of even systemic human rights
violations. The principle of sovereignty is also usually corrupted by the “cosmopolitan
elite” in power in developing countries to oppress their electorates35
and undermined by “foreign technological and material values”. Coupled with
this is the issue of self-determination and national identity where some
nations, inspired by “Germany in the 19th Century”, seek to set themselves
apart using distinct identities like language, laws and religion that formed
the spiritual essence of their society. These formed the foundation for upholding
indigenous sovereignty at the expense of human rights.

Disconnect
from reality: Further,
as
earlier noted, it appears that leaders of some developing Countries sign
international human rights treaties not out of a desire to promote, protect and
fulfil human rights but rather out of a need to fit in with the international
community. This is compounded by the fact that many African Countries were
still under colonial rule at the time of the UDHR and did not really
participate in the foundation debates of the current human rights agenda. As a
result, there appears to be a disconnect between global and local understanding
of rights. “…there is a great distance between the global sites where these (human
rights) ideas are formulated and the specific situations in which they are
deployed”36
“Aims that guide a people are self-evident in their significance to that
people. Standards and values are relative to the culture from which they derive”37.
An individual realizes his personality through culture, hence respect for
individual differences entails respect for cultural difference. “there can be
no individual freedom, that is, when the group with which the individual identifies
himself is not free”.38 These
loopholes make cultural relativism appealing to many pundits.

Margin
of appreciation39: within
the human rights practice, there is the margin of appreciation doctrine which
gives Courts leeway to construe international human rights law with consideration
for situations obtaining locally. The European Court of Human Rights demonstrated
this when it stated:

“it is
not possible to find in the domestic law of various contracting states a
uniform European conception of morals. The view taken by their respective laws
on the requirements of morals varies from time to time and from place to place
which is characterized by a rapid and far-reaching evolution of opinion on the
subject…. Consequently, Art 10 (2) leaves the contracting states a margin of
appreciation”40

According
to Sweeney, the European Court’s reliance on local interpretation of words in
two subsequent cases41 amounted
to a modulation of the right to freedom of expression’s essential character and
the fact that the same standard may not be applied to other jurisdictions
within the same system, confirms a “worrying unduly relativistic trend in
jurisprudence”. He’s however quick to add that given the history of the System,
there is a tendency to deliberately decide for states who are new entrants to
the system42.
He further argues that the margin of appreciation doctrine is not “outright
relativism” but an example of particularities of states as envisages in the
1993 Vienna Declaration and Programme of Action.43The
argument of the doctrine’s use as an incentive for new entrants into the treaty
system can also be used as evidence for the relativity of human rights across time;
with the same system applying principles differently at any one given time and
recognition of any form of particularities lends credence to the uniqueness of
states, thus the need to some degree of relativity, whether outright or
otherwise.

Further,
the ICCPR under article 27 guarantees cultural survival. Homogenization of
universal culture especially due to arrogance or cultural imperialism would
thus be a contradiction.44
Similarly, the principle of subsidiarity requires nations to make domestic law
in conformity with international law rather than relying on international law
directly.45

Continued violation (Cultural
legitimacy): 70 years after the UDHR, one would
expect that this is sufficient time for a global consensus; yet here are still
grappling with it. Human rights violations continue to escalate with reckless
abandon, globally.  Could these continued
violations despite a mature and robust international framework be an indictment
on the cultural legitimacy of international standards in a society?  Illegitimacy derives from historical factors
surrounding the creation of human rights instruments such as the UDHR which
African and Asian Countries did not participate in.46

Conclusion

There
are however proposals for an “overlapping consensus” on a political
conception of justice.47

Substance
of Rights: If we are to transcend the limited
conceptual understanding of human rights there is need for consensus on the
substance of human rights. This thus begs the question on the extent of
applicability of rights as currently enshrined in the UDHR and International
covenants.48
  Donnelly calls for “a substantive normative
doctrine that demands respect for cultural differences”. For, “man is free
only when he lives as his society defines freedom”.49 I
would like to believe that not every aspect of “other cultures” is bad, neither
is the current international framework on rights cast in stone. Just as the
cultures that shaped the current discourse have metamorphosed over time, so
should the frameworks.

 

 

1 Philip Alston & Ryan
Goodman (eds.), International Human Rights (OUP: Oxford 2012), Ch 7 (Conflict
in Culture, Tradition and Practices: Challenges to Universalism), pp.531.

2 Phillip Alston above.

3 J. Sweeney, ‘Margins of
Appreciation: Cultural Relativity and the ECtHR in the Post-Cold War Era’ (Apr
2005) 54(2) International and Comparative Law Quarterly pp.459-474.

4 Abdullahi Ahmed An-Na’imm,
‘Human Rights in the Arab World: A Regional Perspective?’ (2001) 23(3) Human
Rights Quarterly/

5 Jack Donnelly, The Relative
Universality of Human Rights Human Rights, Human Rights Quarterly Vol 2 (2007).

6
Melvile Herskovits and Ruth Benedict(US), in Philip Alston & Ryan Goodman
(eds.), International Human Rights (OUP: Oxford 2012), Ch 7 (Conflict in
Culture, Tradition and Practices: Challenges to Universalism), pp.531-557 and
pp.557- 582.

7 Adamantia Pollis & Peter
Schwab, Human Rights: A Western Construct with Limited Applicability, in HUMAN
RIGHTS: Cultural and Ideological Perspectives 1, 15 (Adamantia Pollis &
Peter Schwab eds., 1979)

8 Fouad Zakaria, Human Rights in
the Arab World: The Islamic Context, in PHILOSOPHICAL FOUNDATIONS OF HUMAN
RIGHTS 227, 228 (UNESCO ed., 1986).

9 Abdullahi Ahmed An-Na’imm,
‘Human Rights in the Arab World: A Regional Perspective?’ (2001) 23(3) Human
Rights Quarterly 701.

10
Thomas Jafferson wrote this as part of the American Declaration of
independence.

11
ICCPR, Preamble.

12
F Tesion ‘international Human Rights and cultural Relativism’ 25 Virginia
Journal of International Law (1985) 869, 886.

13
48

14 Donelly above.

15
The International Covenant on Civil and Political Rights (ICCPR), recognized by
175 (six without ratification) countries and the International Covenant on
Economic Social and Cultural Rights (ICESCR) recognized by 170 (six without
ratification) countries.

16 HENRY SHUE, BASIC RIGHTS:
SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY 29-34 (1980).

17 Donnely above

18
Kristina Ash, U.S. Reservations to the International Covenant on Civil and
Political Rights: Credibility Maximization and Global Influence, 3 Nw. J. Int’l
Hum. Rts. 1 (2005). Accessible at http://scholarlycommons.law.northwestern.edu/njihr/vol3/iss1/7
accessed on December 10,2017.

19 Philip Alston above.

20
The ICCPR is only binding on 169 out of 195 Countries in the world while the
ICESCR is only binding on 164.

21
Vienna Convention on the Law of Treaties, Art.19.

22
For example reservations on Capital punishment, war propaganda, and cruel
degrading and inhuman treatment by the United States of America under the
ICCPR.

23
Report to the Human Rights Committee on the Cenvention on Elimination of All
Forms of Violence Against
Women (CEDAW)  CEDAW/C/DNK/8. 2013

24The
qawama principle in the quaran is based on man’s advantage over a woman and his
ability to support her

25
Abdullahi Ahmed An-Na’imm, ‘Human Rights
in the Arab World: A Regional Perspective?’ (2001) 23(3) Human Rights Quarterly
701

26 Philip Alston above

27 JOHN RAWIS,
THE LAW OF PEOPLES xliii-xlv, 11-15, 174-76 (1999); JOHN RAWILS, POLITICAL
LIBERALISM 11-33. 172-73 (1993). 20

28 Philip Alston above.

29
Phillip Aston above

30 Donelly above.

31 Established under Article 1 of the Protocol to the African
Charter on Human and Peoples’ Rights.

32 http://www.african-court.org/en/
accessed December 10, 2017.

33 Philip Alston above.

34
The law was subsequently struck down in the Constitutional Court based on a
technicality.

35
Donelly above.

36 Sally Engle Marry, Human
Rights and Gender Violence (2006) at 2.

37 American Anthropological
Association, Statement on Huma Rights 49 Amer. Anthropologist No. 4,539 (1947).

38
Donelly above.

39 J. Sweeney, ‘Margins of
Appreciation: Cultural Relativity and the ECtHR in the Post-Cold War Era’ (Apr
2005) 54(2) International and Comparative Law Quarterly pp.459-474

40 Handyside Vs
UK (Series A No 24 (1979-1980) 1 EHRR 737 para 48

41 Tammer Vs
Estonia (No 2) Reports of Judgments and Decisions 2001-I (2003) 37 EHRR 43 and
Janowski Vs Polland Reports of Judgments and Decisions 1999-I (2000) 29 EHRR 75

42 Sweeney
467-469.

43 Vienna
Declaration and Programme of Action UN DOC. A/CONF. 157/23 (12th
July 1993); (1993) HRLJ,352 para 5.

44 Philip Alston above.

45 J. Sweeney, ‘Margins of
Appreciation: Cultural Relativity and the ECtHR in the Post-Cold War Era’ (Apr
2005) 54(2) International and Comparative Law Quarterly pp.459-474

46 Abdullahi Ahmed An-Na’imm,
‘Human Rights in the Arab World: A Regional Perspective?’ (2001) 23(3) Human
Rights Quarterly 701.

 

47 RAWLS,
POLITICAL LIBERALISM, at 133-72, 385-96.

48 Donelly above.

49 Exec. Comm.,
Am. Anthropological Ass’n, Statement on Human Rights, 49 AM. ANTHROPOLOGIST
539, 543 (1947).). AAA’s position has been described as “cultural absolutism”
(Rhoda E. Howard, Cultural Absolutism and the Nostalgia for Community, 15 HUM.
RTS. Q. 315 (1993)

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