IntroductionIntellectualsparring among scholars on the homogeneity of human rights is not a newphenomenon.
1The contest has been going on for decades between two juxtaposing schools ofthought; universalism and the relativism, which are sometimes seen as mutuallyexclusive and at times as a complex grading of rights.2 Universalityis anchored on the understanding that no matter where we come from, we are allhuman beings and as such enjoy the same inherent rights.3 Whilerelativity posits that people come from different parts of the world withdiffering ways of life hence any attempt at universality only serves to imposea foreign supposedly superior construct upon others.4Passionate arguments based on anthropology, religion, and sovereignty, amongothers, have been advanced by either spectrum.Thispaper begins by looks at the concept of human rights and critically analyzessome of the arguments advanced for and against universalism and relativism. Thepaper concludes that…Human Rights and its sourcesTocontextualize the topic, it is important to first appreciate the concept ofhuman rights.Universality of Human RightsConcept:Although rights differ in many aspects, the concept of human rights is auniversal one.
5Every nation or society believes in a value system that it seeks to preservebased on certain standards, which may include a set of morals attracting either”praise” or “rebuke” and “honor or shame”.6Accordingly, “All societies cross-culturally and historically manifestconceptions of human rights”7with some concepts of Human Rights being traced for example to religion8 wheresharia incorporates a general “system of law and ethics”.9 Further,in the United States, while referring to human rights, Thomas Jeffersonfamously proclaimed, “we hold these truths to be self-evident; that all humanbeings are born free and equal…”.10This argument however only holds true when human rights are looked at within aspecified class (horizontal application), for while Thomas Jefferson waswriting, slave trade was flourishing, the words were therefore only applicableto what was perceived as human at the time. While sharia law had moral notionsof right and wrong, standards were different for women and men (verticaldiscrimination).
Theory:Global application of any theory hinges on its universal acceptability. Universalismpresupposes universal moral principles upon which human rights are based, suchas freedom and equality for all human beings.11 Relativityon the other hand seeks universal acceptability of cultural differences; whichis a paradox of sorts. As Tesion argues “if no universal moral principleexists, then the relativist contradicts himself by seeking universalapplication of relativism”.12 Thusin seeking universal acceptance, cultural relativism proponents unwittinglyacknowledge universalism. However, it can be argued that this acceptance isonly inasmuch as it relates to the general theory of universality, and notspecifically to the universality of human rights.Possession:Many nations13in the world voluntarily acceded to the Universal Declaration of Human Rights,in the belief that all human beings possess fundamental human rights andfreedoms worth protecting.14 Thoughnot binding, it aids in construction of many human rights issues by the Unitednations and is a basis for two binding international covenants.
15This uncoerced supranational consensus is testament to the acceptance of theuniversality of Human Rights. Its however worthwhile to dig deeper into theissue of why some nations especially in developing countries sign internationalinstruments. Take for instance the stance of some African States to withdrawfrom the Rome Statute establishing the International Criminal Court. It istherefore not too farfetched to argue that such ratifications are based on aneed for international political recognition as opposed to innate concerns forthe protection, let alone belief in the universality, of human rights.Evolution:Human rights have evolved out of necessity. According to Henry Shue, “theconcept of human rights developed due to threats imposed on the cultural way oflife by capitalism, sovereignty and bureaucracy; new “standard threats” tohuman dignity provoked new remedial responses.
“16 Evenin the west, socio economic and political transformations of modernity ratherthan cultural superiority informed the human rights discourse.17 TheUDHR itself emerged as a response to the untold human suffering during thesecond world war.18 Consequently,the argument that human rights are a codification a way of life of a section ofthe globe and its desire to impose it on the rest of the world may not betenable.
If that be the case, there is no need to reinvent the wheel, we shouldaccept and enjoy the fruits of these historical lessons.Internationalhuman rights law: human rights are universal by virtueof international human rights law in treaties and conventions such as theinternational Convention on Civil and Political Rights and the internationalConvention on Economic Social and Cultural Rights. Thus, insofar asinternational instruments seek to convert morals into legal rules binding onall parties, they take a universalist approach; not with parts of the UDHR nowbecoming customary international law and the two covenants speaking inuniversal terms such as “everyone”, “all persons”, “no one” etc.19 But,these instruments are not binding on all the nations of the world20and are subject to reservations, understandings and declarations21excluding the application of certain rights in some countries.22This therefore means that even under international human rights law,universality is only applicable to certain and not all human rights orcountries.
Ontology: Ontological Universality: Presupposesthat human rights come from one superior historical origin. Weak because ofhistorical failures to agree between philosophies and religion. All prominentcomprehensive doctrines have either ignored or denied human rights, would meanvirtually all religions have been immoral. Culturaldynamism: Culture is not static but dynamicthus can be adjusted or changed to suit circumstances.
This means that what wasobtaining 50 years ago is certainly not applicable now. In Denmark, womenparticipation was significantly increased by the creation of day care centresfor children, proper homes for the elderly and an efficient transport system inorder to free up women from some of the traditional cultural roles.23Further, discrimination against women in Islam was based on the historicalcontext at the time “…equality between men and women in the eighth and ninthcenturies in the middle east or anywhere else at the time would have been inconceivableand impracticable” given the physical nature of work at the time24…butin a modern world “the rule of law prevails over might”.
Women have also becomeeconomically powerful as a result.25 Thuswith a little creativity, differences in the enjoyment of fundamental rightsbased on cultural roles and stereotypes can be plugged and a universal humanrights culture created. Of course, this is dependent on the ability of eachnation in terms of the resources necessary to effect to change. With manynations in developing countries very poor and struggling to provide even basicsocial services, it may not be that easy to replicate what happened in Denmark.Thus, while this argument is theoretically plausible, it may not be practicablefor many nations at present.Protectionof the weak: universalists also present apragmatic albeit controversial approach of the strong versus the weak. A kindof natural selection process of survival for the fittest if you wish.
That the so-calledsuperiority of western culture is justified because it emerged strongest andconquered the weaker cultures during colonialism. That relativism is anargument advanced by “toxic oppressors” seeking equality and preservation of “povertystricken, powerless and oppressed” cultures. That “instead of leaving culturesas they are, as museum pieces, we should help to bring about change-or better,we should help the oppressed bring about change”.26While it is true that some cultural practices such as Female Genital Mutilationare harmful, slavery, racial discrimination and indeed colonialism cannot be ayardstick for a human rights culture.
The strength of a culture or nation isnot a license to colonize and or dehumanize others, just as the strength of aman does not give him the right to go about raping every woman he comes across.Cultural RelativismOrigin:the origin of human rights is rooted in different aspects of life such asreligion, politics and culture. “comprehensive doctrines” based onreligion, philosophy, or morals, and “political conceptions ofjustice,” under pin human rights development.27 Thisis reechoed by Philip Aston when he states that “Rights and rules of morals areencoded in culture thus depend on cultural context, with culture understood tomean more than indigenous traditions and customary practices but also politicaland religious ideologies and institutional structures.28Political systems play an important role in prioritization of rights, withcountries such as the United States that are based on capitalism tending togive more weight to Civil and Political Rights while Russia with a history ofcommunism tend to value social and economic rights.
29 Religiousorigins of human rights also make human rights harmonization monumentallydifficult, nowhere is this more apparent than on the issue of same sexrelationships, which is resoundingly rejected in both Islam and Christianity. Thesefoundational biases fetter global consensus on the universality of human rightsand invariably makes relativity more credible especially in the Middle East andAfrica where religion still plays a critical role in defining morality. Enforcement:Another aspect of relativity manifests in the latitude of enforcement of rightsunder the covenant. The UN treaty bodies do not have the means to enforcecovenants.
They can only play a monitoring role while relying heavily onindividual states for enforcement. Only the Europe has a functional enforcementbody in the European Court of Human Rights.30The African Court31isonly applicable to 8 out of 54 African Countries as of July 2017.32The reliance on individual nations still rooted in culture to enforce universalhuman rights points to the relativity of human rights and it safe to concludethat most governments will not enforce rights that are lashing with theircultural or political interests. For instance, rights relating to Protection,physical security, fair trial, free speech, freedom of religion, and freedom ofassociation is the same everywhere at least in general context. But forms ofimplementation vary according to history and culture.
33Another example case is the passing of the culturally sensitiveAnti-Homosexuality Bill in Uganda in 2014 due to cultural and religiouspressure from a conservative society.34 Sovereignty:another dilemma for universalism is the issue of sovereignty andself-determination. How can universal principles be applied in a world thatrecognizes that all states are sovereign and frowns upon interference with thatsovereignty by another nation? Most nations are more concerned with bilateralagreements protecting specific interests and will practice tolerance in orderto deescalate conflict even in the face of even systemic human rightsviolations. The principle of sovereignty is also usually corrupted by the “cosmopolitanelite” in power in developing countries to oppress their electorates35and undermined by “foreign technological and material values”.
Coupled withthis is the issue of self-determination and national identity where somenations, inspired by “Germany in the 19th Century”, seek to set themselvesapart using distinct identities like language, laws and religion that formedthe spiritual essence of their society. These formed the foundation for upholdingindigenous sovereignty at the expense of human rights.Disconnectfrom reality: Further,asearlier noted, it appears that leaders of some developing Countries signinternational human rights treaties not out of a desire to promote, protect andfulfil human rights but rather out of a need to fit in with the internationalcommunity.
This is compounded by the fact that many African Countries werestill under colonial rule at the time of the UDHR and did not reallyparticipate in the foundation debates of the current human rights agenda. As aresult, there appears to be a disconnect between global and local understandingof rights. “…there is a great distance between the global sites where these (humanrights) ideas are formulated and the specific situations in which they aredeployed”36″Aims that guide a people are self-evident in their significance to thatpeople. Standards and values are relative to the culture from which they derive”37.An individual realizes his personality through culture, hence respect forindividual differences entails respect for cultural difference.
“there can beno individual freedom, that is, when the group with which the individual identifieshimself is not free”.38 Theseloopholes make cultural relativism appealing to many pundits.Marginof appreciation39: withinthe human rights practice, there is the margin of appreciation doctrine whichgives Courts leeway to construe international human rights law with considerationfor situations obtaining locally.
The European Court of Human Rights demonstratedthis when it stated: “it isnot possible to find in the domestic law of various contracting states auniform European conception of morals. The view taken by their respective lawson the requirements of morals varies from time to time and from place to placewhich is characterized by a rapid and far-reaching evolution of opinion on thesubject…. Consequently, Art 10 (2) leaves the contracting states a margin ofappreciation”40Accordingto Sweeney, the European Court’s reliance on local interpretation of words intwo subsequent cases41 amountedto a modulation of the right to freedom of expression’s essential character andthe fact that the same standard may not be applied to other jurisdictionswithin the same system, confirms a “worrying unduly relativistic trend injurisprudence”. 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 tothe system42.He further argues that the margin of appreciation doctrine is not “outrightrelativism” but an example of particularities of states as envisages in the1993 Vienna Declaration and Programme of Action.43Theargument of the doctrine’s use as an incentive for new entrants into the treatysystem 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 andrecognition of any form of particularities lends credence to the uniqueness ofstates, thus the need to some degree of relativity, whether outright orotherwise.Further,the ICCPR under article 27 guarantees cultural survival.
Homogenization ofuniversal culture especially due to arrogance or cultural imperialism wouldthus be a contradiction.44Similarly, the principle of subsidiarity requires nations to make domestic lawin conformity with international law rather than relying on international lawdirectly.45Continued violation (Culturallegitimacy): 70 years after the UDHR, one wouldexpect that this is sufficient time for a global consensus; yet here are stillgrappling with it. Human rights violations continue to escalate with recklessabandon, globally. Could these continuedviolations despite a mature and robust international framework be an indictmenton the cultural legitimacy of international standards in a society? Illegitimacy derives from historical factorssurrounding the creation of human rights instruments such as the UDHR whichAfrican and Asian Countries did not participate in.46ConclusionThereare however proposals for an “overlapping consensus” on a politicalconception of justice.47Substanceof Rights: If we are to transcend the limitedconceptual understanding of human rights there is need for consensus on thesubstance of human rights.
This thus begs the question on the extent ofapplicability of rights as currently enshrined in the UDHR and Internationalcovenants.48 Donnelly calls for “a substantive normativedoctrine that demands respect for cultural differences”. For, “man is freeonly when he lives as his society defines freedom”.49 Iwould like to believe that not every aspect of “other cultures” is bad, neitheris the current international framework on rights cast in stone. Just as thecultures that shaped the current discourse have metamorphosed over time, soshould the frameworks. 1 Philip Alston & RyanGoodman (eds.), International Human Rights (OUP: Oxford 2012), Ch 7 (Conflictin Culture, Tradition and Practices: Challenges to Universalism), pp.531.
2 Phillip Alston above.3 J. Sweeney, ‘Margins ofAppreciation: Cultural Relativity and the ECtHR in the Post-Cold War Era’ (Apr2005) 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) HumanRights Quarterly/5 Jack Donnelly, The RelativeUniversality of Human Rights Human Rights, Human Rights Quarterly Vol 2 (2007).6Melvile Herskovits and Ruth Benedict(US), in Philip Alston & Ryan Goodman(eds.), International Human Rights (OUP: Oxford 2012), Ch 7 (Conflict inCulture, Tradition and Practices: Challenges to Universalism), pp.531-557 andpp.
557- 582.7 Adamantia Pollis & PeterSchwab, Human Rights: A Western Construct with Limited Applicability, in HUMANRIGHTS: Cultural and Ideological Perspectives 1, 15 (Adamantia Pollis Schwab eds., 1979)8 Fouad Zakaria, Human Rights inthe Arab World: The Islamic Context, in PHILOSOPHICAL FOUNDATIONS OF HUMANRIGHTS 227, 228 (UNESCO ed., 1986).9 Abdullahi Ahmed An-Na’imm,’Human Rights in the Arab World: A Regional Perspective?’ (2001) 23(3) HumanRights Quarterly 701.10Thomas Jafferson wrote this as part of the American Declaration ofindependence.
11ICCPR, Preamble.12F Tesion ‘international Human Rights and cultural Relativism’ 25 VirginiaJournal of International Law (1985) 869, 886.134814 Donelly above.15The International Covenant on Civil and Political Rights (ICCPR), recognized by175 (six without ratification) countries and the International Covenant onEconomic Social and Cultural Rights (ICESCR) recognized by 170 (six withoutratification) countries.16 HENRY SHUE, BASIC RIGHTS:SUBSISTENCE, AFFLUENCE, AND U.S.
FOREIGN POLICY 29-34 (1980).17 Donnely above18Kristina Ash, U.S. Reservations to the International Covenant on Civil andPolitical Rights: Credibility Maximization and Global Influence, 3 Nw. J. Int’lHum. Rts.
1 (2005). Accessible at http://scholarlycommons.law.northwestern.edu/njihr/vol3/iss1/7accessed on December 10,2017.19 Philip Alston above.
20The ICCPR is only binding on 169 out of 195 Countries in the world while theICESCR is only binding on 164.21Vienna Convention on the Law of Treaties, Art.19.22For example reservations on Capital punishment, war propaganda, and crueldegrading and inhuman treatment by the United States of America under theICCPR.23Report to the Human Rights Committee on the Cenvention on Elimination of AllForms of Violence AgainstWomen (CEDAW) CEDAW/C/DNK/8. 201324Theqawama principle in the quaran is based on man’s advantage over a woman and hisability to support her25Abdullahi Ahmed An-Na’imm, ‘Human Rightsin the Arab World: A Regional Perspective?’ (2001) 23(3) Human Rights Quarterly70126 Philip Alston above27 JOHN RAWIS,THE LAW OF PEOPLES xliii-xlv, 11-15, 174-76 (1999); JOHN RAWILS, POLITICALLIBERALISM 11-33. 172-73 (1993). 2028 Philip Alston above.
29Phillip Aston above30 Donelly above.31 Established under Article 1 of the Protocol to the AfricanCharter on Human and Peoples’ Rights.32 http://www.african-court.org/en/accessed December 10, 2017.33 Philip Alston above.34The law was subsequently struck down in the Constitutional Court based on atechnicality.35Donelly above.
36 Sally Engle Marry, HumanRights and Gender Violence (2006) at 2.37 American AnthropologicalAssociation, Statement on Huma Rights 49 Amer. Anthropologist No. 4,539 (1947).38Donelly above.
39 J. Sweeney, ‘Margins ofAppreciation: Cultural Relativity and the ECtHR in the Post-Cold War Era’ (Apr2005) 54(2) International and Comparative Law Quarterly pp.459-47440 Handyside VsUK (Series A No 24 (1979-1980) 1 EHRR 737 para 4841 Tammer VsEstonia (No 2) Reports of Judgments and Decisions 2001-I (2003) 37 EHRR 43 andJanowski Vs Polland Reports of Judgments and Decisions 1999-I (2000) 29 EHRR 7542 Sweeney467-469.43 ViennaDeclaration and Programme of Action UN DOC. A/CONF. 157/23 (12thJuly 1993); (1993) HRLJ,352 para 5.44 Philip Alston above.45 J.
Sweeney, ‘Margins ofAppreciation: Cultural Relativity and the ECtHR in the Post-Cold War Era’ (Apr2005) 54(2) International and Comparative Law Quarterly pp.459-47446 Abdullahi Ahmed An-Na’imm,’Human Rights in the Arab World: A Regional Perspective?’ (2001) 23(3) HumanRights 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.
ANTHROPOLOGIST539, 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.