Are Human Rights Universal

Published Date: 02 Nov 2017

Being inherently linked to ideas of sovereignty, justice and responsibility, the concept of human rights has become one of the most important and debated subject in both international relations and international law. Philosophers and scholars continue to disagree on the origins of the concept and to what extent it has become universal in the contemporary international system. Conclusions to these questions are largely based on one’s conceptualisation of justice, responsibility, culture and the role of the state. The question becomes further difficult in light of the work of NGOs through the growing phenomenon of globalisation, interconnected economies and laws which could be key to a more universalised system of rights. In this essay however I will be describing the principles of human rights and why they should be desirable. I will also be highlighting the obstacles the discourse of human rights has that prevent it from becoming universal, mainly from a communitarian and cultural relativist perspective. I will also be highlighting on the weakness of human rights law in light of this and in relation the international order.

The Universal Declaration of Human rights is a landmark document adopted in 1948, including several ensuing legal treaties it has set out the rights and privileges of all human beings (Forsyth, 1998). Irrespective of one’s background, gender, ethnic group, class status or culture the economic, civil, political and cultural rights of all being are settled in these legal documents and they stand for no cultural exceptionalism (Forsyth, 1998; Franck, 2001; The United Nations, 2013b). There is an assumption that all cultures value the defence of individual human rights dignity and that establishing a minimum standard for protecting these individuals would be paramount to all, in that human beings are entitled to the same rights and privileges. As former Secretary-General Kofi Annan stated, it is our core challenge in this century "to forge unity behind the principle that massive and systematic violations of human rights—wherever they may take place—should not be allowed to stand" (Traub, 2009; Franck, 2001: 194). As such the principle idea of human rights is based on a shared standard of justice, the thought that every human, every individual, is of equal worth and dignity as states in Article one of the Declaration (Donnelly, 1998; The United Nations, 2013a), it is defined by Donnelly as the inalienable individualistic rights held "simply as a human being" against even the state and society (Donelly, 2003: 25; Donnelly, 1984). It is a principle of thought based on moral foundations, an expression of the political relationship that should be established between an individual and society even in the interest of the common good (Henkins, 1989:11). Human rights implies that there are ‘higher laws’ which act as a limitation to other laws, providing the individual with entitlement and corresponding obligation on society. The idea implies that our rights are not granted to us by society, we entitled to them as beings (Henkins, 1989:11).

Within political theory, there are a number of viewpoints that support the universal nature of human rights, exalting that humans share certain rights as members of the global community, one prominent theory is the school of cosmopolitanism. It upholds the need for equality for all human beings of the ‘universal republic’ through a set of ‘legal rights and duties’ (Pogge, 1992: 49), so essentially the need or the ‘human duty or obligation’ (Shapcott, 2008: 194) to ensure that all human rights are upheld globally. The explanations above serve to explain that the idea and discourse of human rights is essentially beneficial to all. However the concept does have strong theoretical implications for global governance in that theoretically, sovereign states cannot act in any way that goes against the human rights of individuals, and any such act legitimises the an intervention (or any other necessary measure) by the international community to make sure the rights are upheld universally. This Lockian view of individual worth and right comes into intellectual struggle with those championing communitarian (especially cultural) values (Franck, 2001: 195). Fundamentally it is this struggle that disables the universalization of human rights.

The communitarian argument is well defined and explained by professor Adeno Addis, in which he states that "one cannot have a right as an abstract individual. Rather, one has a right as a member of an particular group and tradition within a given context" (Franck, 2001: 196). To which one could argue that the principle of human rights, whilst exalting the importance of individual rights, serves as a grouping of all human beings, in that they hold an equal weight. Thus creating a global community, making one and all part of ‘particular group and tradition’ as Professor Addis argues it should be.

Nevertheless the cultural relativism argument can be described in the most simplistic way as a theory or belief that advocates infinite cultural diversity, and commends the fact that all cultures are different in practices and in morals but are nevertheless all equally valid. It is the belief of some cultures that the principle of human rights is a direct threat to their identity and cultural values (Franck, 2001: 194). Cultural relativist argue that the current human rights system in its attempt to punish human rights violations attacks cultural practices that have been condoned for centuries by the societies that engage in them (Brennan, 1988) and by doing this it imposes outside values upon the said society (Shapcott, 2008: 200). This of course serves as a powerful discourse in an international system that prides itself on foundations of Westphalian sovereignty and thus it serves as a hindrance to the possibility of universal human rights. Of course, if we were to ask those in the said societies whether they felt they lacked basic human rights we probably wouldn’t get the answer I would hope (in most cases) but this I would argue is due to the stigma of human rights discourse and its association with western ideology and the fact that the basic rights aren’t taught to those who lack it most. Consequently we continue to have women being denied the vote amongst other basic human rights such as education in several Arab states, spreading to Sudan, Nigeria, and Pakistan (Franck, 2001: 191). Violations continue even Western states such as the U.S who persists on execute persons who committed crimes as minors despite violating U.S. obligations under the ICCPR, claiming (as most violators do) that the international community must respect a states’ culture and unique problems (Franck, 2001: 192).

Adding to this obstruction to human rights reaching its universal destiny is the lacking social framework to its position in the contemporary international sphere. If we analyse further the foundations of human rights we can see that some rights enshrined by Universal Declaration are extremely difficult to universalise. Rights such as ‘equality before law’ and the ‘right to religion’ especially because they assume the presence of a functioning legal system and the separation of the church and state, which is not the case in many states that are not liberal and secular (Cohen, 2004; Langlois, 2002). Even in pursuing more minimalistic conceptions of human rights we encounter problems universalising the concept. If we consider the right life in a in an abortion, the right to life of a woman is and the right to life and the right of life of the foetus are mutually exclusive. However, what constitutes the right of life in this situation would turn into a cultural, religious and maybe even philosophical debate between a secular liberal and a devout Catholic or Muslim if attempts to universalise were made (Langlois, 2002). It is likely that the devout Catholic or Muslim would argue that humanitarian intervention would be necessary "to prevent the thousands of cases of abortion routinely practised in the secular West" (Koskenniemi, 2002: 167). This exemplifies the argument that the social framework needed for a universal human rights system is not yet fully present (Dershowitz, 2009: 41).

4.

With the conclusion that human rights are not currently universal we can anticipate that this would have various implications on the capability, strength and legitimacy of human rights law. The current international system still prides itself on the principles of Westphalian state sovereignty which essentially continues to enable the cultural relativist obstruction to the furtherance of universal human rights (Smith, 2009). Human rights law attempts to question the morality of state behaviour and in the same breath align itself in public international law which has state sovereignty at its core. This highlights the paradoxical, ambiguous, and often contradictory nature of human rights law (Smith, 2009; Reus-Smit, 2011; Teitel, 2002; Clapham, 2006). The state based (Westphalian) system that international law operates under leads to a consent-based notion of legal obligation in human rights affairs which further creates a stalemate situation whereby states may only be held accountable to those laws they have consented to (Scott, 2004, p. 14; Reus-Smit, 2011, p.284). If we analyse for instance Article 2 of the Universal Declaration of Human Rights (1948) which states that:

"no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."

The contradiction is highlighted in that theoretically, the Article deems legitimate the intervention of any state willing to intervene in another in the name of human rights. If we contrast this with Article 55 of The UN Charter, which defends the ‘self-determination’ (1945) of a state especially in terms of managing its own jurisdiction the contradiction is highlighted further. Amongst a multitude of internal problems what we can see how difficult the international law is to consult in light of its paradoxical nature. This renders the possibility of universalising human rights additionally impossible and until these matters are clarified within the statutes or human rights will continue to vary between states.

6.

In addressing the issue of state sovereignty and border significance, the role of NGOs has increasingly become significant in maximising the accessibility of human rights worldwide. Although legal jurisdiction will continue to problematize the furtherance of universal human rights, NGOs have served as a portal to limiting the extent to which these internal variables enable human rights violations. This can be seen in the violence and abuses in Latin America. Particularly in Uruguay, in which NGOs continue to play a significant part in bringing to light perpetrators of human rights abuses through the promotion of truth commissions. As it doesn’t threatened this ideal of state sovereignty in the same way that state humanitarian intervention does the rise of the work of NGOs is extremely beneficial to the furtherance of human rights without harnessing the international order. A prime example of this is the arrest of Pinochet in London, to which Borzutzsy states "energized the human rights NGOs" (2007: 179). It can be argued that the more globalisation intensifies, in theory, as will the influence of NGOs in human rights affairs, and in turn it will increase the accessibility of human rights to those who have long been denied them. Countries which systematically violate human rights instruments should continue to be chastised and their victims protected by the human rights system. With regard to cultural practises, however, the human rights should apply the international norms differently. The authority for applying these norms to cultural practises probably cannot be found by searching for elusive universal principles. If the norms are developed in a process which reflects the views of the divergent cultures and ideologies, the authority for these norms should come from the fact that a great number of nations agreed that a particular type of conduct is desirable (Brennan, 1988:397). To deny that this is an appropriate role for the international human rights system is to deny the beneficial aspect of new ideas and the positive nature of cross culture influences (Brennan, 1988: 398).

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Never the less while assessing practical international relations we can conclude that human rights are indeed far from universal, being that their accessibility remains limited to certain states and their restriction to many, this is an issue that should alarm the international community. International legal human rights instrumentalities rather than challenging state sovereignty are constrained by it; their interpretation, implementation and enforcement rely on states (Donnelly, 2011, p. 496; Archibugi, 1995, p.126-127). The Universal Declaration of Human Rights may not yet be an international Magna Carta of all mankind, as envisaged by Eleanor Roosevelt (Sikkink, 1999, p. 3) and the notion of sovereignty is still the cornerstone of international public law and its practice. Still, the substantial normative foundations of the human rights ideal are the source of its strength and its potential for generating political change.  Stating that the ideal of human rights would only be performative when congruent with the interest of powerful states would mean undermining its moral power and how it may be used to create normative discourse, empower human rights advocates and sustain a political milieu conducive to change. Maybe human rights do not lay siege to national borders, but they still may exert influence on states’ behaviour on domestic and international levels, even if only of consensual and voluntary nature. Also, human rights groups’ working through and with national states, as opposed to around them has significant benefits (Smith, 2009, p. 41). In the end, it is about ensuring that states give adequate protection to its populations and respect their rights, not undermining their authority.