Human Rights Law Essay Example
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Universalism versus Relativism in the Human Rights Discourse in Relation to Equal Rights and Gender
This essay discusses the age old theories of Universalism vis-à-vis Relativism in the Human Rights Discourse and their relation to equal rights and gender. It questions the very relevance of universalism given that though it has been touted as the solution to the various human rights violations the world over, the violations continue to run unabated. It proffers that under the circumstances; there may indeed be some truth in the assertions by cultural relativists that culture informs the development of human rights within the various world cultural societies.
Key words: universalism, relativism, human rights, gender, violation, discrimination and culture.
Save for such other hot contemporary issues like environmental matters and climatic changes, human rights is another discourse that continues to occupy the human psyche now more than ever before. In fact, given its prominence, a number of authorities have sought to create a link between this discourse and other contemporary issues, like development and climate change (Steiner, Alston & Goodman 2007). While there does not appear to be doubt in the minds of everyone as to the appropriateness, as well as, the urgency of the importance of enforcement to the implementation of human rights, what has certainly appeared to be in doubt, is the requisite standards of such enforcement. Thus, the question of the need for the enforcement has become a discussion while the standards for such enforcement still remain a debate.
The debate that has characterized this discourse has been whether the standards of human rights enforcement, are to conform to the universal standards or to the so called cultural relativistic standards. Within the contextual setting of this paper, moral universalism (sometimes also known as moral objectivism or universal morality), refers to the philosophical position that human rights apply equally to all individuals universally. Based on the universalistic approach, human rights, have thus been bandied as having attributes such as universalism and inalienability, almost bordering on being absolute (Heard, 1997).
Relativism is the belief in the philosophy that not anything is really absolutely true. Consequently, it asserts that things can only be judged in comparison with one another (Bullon, 2003). In the contextual framework of this paper, cultural relativism with respect to human rights refers to the principle that human rights should be construed and understood within the cultural limits (limits pertaining to a people’s way of life, beliefs and practices). Cultural relativism is thus an antithesis to the position offered by universalism, which asserts that principles of human rights apply cross culturally.
It is observed that whereas the international political practice has been to adopt various conventions, which are universalistic in nature, there still remain innumerable cases involving violations of human rights across the world. Why is it that the universalistic instruments have not been able to arrest this despicable trend? Could it be that the world cultural diversity has a role to play so that the other parts of the world have not been able to adapt to the standards of human rights as understood within the western countries, which practice universalism and have been at the forefront in pushing for the adoption of the said universalistic conventions and other international human rights instruments?
Given the glaring inconsistencies on matters of enforcement human rights across the globe, a naturally fitting question that may need to be posed at this stage is whether human rights are really universal or relative or a hybrid of both. Since the first half of the past century, human rights issues have assumed pole positions in human discourses. The raised stature of human rights was marked with the adoption in 1948 by the United Nations’ General Assembly of the Universal Declarations of Human Rights, UDHR.
By its very name, the instrument presupposes the fact that human rights are universal; hence the first part of its name is called universal. In fact Articles 1and 2 leave no doubt as to the instrument’s universalism. Article 1, among others, restates the position that all human beings are born free and equal in dignity and rights. On its part, Article 2 grants everyone, without a distinction as to social origin, race, political, sex, religion, colour, national and other opinion, birth and property as well as, other status the rights and freedoms set forth in the UDHR.
This is a language that is strongly universalistic, and has left no room for even the remotest chance for cultural relativism. This then begs the question, of why very articulate and well meaning provisions of this document continue to be flagrantly violated when most, if not all, countries have adopted the UDHR.
Other than the UDHR, examples abound of international covenants, which treat human rights with a universalistic, rather than relativistic approach. The International Covenant on Civil and Political Rights, ICCPR is one such. Like the UDHR, Article 1 of the ICCPR grants all human beings the right to self determination, with Article 6 providing the inherent right to life to all human beings. The fact that these rights are provided to all and sundry within the human race, simply underscores how much central universalism, is to the international human rights discourse.
The universalistic approach on matters relating to international human rights issues is also, evident in the International Covenant on Economic, Social and Cultural Rights, ICESCR. The ICESCR through Articles 8 and 9 makes provisions respecting the duties that the state parties owe to their citizens; which duties are owed to citizens in their individual, rather than communitarian sense.
The predisposition of the universalistic view over the relativistic view, in the international human rights discourse, finds favour with all the other international human rights instruments, almost without exception.1 The other instruments in this category include; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Rights of the Child, International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Rome Statute of the International Criminal Court (ICC), American Declaration of the Rights and Duties of Man, American Convention of Human Rights and the European Convention of Human Rights, just to mention but a few.
However, despite the prevailing predisposition of the international community, to lean more towards this universalistic view on matters relating to human rights discourses, serious human rights violations continue to occur within numerous countries in the world over. In a number of countries, the attainment of even the basic threshold of the human rights covenants still remains a near mirage. In fact, full compliance with the universalistic principles of the UDHR, as well as the other human rights covenants has been a feature largely confined to the western countries.
The existence of disconnects between the western countries’ standards of human rights enforcement vis-à-vis the rest of the world, notably Africa, has made many a people to really interrogate the concept of universalistic human rights principles. Consequently, some have asserted that human rights are culture specific hence the corresponding theory of cultural relativism of human rights (Tharoor, 2001).
Tharoor (2001) argues that there cannot be principles of human rights, which may be universal. Firstly, in his contention, rights and values are defined and limited by cultural perceptions. Conversely, he asserts that it follows that since there is no universal culture, there cannot therefore be universal human rights.
In his attempt to buttress the relativistic cultural proposition theory of human rights, he argues further that the concept of human rights, as posited by the Universalists is founded upon an individualistic view of human beings, whose intention is only to be free from any form of interference from the state, which view is highly westernized. He asserts that non-western people have a communitarian ethnic lifestyle, which considers the society as being larger than the sum of the individual members. He points out that the consequence of such a position is that among such peoples, duties supersede rights as is the case in the Western societies.
Tharoor’s assertion of human rights being culturally relative is clearly vindicated by the distinct departure of the African Charter on Human and Peoples’ Rights, ACHPR from its European counterpart, and by extension all the other international human rights instruments which have been mooted by the Western interests. Mr. Tharoor’s assertions of communitarian interests in the non Western societies are best illustrated by the “group rights” concept couched within the African Charter instrument.2 Within Articles 20-24 of this instrument, group rights have been captured; a position which just illustrates how much communitarianism is central to the lives of Africans.
The clear departure of the African international covenants, from their western counterparts, is also portrayed in the African Charter on the Rights and Welfare of the Child (ACRWC). This instrument, like the ACHPR, leaves room for the co-opting of African specific culture within the provisions of the document.
Among the culture, specific provisions co-opted into the instrument, are to be found in Article 31, which sets out the responsibility of the child. Among others, the child is given the responsibility to work for the cohesion of their family, subject to their age. This provision has been held to mean, children have a duty to perform house hold chores. These responsibilities are considered forms of child abuse, in the western countries but perfectly in order among the Africans. These two African instruments thus, provide good fodder to the human rights activists who subscribe to the relativistic theory.
Besides the broader picture of human rights discourse within the dichotomy of either universalism or relativism, there are equally sticking issues in this area respecting gender and human rights. Gender may be taken to mean the fact of being either male or female (Bullon, 2003). It may sometimes be used interchangeably with the word sex. The word sex has been defined to mean the sum of the peculiarities of the structure and function to distinguish a male from a female organism (Garner, 2004). It may also be defined on the one hand as either whether a person, plant or an animal is a male or female or on the other hand as all men, considered as a group, or all women considered as a group (Bullon, 2003).
One area where there have witnessed human rights violations especially through discrimination, is gender based violations. Discrimination with respect to human rights, is the effect of a law or established practice, which confers privileges on a certain class or denies privileges on a certain class, because of such factors as race, gender (sex), religion, age, nationality or handicap (Garner, 2004). Bullon (2003), on his part defines discrimination as the practice of treating one person or group differently in an unfair way.
Although various legal theories may be used to explain gender issues attaching to human rights, two of them, feminist and natural school theories stand out. Let me briefly ventilate these theories hereafter.
Garner (2004), defines feminist jurisprudence, as a branch of jurisprudence which examines the relationship between women and the law. The kinds of relationship examined by the branch of jurisprudence include the history of legal and social biases against women, the elimination of the biases in question within the modern law, as well as the process of the enhancement of women’s legal rights together with their recognition in the society.
Feminist jurisprudence basically inquires into and analysis of issues, such as, how the law contributes in constructing, maintaining, reinforcing and the ultimate perpetuation of patriarchy within the society (Freeman, 2001). Further, this branch of jurisprudence explores the various options which may be available towards the process of undermining and the ultimate elimination of the patriarchal system within the society (Freeman, 2001).
Some authors have indicated that feminist jurisprudence encompasses the various forms of inquiries as well as activities dedicated to among others, describing nature and extent of the women’s subordination to men within the society (Dalton, 1987). Besides, Ms Dalton asserts that feminism inquires into how, i.e. the various mechanisms, in addition to why the womenfolk continue to occupy a subordinated position to that of men within the society.
Thus, given the basis that there is usually a general predisposition towards the subordination of the womenfolk in the society, the question that feminist jurisprudents would want to address is which of the two theories, universalistic and relativistic is best placed to enhance the women’s equal access rights. Obviously, such jurisprudents would most likely opt for universalism because of its contention that human rights apply to all individuals, gender notwithstanding, equally universally.
The essence of natural law is said to lie in the constant assertion that there are objective principles which depend upon the nature of the universe and which can be discovered by reason (Freeman, 2001). It is these principles which are discoverable by reason which constitute natural law.
The contemporary understanding of natural law is that from the law, there are derived natural rights as articulated by Finnis in his book, Natural Law and Natural Rights. The natural rights which obtain out of the natural law have been held to found the present day conceptualization of human rights.
Based on the illustration of the derivation of human rights from the natural law jurisprudence, it becomes apparent that members of this school of thought subscribe to the universalistic theory of human rights. Consequently, natural law theorists are most likely to have a predisposition to champion for the equal access rights of women into the resources of the society. This is because according to them, rights accrue to human beings naturally i.e. just by virtue of their being human beings, gender notwithstanding.
In order therefore to enhance equal access and women’s rights, the gender activists are wont to agitate for the enforcement of the various international human rights instruments. More importantly, the feminist jurisprudents would be more likely to call for the enforcement of CEDAW as well as the other instruments.
This essay has considered the discourse of human rights within the realm of the theories of relativism and universalism in matters respecting equal rights and gender. Right from the outset, it considered a number of related terms which have a direct bearing on the topic of discussion. This has then been followed by a discussion on the question of whether or not human rights are truly universal or relative. That question has been settled in favor of the latter position.
In the final analysis, a consideration has been made of the question of the jurisprudential positions relating to equal access and gender based on the theories of relativism and universalism. It has been determined under the two jurisprudential positions considered that equal rights and gender considerations can only be assured through the theory of universalism; a theory which presupposes that human rights accrue to people only by virtue of them being human beings, their gender considerations notwithstanding.
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1 The African Charter on Human and Peoples’ Rights provides an interesting exception as it makes for a hybrid system where its terms are couched to provide for both individuals and group rights
2 The ACHPR is a unique Human Rights instrument with provisions for the protection of human rights as “group rights”. The concept of group rights is a complementary phenomenon to the more acknowledged individual rights. Such rights are generally those which cannot be claimed by people in their individual capacity, but only collectively. This was informed by the need to reflect within the Charter human rights concepts which are uniquely and peculiarly African; the African people have lived as communities through a communal life where people identify and regard themselves within the framework of their families and clans. The concept of group rights finds expression through Articles 20-24 of the Charter
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