The Human Rights System Series: Particular or Universal? Applicability of Rights

Foreword

The search for a series of rules, principles, and regulations capable of organizing and safeguarding those fundamental rights and provisions inherent to the human character has represented, since the dawn of time, a primary interest of humanity as a whole. Human rights emerged from an institutional standpoint with the adoption of the Universal Declaration on Human Rights, adopted after the atrocities of the Second World War to make amends for the crimes committed during the conflict, but their roots predate the 1900s and their character has evolved and morphed drastically since the signing of the Universal Declaration on Human Rights. Indeed, questions concerning their ontology, scope of action, enforceability, and overall efficacy have characterized the debate surrounding the human rights system since its onset, sparking countless chances for debate and development.

This series entails 6 articles, each presenting a different question that emerged in the definition and implementation of the current human rights system, with the aim to analyze the historical and political developments that characterized this mechanism. Such analysis is fundamental in order to properly frame the current human rights system and its provisions but, given the mutable character of this notion and its different interpretations according to the geographical area and the socio-cultural background taken into consideration, the process is still subjected to constant questioning and development.

The Human Rights System Series will be mainly divided into the following chapters of content:

1. The Human Rights System Series: What are human rights? The ontology of right-bearing

2. The Human Rights System Series: Generations of rights. The route to the system

3. The Human Rights System Series: Particular or universal? Applicability of rights

4. The Human Rights System Series: The enforceability of human rights

5. The Human Rights System Series: Regional integration and global development 

6. The Human Rights System Series: The Role of Media and Civil Society

The Human Rights System Series: Particular or universal? Applicability of rights

Since the end of the horrors of the Second World War, the international community attempted to define human rights and their influence through countless international treaties, conventions, and instruments. Instances like the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), and, most importantly, the Universal Declaration of Human Rights (UDHR) helped define the scope of action of these rights. Indeed, the UDHR in particular led to the identification of human rights as a political idea with moral foundations that creates individual entitlements to society (Henkin, L. 1989). In this sense, the human rights regime that emerged at the time set the standards to limit the scope of action of national authorities globally, on the basis of a series of provisions that are considered necessary for the well-being of humans. It was during 1948, among the talks surrounding the UDHR, that the notion of the universality of the regime first arose, with the objective of promoting a global implementation of rights-based measures to protect human dignity and integrity. The Declaration embedded the concept of universality in its preamble by underlying the commitment of member states to “the promotion of universal respect for and observance of human rights and fundamental freedoms” (UN General Assembly, 1948). Nonetheless, the promotion of a universal reading of human rights and fundamental freedoms remains a highly debated topic. Is it possible then, as of today, to understand human rights as universal?

According to Article 2 of the UDHR, every human being is “entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (UN General Assembly, 1948). Such declaration highlights how, at the time, the universal character of human rights was based on the conceptual foundations according to which all human beings, universally, are entitled to a basic set of fundamental rights to pursue their lives in a healthy and proficient manner. Nonetheless, when said foundations are analyzed through substantive lenses, the “universal” character of human rights appears to waver. Indeed, as highlighted by Roger Mark Selya (2012), looking at the global track record in the matter of rights would underline how only certain geographical areas appear to have enforced supervisory bodies to ensure that rights apply to everyone (Selya, R.M. 2012). The process of implementation and enforcement of human rights provisions seems therefore to show how the universality of the UDHR is more conceptual, rather than substantial, since the pursuit of universally-held human rights is relative to government willingness and political mechanisms (Donnelly, J. 2007).

Figure 1: Fighting for freedom. (Zhyhar, H. 2021)

At times, such reluctance to the universal implementation of human rights mechanisms refers to the mere need of states for independence from international scrutiny but, most often, the criticism of the regime has socio-cultural origins. Indeed, one of the strongest forms of criticism of the universal approach is that of cultural relativism. Jack Donnelly (1984) defined such phenomena as a worldview that considers “culture [a]s the principal source of the validity of a moral right or rule. In other words, the presumption is that rights are culturally determined” (Donnelly, J. 1984). This approach is based on the understanding that the values of human rights are nothing more than formal categories through which each culture and society can construct its interpretation of fairness and morals (Blumenson, E. 2020). Such a point of view constituted the foundation for the refusal of some countries to implement human rights provisions, on the basis of presumed cultural incompatibility of certain rights' interpretations with different worldviews.

Just as the human rights regime emerged with the creation of the Universal Declaration, the same context sparked the debate on the notion of cultural relativism. The adoption of the UDHR and the following human rights conventions led states to deal with the possibility of seeing their autonomy potentially constricted by global standards on justice and the respect of fundamental rights. In the context of the UDHR, cultural relativism set foot into the public debate because of the unwillingness of the American administration to bind itself to the provisions of the Declaration. At the time, Truman’s United States strived to safeguard the ownership of political and executive sovereignty and therefore rejected the insertion of binding rights-based measures in the Declaration (Hathaway, O. A. 2008). As of today, the question of cultural relativism constitutes a wide-ranging subject that touches upon a variety of themes. These stem from head-covering to polygamy and death penalties for religious reasons, forcing the theoretical moral universality of human rights to face the reality that societies have developed many different moral codes (Blumenson, E. 2020).

Figure 2: "Voting rights are human rights" Poster. (Barrett, T. 2021).

Such differences tend to reflect the diverse hierarchies of morality that characterize the different cultures in the world. Since the birth of the UDHR, these forms of diversities have constituted the grounds on which many doubts on the plausibility of human rights' universality have emerged (Ramcharan, B.G. et al. 1998). In particular, the presumed Western character of the institutionalized set of rights has been considered a valuable objection to the applicability of rights from a universal perspective. As reported by Jacob Selebi (2018) and Eric Blumenson (2020), cultural relativist stances have considered human rights standards to be not binding on everyone because said standards were conceived and formulated largely by Westerners, fundamentally reflecting cultural values that are foreign to non-Western traditions. Although the concepts of natural and universal rights adopted by the Universal Declaration did emerge in the West, for example in John Locke’s Treatise of Government (1689) or the American (1765-1791) and French Revolutions (1789-1799), “westernness” is not their main identity trait. Jack Donnelly, professor of International Law and human rights theorist, identified how the West did not dispose of any cultural or historical prominence in the matter of rights that allowed it to rise as a human rights defender. If one was to take into account the contexts in which human rights provisions emerged, it would be possible to understand that these elements did not correlate with the classic European culture. Indeed, such a culture was not particularly predisposed to endorse the idea of inalienable and universal rights for the people in the first place.

What pushed for the emergence of human rights in the West was the radical transformation of traditional communities because of factors like market expansion, growing political accountability, and emerging socio-cultural threats (Donnelly, J. 2007). As modernization progressed, more and more dispossessed groups promoted claims to be relieved of injustices and disparities, eventually turning their socio-political claims into legislative provisions. In Western societies, the development of human rights emerged out of the necessity to adapt to the increasing pace of modernization and globalization, through which political ideals permeated the social tissue and prompted a call for change. Therefore, while the current interpretation of human rights and their universal character might have emerged in the West and developed institutionally after the horrors of the Second World War, its character is not intrinsically Western. Furthermore, recognizing that their geographical provenance does not necessarily match their ideological character would allow for an expansion of the debated notion of universality (Henkin, L. 1989).

Figure 3: Rainbow Peace Flag. (Chela, B. 2018).

Indeed, protective measures for cultural diversity in instruments like the Universal Declaration of the International Covenant on Civil and Political Rights (ICCPR) highlight how cultural particularities are not only safeguarded but constitute supporting elements for the conceptual universality of rights. Article 27 of the ICCPR – by reclaiming the right of people to cultural integrity – stresses precisely this striving for a universal enjoyment of rights based on commonly-shared standards that are respectful of cultural particularities. In this sense, universality refers not to the political idea itself but to the shared morality that lives underneath the institutional level (Henkin, L. 1989). A shared moral approach to rights that arose and is still developing globally is largely based on the fundamental principles of human rights documents like the UDHR. The fundamental conflict between universalism and cultural relativism would be removed if we adopted such a point of view (Kang, H. 2022). This might be especially beneficial because it would liberate the conversation from the solely implementation-based approach that has defined the discussion of whether or not various policies are acceptable in a particular culture (Henkin, L. 1989).

The overarching presence of such a moral interpretation of rights, which cross-culturally invests societies and administrations worldwide, fortifies the understanding of Huaru Kang of “plurality based on unity”. In an interview for the Geneva Graduate Institute, the international law expert stressed the importance of the wide diversity that characterizes the world and, inherently, the fundamental rights of its inhabitants (Kang, H. 2022). Just as the world is characterized by many different dimensions, human rights emerge and develop through different avenues as well. This process defined multiple structures and cultures of rights. Although this element of diversity might seem to be contrasting with the notion of universality stressed by the UDHR, Kang underlined how all these different instances are unified by a common thread: the protection of the human. Such structure of unity through plurality, and inherently that of universality through particularity, recognizes the plural existence of different perceptions of human rights to integrate them in a dialectical manner (Kang, H. 2022). To pursue unity deriving from a universal interpretation of rights, there is a need for a double commitment. Firstly, it would be necessary to recognize and respect the local interpretations and practices of different areas and cultures but said acceptance should not be exploited to hinder the validity of the regime as a whole. Indeed, the element of unity in the area of human rights derives from the consensus on the underlying morality of human rights provisions. Such norms, enshrined in the commonly-accepted human rights instruments, have been morally recognized globally. This element set the standard for their prominent role in the doctrine which should not be invalidated by the exploitation of cultural particularities to justify human rights violations.

Figure 4: "We who believe in freedom cannot rest" Banner. (Dumlao, N. 2020).

As of today, the universality envisioned by the UDHR is far from being achieved. Such universality might exist in a moral and conceptual sense, because of the widespread and cross-cultural recognition of the value of human dignity, but interpreting it through normative and absolute terms would highlight its limitations. Indeed, through a philosophical interpretation, the commonly-accepted understanding that humans might enjoy specific sets of rights because of their human character underlines the conceptual and moral universality of human rights. Because they are so widely developed and popularised, at least in their theoretical understanding, it would be possible to consider them universal concerning their ideological foundations. Moreover, the concept of universality and the applicability of said universal provisions might develop differently according to the socio-cultural background of the geographical area taken into consideration, but its foundations tend to follow the universally-accepted principle of the safeguarding of human dignity. Nonetheless, through a purely normative plane, human rights could hardly be considered universal because their applicability refers only to a limited group of countries and to specific sets of essential rights. The discrepancies in national implementation processes all highlight how the expectation of a universally recognized set of norms in the matter of human rights appears unreliable and hardly achievable. Indeed human rights interpretations and practices are bound to be culturally and geographically diverse.

Although, as underlined previously, the moral foundation of many fundamental rights such as the right to life, the protection from slavery, or the right to physical integrity might be understood as universal, their interpretation and institutionalization might develop through differentiated practices. Given the almost-global acceptance of the principle that humans deserve the right to live freely and in a healthy way, one could assume that human rights are indeed universal. While they might not develop in the same way and pace worldwide, the general commitment to some sets of rights highlights at least a conceptual universality of the element of human rights. In this perspective, understanding universality from a moral point of view would allow the notion to step away from the general-particular binomial and from the relentless debate on the cultural differences that, to this day, hinder the development of the human rights regime.

Bibliographical References

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