The Relative Universality of Human Rights

Short paper on the article The Relative Universality of Human Rights by Jack Donnelly and the lecture by Dr. Peter Boele van Hensbroek by Christina Hitrova, Honours College, Faculty of Law, Group 2, In-depth Module Choosing a topic to write on as part of our In-depth module in the Honours College turned out to be a very difficult topic as we had many interesting lectures on a variety of topics that I would have never read anything about otherwise probably. The program deeply broadened my horizons and raised my interests in many different fields of the international law. I chose to write on this topic personally, because I believe that, being a student of International and European Law, the international character of the world, no matter how globalized and unified it may be seen to become, still plays an incredibly important role in all areas of international development, be it economic, political or human rights. With regard to human rights, their birth is connected with the emergence of the strong state, the need of individuals for protection against that state and the atrocities of the First and Second World Wars and this makes them a specifically interesting field to study. It creates a new level of interactions between the state and the individuals and even between individuals themselves and has brought it to the field of international relations and policies. This makes human rights as the preferred way of achieving social justice an especially interesting topic to study and this is precisely why I chose to write about this topic. The article by Jack Donnelly named The Relative Universality of Human Rights 1 interested me and captured my attention completely; therefore, in this short paper I would like to make a short analysis of the article itself combined with some additional interesting papers that I have found to be informative and that complete the picture of the universality of human rights, at least to the extent that a 2-year study of the field has allowed me to grasp. I have often thought about globalization and legal transfers, which I understand to be the transferring of legal concepts and values from some parts of the world to others with the intention to further global development. I have always thought that the wide-spread criticism for human rights based on the relativism of different states, cultures and societies does have some legitimacy to it. This view is very well introduced by Alison Renteln in her article The Concept of Human Rights2 where she, although taking a more philosophical view, argues that rights are
1

Donnelly, J., The Relative Universality of Human Rights, Human Rights Quarterly, Vol. 29, No. 2, 2007, pp. 281-306. 2 Renteln, A., The Concept of Human Rights, Anthropos, Bd. 83, H 4./6., 1988, pp. 343-364.

a specifically Western concept which is almost artificially imposed on the rest of the world. She examines the Universal Declaration of Human Rights and states that international elites are more involved in the promulgation and creation of such documents, making such values alien to some parts of the world. Indeed, I have tended to believe that the leading role of Western countries in the 20th century in the international community, as well as the birth of human rights through the atrocities of the Second World War, has had an effect on the kinds of human rights which were accepted as being universal. However, after reading the article by Donnelly, I found another perspective to the problem, which showed me that perhaps modernization is the key-element that plays a role in the development of human rights and that precisely the capitalist market, which is driven by nothing else than profit, as well as the ever-growing and powerful state, which is active in ever more spheres of society, are the things that prompted the creation of human rights as basic values to protect the less powerful, both in the private and public sphere. Merely the fact that the majority of the states today have accepted these human rights, have signed the documents and ratified them is an indicator of the states commitment to the fulfillment of these common values and goals, which Donnelly also shows are common to many different traditions, cultures and religions. Although there are many ways to achieve such aims, in the last decades human rights have definitely become the preferred road to them. The author, however, drew some heavy distinctions between the possession and the enforcement of human rights, something which we can see is a valid concern even in the modern world as we know it. It is a known fact that states do not always follow what they agree to in treaties, especially when the matter in question is human rights. This is a disturbing phenomenon, yet true for all dictatorships and military governments, and even some democracies. In his paper Do International Human Rights Treaties Improve Respect for Human Rights? Eric Neumayer3 argues very convincingly that international treaties rarely effectively change the position of human rights in a states social and legal value system. In fact, he observes a correlation between the democratic character of the state and the growth of respect for human rights together with the growth of such democracy. This may explain why some states are more democratic and do better with regard to respect for human rights, while others have such rights codified in their constitutions or in their international obligations, however fail to fulfill them. This furthermore may explain the high position of democracy as one of the values heavily promoted and encouraged in the international community through numerous international
3

Neumayer, E., Do International Human Rights Treaties Improve Respect for Human Rights?, The Journal of Conflict Resolution, Vol. 49, No. 6, 2005, pp 925-953.

organizations, as many believe that precisely the democratic state is the best environment for political, social and economic human rights to flourish. It thus appears that it is not always when a state has ratified and signed an international human rights treaty that it fulfills these obligations in fact. Then why do states ratify such treaties if they do not adhere to the values promoted in them? 4 Donnelly accepts the leading role of the United States and Western Europe emphasizing, however, that advocating human rights and even coercing other states has had a less important role in promoting these human rights than the promise of closer political or economic relations or full participation in international society.5 With regard to individuals, he writes that most societies and people today choose for human rights and believe in the equality of people and their entitlement to some basic rights irrespective of their religion or cultural background, thus arguing for the universal values, which today are approached through the path of human rights. Even though many academics believe that human rights have a separate and independent moral basis from any religion, Louis Henkin argued in Religion, Religions and Human Rights 6 that many religious communities have typically not only emphasized on the rights to religious freedom, but in Western countries they have recently opened up to the idea of human rights and even claimed that they have their basis to a large extent in their own traditions. He however disagrees with such claims and writes: The human rights ideology is a fully secular and rational ideology whose very promise of success as a universal ideology depends on its secularity and rationality.7 Thus with regard to religious differences, which are an important point for human rights critics with regard to their lack of universality, many academics have proven these arguments wrong in their writings, showing that common values of equality and basic entitlements can be found throughout the world in the modern day society, regardless of these backgrounds and even that some such communities try to establish a connection between themselves and the phenomenon of human rights. Perhaps the reason for the developments of these common values is precisely the capitalist character of markets and the expanding powers of the state, as Donnelly writes.

For a deeper analysis of the topic of human rights as part of the international political life you may find it useful to look at Thomtion, W., Back to Basics: Human Rights and Power Politics in the New Moral Realism, International Journal of Politics, Culture, and Society, Vol. 14, No. 2, 2000, pp. 315-332.
5 6

See supra note 1, p. 291. Henkin, L., Religion, Religions and Human Rights, The Journal of Religious Ethics, Vol. 26, No. 2, 1998, pp. 229-239. 7 Ibid, p. 238.

What made an extremely big impression on me was Donnellys approach to cultural relativism, which is, apparently, the main focus of any criticism of international human rights universality. Cultural relativism is indeed a fact, as the author states, and it plays a significant role with regard to human rights exactly because it is an inalienable part of each and every society and its history and values. Since human rights are the preferred path towards the modern day values, the question stays open which are these values. Exactly this question is answered by the cultural backgrounds of societies, which dictate what is right, wrong, ethical, moral, true or false, in other words the standards of evaluation depend on the culture. However, Donnelly manages to dispute the validity of cultural relativism as a valid criticism of human rights with 6 very strong arguments, in my opinion, which persuaded me while reading his text. These arguments can be summarized in the following: reducing what is right to what is traditional, thus disregarding the philosophical basis of human rights, equating tradition with moral correctness, tolerating intolerant cultural relativism, confusing or ignoring politics altogether and substituting it for culture, ignoring the complexity of the globalized world, to be seen in the impact of states, markets, colonialism and () human rights ideas and finally, accepting cultures as being homogeneous, consensual and static, which is simply not true.8 With these arguments, the factor of cultural relativism is seen to play a more minor role in the universal acceptance of human rights. This leads us back to the concept of universality of human rights itself. Already in 1989 Louis Henkin believed that although universality may have lacked with the acceptance of the Universal Declaration of Human Rights, it had developed at that point in time, at least with respect to their political wide-spread acceptance and legal universality expressed with their enshrining in the UN Charter and the UN political agenda.9 Moreover, the writer noted the internationalization, as well as the constitutionalization of human rights as signs of their slowly growing universality, however he had to acknowledge the lack of universality with regard to the de facto respect for these rights. This is something that was briefly mentioned above in this short paper and precisely this, in my opinion, is the biggest problem with regard to the universality of human rights, their enforcement. Although in some areas of the globe there are already specialized ways for individuals to enforce their rights, for example the European Court of Human Rights, which is unique in the international community for its accessibility by individuals, this is certainly not so for other parts of the world. Enforceability of human rights is

8 9

Ibid, pp. 295-296. Henkin, L., The Universality of the Concept of Human Rights, Annals of the American Academy of Political and Social Science, Vol. 506, Human Rights around the World, 1989, pp. 10-16.

certainly a problem that many academics have struggled with and one that I do not hope to solve at the moment, however it is reassuring to see that there are some steps taken towards the further development of international mechanisms for the monitoring on states advance in this respect. As Dr. de Wolf informed us in his lecture for the in-depth module of the Honours College, the Optional Protocol to the Convention Against Torture (OPCAT) is one such step. Although slow, there are such developments and I find this thought reassuring. However this is not the main focus of this short paper. I would like to return to the universality of human rights, however. It seems to me that there is a common history to human rights and their developments that is agreed upon by most academics. They began with the Western world, however due to many different reasons spread throughout the world. Regardless of religious or cultural differences in the many different states of the world, however, human rights have found fertile soil to grow strong, especially with the spread of the capitalist economies, the strong state and democratic values. Political and legal universality is, arguably, already achieved, however real enforceable universality is still something to be worked upon and a topic that I believe will bother many scholars, politicians and activists for many years to come. In this respect there is nothing else for me to state except that I am deeply fascinated by these developments which are a clear reflection of legal transfer, global power and globalization, as well as a vivid illustration of the weaknesses of the current international community structure, in the face of the weakness of human rights enforcement. Perhaps not only through written legal instruments, but also through the actions of states and the emergence of new legal principles we can see changes happening in real time. I am of course referring to the responsibility to protect. In order to make a clear conclusion, however, I believe we will simply have to wait and see how the international community develops these principles. For now all we can see is legal, political, economic and even religious universality of these concepts. It is worth nothing, however, that all of these are useless, unless we can achieve real life enforcement and thus give real value to human rights.