Human rights were founded post World War II as fundamental rights all persons are entitled to, irrespective of cultural, religious or linguistic barriers and differences. Human rights principles are intended to codify the minimum standard of behaviour owed to persons as a means of keeping the international community accountable for both domestic and international laws and dealings. The introduction of human rights as codified norms of conduct saw the expansion of international law by making individuals subjects of the international law framework.
Since the assent of these principles in 1948, Human rights are recognised as the most influential and innovative standards adopted by the international community. Whilst the principles and objectives of human rights are admirable, criticism has arisen around the effectiveness of applying one universal set of values within states that differ culturally, religiously, geographically and linguistically. Whilst many theorists believe that human rights are universal and unrelated to a states context, other theorists maintain human rights are relative to a states context and as such, the application of human rights vary throughout the international community.
This essay explores how human rights interact with theories of universalism and cultural relativism and judged whether the international legal framework supports either theory more than the other.
Theory of Universalism and Human Rights
Universalists believe that human rights are inextricable rights that are owing to each and every person by the virtue of their humanity, irrespective of cultural, religious and linguistic differences that may exist. This theory is not without criticism, namely the belief that human rights delegitimise traditional cultures and impose western belief systems onto the international community, a process some have coined modern “western imperialism”.
Developing third-world nations, Islamic states and non-democratic states in particular, perceive human rights as “merely an instrument of Western political neo-colonialism [and interventionism]”. Relativists argue that by imposing developed western democratic values upon the rest of the world to measure whether state laws are valid, is a means of delegitimising state differences. Universalists, however, claim that culturally, traditionally and religiously diverse representatives were involved in drafting the Universal Declaration of Human Rights in a way that suited all parties, not merely western states. Nations involved in the drafting process included “Chile, China, Egypt, India, Pakistan and Lebanon, none of which would be classified as “Western”. Furthermore, two-thirds of the endorsing votes came from non-Western countries. This explains why Human Rights extend only to values of a jus cogens nature, such as the prohibition on acts of aggression, ban on slavery and sovereignty and makes no reference to other beliefs that may vary from state to state, such as God.
The importance of only adopting jus cogens is illustrated in the lack of reference to God, ensuring that Communist regimes that reject religion and Islamic nations that base laws off religion and tradition can both adopt human rights principles irrespective of their differences. “Hence the secular ground of the document is not a sign of European cultural domination so much as a pragmatic common denominator designed to make agreement possible across the range of divergent cultural and political viewpoints”. Universalists therefore believe that there is no need for religion, tradition, culture or linguistic differences to be codified, as to “seek human rights is not to change your civilization; it is merely to avail yourself to the protections…from oppression, bondage and gross physical harm”. Universalists suggest that human rights transcend religious, linguistic and cultural differences and as such, there is no need to address these differences in the human rights framework.
Theory of Cultural Relativism and Human Rights
Relativists object to assertions that human rights are universal for various reasons, namely that the international legal framework implies that states are homogenous, ignoring the intricacies of national identity, heritage and culture. Relativists assert “that all rights and values are defined and limited by cultural perception. If there is no universal culture, there can be no universal human rights. Cultural relativists question the validity of the human rights framework due to the lack of consideration and malleability for cross-cultural differences.
Human rights are rooted in the concept of secular liberalism as a means of ensuring the international legal framework is independent from religious institutions. Whilst universalists maintain that secularism allows for states to enact human rights universally irrespective of local religion and tradition, cultural relativists appreciate that many states are unable to compartmentalise religion and custom from the legal sphere. Some human rights principles contradict local cultural and social beliefs and practices, making the basic standards established by the international community seem a foreign and progressive concept. Consequently, states that cannot perceive an independent moral standard without the influence of religion often resist international norms to uphold what is valued and practiced by local communities. This struggle is illustrated in the application of human rights in Islamic cultures where independent human rights standards fail to transcend cultural norms.
The freedoms that the Universal Declaration of Human Rights and subsequent agreements maintain are inconsistent with some Islamic thought and practice, in particular the rights and role of “women, the rights of non-believers, the rights of people deemed to be apostates and the question of punishment”. Whilst each Islamic state interprets and applies Islamic teachings differently, conservative governments that seek to enforce strict Islamic code of rights such as Saudi Arabia, consistently objected to the legitimacy of the human rights international regime. The Saudi delegate held “the exchange and control of women…and the restriction of female choice in marriage is central to the maintenance of patriarchal property traditions…[and] refused to ratify the declaration”. Further, conservative Islamic states believe that “universalizing rights discourse implies a sovereign and discrete individual, which is blasphemous”. Consequently, cultural relativists are pragmatic in understanding that the concept of human rights needs to be malleable to independent states’ beliefs and traditions to ensure that some basic standard of rights are maintained, even if other rights are omitted.
Further, cultural relativists criticise universalists for the dismissing the plight of developing nations and states that do not adhere to a democratic governance through the application of Article 38(1)(c), i.e. ‘the general principles of law recognised by civilised nations’. Lack of clarity as to what constitutes a ‘civilised nation’ is of concern to relativists, who fear dominant states of the international community as granted too much discretion in interpreting meaning. The International Court of Justice has equally failed to provide an unambiguous meaning of the term ‘civilised’. It is implied from cases before international courts that civilised nation is “regarded as a term of art referring merely to states with well-developed legal systems and implying no racial or cultural prejudice”, however this conceptual framework is by not means a concrete definition. Article 31 of the Vienna Convention on the Law of Treaties, posits that treaties are to be interpreted in accordance with the ordinary meaning of the word, in good faith.
This ‘ordinary meaning’ methodology fails to provide about interpretation of the term ‘civilised’. Cultural relativists are of the viewpoint is that interpretations of the term ‘civilised’ ignores the plight of developing nations and excludes evolving legal systems. In reality, relativists understand that “who gets to define the standard of civilised is determined by the hierarchy of power in the international system.” Article 38 (1)(c) is constantly evolving in how terms such as ‘civilised’ are being interpreted, based on the international context and what widespread social, moral and political shared beliefs are. Nations that still have developing legal systems are under the threat of being determined ‘uncivilised nation’ at the discretion of the international community and court.
Relativists understand that non-western developing states are placed under undue pressure to align community values with western states or face consequences of the international community. Consequently, states that are less developed on constituted as “third world” are not afforded opportunities to develop distinct legal, political and ideological systems without repercussions of the international community, a reality that cultural relativists criticise as being imperialistic.
Similarly, Article 38(1)(c) fails to directly stipulate and define what general principles of laws are. Whilst it is common for international agreements to be drafted in open language to ensure states can interpret and apply principles accordingly, lack of clarity around article 38(1)(c) has caused a power and ideological struggle internationally. During the drafting of the Universal Declaration of Human Rights, states sought to agree and codify what ‘general principles of law’ were. As a result of every state having a different perception of what ‘general’ principles of law were, the international community were unable to conclude what international norms of law were either. States also appreciated that “culture is constantly evolving in any living society, responding to both internal and external stimuli, and there is much in every culture that societies quite naturally outgrow and reject.” In light of these considerations, “drafters of Article 38 deliberately empowered future courts to develop and refine the principles of international jurisprudence.” International courts have interpreted “general principles of law recognised by civilised nations [to] constitute the common themes similar to the various legal systems throughout the world…more specifically, the ICJ refers to concepts of estoppel and res judicata.” Whilst courts have distilled examples of ‘general principles of law’, regimes such as “fascism, communism, and the ideology of decolonization successively [take] aim at what Western States created and fostered” ‘general principles’ to mean. States that prescribe to fascist, communist and other unorthodox ideologies argue that the unfettered discretion enjoyed by dominant states in interpreting what legal values are universal is a means of the west exerting cultural and ideological supremacy.
Cultural relativists assert that the difficulties of applying Article 38(1)(c) universally, illustrates why there cannot be one central legal authority for nations that differ culturally, religiously and ideologically. Whilst Article 38(1)(c) accommodates the theory of cultural relativism more than the theory of universalism through the broad discretion allowed for courts, enforcement of this system is not without flaws. Notwithstanding these difficulties, the international community evidently appreciates the inherent difficulties in judging numerous states with distinct values against one central value system as a litmus test. Whilst the malleability of the human rights framework poses a risk to both developing and non-democratic nations in being deemed uncivilised or not adhering to general principles of law, shaping laws to suit international context is arguably still the most effective method. Unlike the theory of universalism, the flexibility of the culturally relative human rights system has the potential to accommodate developing and non-democratic nations if the international community and court sees fit.
Thus, Article 38 (1)(c) is culturally relative and has the potential to accommodate different cultural, religious and linguistic groups, whilst still upholding international standards of human rights.
Whilst there are many criticisms of the human rights framework by both universalists and cultural relativists, it is clear that neither theory applied in isolation will benefit the international community. Whilst “political philosophy can be used to enrich understanding of disagreements concerning human rights, it can go only a limited way towards resolving them.” Like every legal system, there is need for responsiveness, contextual relevance and malleability.
Universalism fails to accommodate cultural, religious and linguistic differences that may otherwise exist and separate states from one another. Cultural relativism on the other hand lacks certainty and can pose a risk to states that hold different values than their international counterparts, illustrated with developing and non-democratic nations. To adhere to one school of thought is to ignore the complexity of introducing and maintaining international standards that may prove foreign locally. Consequently, human rights should be conceptualised pragmatically as a composite between universalism and cultural relativism.
Universalists and relativists must recognise the limitations of both theories respectively and ensure the international human rights framework is robust and effective. Universalists must appreciate that for the adoption of international laws and ideology locally, existing culture, tradition and religion cannot be delegitimised. Whilst local culture should not be delegitimised, relativists must work with universalists to ensure certain “objections are voiced… [such as matters pertaining to] women, child marriage, widow inheritance, female circumcision”, practices that are not uncommon in some cultures. Whilst application of international standards vary from one culture to another, particularity in third world, Islamic and non-democratic states, universalists and relativists must be pragmatic and agree that advocating for human rights is more effective than marginalising a state for their practices. Cultural relativists must equally acknowledge that capability of states to “do harm or good to self and others… [as well as] exacerbate or combat rights abuses.” There is therefore a need for a central authority to ensure that states that are either at risk or perpetuate human rights abuses respect and fear repercussions from the international community.
Consequently, the human rights framework must accommodate cultural, religious and tradition differences to ensure sovereignty, yet enforce a basic standard of rights citizens of the international community may enjoy. To assert human rights are universal and relative is not contradictory to one another, instead a pragmatic balancing act to ensure that whilst international law may not transcend religious, linguistic, cultural or philosophical boundaries, “it is enough that they do not fundamentally contradict the ideals and aspirations of any society, and that they reflect our common universal humanity, from which no human being must be excluded.