By Anmol Ratan
John F. Kennedy in his 1961 inaugural speech said, “the rights of man come not from the generosity of the state but from the hands of God”[1]. It is this presumption about the metaphysical origin of human rights that makes it problematic for this internationally recognised regime of law to claim absolute universality. We live in a world which has multiple social functions which along with their human element have different opinions of who and what ‘God’ is. The mere multiplicity of ideas and perceptions of ‘God’ illustrates the variety of rights being born. Even if we contest the idea of the Natural law theory and argue it like the positivists do, by sourcing human rights from the mere existence of human beings, the universal concept of human rights would still fail to have an objective definition because of the sheer complexity of the interplay of intersectional identities and cultural relativism. The proponents of Universality fail to recognise that there are differences in societies which endanger individualism and different standards of morality. While there is no denying the fact that the concept of ‘right and wrong’ or ‘moral and immoral’ are omnipresent, there are differences which exist in their expression among the various societal structures.[2] The belief system and opinion spectrum of people have always been open-ended and therefore, what is in accordance with the moral compass of someone may not even exist, let alone be evaluated on the same moral parameters by another. Over the course of this article, the author would argue against the universality of human rights by contesting the human rights regime to be a western product. Furthermore, the article shall also deal with the argument of cultural relativism and intersectionality of identities in order to build a case against universality.
‘Individualism and Intersectionality of Identities’
For issues such as abortion or female circumcision which have been at the heart of contemporary human rights discourse, more than their legal validity, it is the rationale and reasons enforcing them which are held in contempt of universal human rights principles. While both parties, the pro-life activists and liberals in case of abortion, dispute each other’s claims, they, however, persist to do so on the playing fields of human rights. More importantly, the fight of ideologies and faiths becomes the shaky foundation on which they contest supremacy between rights of a woman and rights of a foetus or an unborn child. It is this kind of variability in thought and expression, and personal understanding of human rights as a product of individualism and diversity of societal value systems that makes ‘culture’ a dynamic phenomenon. Cultural relativism therefore, weakens the already fragile authority of universal human right scheme. While the relative nature of culture has been a historic argument against universality, intersectionality is something which is more novel and contemporary. The fact that an individual’s identity is no longer defined in terms of a binary makes the universal application of human rights even more complex. It is therefore, imperative for human rights to evolve with the changing societal order, so as to be able to serve efficiently and effectively.
Is Human Rights a Western Concept?
Human rights have long been criticized for its lack of inclusivity and western hegemony. From the Lockean concept of natural rights to the theory of Social Contract and now Universal Declaration of Human Rights, the human rights paradigm has been nothing but a conduit of western imperialism. While the present international human rights regime has posited liberty, equality and many other ideals as being fundamental to human beings, it has done so from a position of western, modern privilege and bias. Since, most of these rights take root from ancient Western and European civilizations, it is not an exaggeration to suggest that these rights have always been tainted with western virtues and ideals. Being a western notion, human rights, even today has failed to view and include the ‘non-western’ moralities and traditional ideals under its not-so-wide ambit. So, it is not surprising that human rights violations such as casteism, child marriage, marital rape, untouchability, honour killing, hierodulic prostitution which are more regional and territorial in nature fail to garner attention from international institutions.
According to Dinah Shelton, the uniform application, however, is qualified by the fact that human rights law sets only minimum standards in respect of a number of core interests. It does not present a comprehensive normative system to tackle and deal with issues which may not conform to the set global point of view.[3] It can be rightfully argued that the presence of regional mechanisms under the wider institution of international human rights does provide a much more holistic approach to countering human rights violations. It is also argued by the non-universalists that the human rights project gains most only when both, the international and regional frameworks complement each other in the most harmonic way possible. The presence of inner contradictions within namely, the Inter-American, African as well as European regional mechanisms and their incongruity with the international superstructure, establishes exactly why universality is not a conducive choice for everyone.
‘Cultural’ Argument Against Universal Human Rights
Universal human rights regime strongly claims that these rights are pre-political and thus unchangeable and unaffected by political and cultural variance. This concept of rights being static and uniform is challenged by the concept of ‘Cultural Relativism’ which believes that an individual’s ideas, beliefs and practices should be recognised as a function of his or her culture. As stated by Ryan Goodman, the rights and rules about morality are encoded in and thus depend on the cultural context. Hence, the notion of rights and the moral rules based on them differ throughout the world because the different cultures in which they take root and inhere themselves from.[4] Therefore, what may qualify to be a God-given right for some might not even qualify to be a right for others. No wonder, some rights even after being tagged as international human rights, have not been recognised in many parts of the world. While we have Right to Equality (as per Article 7 of UDHR), there persists such religious and customary practices such as untouchability, segregation of African population, ostracization of menstruating women which blatantly discriminate on the basis of gender, caste and race even today. Therefore, treating culture as a monolithic concept whitewashes the colourful realities of inter-cultural differences of today.
Even with the quasi-universal mechanism of human rights that we have today, ‘Geneva is still very far away’.[5] While universalisation of human rights may not have been able to accomplish complete eradication of violations, it surely has been successful in minimising its occurrence and effect. Universalisation is a double-edged sword. While safeguarding human rights on one hand, it de-culturalises and de-nationalises citizens, on the other. If we implement the human rights law universally, the States will then be forced to recognise as world citizens and then nationals of their countries, causing them to lose their sense of nationality and subsequently threatening the very existence of nation-states. Universality poses a threat to the very fabric with which the modern societies of today are made up of. It will not only take away the state’s autonomy and sovereignty but also threaten the existence of a plurality of identities, religious beliefs, genders, languages, customs. It is also bound to take away an individual’s identity.
Conclusion
Fortunately, the current global climate is extremely conducive and nurtures to diversity of cultures and traditions. The plurality of cultures, languages, traditions, genders, ethos is the very essence of today’s globalized world. Today, ‘identity’ is not a binary concept. It has widened in ambit and has become increasingly differential and segmented. An individual is no more a male or female, white or black, brahmin or shudra. Intersectionality of these identities is what universalism fails to recognise. In such a world of differences, the question is can a generalized and uniform canopy of human rights harbour all the people with all their differential needs, identities and differences? It is this contention of human rights, not their existence, that is contentious. The theory of universal human rights, therefore, just seems to exist in a sugar-coated bubble with very little connection to bitter reality.
The author is a second year student at the National Law School of India University, Bangalore, pursuing their law degree.
[1] John F. Kennedy, John Fitzgerald Kennedy’s Inaugural Address (1961).
[2] Henry Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context 524 (3rd ed., Oxford University Press, 2008).
[3] Dinah Shelton, The Oxford Handbook on International Human Rights 210 (3rd ed., Oxford University Press, 2013).
[4] Henry Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context 518 (3rd ed., Oxford University Press, 2008).
[5] Dinah Shelton, The Oxford Handbook on International Human Rights 210 (1st ed., Oxford University Press, 2013).
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