The Universality of Human Rights

Following up the 'Asian values' debate at the last PIS meeting, here's a not-so-old essay of mine - minus footnotes, introduction and conclusion - on drawing the line between human rights and culture. This issue happens to be getting the media glare right now, with the impending execution of an Afghan citizen for converting from Islam to Christianity.

I'll try to follow this up with something more specific on 'Asian values', assuming I have any energy left to think after homework, job applications and LSS tutes.

Cross-posted at the club blog.

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Human rights must have legitimacy if they are to be realised within a given community. The widespread perception in Muslim countries that human rights are ‘un-Islamic’ or a tool of western imperialism, for example, makes it difficult for governments to implement human right or for rights advocates to gain social and political traction. In developed states like the US, opposition to judicial enforcement of economic and social rights stems more from perceptions that they are not bona fide ‘rights’ than from persuasive separation-of-powers arguments. Attempts to give human rights an objective basis, for instance by linking them to economic development, have met little success; implementation of human rights depends on a cultural choice by the community in question, a choice that can only spring from cultural legitimacy.

The basic problem faced by the global human rights movement is that the very concept of human rights, defined as inalienable claims by an abstract individual upon society, lacks legitimacy outside the western world. If one attempts to ground human rights in religion or moral philosophy, they appear as a western cultural construct. Even accepting that numerous belief systems recognise the inherent human dignity on which human rights are founded, many manifest practices that are inconsistent with ‘international’ human rights norms; certain principles in Islamic jurisprudence, for example, conflict directly with the rights to freedom of belief, freedom of speech and equality before the law. A strong argument can be made that other key concepts underpinning human rights – the individual’s autonomy from society and the cosmos, for instance – are specifically western cultural developments. As such, their introduction into non-western societies presupposes that these societies are either culturally deficient or on an evolutionary path that will turn them into facsimiles of the contemporary west.

Nor have positivist approaches to human rights given non-western peoples the sense of cultural ownership that grounds legitimacy. The core of international human rights, expressed in the Universal Declaration, was articulated by western states in the context of the ideological struggle with communism. On an ongoing basis, Western states are perceived to serve vested commercial interests by promoting civil and political rights over economic and social ones, abandoning even the former when inconvenient (take Australia’s reservations to the ICCPR regarding federal implementation and juvenile detention). Non-western governments stand accused of using communitarian conceptions of human rights to justify internal repression. In this context, the non-western world at large has unsurprisingly developed a cynical understanding of human rights.

Yet despite the rhetoric of cultural distinctiveness from their elites, non-western societies are taking an evolutionary path similar in many respects to that of the west: industrialising, evolving powerful bureaucracies, developing market economies. In this changing social context, human rights are necessary to shield ‘authentic human life’ – whatever cultural expression that life may take – from the corrosive effects of modernity. Freedom of speech and association, for example, may be needed to protect traditional social structures or cultural practices from exploitative employers, corrupt bureaucrats and callous state policies.

Critiques of human rights as exclusively ‘western’ also employ an excessively static notion of culture. Muslim rights advocates have argued that the Shari’a provisions referenced above are a historically contingent interpretation of Islamic texts, which should be reinterpreted consistently with contemporary conditions. Torture and poverty were once considered legitimate by virtually all societies (including western ones) but are now widely rejected, at least in theory. These are instances of a global cultural evolution towards recognition that certain practices and conditions diminish human personality in any cultural context. Critics of the universal rights discourse correctly assert that ‘personality’ is culturally defined, but miss the point that it attaches to a universal ‘individual’ who is the subject of human rights. If the individual’s integrity is compromised, for instance through torture or poverty, personality cannot be fully realised. Pace Douzinas, the ‘human’ in human rights signifies a physical and mental core on which all cultures operate.

Human rights thus have a universal moral basis, notwithstanding their initial conception in the west, and as such are universally applicable. The global human rights machinery serves a legitimate role in monitoring adherence to human rights within all states, including their western progenitors; consider the Human Rights Committee’s (HRC’s) declaration of a US reservation to ICCPR subordinating that treaty to the US constitution as invalid, or the UN High Commissioner’s finding in 2002 that Australia had breached the ICCPR and the ICESCR. However, the precise content and means of enforcement of human rights must correspond to social organisation and conditions, which differ between nations and cultures. The right to freedom from arbitrary interference with privacy or family, for instance, may need to countenance traditional forms of community supervision and authority (for example the role of village elders in regulating social relationships).

Implementation of human rights should therefore take place as locally as practicable, for instance through national or regional human rights commissions, rather than via international treaty mechanisms such as the HRC’s individual complaints mechanism. Localised implementation avoids the charge of western cultural imposition, and allows rights to become ‘foundations for actions and policy’ rather than meaningless abstractions. It is only through such ‘concretisation in the [local] context’ that human rights will acquire the legitimacy needed to take root in a particular community.