Are there any universal human rights?

1. Introduction

Human rights discourse since its very early stages has generated several debates; one of those, perhaps the most preponderant, is about their universality. Scholars all over the world have argued for different points of view according to their perceptions of human rights and to how they interpret the authority of culture. It is possible to distinguish between two main radical positions that Jack Donnelly calls “radical relativism” and “radical universalism”.1 The latter, as shown by the word itself, includes all those scholars who look at human rights and, more specifically, at the Universal Declaration of Human Rights (1948) as universal. For this reason they mostly believe that it is possible, hence desirable, to extend the principles listed in that document to every single country. On the contrary, the former position embraces the most sceptical scholars who hold several claims against the Universality of the Declaration. Foremost they refer to the different cultural identities worldwide, presenting them as insurmountable obstacles to the successful global spread of the same standard of human rights. However, the debate on the universality of human rights cannot be limited to these two extreme views; the actual confrontation, indeed, is much more complex. Several categorisations have been defined in an attempt to put the different major opinions into order. This specific contribution will focus on the positions of each of the four “schools of thought” presented by Marie-Bénédicte Dembour.2 She identifies four main categories with dissimilar perceptions of human rights: ‘“natural scholars” […] as given; “deliberative scholars” as agreed upon; “protest scholars” as fought for; and “discourse scholars” as talked about.’3 Although the lines among them are porous, thus some academics cannot be easily allocate in one or another school, it is possible to recognize connotative features for each of the mentioned group, especially if the focus is on particular themes, such as the foundation, the universality or the development of human rights.

First and foremost, it is important to highlight what “universal” means, then it is useful to stress how and when the debate on the universality rose, with particular regard to human rights field. Secondly, an overview of the four schools of thought, with a special focus on the different

1 Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’ (1984) 6 Human Rights Quarterly400-19.

2 Marie-Bénédicte Dembour, ‘What are Human Rights? Four Schools of Thought’ (2010) 32 Human Rights Quarterly 1-20.

3 Ibid 1.

perceptions of human rights as universal, is fundamental to accomplish the aim of this particular writing. From this point the attention will be shifted to the writer’s opinion, referring also to the various charters on human rights and to other authoritative views in order to support the point.

2. Universal

2.a Meaning

‘Che comprende, riguarda, interessa tutta l’umanità’ (which includes, concerns and affects the whole humanity).4

Before starting the actual analysis of the different opinions about the existence of universal human rights, it is essential to examine closely the meaning of the adjective. The Italian Treccani encyclopaedia offers in its online dictionary a really interesting and specific definition of the word ‘universal’. Upon the above-quoted general assessment, it deepen the explanation stating that universal is related with all populations and all times.5 Even more eye-catcher is the definition founded on the Oxford Dictionaries online:

‘Relating to or done by all people or things in the world or in a particular group; applicable to all cases’.6

In both cases the idea of a ‘whole’ is underlined; however, the former definition refers explicitly to humanity, while the second one gives a broader interpretation of the term, mentioning both animated and inanimate beings. Moreover, the English source adds a further determinant information: ‘in the world or in a particular group’.7 Also in the Italian dictionary something similar might be read, but it is presented vaguely and right afterwards it specifies that universal could be considered as an elevate synonym of the words general or total, as if to retract.8 Whether universal is interpreted as concerning the whole world or just a part of it, different explanations would be entirelyjustifiable.

The debate on the universality of human rights is also a legal topic, thus it is necessary to look

4 ‘Universale1’ (Vocabolario Treccani) < www.treccani.it/vocabolario/universale1/> accessed 5 March2015.

5 Ibid.

6 ‘Universal1’ (Oxford Dictionaries) < www.oxforddictionaries.com/definition/english/universal> accessed 5 March 2015.

7 Ibid.

8 Vocabolario Treccani (n4).

at the meaning of universal presented also in legal dictionaries. The definition offered by The Law Dictionary featuring Black’s Law Dictionary Online is interesting since it is clear and concise, with no place for misunderstandings.

‘Having relation to the whole or an entirety; pertaining to allwithout exception’ . 9

On the one hand, this definition is in line with the previous ones since it mentions ‘the whole’; but, on the other hand, it is more specific and it denies any sort of allusion to a possible restriction of ‘the whole’: no ‘particular group’ rather than the ‘entirety’ might be considered. Indeed, it even stresses that there is no place for any exception. However, not all the legal authorities interpret the word universal as expressed in the latter dictionary; a good example can be pointed out in the judgment of the Supreme Court of the UK in P v Surrey CC, P v Cheshire West Chester Council. 10 The case is about the universality of human rights in the sense that they are the same for people with and without disabilities, that is why it can be understood as universal ‘in a particular group’11 especially because it concerns the right of liberty enunciated in the article 5 of the European Convention on Human Rights.12 In the main judgment, Lady Hale states that the appellants had been deprived of their liberty and she justifies this assessment referring to the universality of human rights13 with particular regards to ‘The rights set out in the European Convention’14. However, the universality pointed out by Lady Hale can be interpreted as a limited concept, because it is about the whole group rather than all humanity. This understanding might derive from the acknowledgement of the ECHR as a regional charter, thus with limited legalvalidity.

Whether scholars take into account a general definition or a more strict one, their perspective can change radically; therefore, the analysis of the different points of view should be carriedout very carefully, referring to what they exactly mean when they debate on the universality of humanrights.

2.b Debate

The debate about universality in general roots in the Grecian world. The word originates from the Grecian ‘universalis’: a vague term that can have several translations.15 The

9 ‘What is UNIVERSAL?’ (Black’s Law Dictionry Free 2nd edn) < http://thelawdictionary.org/universal/> accessed 5 March 2015.

10 [2014] UKSC19.

11 Oxford Dictionaries (n6).

12 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 5.

13 P v Surrey CC (n10) [36], [45] (LadyHale).

14 P v Surrey CC (n 10) [36] (LadyHale).

15 Carlo Marchini, ‘Il problema degli universali da Platone ad oggi e suoi riflessi didattici’ Lezioni di Epistemologia e Storia della Matematica I/1, 1 <http://old.unipr.it/arpa/urdidmat/SSIS/Marchini/2%b0anno/Universali.pdf> accessed

problem about the understanding of the concept is attributed to Socrates. Since then, many other scholars have given their own interpretation – i.e. in Plato’s philosophical theories ‘universal’ contrasts with ‘individual’ and it anticipates and determines every ‘particular’ (real things); instead, Aristotle offers a conflicting explanation distinguishing between ‘universal’ and ‘particular’.16 Since that time, this debate has started to spread to several disciplines, such as mathematics and, especially during the Middle Ages, theology.

When the debate turns into the field of rights, the ambiguity of the concept of universality narrows to only two distinct areas, which can be linked with the previous definitions. Firstly, the dispute can deal with the global recognition and validity of some or the totality of rights; secondly, it can concern the implementation of rights toward minorities. An example of the latter might be the case beforehand analysed, in which the universality of rights concerns a limited group of people.17 Nevertheless, the present analysis focuses on the former, thus it is important to start looking at the origin of this debate.

The universal applicability of human rights has already been contested in the aftermath of the drafting of the UN Declaration on Human Rights18. The first objections came from within: the Saudi Arabian delegation questioned some articles claiming that they were westernoriented and totally discordant with Islam.19 The incompatibility between Western human rights and Islam isone of the weak points in this debate. Both parts remain strong in their positions and are often unwilling to understand each other; although the debate is still vivid, new steps towards the acknowledgement of human rights have been made by some Muslim countries.20 Other adversary voices rose from the Far-East in the 90’s. According to Professor Yash Ghai, the ‘Asian values’ debate roots from the end of the Cold War, when the West has started to show its principles as globally valid and impose them.21 The Asian debate was presented in The Bangkok Declaration of 1993 in which the Far- Eastern states made some insinuations about the Western values related with human rights.22

6 March 2015.

16 Ibid 1-2.

17 P v Surrey CC (n10).

18 Universal Declaration of Human Rights (adopted 10 December 1947 UNGA Res 217 A(III)(UDHR).

19 Michael Ignatieff, ‘Human Right as Idolatry’ in Ignatieff and Gutmann (eds), Human Rights as Politics and Idolatry (3rd edn, Princeton University Press 2003) 58-62.

20 For more detailed information: Abdullahi An-Na’im (various writings); Arzu Merali, ‘To liberate or not to liberate: Universalism, Islam and Human Rights’ (2003); Ignatieff (n 19); Turan Kayaoglu, ‘A Rights Agenda for the Muslim World? The Organization of Islamic Co-operation’s evolving human rights framework’ (Brookings Doha Center Analysis Paper 2013).

21 Yash Gahi, ‘Rights, Duties and Responsibilities’ in Cauquelin, Lim and Mayer-Konig (eds) Asian Values: Encounter with Diversity (Routledge 2000) 20.

22 For an in-depth analysis: Ghai (n21); Randall Pereenboom, ‘Beyond Universalism and Relativism: The evolving debates about “Values in Asia”’ (2003) 14(1) Indiana International and Comparative Law Journal 1-67; ‘Asian Values, China and Human Rights’ (The Rights’ Future) <http://therightsfuture.com/commontracks/asianvalues/>

3. The four schools of thought23

Achieving a clear understanding of the word ‘universal’ and of the debate was fundamental to continue the analysis. The international arena is really broad, thus it is useful to narrow it and analyse one of the possible categorizations offered by experts in this field. The focus here is on the four schools of thought thoroughly delineated by Marie-Bénédicte Dembour. Each school offers a unique interpretation of human rights. Essential in this composition is the issue of universality and which group consider the existence of a universal set of human rights. Dembour’s schools can cover all the diverse major voices that rise from the international scenario thanks to their wide range. However, it should be borne in mind that the schools represent four extreme positions, while usually scholars have more complex and reasonable opinions that waver among different schools. Moreover, it should be reminded that this categorization is mainly based on Western thoughts, but it does not mean that scholars from the rest of the world cannot be allocated in one of these schools. Dembour begins with the analysis of the old mainstream view, which shows an almost religious faith in human rights; then it turns to a more secular perspective, illustrating the new mainstream position; afterwards, the focus is on a proactive group which claims justice;finally, she concentrates on a drastic and more negative belief.

3.a Universality

The theme of the universality of human rights reflects the main features of each school of thought. The four interpretations range from a perception of the whole human rights corpus as universal to a complete denial of humanrights.

The ‘natural’ school states that human rights are entitled to all human beings; therefore, universality is one of their intrinsic characteristics. Scholars in this school believe that principles of human rights are the same for all populations and that law is the only way in which universal human rights values can find expression. However, they also acknowledge that human rights might be implemented in several ways, according to the culture and time in which they are realized.

The ‘deliberative’ school considers human rights as principles founded on consensus. Those principles are inspired by liberal value, thus universality of human rights can be certainly achieved if the consensus on such values will spread over the world. Some deliberative scholars

accessed 5 March 2015 23 Dembour(n2).

assume the necessity of cross-cultural dialogues in order to achieve universal consensus, thus universal validity of human rights.

‘Protest’ scholars, instead, show human rights as a response towards injustices, thus they are meant principally for those in need and they originated in struggles. This school accepts the universality of the values of human rights, but it also asserts that they change continuously because injustices and sufferance, which vary, but endure, are the driving force of human rights. Cultural differences are important for protest scholars because injustices can be perceived in diverse ways over time and space.

Lastly, the ‘discourse’ school opposes the previous schools. It hardly considers human rights asserting that they exist just because someone talks about them. Discourse scholars completely deny the universal character of human rights recognising and valorising cultural diversities. They identify the universality of human rights as a pretence of superiority of certain value and an attempt to impose them over the rest of the world.

3.b Worldwide scholars

Even though it is not easy, trying to allocate several scholars in these four different schools of thought can undoubtedly facilitate the understanding of the diverse perceptions.24

Natural school:

 Jack Donnelly, ‘if human rights are, literally, the rights (every)one has simplybecause one is a human being, they would seem to be universal by definition’.25

He perfectly suits the above descripted natural school. Even though he does take into account cultural differences, but he strongly believes that all human beings are entitled to the same principles.

 Francis Deng, ‘While there is considerable variation of cultural perspective on the norms of human dignity, the principles involved in human rights protection have become largely adopted by the international community’.26

Deng also considers cultural differences in the interpretation of human rights, but in his writing he illustrates that Western value and Dinka’s one are essentially based on the

24 The selected scholars’ views will be only explained briefly; further investigations are recommended to grasp a deep knowledge. Suggested readings are those mentioned afterwards in thischapter.

25 Donnelly (n1) 400.

26 William Twining (ed), Human Rights, Southern Voices (CUP 2009) Francis Mading Deng36.

same principles.

Deliberative school:

 Boaventura de Sousa Santos, ‘All cultures aspire to ultimate concerns and values, […] we must propose cross-cultural dialogues on isomorphic concerns’.27 Although he shares the ‘discourse’ view that ‘the question of universality is a particularly Western cultural question. […] The concept of human rights rests on a well-known set of presuppositions, all of which are distinctly Western’28 , de Sousa Santos states that achieving an universal standard of human rights could be possible through ‘cross-cultural dialogues’.

 Turan Kayaoglu, ‘if the OIC were to have greater authority over individual states on human rights issues, it could be a more effective force for promoting human rights in the Muslim world. […] within the context ofinternational human rights’.29

He demonstrates that the Organization of Islamic Cooperation is facing the project which would allow the Muslim countries to embrace the universal principles of the UDHR.

Protest school:

 Upendra Baxi, ‘the universality of human rights symbolizes the universality of collective human aspiration. […] (contemporary) human rights enunciationsignore cultural and civilizationaldiversity’.30 He fully pertains to the protest school. For Baxi human rights derive from sufferences and he is very critical of the actual policies that should implement human rights, thus he questions the concept ofuniversality.

 Arzu Merali, ‘Discourses that utilise the language of, or claim to represent the aspirations of human rights theory and activism, suggest thatinherent within them is the idea of liberation. […] I feel that […] liberationis neither, inherent within UDHR or indeed recent theory regarding it’.31

Merali is sceptical about the UDHR and she agrees with discourse scholars who think

27 Boaventura de Sousa Santos, Toward a Multicultural Conception of Human Rights’ in Truyol and Berta (eds.), Moral Imperialism. A critical Anthology (NYUP 2002) 46

28 Ibid 44.

29 Kayaoglu (n20) 6, 22.

30 Twining (n26) Upendra Baxi186.

31 Merali (n20) 4.

that the actual debate on universality is western-driven. However, she believes in universal values, such as the Islam ones which refer to a ‘journey of discovery’ 32

Discourse school:

 Makau Mutua, ‘the Universal Declaration of Human Rights, the foundational document of the human rights movement, sought to give universal legitimacy toa doctrine that is fundamentally Eurocentric in its construction’.33

As de Sousa Santos, Mutua waver between deliberative and discourse schools. He states that universality might be achieved through a multicultural dialogue, but the major idea of his work is the imposition of Western.

 Randall Peerenboom, ‘I show that the broad consensus that seems to exist when rights are stated in a general, abstract form gives way to disagreement when the rightsneed to be specified in more particular contexts'.34 Allocating him in one of the schools is not an easy task. He might be allocated in the protest school since he believe that ‘countries prioritize rights differently’35; however, he is very sceptical about universality and he also refers to the actual rights asWestern-centred.

4. Personal view

Looking at the four schools of thought, the analysis carried out in this chapter would be allocated in the protest group. Although it shares some points with the other schools as well, the main idea is that human rights undergo an ever-changing process which makes them ‘not-universal’ in practice. In different time and space several human rights might be needed because sufferance and people’s perception of them vary; but at the same time they will always exist as sufferings are everlasting.36 However, some injustices occur all over the world and it is the reason why it is possible to find some similarities among the UDHR and the different regional instruments37

32 Merali (n20) 13.

33 Makau Mutua, ‘The Complexity of Universalism in Human Rights’ in Sajo (ed) Human Rights with Modesty: The Problem of Universalism (Kordinlinye Brill NV 2004) 61.

34 Peerenboom (n22) 14.

35 Ibid 14.

36 Twining (n26) UpendraBaxi.

37 ECHR (n12); African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (Banjul Charter); Arab Charter on Human Rights (entered into force 15 March 2008) (2004) 12 IHRR 893; ASEAN Human Rights Declaration (adopted 18 November 2012) (2012) Statement & Communiques <www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declaration> accessed 4 March2015.

Although they have many distinctive features that can be find even in the titles themselves, the different charters give priority to certain rights, such as the right of life and human dignity or the prohibition of torture, which might be consider ‘universal’. However, it does not mean that they are treated in the same way, some small differences still remain in the actual application. Referring to these common aspects, it might be generally asserted that, despite differences, all populations share the same fundamental values, thus the universality of human rights principles can be taken into account. Nevertheless, the implementation of these common values and their embodiment in the diverse legislations is influenced by cultural differences, which determine the different perception and enforcement of human rights norms, and by historical background of one population, which might lead to prioritize specific claims that might overrule upon other shared human rights. It might be underlined that not only non-Western instruments, such as the Banjul Charter or the Arab one, differs from the UDHR; the ECHR also has some distinctive aspects which are not mentioned in other instruments, such as the right to conduct business and the rights of the elderly.38 At this point one might wander what would happen if representative authorities from diverse cultures meet and discuss a new possible interpretation of human rights principles; after all, many scholars, such as the above-mentioned ones,39 suggested the possibility of cross-cultural dialogues. However, two assumption ought to be done: firstly, ‘No community has a static culture’40 and, secondly, trying to standardize human rights might lead to choices that will undoubtedly give priority to one or another culture’s interpretations and needs. Moreover, even though a general consensus might be met, this cross-culturally agreed corpus of human rights would be universal only for a limited period of time until new injustices will generate new claims andstruggles.

Anyway, the debate regards the present time, if it turns to the future of human rights, it becomes more intricate and unpredictable, especially due to the globalization, which intensifies inter-cultural contacts, and to an increase of multicultural states, thanks to growing phenomena such as migration.41 Each of these new states will face the problem of a wider presence of different minorities and this could lead to a re-thinking of human rights in a more complex perspective. According to Ghai, ‘The task is difficult, but possible, even if it may

38 Katrin Nyman-Metcalf, ‘The future of Universality of Rights’ in Kerikmae (ed), Protecting Human Rights in theEU: Controversies and Challenges of the Charter of Fundamental Rights (Springer-Verlag 2014)21.

39 De Sousa Santos (n27); Mutua(n31).

40 Twining (n26) Yash Ghai113.

41 Yash Ghai, “Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims” (2000) 21:4 CLR 1095; Alessandra Algostino, L’ambigua universalità dei diritti: diritti occidental o diritti della persona umana? (Jovene 2005).

not always becompletely successful’.42

5. Conclusion

The debated issue of universality is far from reaching a globally accepted definition and scholars from all over the world will continue to develop their own opinions. However, developing a personal idea about the concept of universality is not so simple and the existence of plenty of different voices with very convincing arguments makes it even harder. What might be helpful is carrying out a good scrutiny of existing human rightsinstruments.

Several things might be extrapolated from the accurate analysis carried out in this composition. First and foremost there is not an univocal definition of ‘universal’, thus it is easy to run into conflicting opinions related to this concept. As a consequence, it has generated many debates since the ancient times, but it is from the second half of the 20th century that the debate on the universality has entered the human rights discourse. Despite it is a relatively recent issue, plenty of provocative voices have spread throughout the international arena. According to many,especially the discourse scholars, this debate might be considered a mere opposition of the ‘rest’ of the world against the West and its new imperialism; and the concept of universality itself is a Western attempt to impose its values. However, it has been demonstrated in this essay that it is not totally true; indeed, there are Western scholars that disagree with the concept of universality, i.g. De Sousa Santos,43 as well as there are voices from other part of the world which admit the existence of universal human rights, i.g. Deng44 and Kayaoglu45 .

Finally, it is possible to state that there are not ‘right’ or ‘wrong’ views. When it turns to the universality of human rights, at the present time ‘protest’ theories – which permeate this composition – as well as ‘natural’, ‘deliberative’ and ‘discourse’ ones, might be supported if scholars provide good explanations. It will be very interesting to look at further developments in this debate and how it will influence the human rightsfield.

42 Ghai (n41) 1102.

43 De Sousa Santos(n27).

44 Twining (n26) Francis MadingDeng.

45 Kayaoglu(n20).

Bibliography

 ‘Asian Values, China and Human Rights’ (The Rights’ Future) <http://therightsfuture.com/commontracks/ asianvalues/> accessed 6 March2015.

 ‘Universal1’ (Oxford Dictionaries) < ww.oxforddictionaries.com/definition/english/universal> accessed 5 March2015.

 ‘Universale1’ (Vocabolario Treccani) <www.treccani.it/vocabolario/universale1/> accessed 5 March 2015.

 ‘What is UNIVERSAL?’ (Black’s Law Dictionry Free 2nd edn) <http://thelawdictionary.org/universal/> accessed 5 March2015.

 Algostino A, L’ambigua universalità dei diritti: diritti occidental o diritti dellapersona umana? (Jovene 2005).

 Basnet G & Albalooshi M H, ‘Human Rights Debate: Universalism versus Relativism– OPED’ (Eurasia Review, 27 June 2012)<www.eurasiareview.com/27062012-human-rights- debate-universalism-versus-relativism-oped/> accessed 5 March 2015.

 De Sousa Santos B, Toward a Multicultural Conception of Human Rights’ in Truyoland Berta (eds.), Moral Imperialism. A critical Anthology (NYUP 2002).

 Dembour M-B, ‘What are Human Rights? Four Schools of Thought’ (2010) 32 Human Rights Quarterly.

 Donnelly J, ‘Cultural Relativism and Universal Human Rights’ (1984) 6 HumanRights Quarterly 400-19.

 Gahi Y, ‘Rights, Duties and Responsibilities’ (1998) in Cauquelin, Lim and Mayer-Konig (eds) Asian Values: Encounter with Diversity (Routledge 2000).

 Ghai Y, “Universalism and Relativism: Human Rights as a Framework forNegotiating Interethnic Claims” (2000) 21:4 CLR 1095.

 Ignatieff M, ‘Human Right as Idolatry’ in Ignatieff and Gutmann (eds), Human Rightsas Politics and Idolatry (3rd edn, Princeton University Press 2003) 58-62.

 Kayaoglu T, ‘A Rights Agenda for the Muslim World? The Organization of Islamic Co- operation’s evolving human rights framework’ (Brookings Doha Center AnalysisPaper 2013).

 M Mutua, ‘The Complexity of Universalism in Human Rights’ in Sajo (ed) Human Rights with Modesty: The Problem of Universalism (Kordinlinye Brill NV 2004).

 Marchini C, ‘Il problema degli universali da Platone ad oggie suoi riflessi didattici’Lezioni di Epistemologia e Storia della Matematica I/1, 1 <http://old.unipr.it/arpa/urdidmat/SSIS/Marchini/2%b0anno/Universali.pdf> accessed6 March 2015.

 Merali A, ‘To liberate or not to liberate: Universalism, Islam and Human Rights’ (2003).

 Nyman-Metcalf K, ‘The future of Universality of Rights’ in Kerikmae (ed), Protecting Human Rights in the EU: Controversies and Challenges of the Charter of Fundamental Rights (Springer-Verlag 2014).

 Pereenboom R, ‘Beyond Universalism and Relativism: The evolving debates about“Values in Asia”’ (2003) 14(1) Indiana International and Comparative Law Journal 1-67.

 Rigon A, ‘I Diritti Umani tra Universalismo e Relativismo’ (Jura Gentium 2006) <www.juragentium.org/topics/wlgo/it/rigon.htm#*> accessed 5 March2015.

 Twining W (ed), Human Rights, Southern Voices (CUP 2009).

 Viola F, ‘L’Universalità dei Diritti Umani: un’Analisi Concettuale’ in Botturi andTotaro (eds) Universalismo ed Etica Pubblica, Vita e Pensiero (Annuario di etica, Milano3/2006) 155-187.