ARE RIGHTS UNIVERSAL? Theories of International Human Rights: Universalism, Relativism, and the Dangers of Cultural Imperialism I.
Introduction: The Debate Over Universality of Human Rights Versus Cultural Relativism
Determining the source of international human rights law can be just as controversial as defining its content, with various stakeholders asserting different philosophical, moral, and empirical perspectives to support or refute the abundant legal theories on the matter. One of the most intellectually rich tensions in this debate is that between the universal theory of human rights and the theory of cultural relativism, and a great deal of scholarship has been dedicated to solving the conflict between the two. If we concede that our current international legal regime has at least a modicum of authority as it performs the Sisyphean task of ensuring global peace, why should it matter from whence came the human rights it works to protect? Of the 195 sovereign nations in the world,1 the United Nations has 193 Member States; the Holy See and Palestine have observer status. 2 Member States of the United Nations have all signed the UN Charter, which states that one of the purposes of the UN is to “achieve international cooperation...in promoting and encouraging respect for human rights,” among others.3 Surely this broad consensus of the global community to submit to the jurisdiction of the United Nations (in at least some capacity) is sufficient to justify the international legal regime as it has developed over the last sixty-six years. If this is so, why is the debate over the source of human rights still important?
1
U.S. Department of State, Independent States in the World < http://www.state.gov/s/inr/rls/4250.htm> accessed 13 August 2011. 2 United Nations, Growth in United Nations Membership, 1945-present < http://www.un.org/en/members/growth.shtml> accessed 13 August 2011. 3 United Nations, Charter of the United Nations, [24 October 1945, 1 UNTS XVI], Preamble, accessed 13 August 2011.
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First, to human rights advocates, a solid moral foundation is essential, both as a grounds upon which to demand change from those in power and as a conviction from which to draw strength in times of difficulty as they face unfathomable atrocities in the field and collide with immoveable bureaucracies in the policy chambers. Second, for some members of some (primarily non-Western) cultures, the fear of cultural degradation arising from recognition of universal human rights norms is sincere, even if the logic of their arguments is flawed or their assumptions misplaced. Others still (mostly anthropologists) would argue that human rights cannot be derived philosophically, and can be proven only through empirical evidence.4 While this position is practical and logically sound, from a legal theory perspective it falls short of answering the essential philosophical questions that are at the heart of the law. Thus, despite the fact of an established legal system governing human rights, a determination as to whether human rights are universal or relative to culture is of paramount importance to those it affects most, and so the debate rages on. This essay will explore the two dominant arguments in the debate over the source of human rights: 1) Universalism, the theory that human rights are universal and inure to the person by virtue of his or her personhood, and 2) Cultural Relativism, the theory that human rights, to the extent that they exist at all, are relative to one’s culture, and can only be understood or enforced by members of that culture.
II.
Framing the Debate
In order to properly frame an analysis of the comparative values of the universal and cultural relativist positions on the sources of human rights, it is essential to first understand the 4
See Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism (Sage Publications 1990).
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concept of human rights themselves. Michael Perry states that there are two fundamental concepts underlying human rights.5 The first concept is that every human being is sacred, meaning that the good of every human being is worth pursuing in its own right. This premise is reflected in the Preamble to the Charter of the United Nations, which reaffirms faith in “the dignity and worth of the human person.”6 The second concept is that because of this, certain things ought to be done and certain things ought not to be done to every human being, simply by virtue of his being human, also referred to herein as his ‘personhood.’ Most of the debate over cultural relativism and universalism centres on this second concept, which is a simplified statement of the doctrine that has come to be known as universalism. While this premise may seem perfectly acceptable at face value, it in fact has raised many thorny questions about conceptions of human nature in the West (primarily individualistic) and elsewhere (often socialistic or community-based). Still, no matter the source of identity of a given culture, if human rights are based simply on the fact that one is a human being, it would seem impossible for them to be relative in any meaningful way, since it is beyond dispute in the 21st century that all persons of all cultures as we currently know them are in fact human beings. In fact, a relativist may point out that the previous statement is not an absolute truth but merely a reflection of a Western worldview, and instead insist that personhood itself is relative, as evidenced by the origin myths of certain cultures (such as the Hopi and Arapahoe) which define outsiders as non-human.7 III.
World War II and the Historical Origins of the United Nations
5
Michael J Perry, ‘Are Rights Universal? The Relativist Challenge and Related Matters’ (1997) 19 Hum.Rts.Q. 461, 462. 6
United Nations, Charter of the United Nations, [24 October 1945, 1 UNTS XVI], Preamble, accessed 3 June 2011. 7 Jack Donnelly, Universal Human Rights in Theory and Practice (first published 2003, 2nd edn, Cornell University Press 2003) 91.
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The United Nations was born out of the sincere efforts of the international community to prevent the atrocities of World War II from recurring. To that end, the Charter of the United Nations was drafted at Dumbarton Oaks and signed in San Francisco on 26 June 1945 by representatives of the original 50 Member States.8 The first line of the Preamble to the Charter unambiguously linked the recent wars with the impetus for creating the United Nations: “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”.9 Those espousing the time-honoured validity of universalism may point to this moment as the birth of international personhood as the source of human rights: “The idea of personhood unbounded by territorial lines or citizenship ties originated as a reaction against the sovereign abuse of unfettered power.”10 However, true universality of human rights cannot be presumed from this moment without deliberately overlooking the nations other than the 50 original Member States. “Most African and Asian countries did not participate in the formulation of the Universal Declaration of Human Rights because, as victims of colonization, they were not members of the United Nations.”11 Because universalists often rely on the UN Charter as evidence of the validity of their position, those who oppose them often do so in the name of these post-colonial nations and indigenous cultures that were excluded from the initial consensus. This position eventually gave rise to arguments about cultural relativism, which advocate for a nonWestern perspective by which to judge non-Western nations; for many, this forecloses the concept of human rights as we currently know it in international law.
8
United Nations, Origins of the United Nations < http://www.un.org/Overview/origin.html> accessed 3 June 2011. United Nations, Charter of the United Nations, [24 October 1945, 1 UNTS XVI], Preamble, accessed 3 June 2011. 10 Berta Esperanza Hernandez-Truyol, ‘Human Rights, Globalization, and Culture: Centering Personhood in International Narrative’ in Moral Imperialism: A Critical Anthology (New York University Press 2002) 353. 9
11
Abdullahi Ahmed An-Na’im, ‘Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Initiatives’ (1990) 3 Harv.Hum.Rts.J 13.
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IV.
International Human Rights Today a. The International Bill of Rights and the UN Human Rights Bodies
The Universal Declaration of Human Rights indicates by its very title the understanding of the drafters that human rights are indeed universal. Article 1 states that “[a]ll human beings are born free and equal in dignity and rights,” and Article 2 sets forth the principle of nondiscrimination, that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind….”12 The Universal Declaration, although not a binding treaty itself, serves to elucidate the fundamental freedoms granted to signatories of the Charter of the United Nations, and thus does have legal effect for all UN Member States. In addition, many international legal scholars assert that the Universal Declaration has the status of customary international law, meaning states are bound by the norms it enumerates irrespective of their manifestation of intent to be or not be bound. The body of international human rights law may start with the Universal Declaration, but it extends far beyond the international Bill of Human Rights (which also include the ICCPR and ICESCR.) Other core human rights treaties, Human Rights Council resolutions, ILO conventions, customary international law, and regional treaties are just a few examples of the wide-ranging sources of authority for international human rights norms today. Perhaps because of this great body of law, it remains important to assess to what extent certain norms may be considered universal.13 12
UN General Assembly, Universal Declaration of Human Rights, [10 December 1948, 217 A (III)], accessed 2 June 2011. 13 Judicial opinions interpreting international laws provide another layer of analysis. For example, the European Court of Human Rights rejected an interpretation of the European Convention which would have codified a form of cultural relativism. Article 63(3) states that the “provisions of this Convention shall be applied in [colonial territories] with due regard, however, to local requirements.” In its opinion concerning the legality of corporal punishment on the Isle of Man, the court determined that the term “requirement” indicated a certain necessity to maintain law and order which could never be found to support the beating of a person with birch twigs. The Tyrer case “stands for the proposition that international human rights possess a transboundary meaning that cannot be modified or ignored on relativist grounds.” See Tyrer v United Kingdom (App no 5856/72) (1978) Series A no 026; Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms [4 November 1950, ETS 5], accessed 2 June 2011; Fernando
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V.
Universalism Defined a. Philosophical Origins of Universal Human Rights i. Natural Law and Rationalism
As developed by Thomas Aquinas, the theory of natural law “asserts that individuals have certain inalienable rights of the highest order granted to all individuals by God or Providence,” and that man-made laws are only viable to the extent that they do not clash with the ‘natural laws’ of the universe.14 This theory provided one of the early justifications for the universality of human rights by contending that individual rights are part of the natural law as ordained by a higher power. However, in a modern global society where conflict over the existence and nature of God is intense, anachronistic reliance on natural law theory to support the universality of human rights would be misplaced. Related, yet distinct from natural law, is the theory of rationalism as a basis for the universality of human rights. This theory holds that the belief in the universal human capacity for reason and rational thinking gives rise to the individual’s possession of human rights. However, many non-universalists argue that rationalism itself is a product of Western culture and therefore cannot be attributed universally to all human beings without ignoring the true diversity of human worldview and philosophy.15 As circumstantial evidence of this position, one need look no further than the quintessentially Western Declaration of Independence of the United States, the text of which indicates reliance on natural law and/or rationalism as the source of its unalienable rights: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and
Teson, ‘International Human Rights and Cultural Relativism’ (1985) 25 Va.J.Int’l L. 869, 878. 14 Elizabeth Zechenter, ‘In the Name of Culture: Cultural Relativism and the Abuse of the Individual’ (1997) 53 J.Anthropo.Res. 319, 320. 15
Zechenter 321.
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the pursuit of Happiness.”16 No matter the philosophical underpinnings of the Declaration of Independence, it is incongruous with true universalism, as at the time of its drafting the rights enshrined therein only inured to white men. ii. Positivism Unlike natural law and rationalism, positivist legal theory is based on the premise that laws are made by human beings. In terms of international human rights law, positivists would argue that there is sufficient evidence of global agreement arising from the drafting, ratification, and implementation of human rights treaties such that the universality of the principles underlying these treaties cannot reasonably be questioned. “Positivists also observe that the source of human rights lies not in individual cultures but rather in international law which gave rise to the idea of universal rights (emphasis in original)”.17 One major flaw of the positivist approach to validating the universality of human rights is that it fails to account for indigenous peoples, many of whom denied that the nation-state whose borders contain them geographically had the moral authority to represent them at the international level. This position was enforced by several provisions of the Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly in 2007, which recognized the rights of indigenous peoples as including the right to “free, prior and informed consent before adopting and implementing legislative and administrative measures that may affect them.”18 b. Challenges to the Universal Sacredness of the Individual
16
Declaration of Independence [¶ 2] (1776). Zechenter 321. 18 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, [2 October 2007 A/RES/61/295], Art. 19 accessed 3 June 2011. 17
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Because universalism is rooted in the concept of the sacred individual as described by Perry above, some challenges focus on attacking this premise alone. For example, Pollis and Schwab emphasized that the first-priority goals of newly independent non-Western states were economic development, modernization, and nation-building, and that these goals necessitated the curtailment of individual rights.19 This curtailment is justified on the basis of traditional cultures’ lack of individualism in favour of group-based identity.20 After decolonization and the incipience of the nation-state as the new social group, “whatever rights an individual possesses are given to him by the state, and this state retains the right and the ability to curtail individual freedoms for the greater good of the group.”21 This argument has been characterized as the socialist concept of rights.22 Underlying this socialist concept is the notion that authoritarianism enhances economic development, which has been challenged on the grounds that there is little evidence to suggest that suppression of civil and political rights imparts any benefit in terms of economic growth and development.23 It is worth nothing that even within the Western world, fundamental differences exist in the conception of the individual, with the England and the United States representing an ‘individualist’ tradition and continental Europe representing a ‘dignitarian’ tradition which places greater importance on family, communities, and citizens’ duties.24 This is reflected not only by the different domestic legal philosophies of, for example, the United States (life, liberty, and the pursuit of happiness) and France (liberty, equality, fraternity), but also by the two countries’ vastly different approaches to international law. While both the United States and France were 19
20
Adamantia Pollis and Peter Schwab (eds), Human Rights: Cultural and Ideological Perspectives (Praeger 1979). Wiktor Osiatynski, Human Rights and Their Limits (Cambridge University Press 2009) 149.
21
Pollis and Schwab 9. Osiatynski 148. 23 Osiatynski 155; Amartya Sen, Human Rights and Asian Values (Carnegie Council 1997) 11 accessed 2 June 2011. 24 Osiatynski 172. 22
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original Member States of the United Nations, their respective levels of acceptance of its human rights norms are quite distinct. France has ratified all of the core human rights treaties save the Migrants Treaty,25 whereas the United States is party only to ICCPR,26 ICERD,27 and CAT,28 and is notably one of only two nations in the world not to have ratified the Convention on the Rights of the Child,29 the other being Somalia. Thus, even within the Western world, the notion of universalism is not undisputed.
VI.
Cultural Relativism Defined a. Historical Origins
On June 24, 1947, the Executive Board of the American Anthropological Association addressed the United Nations’ Committee on Human Rights by issuing a statement warning that universalism was a dangerous ground on which to assert human rights, advocating instead for a relativist position that acknowledged the disparities between different cultures.30 Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole.31 Although this viewpoint may have found some expression in earlier scholarship, the birth of the cultural relativist approach to human rights is attributed to this statement. While the 25
UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families [18 December 1990 A/RES/45/158] accessed 3 June 2011. 26 UN General Assembly, International Covenant on Civil and Political Rights [16 December 1966, UNTS 999] accessed 3 June 2011. 27 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination [21 December 1965 UNTS 660] accessed 3 April 2011. 28 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [10 December 1984 UNTS1465] accessed 3 June 2011. 29 UN General Assembly, Convention on the Rights of the Child [20 November 1989 UNTS 1577] accessed 3 June 2011. 30 Osiatynski 147. 31
American Anthropological Association Executive Board, ‘Statement on Human Rights’ (1947) 49 Am.Anthropologist 539.
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American Anthropological Association later went on to recant its position, calling the statement “an embarrassment,” the substance of their position remains a valid (albeit somewhat controversial) ground for arguing against a universal theory of human rights.32 This original notion of ‘anthropological relativism,’ as distinct from other types of relativism described below, is summarized in a statement by Joseph de Maistre: “I have seen in my time Frenchmen, Italians, and Russians….but as for Man, I declare that I have never met him in my life; if he exists it is without my knowledge.”33
b. Modern Relativist Viewpoints The doctrine of cultural relativism has been expressed and defined in many different ways. For some, it holds that some moral rules and social institutions “cannot be legitimately criticized by outsiders.” 34 For others, the heart of the relativist position is that nothing is good and nothing is bad for every human being, and what is good or bad for a particular human being is always relative to something about him or her or about his or her context or situation.35 Still others assert that “there is no absolute truth, be it ethical, moral, or cultural, and there is no meaningful way to judge different cultures because all judgments are ethnocentric.”36 Finally, cultural relativism is said to be “the position according to which local cultural traditions properly determine the existence and scope of civil and political rights enjoyed by individuals in a given society.”37
32
Osiatynski 148. Quoted in Perry 500. 34 Donnelly (2003) 89. 33
35
Perry 468. Zechenter 323. 37 Teson 870. 36
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Jack Donnelly, as an early scholar on the topic, proposed thinking about the different definitions of relativism in terms of a continuum, and this method continues to prove useful for organizing analysis of the relativism/universalism debate.38 In particular, the continuum model highlights the direct contradictions between universality and relativity, and offers a middle ground where the two may overlap. i. Radical Cultural Relativism (Epistemological Relativism) The epistemological relativist perspective sees all knowledge and morality as being “exclusively culture-bound,” leading to the conclusion that rationality (as discussed above) is merely a product of Western ethnocentrism and therefore cannot provide the basis for the universality of human rights.39 More broadly, true objectivity is meaningless, rendering universality impossible. Going even further, “[t]he strongest form of radical cultural relativism would hold that the concept ‘human being’ is of no moral significance; the mere fact that one is a human being is irrelevant to one’s moral status.”40 Under this view, culture is the sole source of moral value. A universalist may respond by noting that if the fact of personhood is irrelevant to moral status, similarly “the accident of birth into a particular social group or culture is not an ethically relevant circumstance and thus has no bearing on that individual’s intrinsic human worth….”41 ii. Strong Cultural Relativism (Normative Relativism) Normative relativism holds that culture is the principal source of moral validity; by acknowledging the diversity of global cultures, no true transcultural standards may exist. A 38
Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’ (1984) 6 Hum.Rts.Q. 400; Donnelly (2003).
39
Zechenter 325. Donnelly (1984) 404. 41 Zechenter 320. 40
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strong cultural relativist may equivocate, accepting certain rights as having more or less universal application but maintaining the contention that moral validity derives primarily from culture. The assertion that no transcultural standards exist, or that cultures are inherently incomparable, may be challenged by the anthropologist’s observation that [a]lthough numerous social scientists have conducted fieldwork in seemingly alien cultures, and numerous individuals have travelled and lived in alien cultures, no one has ever encountered a culture that was so vastly different as to be wholly incomprehensible or uninterpretable to outsiders.42 iii. Weak Cultural Relativism (Descriptive Relativism) Descriptive relativism may mean only “a commonsense observation that cultures vary,”43 or it may mean the same thing as strong universalism. From this perspective, culture is a persuasive, but secondary, source of moral validity. “Universality is initially presumed, but the relativity of human nature, communities, and rules checks potential excesses of universalism.”44 A weak cultural relativist appreciates the distinctions among cultures but sees no reason why one culture’s principles may not be applicable to another, i.e. that transcultural standards may exist. For example, “the categorical imperative may explain why it is wrong for one Nigerian to tell a lie to another even though the categorical imperative was first formulated and theorized in East Prussia.”45 iv. Radical Universalism Radical universalism holds that culture is totally irrelevant as a source of moral validity, and “requires a rigid hierarchical ordering of the multiple moral communities,” giving priority to
42
Zechenter 327. Zechenter 323. 44 Donnelly (2003) 90. 45 Jeremy Waldron, ‘How to Argue for a Universal Claim’ (1999) 30 Colum.Hum.Rts.L.Rev. 305 43
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“the demands of the cosmopolitan moral community over other (‘lower’) communities.”46 Under this view, the United Nations might be characterized as the governing body of the cosmopolitan community tasked with enforcing universal moral standards. However, the concept of national sovereignty has deep roots in international law and is carefully considered by all UN bodies before taking action to create or enforce international laws, especially when to do so would be to contravene a nation’s stated sovereign interests. Thus, even an expansive view of the binding nature of international law would stop short of supporting a radical universalist position as stated herein. c. Challenges to Cultural Relativism i. Anachronisms In articulating an argument based on cultural relativism in any of the above forms, its proponents often cite to ancient cultures such as the pre-colonial African village, the Native American tribe, and the traditional Islamic community as the sacred source from which their current identities and practices derive.47 While in many cases it is true that the concept of possessing human rights by virtue of personhood alone was foreign to these communities, “the traditional culture advanced to justify cultural relativism far too often no longer exists.”48 To the extent that modernization or Westernization has reached into, and transformed, traditional communities, traditional approaches to guaranteeing human dignity seem objectively inappropriate; traditional limits on political power are unlikely to function effectively in modern conditions.49 ii. Logical Fallacy Cultural relativism is often criticized as being self-contradictory. The assertion that there are no universal principles is incompatible with the assertion that all rights and values are 46
Donnelly (2003) 90. Donnelly (1984) 410. 48 Donnelly (1984) 411; (2003) 101. 49 Donnelly (1984) 406. 47
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culturally relative, because this latter assertion is a universal principle in itself. This criticism has been tempered by many, including Donnelly with his continuum, which acknowledges that relativism can be expressed in such a way as to resolve this logical flaw. For example, one might say that 1) there are no universal principles, except for one, and 2) the sole universal principle is that moral rights are relative to culture. iii. Evolution One of the principle objections to cultural relativism is that it depends on a static conception of culture that belies the results of modern research in evolutionary psychology, neuroscience, socio-biology, and psychiatry. “Many reject relativism in favour of an evolutionary analysis by observing that societies do indeed change their customs by developing more humane habits in conjunction with the growth of their economic, technological, and scientific capabilities.”50 Related to the ever-changing nature of culture is the fact of transcultural influences, especially in a globalizing world. Further, many argue that the concept of ‘culture’ itself is not monistic, and that intercultural dialogue is not only possible, but in many cases is more accessible than intracultural dialogue.51 d. Other Issues i. Self-Determination and Non-Intervention Despite the many critiques of cultural relativism, some of the principles upon which it relies are widely accepted and in fact are recognized as international legal norms in themselves. The right to self-determination is enshrined in both the ICCPR and the ICESCR,52 and the principle of non-intervention is delineated in Article 2(7) of the Charter and given support by 50
Zechenter 326. Perry 494. 52 UN General Assembly, International Covenant on Economic, Social and Cultural Rights,[16 December 1966, UNTS 993] accessed 3 June 2011. 51
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careful actions of the UN Security Council. While the right to self-determination extends to “all peoples,”53 the principle of non-intervention refers to the “domestic jurisdiction of any state,”54 foreclosing its direct application to any culture that may assert its sovereignty without being recognized as such by the international community. Some theorists have gone so far as to condition sovereignty on a good human rights record, meaning that “international enforcement of human rights would not violate the principle of non-intervention in the internal affairs of sovereign states because such states were only sovereign insofar as they respected human rights.”55 This view is not favoured; instead it is agreed there is an obligation in international law not only to promote the right to self-determination, but also to “respect the cultural identities of peoples, their local traditions, and customs.”56 ii. Asian Values Asian resistance to universalism is perhaps best summarized by Singapore’s Foreign Minister Won Kang Sen’s statement at the World Conference on Human Rights in Vienna in 1993: “universal recognition of the ideal of human rights can be harmful if universalism is used to deny or mask the reality of diversity.” 57 So-called “Asian values” emphasize order over equality, discipline over liberty, cooperation over independence, and duties over rights.58 The civil and political rights that are at the core of Western human rights norms are fundamentally alien in many of the long-established traditions of Asian cultures, which tend to emphasize social and cultural rights instead. Rather than arising from an individual’s sacred human nature, rights 53
Ibid. UN Charter Article 2(7). 55 Binder G, ‘Cultural Relativism and Cultural Imperialism in Human Rights Law’ (1999) 5 Buff.Hum.Rts.L.Rev. 211, 212. 54
56
Teson 873. Quoted in Osiatynski 150. 58 Osiatynski 150-151. 57
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are contingent upon performance of duties or are worded as an express grant by the state, similar to the socialist conception of rights outlined above.59 The “Asian values” argument lost much of its credibility following the Asian Economic Crisis of the late 1990s, when it became clear that hewing to a particularly “Asian” set of policies did not in fact have a beneficial impact on economic growth and development in the region.60 Interestingly, little has been heard of ‘Asian values’ since the 1998 financial crisis in the region, an understandable political retreat given that a principal rationale for repression – for maintaining ‘social order’ and the denial of individual liberties – was the East Asian countries’ success in bringing about development and prosperity.61
VII.
Is It Imperialistic to Espouse Universalism as the Foundation for Human Rights? a. Operation Iraqi Freedom
One clear reason that the universalism/cultural relativism debate continues to be relevant today is the United States’ assertion of human rights and humanitarian principles as justifications for the ongoing war in Iraq.62 By espousing ideals of emancipation from terror to rationalize the conflict (tellingly known as Operation Iraqi Freedom), the United States invites allegations of imperialism. Although humanitarian concerns initially formed only a tertiary rationale for the war, as the assertions that Saddam Hussein was linked to international terrorist groups and in possession of weapons of mass destruction failed to prove credible, the only remaining justification for continued intervention was on humanitarian grounds.63 Whether these grounds did in fact exist is beyond the scope of this analysis, but the fact that they were proffered as a central rationale for non-consensual intervention in Iraq has left many in the Middle East and 59
Osiatynski 151. Osiatynski 155. 61 Admantia Pollis, ‘A New Universalism’ in Admantia Pollis and Peter Schwab (eds), Human Rights: New Perspectives, New Realities (Lynne Rienner Publishers 2000) 27-28. 62 Osiatynski 153. 63 Ken Roth, ‘War in Iraq: Not a Humanitarian Intervention’ (2004) Human Rights Watch World Report < http://www.hrw.org/legacy/wr2k4/3.htm> accessed 2 June 2011. 60
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elsewhere sceptical of the validity of human rights and humanitarian principles beyond their utility for the advancement of American global interests.64 [B]ecause the idea of human rights has been in use as an instrument of foreign policy, it has been rejected by those who believe that the policy of the West, particularly as represented by the United States, is aimed against them or against their interests.65 Even before human rights justifications became part of the rhetoric surrounding the war in Iraq, moral imperialism was of concern to many leaders in developing countries who resisted the imposition of international human rights law on their peoples. The sceptical view of this phenomenon is that cultural relativism and accusations of moral imperialism were relied upon by despots and dictators to shield their brutal tactics from international scrutiny; Suharto, Mobutu, and Nguema come to mind.66 A more charitable view would accept that the legacy of colonialism was ongoing and potent, giving rise to sincere concerns on the part of citizens and leaders of developing countries that their way of life would be irreparably damaged. Unfortunately, these two viewpoints have conflated such that well-meaning Westerners with a well-developed sense of the legacy of Western colonialism indirectly support [arguments put forth by vicious elites to deflect attention from their repressive policies] when they shy away from criticizing arguments advanced by non-Westerners even when they are empirically inaccurate or morally absurd.67 b. Is There Any Way to Justify Cultural Relativism in Today’s Society? The flaws, whether logical or moral, of cultural relativism have been enumerated by many scholars. One of the more poignant statements of this kind speaks to the divisiveness propagated by the cultural relativist’s insistence on difference and categorization. “[O]versimple generalizations about ‘Western civilization,’ ‘Asian values,’ ‘African cultures,’ and so on…are not only intellectually shallow, they also add to the divisiveness of the world in which we live.”68
64
Osiatynski 153. Osiatynski 173. 66 Donnelly (2003) 102. 67 Donnelly (2003) 100. 68 Sen 31. 65
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Cultural relativism is often put forward to try and give voice to marginalized peoples and to combat the threat of Western moral imperialism, but it may have the opposite effect: Discrediting of indigenous aspirations for social change as nothing more than Western contamination or as an aberrant foreign import, merely because these aspirations run counter to some entrenched cultural practices of the majority in power, seems to show singularly bad judgment.69 Put another way, “is it really a form of cultural respect to abstain from criticizing the practices of others, thereby regarding them as beyond or beneath criticism?”70 VIII. Conclusion Much of the scholarship cited above dates from the 1990s, when the level of acceptance of international human rights law (indeed, the human rights system itself) was substantially different than it is today. While many of the philosophical and ethical arguments that underscore the universalist-relativist debate are still relevant, the fact of the existence of a body of human rights law is no longer in question. Human rights advocates need not rely on the skeleton of the United Nations Charter or the Universal Declaration of Human Rights to support their assertions that human rights are recognized as a matter of international law. As the human rights enforcement and promulgation mechanisms have become more widely accepted, the question of whether these rights are universal accordingly becomes less practical. This is because most nations (including non-Western ones) have willingly ratified one or more human rights treaties, thereby evidencing their acquiescence to the norms enshrined in those treaties. Nonetheless, many of the concerns raised by the cultural relativist position are not disposed of simply by asserting the universal acceptance of a human right, whether or not it arises from the inherent dignity of the person. For example, it may be argued that the right to life 69
70
Zechenter 334. Steven Lukes, ‘Moral Diversity and Relativism’ (1995) 29 Journal of Philosophy of Education 173.
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is universally accepted as a fundamental human right, enshrined in all the core human rights treaties and acknowledged by every nation in the world in some way. Despite its universal acceptance, the right to life clearly takes on different meanings within different nations and cultures: in Iran, the right to life is not extended to apostates;71 in the United States, a strong antiabortion movement supports the right to life for unborn foetuses. Fernando Teson articulates this notion as a version of cultural relativism which accounts for the existence of a body of international human rights norms while simultaneously insisting that its meaning will vary substantially from one culture to the next.72 Because of the great diversity of global culture, the question of whether human rights are universal is a rich one that remains ripe for debate. After examination of the continuum from radical relativism to radical universalism, a moderate position that accepts universal norms but allows for some degree of culture-dependent interpretation presents a compelling alternative. In order to ensure that basic human rights, including the right to self-determination, are protected worldwide, global society must strike a balance between respecting cultural norms and ensuring that fundamental freedoms are available to all citizens of the globe.
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