International Human Rights: Universal, Relative or Relatively Universal?

Chapter 2
International Human Rights: Universal, Relative or Relatively Universal?

Jack Donnelly

1. Introduction

Universality is at the core of the global human rights regime. The foundational document is the UDHR,1 the six decades of which this volume commemorates. The first operative paragraph of the Vienna Declaration and Programme of Action of the 1993 World Human Rights Conference goes so far as to assert that ‘the universal nature of these rights and freedoms is beyond question.’2 And indeed this is close to true at the level of interstate relations. Virtually every state acknowledges an authoritative body of international human rights law that flows from the UDHR.

Nonetheless, claims of cultural, historical, and socio-political relativity have been and remain central features of international human rights discussions. During the Cold War era, arguments of distinct socialist and Third World conceptions of human rights produced ‘three worlds’ arguments3 that persist today in the ‘three generations’ narrative of the historical development of modern human rights ideas.4 In the post-Cold War era, ‘Asian values’ advocates5 and Islamists have prominently and powerfully challenged the universality of internationally recognized human rights. In addition, increasingly popular post-structuralist and post-colonial perspectives stress the contingent particularities of the dominant human rights discourse.6

This chapter argues that ‘each side’ in the universality–relativity debate rests on important insights about the nature of human rights. I argue, however, that the standard terms of the debate – ‘Are human rights universal or relative?’ – are misformulated. ‘Universality’ and ‘relativity’ are multifaceted concepts that are not necessarily incompatible. Human rights are indeed ‘universal’ in some standard and important senses of that term – but not ‘universal’ in some equally standard senses. Likewise, human rights both are and are not ‘relative’ in standard senses of that term. The real issue is not whether human rights are universal or relative but how they are (and are not) universal, how they are (and are not) relative, and how these relativities and universalities interact, in theory and in practice.

2. ‘Universal’ and ‘Relative’

The first definition of ‘universal’ in the Oxford English Dictionary (OED) is ‘Extending over, comprehending, or including the whole of something’. Universal, in this sense, is ‘relative’ to a particular class or group. For example, universal health care, universal primary education, and universal suffrage, as those concepts are ordinarily used, involve providing health care, primary education, and voting rights (only) to all citizens, nationals, or residents of a particular state. Universality, in that sense, is relative to residence or citizenship. Similarly, a universal remote control operates (almost) all types of currently standard home entertainment devices, but not all present, let alone all past or possible, such devices.

‘Universal’ also is defined as ‘of or pertaining to the universe in general or all things in it; existing or occurring everywhere or in all things’ (OED).7 Little is universal in this sense, other than formal logical systems of propositions, such as mathematics, and perhaps some of the laws of physics (or God). Thus, the OED describes this sense as ‘chiefly poetic or rhetorical’ (to which, I think, we could add ‘philosophical’ or ‘theological’). This ‘occurring everywhere’ sense of universal is secondary and specialized. The primary sense of universality is relative to a particular ‘universe’ of application (rather than everywhere in the universe).

The parallel OED definitions of ‘relative’ are ‘arising from, depending on, or determined by, relation to something else or to each other’ and ‘constituted, or existing, only by relation to something else; not absolute or independent’. Talk of relativity immediately calls forth the question, ‘Relative to what?’ Something cannot be relative in general but must always be relative to (or dependent on) something else in particular.

Even this simple definitional exercise allows us to identify a number of standard problems in discussions of the universality and relativity of human rights. For example, from a denial of the ontological, ‘applies anywhere’ universality of human rights, it does not follow that other important forms of universality cannot be defended. And that human rights are not ontologically universal does not entail that they are culturally relative. (Below, I will argue that they are instead relative to social structure.) On the ‘universalist’ side, the nature of the asserted universality of human rights often is either left unspecified or defended in ontological terms (for example, in contemporary Roman Catholic natural law social teaching) that are acceptable to only a tiny proportion of those who endorse internationally recognized human rights. And both sides often are unwilling to acknowledge, let alone explore, the insights of the other.

The following sections identify three senses in which human rights are, in the contemporary world, reasonably understood as universal. I call these (1) international legal universality (2) functional universality, and (3) overlapping consensus universality. I then consider two senses, which I call ontological and historical (or anthropological) universality, in which I argue that human rights are not universal. I then consider, more briefly, some standard ‘relativist’ arguments before, in the final section, defending the summary assessment that human rights are ‘relatively universal’. Here I will simply note that the term is not paradoxical. Rather, it recognizes that the universality of human rights is relative to particular contexts (specified in the following sections).

3. International Legal Universality

Virtually all states accept the authority of the UDHR, which has been further elaborated in a series of widely ratified treaties. As of 31 December 2009, the six core international human rights treaties (on economic, social, and cultural rights; civil and political rights; racial discrimination; women’s rights; torture; and rights of the child) had on average 170 parties.8 This truly impressive 87% ratification rate establishes what we can call international legal universality. Human rights are universal within the domain of contemporary international law.

The universality of these rights is ‘beyond question’ not in the sense that no one violates, challenges, or denounces them but rather in the sense that such challenges and violations are treated as beyond the pale. International human rights law can only be rejected by challenging the whole body of contemporary international law. Such challenges are indeed advanced by philosophers, political radicals, revolutionary groups, and even the occasional revolutionary regime. But challenges to the international legal universality of internationally recognized human rights are typically ruled ‘out of the question’. They simply are not seriously engaged – in much the same way that in most national legal systems, challenges to a national constitution that has been accepted as authoritative for decades or centuries are dismissed out of hand, rather than seriously considered, by national courts and political authorities.

Such international legal universality is often described as reflecting ‘hegemony’, a combination of authority and force in which conventional legitimacy plays the central role (although ultimately backed by the coercive resources of dominant power).9 Whatever the exact mixture of force and authority in maintaining a hegemonic doctrine or order – it varies dramatically with time, place, and issue – the essential point is that in contemporary international society a ‘hegemonic’/authoritative system of international legal principles gives an important element of universality to internationally recognized human rights.

Over the past six decades, the UDHR has indeed become, as it describes itself, ‘a common standard of achievement for all peoples and all nations’,10 a standard of international legitimacy. Sovereignty, however, is another standard of international (legal) legitimacy, and one that typically takes priority over human rights. States that systematically violate internationally recognized human rights usually retain their sovereign legitimacy. Nonetheless, their ‘legitimacy’ is tarnished or diminished. Consider Robert Mugabe’s Zimbabwe. Today, those desiring full political legitimacy must be seen as, if not committed to internationally recognized human rights, then not violating them too seriously. For example, China has (very reluctantly) adopted the language (although not too much of the practice) of human rights, seemingly as an inescapable precondition to its full recognition as a great power. And in the case of genocide, human rights violations may even trump sovereignty (e.g. East Timor and Kosovo), something that was unthinkable when the UDHR was drafted.

In the first few decades following the drafting of the UDHR, this international legal universality was rather superficial, both in breadth and depth. It did not penetrate very deeply even in interstate relations. Major progress began in the mid-1970s, however, symbolized by the Helsinki Final Act of 1975,11 the election of Jimmy Carter as President of the United States in 1976, and the award of the Nobel Peace Prize to Amnesty International in 1977. Another spurt of spread and deepening took place in the 1990s, with the result that today international human rights norms have come to penetrate, surprisingly, deeply in most regions (the Middle East being the principal exception). Particularly notable is the fact that movements for social justice and of political opposition have increasingly adopted the language of human rights. In addition, growing numbers of new international issues, ranging from migration, to global trade and finance, to access to pharmaceuticals are being framed as issues of human rights.12

The relativity of this international legal universality deserves note. It holds (only) within a particular universe, namely, among states, who are the principal source and subjects of international law, and political actors who principally target state policy. It is further relative to a particular time. And it is deeply contingent in the sense that this universality was produced by mechanisms that in the past did not and in the future might not produce such widespread endorsement. We might want to relativize this universality even further by stressing its incompleteness, in the sense that a number of states continue to resist, more or less strenuously, these hegemonic international norms.

Nonetheless, international legal universality is of immense theoretical and practical significance. Sovereign territorial states, the designated class, remain by far the most important actors in determining whether people enjoy the human rights that they have. The formal endorsement of international human rights obligations thus is of immense importance. Furthermore, local activists, transnational advocates, and foreign states can appeal to widely endorsed international norms that, in almost all cases, the target state has itself repeatedly accepted as binding. This greatly facilitates the work of human rights advocacy and defence.

Of course, tomorrow, states and movements of political opposition may no longer accept or give as much weight to human rights. Today, however, they clearly have chosen human rights over competing conceptions of national and international political legitimacy. This, I would suggest, is the most important practical legacy of the UDHR.

4. Overlapping Consensus Universality

Law lies at the intersection of power and justice. We thus should expect to find international legal universality both backed by preponderant political power and reflecting deeper ethical, moral, or religious values. It certainly is not coincidental that the world’s leading military and economic powers – the United States, Western Europe, and Japan – all strongly support internationally recognized human rights. I want to focus instead, however, on the cross-cultural ethical foundations of internationally recognized human rights.

The philosopher John Rawls distinguishes ‘comprehensive religious, philosophical, or moral doctrines’, such as Islam, Kantianism, Confucianism, and Marxism, from ‘political conceptions of justice’, which address only the political structure of society, defined (as far as possible) as independent of any particular comprehensive doctrine.13 Adherents of different comprehensive doctrines may be able to reach an ‘overlapping consensus’ on a political conception of justice.14 Such a consensus is overlapping; partial rather than complete. It is political rather than moral or religious. But it is real and important. Although Rawls developed the notion to understand liberal national societies, it has obvious application to a culturally and politically diverse international society.15 International human rights, I want to argue, have what I will call overlapping consensus universality.

Human rights can be grounded in a variety of comprehensive doctrines. For example, they can be seen as encoded in natural law, called for by divine commandment, political means to further human good or utility, or institutions to produce virtuous citizens. Over the past few decades, more and more adherents of a growing range of comprehensive doctrines in all regions of the world have come to endorse human rights – (but only) as a political conception of justice.16

It is important to note that within the West as well, human rights rest on an overlapping consensus. Thomists and utilitarians, for example, agree about little at the level of comprehensive doctrines; Thomists do not even consider utilitarianism a moral theory. Nonetheless, most contemporary adherents of both comprehensive doctrines endorse human rights as a political conception of justice.

This, however, is a rather recent phenomenon. Aquinas had no conception of natural rights. Bentham, often considered the founder of modern utilitarianism, famously described natural rights as ‘simple nonsense’ and imprescriptible natural rights as ‘nonsense upon stilts’. Until the mid-twentieth century, virtually all utilitarians were hostile to natural or human rights17 and human rights were almost completely foreign to Thomist moral and political thought18 (which relied almost exclusively on the language of duty). Over the past several decades, however, prominent Thomists have enthusiastically endorsed human rights and human rights have become central to contemporary Catholic social teaching.19 Utilitarian defences of human rights – especially as second-order rules justified by the principle of utility; that is, as something like a political conception of justice – are also common.20 And in the domain of ordinary, day-to-day politics, most utilitarians and Thomists have no difficulty in accepting human rights, and often do so with considerable enthusiasm.

In fact, virtually all Western religious and philosophical doctrines through most of their history have either rejected or ignored human rights, understood as equal and inalienable entitlements held by all human beings that can be exercised against the state and society. Today, however, most adherents of most Western comprehensive doctrines endorse human rights. There is no logical reason why a similar transformation could not happen elsewhere. If the medieval Christian world of crusades, serfdom, and hereditary aristocracy could become today’s world of liberal and social democratic welfare states, it is hard to imagine a place where a similar transformation would be impossible. And just such a transformation has indeed been taking place over the last several decades.

Perhaps the most unpromising cultural environment is the traditional Hindu caste system, which not only stressed categorical, qualitative moral differences between different descent-based groups (castes) but even denied moral significance to a category of human beings. Gandhi, however, showed that it is possible to reshape Hindu traditions to support a fundamentally egalitarian conception of human rights. And, in practice, India has been, both at home and abroad, one of the leading Third World supporters of internationally recognized human rights.

Or consider claims that ‘[East] Asian values’ are incompatible with internationally recognized human rights.21 Asian values – like Western values, African values, and most other sets of values – can be, and have been, understood as incompatible with human rights. But they also can be and have been interpreted to support human rights, as they regularly are today in Japan, Taiwan, and South Korea. And political developments in a growing number of Asian countries suggest that ordinary people and even governments are increasingly viewing human rights as a contemporary political expression of their deepest ethical, cultural, and political values and aspirations.22

No culture or comprehensive doctrine is ‘by nature’, or in any given or fixed way, either compatible or incompatible with human rights. Whatever their past practice, nothing in indigenous African, Asian, or American cultures prevents them from endorsing human rights now. Cultures are immensely malleable, as are the political expressions of comprehensive doctrines. It is an empirical question whether (any, some, or most) members of a culture or exponents of a comprehensive doctrine support human rights as a political conception of justice.

All major civilizations have for long periods treated a significant portion of the human race as ‘outsiders’ not entitled to guarantees that could be taken for granted by ‘insiders’. Few areas of the globe, for example, have never practised and widely justified human bondage. All literate civilizations have for most of their histories assigned social roles, rights, and duties primarily on the basis of ascriptive characteristics such as birth, age, and gender.

Today, however, the moral equality of all human beings is strongly endorsed by most leading comprehensive doctrines in all regions of the world. This convergence, both within and between civilizations, provides the foundation for a convergence on the rights of the UDHR. In principle, a great variety of social practices other than human rights might provide the basis for realizing foundational egalitarian values. In practice, human rights are rapidly becoming the preferred option.

Is this transnational overlapping consensus more voluntary or coerced? Although the power and influence of the United States and Western Europe should not be underestimated, I want to suggest that example has been more powerful than advocacy and that coercion has typically played much less of a role than positive inducements. Human rights dominate political discussions less because of pressure from materially or culturally dominant powers than because they respond to some of the most important social and political aspirations of individuals, families, and groups in most countries of the world. The consensus on the UDHR, it seems to me, principally reflects its cross-cultural substantive attractions. People, when given a chance, usually (in the contemporary world) choose human rights, irrespective of region, religion, or culture. The transnational consensus on the UDHR arises above all from the largely voluntary decisions of people, states, and other political actors that human rights are essential to protecting their visions of a life of dignity.

5. Functional Universality

How can we explain this consensus? Those who focus on culture will find it inexplicable – and thus are likely to appeal to power, imposition, and ‘cultural imperialism’. I want to suggest instead that it rests on social-structural features that are relatively universal in the contemporary world. Internationally recognized human rights respond to certain standard threats to human dignity associated with modern markets and modern states in every part of the globe today. This creates what I will call the functional universality of internationally recognized human rights.

Natural or human rights ideas first developed in the West. John Locke’s Second Treatise of Government, published in 1689 in support of the so-called Glorious Revolution in Britain, offers one of the first full-fledged natural rights political theories. The American and French Revolutions first used such ideas to construct new political orders. I want to draw attention, however, to the social-structural ‘modernity’ of these ideas and practices, rather than their cultural ‘Westernness’.23 Human rights ideas and practices arose not from any deep Western cultural roots but from the social, economic, and political transformations of modernity. They thus have relevance wherever those transformations have occurred, irrespective of the pre-existing culture of the place.

Nothing in classical or medieval culture specially predisposed Europeans to develop human rights ideas. Even early modern Europe, when viewed without the benefit of hindsight, appears as a particularly unconducive cultural milieu for human rights. No widely endorsed reading of Christian scriptures supported the idea of a broad set of equal and inalienable individual rights held by all Christians, let alone all human beings. Violent, often brutal, internecine and international religious warfare was the norm. The divine right of kings was the reigning orthodoxy. Nonetheless, in early modern Europe, ever more powerful and penetrating (capitalist) markets and (sovereign, bureaucratic) states disrupted, destroyed, or radically transformed ‘traditional’ communities and their systems of social support and obligation. Rapidly expanding numbers of (relatively) separate families and individuals were thus left to face a growing range of increasingly unbuffered economic and political threats to their interests and dignity. New ‘standard threats’24 to human dignity provoked new remedial responses.

One solution was the absolutist state, which offered a society organized around a monarchist hierarchy justified by a state religion. The newly emergent bourgeoisie, by contrast, envisioned a society in which the claims of property balanced those of birth. And as ‘modernization’ progressed, an ever widening range of marginalized and dispossessed groups advanced claims for relief from injustices and disabilities. Such demands took many forms, including appeals to scripture, Church, morality, tradition, justice, natural law, order, social utility, and national strength. Claims of equal and inalienable natural/human rights, however, became increasingly central. And the successes of some groups opened political space for others to advance similar claims for their equal rights.

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