Human Rights Essay

Daniela Gherghilescu, PO859, essay 1 Critically discuss the meaning and significance of the universality debate for the
protection of human rights.
Along history, there have been tremendous battles and debates along the concepts or in the name of human rights. Although people today usually take for granted the rights that are included in the Convention of the Human Rights, the actual document has been enacted quite late in 1976. If some rights appear to be logical and natural occurring, there are political rights that could be highly sensitive and relate to the culture and society to which they are applied to (Donnelly, 2007). In order to have the best understanding of the universality and protection of human rights, there are two concepts that need explanation and fixation: human rights and universality. Universality refers to the characteristic that a factor has to be generally and universally accepted and applicable, in the same manner, within the same boundaries and at the same level. The simple definition of human rights is the rights that one has because one is human (Donnelly, 2003, p. 7). Jack Donnelly (2003) interestingly notices the duality of the word right, with its political and moral significances: rectitude and entitlement or doing and having a right (Donnelly, 2003, p.7). These two factors are in close connection to one another, as doing right is the consequence of a required and expected conduct, whereas having a right is an entitlement that allows a person to act in a specific manner without any negative consequences (Donnelly, 2003). Regarding this strong connection to behaviour and social expectations, the human rights universality is quite a subjective and frivol notion, as it builds up upon the versatile and pluralistic societies and civilisations. This present paper aims to clarify and portray the real meaning of the universality of human rights from a cultural and political point of view, as those angles do interfere with the proliferation and applicability of human rights, as well as their perceived breach, infringement or trespass. Having rights of any kind empowers individuals with a certain status and also benefits them to take advantage of it. Human rights have proved to be a strong political and social tool and, although objective enjoyment must be the norm (Donnelly, 2003, p. 9), their applicability suffered several distortions around the world due to cultural, social or material constraints. The possession paradox, as Donnelly (2003, p.9) names it, distinguishes between people that claim their rights and people who do not. That is why this universality is so questionable: if every human being has rights, why some people take advantage of them and some do not? Why some feel that it is absolutely normal and natural to claim them and some are afraid or do not know that they can do that? Quoting Donnelly (2003, p. 9): Paradoxically, then, having a right is of most value precisely when one does not have (the object of) the right that is, when active respect or objective enjoyment is not forthcoming. []. This is how power networks and political dissonance are created. The world is not simply an example of Hobbesian state of nature where rights would have been just asserted or enforced and never respected or a pure example of Heaven where rights are always respected, never
Daniela Gherghilescu, PO859, essay 1 Critically discuss the meaning and significance of the universality debate for the protection of human rights.
breached, so there is difficult to say that human rights possess a characteristic universality, as things in practice can be quite different to their theoretical basement. Regarding the different levels of economic stability and the multitude of political regimes, individuals living in under developed countries or migrants seem not to be able to take advantage of their human rights. Marie Bndicte Dembour and Tobias Kelly (2011) reflect upon whether human rights were also enacted for migrants, criticising the bureaucratic system linked to them and the political responses given to migrants needs. It is interesting to see how people sometimes flee their natural and origins places because their human rights were breached and they confront themselves with the same infringement when they arrive in a country where they were supposed to receive help. Marie Bndicte Dembour and Tobias Kelly (2011) reviewed four main reasons why human rights principles are limited or breached in relation to migrants: limitations of the nation state migrants arrive in, their discrimination due to race and class, the intense individualisation and bureaucratisation of the access to human rights and the consequences of the liberal democratic closure (Dembour and Kelly, 2011, p. 6). The main articles that are going to be the leitmotif of this paper are article 2 and article 25, analysing them in close correlation to migrants, Africa and Islamic countries. Article number 2 states that any particularities that human being possess, such as: sex, race, political orientation, nationality or social status must not be a barrier when accessing human rights (OHCHR, 2012) and article number 25 emphasize the right of human beings of having a decent way of life, with family and state support such as housing, food, clothing, disability help. Moreover, mothers and children should receive special care and treatment, without any discrimination (OHCHR, 2012). Evaluating the validity of the term universality in accordance to human rights, the first factor that needs to be underlined is the multitude of origins that the articles of the Human Rights Convention has. Some rights are natural and some others have been agreed upon by a board of examiners. Donnelly (1989, p. 53-54) warns about the confusion that is made regarding the involvement of state actors and justice systems, as human rights are a separate entity to limited government or distributive justice. The universality of human rights does not refer to the inclusion of their body in the attributions of the state, but including their components into peoples lives from any corner of the world so they can access them, exert them and take advantage of them. Also stated earlier in this paper, human rights are strongly linked to the culture within which they find themselves, as they could have different meanings and understandings and they are strongly linked to the degree of political and state adhesion of individuals. Donnelly (2007, p. 295-296) rejects this idea of cultural relativity and argues that the practice of human rights may not be identical in all states, as it is influenced by cultural and social forces, but universally it surely has the same nucleus. States
have an overlapping consensus about protecting individuals against standard threats (Shue, 1996) and give human beings a foundation to fight against abusive power. With a more analytical perspective, Goodhart (2008) does not agree with terms like relative or universally, as he finds the definition of such terms do not prove their applicability. Emphasizing their global appeal makes clearer the bases of their legitimacy and insulates them from critiques of their misuse while simultaneously making those critiques the impetus for an ongoing reformulation of rights that adds to their inclusiveness and generality (Goodhart, 2008, p. 193). If focusing on the Islam, where religious dogmas and spiritual beliefs are more important and respected than in other parts of the world, Said (1980, p. 92) writes that it was God that made and granted rules, so people are being governed and act according to those laws, they believe in a stronger power that takes care of their rights. Majid Khadduri (1946, p. 78) adds that human rights in Islam are the privilege of Allah (God), because authority ultimately belongs to Him. Also, those rights right to personal safety, equality, brotherhood, justice and respect of personal reputation (naming five examples given by Khadduri (1946), pp. 77 - 78) are eligible just for the persons of full legal status: [] a living human being of mature age, free and of Moslem faith (Khadduri, 1946, p. 79). Donnelly (1989) refutes those statements and questions their integrity and validity, regarding the fact that Muslims have different rights and obligations for men and women, for the elderly and youths. At a first sight, it appears that only men would take advantage of the so called rights and the universality of human rights fades away. Moreover, Afshari (1994) states that even if the people incline towards and agree with the Universal Declaration of Human Rights, the state and the present Islamic government regimes refrain their full applicability. Continuing Afsharis (1994) advocacy, Tibi (1994) believes that an ouvert and less-strict reinterpretation of Islam would allow individuals to adopt the universality of human rights, without breaching any religious dogmas. But firstly, there are many limitations (political, religious and social) that desist Islam followers to speak out their preferences that need to be addressed and sorted out. Scholars like Said (1980), Legesse (1980), Donnelly (1989), they all agree upon the fact that rights, even if they are rights agreed by the Universal Declaration of Human Rights or rights more in a religious sense, as the case of Islam, all of them are restrained and limited to the age, sex, sociopolitical status and financial background. Dembour and Kelly (2011) and also Evans (1998, p.4-5) agree upon the fact that the universality of human rights is strictly limited to the power, whether it is social, economical or political. Power is the key word that lies behind the access or enacting human rights. This is why, more dramatic views see human rights as power over people, expressed in exclusionary practices that deny the full participation of those who fail to support the interests of the
dominant group (Evans, 1998, p. 4). This situation is merely plausible in the case of forced migrants, as Hindess (1992) notes, they lack the knowledge, status and moral foundation to decide their faith. Locke (1953) writes that people accept to coexist, to form communities and have leaders. Leaders remained on their positions for as long as the community agreed to and did not interfere with the basic rights that the community members had (Rousseau, 1913). Those fundamental rights are or should be the rights that all individuals have equal access to, without discrimination, it is the object of their social contract. Beitz (1979), also approved by Donnelly (1982), concludes that human rights are universal at least vis--vis of their enclosed natural rights, that is basic rights that all human beings are entitled to just because there are human. But to make them more complex, the board of examiners have also introduced economic and political rights into the Declaration of Human Rights and it has become imperative that Westerners seek to accommodate group rights concepts within their hitherto liberal and individualistic human rights framework (Cobbah, 1987, p. 314). This liberalism and individualism breaks down the ties and connections of traditional Islamic, African or other cultures around the globe. Westernization does not mean universality and liberalism or high individualism does not mean protection. There was indeed a universal agreement upon what should be the rights included in the Universal Declaration of Human Rights, but it was the universal acceptance of the people being involved in the board of examiners, with questionable applicability upon the wide world. Stammers (1995, p.488) points out that ideas and practices concerning human rights are created by people in particular historical, social and economic circumstances. Tony Evans (1998) actually argues that the entire spectrum of human rights commissions and debates have limited impact upon the ones that actually need their implementation. This major universality is split into minor universalities that are valid for certain cultures, religions or political powers. In their pure theoretical form, human rights aim to protect human dignity, but how can they protect it universally if dignity is understood by diverse cultures in different manners (Donnelly, 2007)? The cultural variability in human nature not only permits but requires significant allowance for cross-cultural variations in human rights. But if all rights rested solely on culturally determined social rules, as radical cultural relativism holds, there could be no human rights, no rights one has simply as a human being. This denial of human rights is perfectly coherent and has been widely practiced. Nevertheless, it is morally indefensible today (Donnelly, 1989, p.112).
In a world that is continuously transforming, universality and globalisation become as ying and yang. The 1993 UN World Conference on Human Rights has evidenced the fact that the politics of rights is no longer the sole preserve of diplomats and state authorities, but involves a plurality of agencies: governmental, inter-governmental and non-governmental (McGrew, 1989, p. 189). McGrew (1989, p. 191) explains the duality of globalisation effects upon the significance and support the human rights receive: the interconnection of nations and cultures makes the exercise of power increasingly acute and the new hierarchical organization makes inclusion and exclusion even more visible than ever (MacGrew, 1989; Goodhart, 2003). Human rights face both negative and positive consequences: power pressures heighten the differences between people and lead to breaches of human rights; on the opposite side, different civilisations converge and become more aware of human rights and learn how to exert them. The meaning that lies behind the universality of human rights is more a political and economic strategy, a reason for possible conflicts and an excuse for possible consequences, for collateral damages. The Human Rights Watch (HRW) (2012) have drawn attention upon the victims and damages of counterterrorism, as a response to human rights threats through terrorist attacks. Although one of the aims of counterterrorist battles is protecting human rights and reducing their breach, the explosive and aggressive tactics do break the most basic human rights and affect innocent persons, just for the protection of political purposes. The laws and regulations that lie behind terrorist convictions do abuse human rights in few cases and do not even help reduce the so called terrorist threats. One cannot validate the idea of fighting terrorism or any other kind of human rights infringement through breaching even more human rights (HRW, 2012). Terrorism is still a sensitive and subjective notion and the concepts universal understanding is highly questionable. Ones terrorist is another ones freedom fighter says a famous quote and this portrays also who plays for and who plays against the protection of human rights. Many new counterterrorism laws authorize prolonged detention without charge [] In the United States, the National Defense Authorization Act of 2012 codifies indefinite detention without charge of the 169 detainees currently at Guantanamo Bay as well as of future terrorism suspects. Such detention has not been part of the US legal code since the McCarthy era anti-communist sweeps in the 1950s. (HRW Press Release, 2012).
The evaluations of human rights implementation and their progress usually fails to distinguish between the theory and practice, is more inclined towards the abstract elegance of the law, legal
method and organizational theory (Evans, 1998, p. 1) and less on the actual measures to protect human rights. It has to be underlined that the meanings and significances that lie beyond protecting human rights are less of a humanitarian process and more a possibility of proving political and economic power. If focusing on the African society in general, human rights came as a distortion or upheaval of historical and political components. Those universal human rights were to be applied to a civilisation that had minimal or no world recognition, with outside perpetrators infringing their national, cultural and moral cohesion, a civilisation that still had communities barely surviving due to the lack of food or housing. Cobah (1987) notices that there are disregarding opinions regarding the exclusivity of Western ideologies upon the universality of human rights. African communities, just as in the case of Islamic countries, had traditions and cultural habits, besides spiritual beliefs, that should have been taken into consideration before facing them with the Universal Declaration of Human Rights. Donnelly (1989, p. 54), forwarding Howards (1986) ideas, recognition of human rights simply was not the way of traditional Africa, and this had obvious and important consequences for political practice. There are laws that have been respected and strictly respected for as long as history, laws that kept African communities together: reciprocity, respect, restraint and responsibility (Sudarkasa, 1980). Although there are voices that consider the universality of human rights as being too complex or invalid for the African culture, Black (1999) argues that this was a natural and normal step away from the apartheid regime that pressured Africa, the post-apartheid government, through its socially progressive, constitutionally entrenched bill of rights and the authoritative constitutional court established to interpret it (Steeenkamp, 1995), has demonstrated its intent to entrench the prescriptive status of liberal human rights norms, and to adhere to rule-consistent behaviour (Black, 1999, p.106). The universality and protection of human rights is well portrayed through this change of political regimes in South Africa, as the help and support received from other nations made South Africans understand that they are not alone, that they have the same rights as any other individual of this planet (although maybe harder to achieve) and that the period of apartheid must never repeat itself (Black, 1999). Black (1999) and similarly Cobbah (1987) write that although the Western print can be felt very pregnant upon the Universal declaration of human rights, its applicability upon the African culture helped those last ones progress and evolve both from a political, but also from a social and civil perspective. Donnelly (1989; 1984) supports the idea that human rights have Western origins and also that nonWestern cultures should adopt the Western ideology. Although he agrees with the help brought by the West and other outside nations, Cobbah (1987) comments upon that and argues that Donnelly (1989;
1984) fails to recognize that the board of human rights is too narrow and it does not include cultural particularities. Focusing on the African culture, the universality of human rights applies more to the Western-style individualistic way of life and less to the pregnant sense of community of the African culture. Westerners should release the ethnocentric thinking and more carefully evaluate the cultural heritages and traditions that other communities have (Cobbah, 1987, 325). From a historical point of view, many see and understand human rights as a Western concept that has low or questionable applicability upon non-Western cultures. The meaning and significance of the protection of human rights is no longer well understood due to the increasing awareness of the self and the deterioration of community ties and cares. Cobbah (1987) argues that universality should not mean Westernization and that the protection of human rights can be learnt and valued from non-Western communities, even if they are not conceptualised under the same terms. As stated earlier, economic stability and social status are very important when trying to exert human rights. Due to globalisation, economic differences have heightened and people feel more and more discriminated. As an example of why non-Western cultures could help release the burden, The African sense of community obligation that goes beyond charity is just what is needed to foster economic rights and push the idea of economic rights beyond the demands of human rights activists and human rights textbooks (Cobbah, 1987, p. 31). Human rights are subject to human diversity, and globalisation feeds cultural transformation and global change. The interaction between human rights and globalisation will always be positively or negatively criticised, as some will benefit from it and others are going to lose. Theoretically, human rights aim to protect the dignity and well being of any individual inhabiting on this planet, regardless of any particularity. Practically, we live in a capitalist world, where power and money are seen as more important than a board of laws or principles. What would be helpful to follow is the intercultural exchanges that flow from globalisation and try and take examples from non-western cultures, at least for the basic rights, how they used to and still are dealing with human rights infringements such as such as economic rights, housing or familial cohesion. As Cobbah (1987, p .331) writes: The debate I believe should be on whether these cultural values provide human beings with human dignity. We should pose the problem in this light, rather than assuming an inevitable progression of nonWesterners toward Western lifestyles. If we do this then we can really begin to formulate authentic international human rights norms.
Bibliography: Afshari, R. (1994) An Essay on Islamic Cultural Relativism in the Discourse of Human Rights, Human Rights Quarterly, 16, pp. 235-276. Black, D. (1999) The long and winding road: international norms and domestic political change in South Africa in Thoma Risse, Stephen C. Ropp, and Kathryn Sikkink (eds.) The Power of Human Rights. International Norms and Domestic Change. Cambridge: Cambridge University Press Beitz, C. R. (1979) Human Rights and Social Justice, in Peter G. Brown and Douglas MacLean (eds.) Human Rights and U.S. Foreign Policy. Lexington: Lexington Books Cobbah, J. A. M. (1987) African Values and the Human Rights Debate: An African Perspective, Human Rights Quarterly, 9 (3), pp. 309-331. Dembour, M. B. and Kelly, T. (2011) Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States. Oxon: Routledges Donnelly, J. (1982) Human Rights as Natural Rights, Human Rights Quarterly, 4 (3), pp. 391 - 405 Donnelly, J. (1989) Universal Human Rights in Theory and Practice . London: Cornell University Press Donnelly, J. (2003) Universal Human Rights in Theory and Practice. 2nd Edition . London: Cornell University Press Donnelly, J. (2007) The Relative Universality of Human Rights, Human Rights Quarterly, 29 (2), pp. 281-306. Evans, T. (1998) Introduction: power, hegemony and the universalization of human rights, in Tony Evans (edt.), Human Rights Fifty Years On: A reappraisal. Manchester: Manchester University Press
Goodhart, M. (2003) Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization [online] Available at < http://muse.jhu.edu/journals/hrq/summary/v025/25.4goodhart.html> Accessed 22 January 2013 Goodhart, M. (2008) Neither Relative nor Universal: A Response to Donnelly, Human Rights Quarterly, 30 (1), pp. 183-193. Howard, R. (1986) Human Rights in Commonswealth Africa. Totowa, N. J. : Rowman and Littlefield Human Rights Watch (2012) In the Name of Security: Counterterrorism Laws Worldwide since September 2013 Khadduri, M. (1946) Human Rights in Islam, The Annals, 243, pp. 77 - 81 Legesse, A. (1980) Human Rights in African Political Culture in Kenneth W. Thompson (ed.) The Moral Imperatives of Human Rights: A World Survey . Washington D.C. : University Press of America Locke, J. (1953) Two Treatises of Civil Government. London: Dent McGrew (1998) Human rights in a global age: coming to terms with globalization in Tony Evans (edt.), Human Rights Fifty Years On: A reappraisal. Manchester: Manchester University Press Office of the High Commissioner for Human Rights OHCHR (2012) Universal Declaration of Human 2013 Rousseau, J. J. (1913) The Social Contract. London: Dent Said, A. A. (1979) Precept and Practice of Human Rights in Islam, Human Rights Quarterly, 1, pp. 63-79. Said, A. A. (1980) Human Rights in Islamic Perspectives, in Adamantia Pollis and Peter Schwab, Human Rights: Cultural and Ideological Perspectives. New York: Praeger Rights [online] Available at: <http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf> Accessed 17 January 11 [online] Available at: <http://www.hrw.org/sites/default/files/reports/global0612ForUpload_1.pdf> Accessed 20 January
Shue, H. (1996) BASIC RIGHTS: SUBSISTENCE, AFFLUENCE AND U.S. FOREIGN POLICY. Second Edition. Princeton: Princeton University Press Sudarkasa, N. (1980) "African and Afro-American Family Structure: A Comparison," Black Scholar 11 (NovemberlDecember 1980): 44. Tibi, B. (1994) Islamic Law/Shari'a, Human Rights, Universal Morality of International Relations, Human Rights Quarterly, 16 (2), pp. 277-299.
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Daniela Gherghilescu, PO859, essay 1 Critically discuss the meaning and significance of the universality debate for the

protection of human rights.

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