Professional Documents
Culture Documents
Contents
Introduction 45 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 The contested nature of human rights 46 The nature of rights 47 The Vienna Conference 1993 49 Universalism v cultural relativism: a confusing label? 52 Rights in Islam 57 The Bangkok Declaration: Asian human rights 63 Rights and social transformation 66 Towards a conclusion: relativism, universalism and the politics of exclusion 69 Conclusion: rights, desire and identity 71
Introduction
In this chapter we will address the disputed nature of human rights. This should alert you to the essential complexity of the idea of an international law of human rights. Thus, this chapter should not be read as an exposition of obscure, dry-as-dust academic arguments; instead it attempts to show that any articulation of an international law of human rights has to contend with serious conflicts over the very meaning of the term human rights. An education in a Western, liberal tradition must include an engagement with perspectives that are external to, and often critical of, its values and suppositions.
Learning outcomes By the end of this chapter and the relevant readings you should be able to: approach international human rights as a potentially problematic field of dispute rather than an obvious set of legal entitlement claims that should automatically be pursued identify the distinctive features of the universalist approach identify the distinctive features of the critique of the universalist approach (i.e. that it is a mode of imposing cultural, economic and/or social norms on other jurisdictions) describe the main features of the alternative human rights traditions discuss the concept that rights are expressions of political and cultural identity
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understand how the above issues are characterised via the categories of universalism v cultural relativism and be prepared to take a critical stance on this characterisation and (ultimately) be able to take a critical stance on this way of understanding the issues.
Essential reading Steiner and Alston, Chapter 5: Rights, duties and cultural relativism, pp.323-400. Steiner and Alston, Chapter 6: Conflicting traditions and rights: illustrations, pp.403-436. Steiner and Alston, Chapter 8: Intergovernmental enforcement of human rights norms: the United Nations system, pp.538552.
Recommended additional reading Perspectives on Human Rights, Office of the High Commissioner for Human Rights, United Nations, World Conference on Human Rights, 1425 June1993, Vienna, Austria. http://www.unhchr.org Alston, P. (ed.) The United Nations and human rights: a critical appraisal. (Oxford: Clarendon Press, 1992) second edition [ISBN 0198260016]. Donnelly, J. The Universal Declaration model of human rights: a liberal defense www.du.edu/gsis/hrhw/working Evans, T. The politics of human rights: a global perspective. (London: Pluto Press, 2005) second edition [ISBN: 0745323731]. Mayer, A.E. Islam and human rights: tradition and politics. (Boulder CO: Westview Press, 1995) [ISBN: 0813335043]. Nussbaum, M. C. Sex and social justice. (Oxford: Oxford University Press, 1999) [ISBN 0195110323] (See also www.wku.edu/~jan.garrett/ethics/nussbaum.htm where Garrett examines Nussbaums position in the wider context of liberal political theory.) Tharoor, S. Are Human Rights Universal?, World Policy Journal, 16(4) (Winter 1999/2000) http://worldpolicy.org/journal/tharoor
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In the next section we will lay out the broad framework of the debate pursued throughout the chapter. We will examine the concept of universal human rights (i.e. what does it mean to assert that human rights apply to all people?) and the key assertions and strengths of this position. In the second section, we shall identify criticisms of such universalist accounts of human rights. These critical accounts of rights argue that the concept of rights is far from being truly universal. Indeed, abstract and general assertions of human rights are rooted in concrete situations typical of the West and thus are best understood as political interventions that explicitly or implicitly impose the cultural, economic and social specificity of Western traditions. This leads to the question whether it would be preferable to have more heterogeneous and culturally variable understandings of human rights this is often labelled the relativist position. We will examine these claims and look in detail at Asian, Chinese, Islamic and critical accounts of human rights in order to assess the degree to which these alternative statements of rights are compatible with, or diverge from, the Universal Declaration of Human Rights (UDHR). In the conclusion we will argue that human rights, and the universalist/relativist debate, are perhaps best understood as a concern with the articulations of political identity in a globalised world.
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3.2.1
What does this mean? It might suggest, first of all, that the definition of the human being can be provided by a scientific or behaviourist statement of the humans basic needs. However, the requirements of humanity are perhaps difficult to state and to agree upon, even if they are approached in a strictly empirical manner. Perhaps there cannot even be a scientific statement of basic human nature, because human nature depends on qualities that are not suitable for scientific measurement; faith or morality, for instance. No doubt, though, the social sciences can provide a definition of humanity, and hence a grounding for a theory of human rights: indeed, anthropology sets out to achieve this end. However, there is also a problem with this approach. Societies have not always been organised around notions of human dignity. Historical and crosscultural examples show that societies have organised themselves
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around a class or grouping of inferiors who are deprived of the privileges enjoyed by others. Can we turn from anthropology and the social sciences to other disciplines to resolve this problem? There are, of course, philosophical accounts of human rights. These come from a variety of perspectives, and provide different theoretical foundations for human rights. Their very diversity would militate against any overarching or detailed consensus, but would perhaps stress that the nature of the human being is related to language, the ability to reason and rational action. There would, of course, also be theological or religiously oriented accounts of humanity, which would consider its fundamental value to be of divine origin. You do not have to look hard to see that theological accounts also compel little overall agreement, even within the great faith traditions of the world. We could suggest, then, that although a universal definition of the human is elusive, there is a tendency, in different areas of study, to continue to try and posit a universal value. To some extent, we can avoid these difficulties, because at least as far as the law is concerned the universality of human rights is founded on the UDHR. This does not resolve the debate, but it does at least allow us to see that the debate around human rights is of continuing importance for a culture of human rights. We will examine the way that this has been linked to arguments about cultural relativism and universalism, although we will also suggest that this debate itself is somewhat limited.
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either from a constitution, which states the rights of citizens, or from general principles of law that state civil liberties. The paramount nature of human rights is either recognised by domestic law or it is not. For example, you cannot speak of legally enforceable human rights in English law, as Parliament is sovereign and could legislate against human rights. In constitutions that entrench human rights, or make it either difficult or impossible to override human rights provisions, you can speak of fundamental human rights. We could return to our definition of human rights with which we opened this section. Human rights may be explicable as rights that we have by virtue of our humanity, but this does not necessarily make them legally enforceable or fundamental. Unless a positive legal source states that they are fundamental, human rights fall short of legal claims and can perhaps be thought of as political claims about the desirability of a certain state of affairs. In this sense human rightsprovide a moral standard of national political legitimacy (Donnelly, 1998, p.20). Again, we have to make a distinction between the fundamental legal nature of human rights and the political nature of human rights in international law. The extent to which a human right is binding is the extent to which it is internationally recognised and legally enforceable. Although some rights may indeed be both recognised and enforceable by a court, others cannot be so enforced or at least cannot be enforced by a court.
Activity 3.1 Does the legal account of human rights provide an adequate statement of the nature of human rights?
3.3
Vienna Declaration, see Wallace, International Human Rights: Texts and Materials, pp.63768.
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right to development should be recognised as a universal human right. A second theme was that human rights were not universal but historically, socially and politically contextual and contingent. Socalled universal human rights were just modern Western values in disguise and non-Western values, culture and community should be respected. Asian values were invoked as one example of alternative cultural and/or social ordering. It was equally important to recognise that the so-called Western values of freedom and liberty often depicted as an ancient Western inheritance, are not particularly ancient. Many have only become dominant in the West over the last few centuries nor are they exclusively Western in their formation. This stance was labelled cultural relativism but this term is also often used to encompass the first theme as well. This joint labelling was partly justified in that these dissenting perspectives were supported by the same nations China, Singapore, Malaysia, Cuba and the former USSR. There is also a common scepticism (some would say cynicism) about the universal human rights project as an exercise in international law-making and whether it was merely another exercise of power by the West, always working to its advantage. To summarise: In practice, are human rights demanded and enforced universally or does the insistence on applying internal international human rights conventions depend on the strategic interests of Western powers? Similarly, which human rights are prioritised? Are they the ones that would genuinely be helpful for developing countries? Why is there such reluctance to recognise a right to development? Is the whole concept of universal human rights ethnocentric an abstraction from one specific concrete cultural location (the West) that is inappropriately applied elsewhere? Is the universal human rights project actually functioning to erode key cultural values that hold non-Western communities together? Alternatively, are non-Western human rights traditions (e.g. in Islam) completely ignored? We will continue to explore these questions throughout this chapter.
Self-assessment questions 1 At the time of the Vienna Conference, which international instruments were already in effect in the world human rights system? 2 What powers went with these instruments?
The dissenting point of view was largely unsuccessful at the Conference, although it made an important impact on some of the key formulations. Thus the Vienna Conference reaffirmed the universality of human rights, characterising such rights as universal, indivisible and interdependent and interrelated and
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sought to give them a more effective legal reality. At the conclusion of the Conference, the Vienna Declaration and Programme of Action (1993) was adopted on 25 June 1993 and was endorsed by the UN General Assembly on 20 December 1993 in Resolution 48/121. The Declaration that the promotion and protection of all human rights is a legitimate concern of the international community represented a significant erosion of the sovereign power of states to have sole control over their internal affairs. The way a state treats its people was now declared to be everyones business. On the other hand, while emphasising that the universal nature of these rights and freedoms [set out in international instruments] is beyond question (Part 1, para 1), the Declaration also states:
The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. (Part 1, para 1)
Para 32, part 1 reiterated the importance of ensuring the universality, objectivity and non-selectivity of the consideration of human rights issues. How could we assess the Vienna Declaration? Cultural and relativist diversity exists in the Declaration, but does that mean that minimum standards are to be denied universal application? Judge Higgins addresses this question and she highlights that the 1966 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (IESCR) benefited from the large number of states that participated in the preparatory sessions and whose influence was reflected in the final texts. These states gave the sessions a truly international composition in terms of geography, religion and culture. As Judge Higgins pointed out, the texts were adopted with general approval and states had freedom to choose whether to become a party to the Covenants. This process of involving as many states as possible has continued to be the blueprint for all subsequent international human rights instruments. Furthermore, provisions of the Covenants that were regarded as being at odds with a states particular political or religious adherence could be the subject of a reservation (see Chapter 8). In other words, when the final product is based on consensus among the drafters, it can encompass cultural diversity and may counter contentions that international human rights instruments simply give expression to Western capitalists values disguised as universal rights.
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Activity 3.2 The point of this activity is to see if you can work out for yourself, on the basis of the quoted segments of the text, where the dissenting point of view made an impact in the formulations produced by the Vienna Conference and what kind of impact this was. (a) What importance is assigned to national and regional particularities and various historical, cultural and religious backgrounds? (b) Still considering the same text, do you agree that religion, to take a key example, is a particularity to be contrasted to universal human rights? (c) From what you know so far about the international system of human rights, what might the implications be of the statement that human rights are universal, indivisible and interdependent and interrelated?
No feedback provided.
At this point in the chapter we want to examine in more detail the distinction between universalism and relativism. Universalist and relativist positions are not single blocs, but contain differences of emphasis and opinion. After identifying these tendencies, we will argue that although a sophisticated version of the two positions can help identify certain features of the debate over international human rights it is necessary to consider the distinction as somewhat limited; and even potentially confusing.
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protect human existence, they cannot be taken away without endangering the value of that existence. Law gives these rights positive existence, but the rights pre-exist positive law. Hence you can talk about law recognising human rights: the assumption is that the rights already exist and positive law (treaties, conventions, etc.) merely gives them a specific form and make it easier to ensure that such rights are universally respected. From this perspective, international human rights law thus has a double validity: as positive law it comes from the appropriate sources of authority yet, at the same time, this positive law also rests on an independent foundation in humanity itself that is both descriptive and normative. (Thus universalism in human rights is often described as modern natural law or natural rights.)
Self-assessment questions Please read the above paragraph very carefully. 1 Does it imply that human nature exists independently of culture or society, religion or ideology? 2 Does it see humans as specifically individuals? 3 Does it privilege civil and political rights over economic and social rights?
However, the universalist position is often put in more specific terms that differ both logically and rhetorically from the above formulation. Consider this vivid statement by one powerful exponent, judge and legal academic Rosalind Higgins:
I believe profoundly in the universality of the human spirit. Individuals everywhere want the same things; to have sufficient food and shelter; to be able to speak freely, to practise their own religion or to abstain from religious belief; to know that their person is not threatened by the state; to know that they will not be tortured, or detained without charge, and that if charged, they will have a fair trial. I believe there is nothing in these aspirations that is dependent on culture, religion, or stage of development. They are as keenly felt by the African tribesman as by the European city dweller, by the inhabitant of a Latin American shanty town as by the resident of a Manhattan apartment. (Higgins, 1998, p.97).
Indeed, she has already made clear that objections to universalism are typically voiced:
mostly by states, and by liberal scholars, anxious not to impose the Western view of things on others. [They are] rarely advanced by the oppressed, who are only too anxious to benefit from perceived universal standards. (ibid, p.96)
More western rhetoric? How can Higgins claim to talk for the oppressed?
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Activity 3.3 These questions are about the rhetoric2 of Higgins statement but no special knowledge is required to consider them. (a) How would you describe the effect of I believe as a way of prefacing this statement? And repeated again at the start of the second paragraph? For example, can it be neatly classified as objective or subjective? (b) Is there any difference between the universality of the human spirit and individuals everywhere want the same things? How would you describe the movement in the argument between these terms? Does the word transcend play any significant role? (c) List the items that Higgins holds to be universal. Is there anything interesting about the sequencing of these items, that is, the movement from one to another? (d) In the second paragraph, Higgins is addressing the cultural relativist position. On the basis of what Higgins says here, what would you understand cultural relativism to mean? Also, what do you think of the contrasts that she makes?
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A key question that arises is: are human rights necessarily individualist? Seen from a cultural relativist perspective, individualism is strongly associated with the historical changes that led to the formation of modernity in the West, in which people became less defined by reference to membership of larger collectivities of clan or family or land-based identity and more able to determine their life chances by relying on their own resources. In this historical sense, individualism is associated with emancipation from the traditional forms of domination based on assigned natural hierarchies of birth: rank, age and gender. This break was strongly expressed in the discourse of rights of man in the seventeenth and eighteenth centuries and social contract doctrines which reflected the extent to which contract (voluntarily assumed obligations rather than recognition of social duties, the belief that you could frame the world in terms of wants and demands) now honeycombed peoples lives. As freedom of contract contributed to a significant increase in material prosperity, Western society could thus celebrate the values of freedom of speech and belief. Therefore, so the critique continues, to universalise human rights is indeed to impose a modern Western social norm. However, let us take the arguments more slowly. What are the implications of seeing individualism as culturally specific, a social product? Most obviously, it undermines any version of universalism that equates the human with the individual, especially where the individual is presented as pre-existing society. However, not all universalist positions argue this. More sophisticated universalist perspectives argue that human beings develop core social needs and capabilities wherever societies develop. In other words, human rights arise from society, not from some supposed pre-social state. One key exemplar of this second version of universalism is the political philosopher Martha Nussbaum. Her work belongs in the tradition of liberal political philosophy that goes back to Immanuel Kant but takes its more immediate inspiration from John Rawls. Here the emphasis is centrally on human dignity and thus echoes
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the UDHR which declares that human rights flow from the inherent dignity of the human person. Nussbaum states:
At the heart of this tradition [of liberal political thought] is a twofold intuition about human beings: namely, that all, just by being human, are of equal dignity and worth, no matter where they are situated in society, and that the primary source of this worth is a power of moral choice within them, a power that consists in the ability to plan a life in accordance with one's own evaluation of ends. (Nussbaum, 1999, p.57)
Where she is most persuasive is in drawing in the capabilities approach derived from the work of Amartya Sen (discussed later in this chapter). The central question posed by this approach is not how satisfied are people? (i.e. do they have what they want? see the alleged consumerism implicit in Higgins, noted above) nor even what are the resources that people have at their disposal? (e.g. money, gross domestic product). Rights cannot be understood in either of these ways. Rather, the capabilities approach asks what are people actually able to do and to be? (Capabilities are substantial freedoms, such as the ability to live to old age, engage in economic transactions or participate in political activities.) This dignity/capabilities approach is in fact widely held among liberal scholars and also human rights activists. Alan Gewirth and Jack Donnelly are other key exponents. It is true that this version has also been critically analysed as nothing but a more sophisticated version of Westernism. However, the key point here in terms of understanding the actual orientation of disputes is that it has constituted a key part of the dissenting view. As mentioned in the previous section, the call for a right to development was crucially advocated by Amartya Sen, and called for (unsuccessfully) at the Vienna Conference. In other words, some of the dissent came from the universalist side! Thus one of the most confusing aspects of the universalism v cultural relativism label is the way that it suggests that all dissent is based on cultural relativism. Similarly, the understanding of human rights advocated from this perspective places more emphasis on relations with others as that which links all societies, including the West. Although some Western ideology and practice tends to emphasise the individual, this masks the underlying interpersonal and collective relations of trust that make even modern capitalism possible. So finally we must ask, what exactly is cultural relativism? Put in logical abstract terms, it would be the claim that there are no universal human values or practices or even needs. In addition, relativism also carries the connotation that anything goes morally: since there are no fundamentals, there is no basis for criticism far less intervention of any one individual, culture, social order or state by another. Is this a position that any dissenter in international human rights debates has actually held? More specific oppositions have been developed in the course of the arguments on the ground. The opposition between universalism and cultural relativism is often translated into a contrast between individualism and collectivism. This remains a moot point. Do rights, by definition, attach to individuals only? (The legal theorist, Ronald Dworkin, has argued in a different context, that rights are trump cards held by
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individuals, always more powerful in law than collective considerations.) Does the human dignity approach allow recognition of collective rights? Are non-Western societies helpfully understood as more collective in orientation? Sometimes, where the Cold War background is obvious, individualism v collectivism is equated also with democracy v socialism/communism, thus drawing out the idea that the individual is absorbed within the political collective. As we have already noted, competing versions of universalism are often put together with cultural relativism at the level of identifying dissenting states everything from the new economies of Singapore, Malaysia and Hong Kong to rural agronomy in mainland China to all varieties of Islam as practised worldwide to the whole of Africa to Latin America can be put together as cultural relativists. There are some serious problems with cultural relativism. Centrally, cultures are presented as if they were mutually exclusive, noninteractive and stagnant. There is no representation of how far interaction has formed the entire world. Religions, especially, are prone to be presented as enduring and unchanged, whereas you only have to look at the exchanges between Islam and Hinduism or the relations between Islam and nationalism in the early twentieth century to realise that it does not make sense to think of cultures as homogeneous entities. We will now turn to examine various alternative accounts of human rights. We will see that relativist positions in fact conceal elements of universalism. The point is not so much that there is a tension between universalism and relativism, but that there are different versions of universalism. Our concern with Islamic accounts of human rights is to isolate this theme. Perhaps Islamic accounts of human rights make a claim to universalism that is different from that of western accounts. To what extent do catalogues of Islamic rights provide a rival universalism to those catalogues that come out of Western political traditions? Perhaps it is possible to find a tension between secular and divine accounts of rights; in other words, a tension between secular and religious universalism? This is not to suggest that there are irreconcilable divisions between the West and Islam. For a start, this very opposition dissolves the complex and diverse traditions that such reductive labelling can only summarise crudely. It would also distort the very real history of the movement of ideas between religious traditions and their influences on each other. At the same time, though, you must be aware that there are clashes between Islamic ideas of rights and those contained in the UDHR. It is to these issues that we now turn.
Activity 3.4 It is acknowledged that there are occasions when there is a conflict between what universal human rights standards demand and what is expected by local cultural norms. Such conflicts have to be satisfied in favour of universal standards.
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3.5
Rights in Islam
We can only touch upon the complex history of rights in Islam in this section. Our main concern will be to show that there is a tradition of rights thinking that, in some ways, contrasts with that which is prevalent in Western discourses. We will approach this complex subject by looking at two declarations of Islamic Rights: the Universal Declaration of Human Rights in Islam (1981) and the 1990 Cairo Declaration on Human Rights in Islam. Although neither of these documents lays down binding rules and principles, they are useful as a statement of the role that rights play in Islam.
3.5.1
A number of points can be made. Unlike the UDHR, the Universal Islamic Declaration of Human Rights is based on sacred sources: the Quran and the Sunna. These are the foundation of rights in Islam. Muslim scholars, jurists and representatives of Islamic movements and thought compiled the Declaration. The fact that the Quran and the Sunna are seen as the source of rights means that, for Islam, an ideal code of human rights existed fourteen centuries ago. This claim differs from the arguments made for the roots of Western rights. Although in some senses an inheritance of Judeo-Christianity and Greek and Roman thought, Western rights are perhaps more properly traced to the Enlightenment, and to the great statements of the rights of man in the American and French revolutions.
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That rights in Islam emanate from a divine source means that rights are binding on both individuals and governments. In this sense, there is no great difference between rights in Islam and the West; Islamic rights are aimed at conferring honour and dignity on mankind and eliminating exploitation, oppression and injustice. This also means that there is a similar sense in which rights limit government and lay down normative standards. However, the essential difference can perhaps be glimpsed in the following paragraph:
Human rights in Islam are an integral part of the overall Islamic order and it is obligatory on all Muslim governments and organs of society to implement them in letter and in spirit within the framework of that order.
As an international religious order, Islam has its own norms and principles. Although there may be profound disagreements over the precise terms of these religious norms, the international community of Islam has an identity that is separate and distinct from other faith communities. As such, an Islamic statement of rights must always make a distinction between Muslims and non-Muslims. This has raised some complicated issues. Are Islamic rights universal? To the extent that they only apply to Muslims, Islamic rights are not universal. A variation on this argument would also assert that universal human rights are only possible if the concept of universalism takes cognisance of Islamic particularism (see below). A different argument would assert that as non-Muslims can convert to Islam, Islamic human rights are, at least potentially, capable of universality. It is possible to be more precise about the foundation of rights in Islam:
It is a commonplace that Islamic fiqh or jurisprudence does not specifically go into the notion of rights. Rather, rights are derived from the central tenets of faith: Allahs revelation to the Prophet in the Holy Quran. To create a coherent statement of rights would mean drawing together the diverse statements found in the usul (fundamental books) of the fiqh. (Al-Atiyyah, p.89)
A classification that can be imposed from the perspective of the holder of the right gives a basic distinction between the rights of Allah and the rights of the human being. This founding distinction would then allow two subsequent hybrid or mutual rights, or rights where a right of Allah and a human right are conjoined, to be distinguished: rights such as the protection of life, health and liberty, and the protection of wealth are conjoined rights because they concern both the honouring and protection of the gifts that Allah has given, and the human concern with these rights. In the cases where Allahs right is predominant, the subject has no right to jeopardise this right: thus, one does not have the right to commit suicide, as life is a gift given by Allah. Those pre-eminent rights of Allah are called Allah rights, and it might be argued that all rights are founded in them. Rights thus begin in those acts of worship that are obligatory for a Muslim: Al-salat (prayers) and Alsawm (fasting) (Al-Atiyyah, p.104); but also social duties that are undertaken to preserve society and to protect the weak and disabled. It is possible to work from the individual as a rights holder to the notion that rights connect with social interests (AlAtiyyah, p.106) by arguing that the harm caused by the abuse of an
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individual right is suffered by the social group as a whole (Al-Atiyyah, p.106). The sacred source of rights in Islam allows for an interesting variation on an argument about rights that has already been encountered in this chapter. It has been suggested that alternative rights and traditions tend to stress the group over the individual. For instance, the Singapore School see rights as part of a broader theory of organic community, where the interests of the individual are subordinate to those of good government and a stable, ordered society. Islamic rights, in making a distinction between the rights of Allah and human rights, entail a similar conclusion. If the rights of Allah are co-ordinated with the preservation of Islamic faith as a whole, and with the observance of certain religious and social duties, then the rights of the individual will be secondary to measures that are meant to either further Islamic faith or to protect the state. We will examine these themes in another important statement of Islamic rights, the Cairo Declaration.
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The Declaration goes on to state a right to life (Article 2); various rights in times of conflict (Article 3); rights which protect good honour and burial rights after death (Article 4); marriage rights (Article 5); womens rights (Article 6); childrens rights (Article 7). The Declaration goes on to state that the human being has a right to legal capacity (Article 8); a right to education and religious instruction (Article 9); a right not to be forcibly converted to a religion through poverty or ignorance (Article 10). Article 11 is interesting as it reflects the fact that many nations who are signatories to the Declaration were, earlier in their history, colonised territories:
Article 11 (a) Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there can be no subjugation but to God the Most-High. (b) Colonialism of all types being one of the most evil forms of enslavement is totally prohibited. Peoples suffering from colonialism have the full right to freedom and self-determination. It is the duty of all States and peoples to support the struggle of colonised peoples for the liquidation of all forms of colonialism and occupation, and all States and peoples have the right to preserve their independent identity and exercise control over their wealth and natural resources.
Further rights detailed are: a right to work (Article 13); to legitimate gains and a prohibition of usury (Article 14); to property (Article 15); to enjoy the fruits of his scientific, literary, artistic or technical production and the right to protect the moral and material interests stemming therefrom (Article 16); the right to a clean environment and to social and medical care (Article 17); a right to security and privacy (Article 18); equality before the law and due process (Arts. 19 and 20); a prohibition on hostage taking (Article 21) and free expression (Article 22); a right to participate in public affairs (Article 23). But note:
Article 24 All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shariah. Article 25 The Islamic Shariah is the only source of reference for the explanation or clarification to any of the Articles of this Declaration.
3.5.3
These arguments relate back to the assertion of Islamic particularism. Can we link this to the centrality of the Shariah? Shariah is a system of civil and criminal law; but it is also, more broadly, a code for living. It is founded on the Quran, the Sunna and the work of Muslim scholars in the first two centuries of Islam.
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Although Shariah law addresses Muslims, its rules can also apply to non-Muslims. What are the consequences?
None of the Articles of the CDHRI are in themselves discriminatory [But] the entire declaration has to be interpreted in the light of the Shariah, and can be restricted on the basis of the Shariah, there are no restrictions on the Shariah rules that discriminate against women. (Brems, 2001, p.264)
Certain areas can be highlighted: Choice of a husband: Most schools of Islamic law do not allow a woman to marry without the consent of a male guardian, who has the right to determine the suitability of the husband. In most cases, the consent of the woman herself is necessary, yet sometimes it is accepted that the guardian can force a girl into marriage. Polygamy: Authorised by the Koran, yet limited to four wives. It is accepted in most Muslim countries. Authority of the husband: The Shariah establishes the authority of the husband over his wife. Marriage is a contract with asymmetric obligations. The husband owes his wife maintenance, and the wife owes her husband sexual access and obedience. This includes the right of the husband to chastise his wife if she is disobedient. The wifes duty of obedience is enforced in most contemporary Islamic legislation. Divorce: In Islamic law is it easier for a man to obtain a divorce than it is for a woman. A man can divorce his wife simply by pronouncing a formula of repudiation, without having to establish a particular ground for divorce. A woman can obtain a divorce only though the intervention of a judge, before whom she must establish one of a limited number of acceptable bases for divorce. Some schools of law accept the possibility for a woman to stipulate her right to divorce in a marriage contract. Custody: In most interpretations, Shariah gives the right to custody of small children to the divorced mother, under the supervision of the divorced father. At a certain age, which varies according to the school of law, the custody is transferred to the father. In addition, when the mother remarries to another man, she loses custody of her children, regardless of age. This arrangement is the subject of criticism from the perspective of womens rights. The fact that a woman whose children have reached a certain age is certain to lose them in case of divorce, makes divorce an extremely hard option, in those limited cases where the woman has access to it. Moreover, the custodial consequences of divorce make the (threat of) unilateral divorce a cruel weapon in the hands of the husband. Maintenance: In many interpretations of the Shariah , divorced women do not enjoy a right to maintenance from their former husbands beyond a three month period following the divorce. Inheritance: In almost all cases, Islamic law prescribes that a mans share of the inheritance is double that of a woman in the same relation to the deceased. This is the case where children inherit from their parents. Also, when a widow inherits from her deceased husband, her share is half that which he would have inherited had she died first.
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Testimony: Women are precluded from testifying in certain criminal cases, such as those relating to adultery (which require four male witnesses). In other cases, such as monetary transactions, the testimony of two women has the same worth as that of one man. These rules are applied today mostly in relation to personal status law. Womens freedom of movement/hijab:
Islamic scholars generally interpret the Shariah in such a way that woman should stay at home as much as possible.the Quranic verses regarding hijab (the veil) impose respect for certain vestimentary rules. These include the obligation to wear loose clothes, and to cover the head. Depending on the interpretation, these rules can be more or less strict.Moreover, Islam does not allow a woman to travel on her own. She must be accompanied by a man who is either her husband, or from one of the categories that she cannot get married to, such as an uncle or brother.Many scholars interpret the Shariah as containing a prohibition on womens right to workand there is a similar debate on womens access to public functions, including positions of leadership. (Brems, 2001, p.254)
The absence of a provision on freedom of religion is one of the most remarkable features of the CDHRI. It puts a huge question mark over any universal pretensions of the declaration.
In the traditional interpretation of the Shariah, there is freedom of religion, in the sense that adherents of other monotheist religions cannot be compelled to adopt Islam. Yet this is a one way freedom because Muslims are not free to abandon Islam. Apostasy is a crime for which Islamic law prescribes the death penalty for males and imprisonment for females.
Shariah criminal law distinguishes between different types of crime. One of these is the set of crimes known as hadud crimes. These are six crimes that the Quran considers particularly serious and for which a particular kind of punishment is prescribed, either in the Quran or in another Shariah source, entailing the infliction of pain, including, for example, theft amputation of a hand; adultery flagellation or stoning. Article 5 of the UDHR forbids punishments that are cruel, inhuman or degrading, which suggests that there are incompatibilities between the concept of rights in Islam, and under the UDHR.
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3.6
How can we understand this argument? In what ways are there double standards in the application of human rights? This may mean that behind the claim to the impartial application of human rights, there is, in fact, an implicit orientation towards the values of powerful Western nations. Other statements in the Declaration give a clearer sense of this objection. The overall position asserts the importance of social and economic rights within the context of a right to development, and a right to de-link aid and rights. The Asian objection, then, can perhaps be seen as an objection to the way in which Western nations use a rhetoric of rights. Indeed, the Declaration returns repeatedly to a reiteration of the value of sovereignty:
...all countries, large and small, have the right to determine their political systems, control and freely utilise their resources, and freely pursue their economic, social and cultural development.
The background of the Declaration is resistance to colonialism. It could, in this sense, be related to the African Charter, which we will examine in Chapter 15. This claim is made contemporary by referring to the Palestinian situation:
...strongly affirm their support for the legitimate struggle of the Palestinian people to restore their national and inalienable rights to self-determination and independence, and demand an immediate end to the grave violations of human rights in the Palestinian, Syrian Golan and other occupied Arab territories including Jerusalem.
We risk a misreading of this document if we interpret it narrowly through an argument about universalism and cultural relativism. This is a political claim that operates at a number of levels. Most specifically, it appears to be a criticism of certain policies towards the Palestinian situation. But this is not just a claim about
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sovereignty; it is an argument that different traditions have different understandings of human rights:
...while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.
To elaborate these claims, we have to take a step outside the document, and refer to one of the major proponents of the Asian rights case, the former PM of Singapore, Lee Kuan Yew. By referring to Lee and the Singapore School that is associated with his name, we do not suggest that they speak for the entire region; nevertheless, it is one particularly interesting articulation of the Asian case. Lee argues that a fundamental difference exists between Western concepts of society and government and East Asian concepts (quoted. in Sen, 1997, p. 34). This argument is based on a privileging of society over the individual in the name of economic and social development. It is a theme that has been picked up by the present Prime Minister of Singapore, Goh Chok Tong:
For success to continue, correct economic policies alone are not enough. Equally important are the non-economic factors a sense of community and nationhood, a disciplined and hardworking people, strong moral values and family ties. The type of society determines how we perform. It is not simply materialism and individual rewards which drive Singapore forward. More important, it is the sense of idealism and service born out of a feeling of social solidarity and national identification. (Quoted in Mendes (1996, p.3))
In order to appreciate the diversity of Asian understandings of human rights, it is necessary to look at Chinas elaboration of its own understanding of the role that rights play in its history and culture. Clearly, this is somewhat different from the Singapore School. In 1991, the Beijing Review published a document that attempted to elaborate a defence of human rights in China in the wake of Tiananmen Square. Human Rights in China begins by affirming a belief in the universality of human rights:
The issue of human rights has become one of great significance and common concern in the world community. The series of declarations and conventions adopted by the United Nations have won the support and respect of many countries. The Chinese government has also highly appraised the Universal Declaration of Human Rights, considering it the first international human rights document that has laid the foundation for the practice of human rights in the world arena. (Beijing Review, 1991).
In this respect Human Rights in China is similar to the Bangkok Declaration. Once again, it is worth stressing that these alternative statements of human rights, are not concerned with a complete revision of the idea of human rights. What is important is a realisation of context:
However, the evolution of the situation in regard to human rights is circumscribed by the historical, social, economic and cultural conditions of various nations, and involves a process of historical development. Owing to tremendous differences in historical background, social system, cultural tradition and economic development, countries differ in their understanding and practice of human rights. From their different situations, they have taken
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different attitudes towards the relevant UN conventions. Despite its international aspect, the issue of human rights falls by and large within the sovereignty of each country. Therefore, a countrys human rights situation should not be judged in total disregard of its history and national conditions, nor can it be evaluated according to a preconceived model or the conditions of another country or region. Such is the practical attitude, the attitude of seeking truth from facts. (ibid.)
This resonates with another theme in the Bangkok Declaration: sovereignty is linked to the specific development of a culture. Universal rights claims take second place to the assertion of a social, economic and cultural specificity. What, then, is unique about human rights in China?
From their own historical conditions, the realities of their own country and their long practical experience, the Chinese people have derived their own viewpoints on the human rights issue and formulated relevant laws and policies. It is stipulated in the Constitution of the Peoples Republic of China that all power in the Peoples Republic of China belongs to the people. Chinese human rights have three salient characteristics. First, extensiveness. It is not a minority of the people or part of a class or social stratum but the entire Chinese citizenry who constitute the subject enjoying human rights. The human rights enjoyed by the Chinese citizenry encompass an extensive scope, including not only survival, personal and political rights, but also economic, cultural and social rights. The state pays full attention to safeguarding both individual and collective rights. Second, equality. China has adopted the socialist system after abolishing the system of exploitation and eliminating the exploiting classes. The Chinese citizenry enjoys all civic rights equally irrespective of the money and property status as well as of nationality, race, sex, occupation, family background, religion, level of education and duration of residence. Third, authenticity. The state provides guarantees in terms of system, laws and material means for the realisation of human rights. The various civic rights prescribed in the Constitution and other state laws are in accord with what people enjoy in real life. Chinas human rights legislation and policies are endorsed and supported by the people of all nationalities and social strata and by all the political parties, social organisations and all walks of life (ibid.)
Self-reflection What are the main themes of this passage? It reflects Chinas Communist politics, but what sort of values does it represent?
Activity 3.6 To describe Asian articulations of human rights as relativist is only partially helpful in understanding the tensions in international human rights law; they have to be seen as political responses to specific situations. Discuss.
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3.7
The ideas of Issa Shivji Issa Shivjis work is dedicated to an ideological and theoretical break with the dominant discourse of human rights (1989, p.71). Shivji points out that rights arguments are frequently used to legitimise regimes of aid and development that also effectively prop up undemocratic and unaccountable regimes. What is necessary is a more thorough probing of the historical and philosophical roots of the notion of rights, and an awareness of the limitations of the debate to date. Within the dominant discourse, this tends to be presented as a conflict between natural law and positivism. This is, of course, a well-rehearsed debate. The older, natural law tradition stresses that rights are an essential and immutable aspect of being human: our humanity is what makes us a bearer of rights. Positivism sees the source of rights as the law. From the perspective of Soviet jurists, both positivism and natural law are critiqued as forms of ideology. Soviet rights theory tends to stress that rights are no more than those positive entitlements that a socialist state grants to its citizens. Talk of rights stemming from innate humanity are thus as nonsensical as expecting a positive catalogue of rights drawn up by a capitalist state to offer anything more than a
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legitimisation of a class position. What lies within this debate is also a disagreement over the status of the subject or the holder of rights, and the role of the state in the protection of rights. Shivji argues that the debate about the universal or relative nature of rights needs to be re-assessed by a historical account of the part played by the discourse of rights in colonialism and postcolonialism. Thus, a correct approach to human rights in Africa, for example, must begin by acknowledging that the prevailing accounts of rights abstract from social history (Shivji (1989, p.43)) and produce a version of rights that thus appear eternal in historical time and universal in social space. From a revolutionary perspective rights are grasped as part of a struggle for transformation (Shivji (1989, p.44)) they are not constant reference points that remain fixed for all time. Rights can both legitimise social order and act as a mode of resistance or reinvention of social order. Moreover, if you lose sight of the role that rights play in the emancipation of oppressed peoples, you fall into the trap of seeing those people merely as victims of rights violations, rather than as historical actors (Shivji (1989, p.51)). Perhaps most importantly, to see rights as ideology is to see within catalogues of rights not definitive statements, but the potential for disagreement. For example, although the UNDHR privileges the right to private property and does not mention a right to selfdetermination, it can be used as a tool to make legal arguments that empower oppressed groups. Feminist accounts If Shivjis work can be seen as drawing on the great Marxist Utopian tradition, then any account of human rights that excluded feminism would ignore the other key ideology that makes for social transformation. Feminist accounts of rights are diverse. To do the subject justice, we would have to look at non-Western as well as Western versions of feminism. There is, for instance, a growing body of work by Islamic feminists. However, limitations of space mean that we must examine feminist accounts of rights by looking at some generic themes, and considering the work done within what could broadly be termed a Western tradition. Feminists have argued that the great statements of rights were blind to the issue of gender. Indeed, the era of the Rights of Man clearly excluded women: in many Western societies women were excluded from the right to vote and had limited property rights until relatively recently. Even the UN Declaration did not explicitly acknowledge that certain human rights abuses were directed at women rather than men. Perhaps the recent history of human rights is an account of how human rights law adapted itself to protect women as well as men. A feminist account of rights has to consider the way in which women have been marginalised in human rights law. As feminism is an ideology and a practice aimed at the transformation of the social world, it must be critical of how human rights law preserves male privilege and dominance. For example, the UN reports that the majority of the 1.5 billion people living on $1 a day or less are women. Furthermore, the gap between women and men caught in the cycle of poverty has continued to widen in the past decade, a phenomenon commonly referred to as the feminisation of poverty.
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Worldwide, women on average earn slightly above 50 per cent of what men earn. Privatisation tends to lead to reductions in public expenditure, which can push the costs of welfare onto the family where, for the most part, women have to make up the deficit with their own unpaid domestic work. Furthermore, women are often denied access to resources such as credit, land and inheritance. Their health care and nutritional needs are not given priority, and they lack sufficient access to education and support services. As there is a cultural tendency to see women as linked to the home and to the private sphere, their participation in public decisionmaking is minimal. Women also suffer disproportionately from domestic violence and trafficking for the purposes of sex. Feminist theory has attempted to account for this patterned nature of the oppression of women in different ways. Feminism presents the liberal state as based on a pretence of gender equality. Laws objectivity, its norms and categories, are male standards that effectively enshrine female sexual oppression and render it invisible as it does not conform with the male construction of social reality. At the centre of this web of oppression the state ensures the rule of law that, despite its claim to neutrality, both institutionalises the power of men over women and institutionalises power in its male form (MacKinnon, 1989, p.238). Feminism thus rejects any legitimisation of the law through either legal or political theory. However, this form of feminist thought has been criticised as essentialist and reductive. It seems to suggest that if the law and the state only ever serve male interests, rights could never empower women. Indeed, Drucilla Cornells theory of the law and state is an explicit critique of MacKinnon. It is also an attempt to move the analysis on from the whole-scale condemnation of law to legal strategies that make use of rights arguments to combat the oppression of women. At the core of Cornells case is an affirmation of equivalent rights which would not assimilate women to mens standards, but effectively enfranchise female realities. It is here that Cornells work acknowledges a debt to Luce Irigaray. Irigarays argument is a demand for a legal statement of female identity. This right would allow for the right to virginity, a right to motherhood and the enshrining of the obligations of mothers-children (children to their mothers) in civil law (Irigaray, 1993, p.86). Also contained in this statement of rights are various strictures that prevent the penalisation of celibacy and a call for the equal representation of mens and womens interests in all forms of cultural exchange and political and religious representation. These rights would move away from merely attaching criminal sanctions to crimes against women, and would resemble the great Enlightenment claims made for the rights of man. Obviously there have been advances in the protection of the rights of women, but a great deal remains to be done. Feminist accounts of rights thus remain a major inspiration for those who seek to realise the good society that protects the rights of all its citizens equally.
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Activity 3.7 What can feminist accounts add to an understanding of human rights?
3.8
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International protection of human rights time, respect for and observance of human rights is a precondition of sustainable development and democracy.
Perhaps a debate on human rights that focuses on universalism and diversity, then, is somewhat outdated. Relativism is not irreconcilable with a broad account of human rights. It would be more useful to ask questions about the political motivation of nations that refuse to sign up to the relevant treaties. This cannot be entirely accounted for, or defended, at the level of cultural difference. It may, for instance, have much more to do with sustaining an existing political culture. This concern could be linked with an examination of those areas where human rights protection remains weak, for example, the prohibition of racial discrimination:
Examples of genocide originating in racial and ethnic tensions, waves of refugees and internally displaced persons following ethnic cleansing or similar practices have all taken place since the World Conference on Human Rights. The rise in xenophobic and racially motivated acts of violence continues to plague people in all parts of the globe.
Another area where the failure to protect human rights raises serious issues is in the area of womens rights. Womens rights are universal rights. The World Conference on Human Rights recognised the human rights of women and girls as an inalienable, integral and indivisible part of universal human rights (Vienna Declaration and Programme of Action, Section I, para. 18 and Section II, paras. 3644), and called on governments and the United Nations to recognise their implementation as a priority task. In 1995, the Fourth World Conference on Women held in Beijing reaffirmed these recommendations. However:
Despite such examples of progress, women continue to be disproportionately subjected to violations of human rights. From domestic violence to brutalisation in war, from harmful traditional practices to outright female infanticide, the status quo remains intolerable. Unequal access and discrimination in the allocation of economic and social resources results in the direct denial of women's economic, social and cultural rights. Those with specific needs are subject to further marginalisation due to such barriers as race, language, ethnicity, culture, religion, disability, class or status. Women are often deprived of access to paid work, which is crucial to achieving self-reliance and improving living conditions of their families. Gender violence and discrimination against women must no longer be tolerated in silence or go unpunished. To continue this degrades not only women but also all of humankind.
It is interesting that the failure to protect womens rights is linked to a similar failure to protect childrens rights. Admittedly, the Convention on the Rights of the Child had, by 1995, reached quasiuniversal status and prompted legal reforms in many areas of childrens welfare, including the sexual exploitation of children, the prohibition of practices that harm the girl child, the status of children as refugees and the status of children after divorce. However, despite these changes:
Millions of victims of human rights violations are children. Although the importance of protecting children is a matter of global consensus, children continue to be the most vulnerable sector of society, particularly in situations of conflict or other emergencies.
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It might be suggested, then, that the issue in relation to human rights is not a tension between cultural relativism and universalism, but a need to account for the continued exclusion of types of persons from universal protection. This is not just a question of a limited protection of women and childrens rights. Certain groups, such as indigenous peoples, have been identified as particularly deserving of special protection. The Vienna Declaration affirmed the value and diversity of indigenous peoples cultures and social organisation. It reaffirms their unique contribution to the development and plurality of society (Section I, para. 20; and Section II, paras. 2832). Although some governments have taken steps to recognise the distinct identities of indigenous communities, serious problems remain; in particular the question of land rights. The Vienna Conference went on to stress that governments should promote the rights of minorities to full participation in the social, economic, cultural and religious life of society. The Conference noted that:
In too many cases, however, minorities encounter problems that have often led to serious conflicts in the past. Refusal of the recognition of the needs of minorities by Governments, inadequate laws and policies protecting minorities, discrimination against minorities and intolerance should all be mentioned in this context. Resolution of these problems would be strongly facilitated by the recognition of the role of minorities in the cultural enrichment of the society.
Similar concern was shown for the rights of displaced persons, and the rights of migrant workers.
3.9
How might this account of rights help us to orientate ourselves towards the material we have been considering?
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Rights are, first of all, deeply antagonistic. This suggests that for all the international conferences devoted to the co-ordination of human rights, there is something that remains irreducible. This is because rights have to be seen as operating in social and cultural contexts where identity is always at stake. Law is invoked in these claims to identity, whether they are claims to individual or group identity, but there is a mismatch between the need to articulate identity, and the role that rights play. Claims to identity will never be satisfied by law. This is because identity is not ultimately based on law, but on the continuous struggle for the others unique desire and concrete recognition. Desire, in this sense, constantly strives to make claims about individual and cultural recognition, a recognition by others. This cannot be limited by the law, although the law is essential to its articulation. In this sense, the key term is political desire. We could thus see a statement of Islamic rights as a claim that Islam should be recognised as an alternative rights tradition. This takes a legal form in the documents that we have studied, but these documents themselves are only understandable by referring to broader social and religious concerns that are inseparable from the Islamic claim to identity. Thus the Shariah issue should not be seen purely in narrow terms as the need to reconcile legal traditions. Claims made for recognition of Shariah law have to be understood as more fundamental assertions of a legal tradition that is bound up with claims to Islamic identity.
Reminder of learning outcomes By this stage, you should be able to: approach international human rights as a potentially problematic field of dispute rather than an obvious set of legal entitlement claims that should automatically be pursued identify the distinctive features of the universalist approach identify the distinctive features of the critique of the universalist approach (i.e. that it is a mode of imposing cultural, economic and/or social norms on other jurisdictions) and describe the main features of alternative human rights traditions discuss the concept that rights are expressions of political and cultural identity understand how the above issues are characterised via the categories of universalism v cultural relativism and be prepared to take a critical stance on this characterisation and (ultimately) be able to take a critical stance on this way of understanding the issues.
References Al-Atiyyah, Jamaluddin Human rights in Islam: the general theory. Papers presented at the 5th Islamic Thought Conference, ed. Sayyid Khadim Husayn Naqavi, Islamic Propagation Organisation, Tehran, 1989. Brems, E. Human rights: universality and diversity. (The Hague: Martinus Nijhoff Publishers, 2001) [ISBN 9041116184]. Donnelly, J. International human rights. (Boulder, Co.: Westview Press, 1998) second edition [ISBN 0813399696].
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Douzinas, C. The end of human rights. (Oxford: Hart Publishing, 2000) [ISBN 1841130001]. Higgins, R. Problems and process: international law and how we use it. (Oxford: Clarendon Press, 1998) third edition [ISBN 0198764103]. Chapter 6, pp.95110. Human Rights in China, Beijing Review, 1991. www.bjreview.com Irigaray, L. Je, tu, nous: Towards a culture of difference. (New York: Routledge, 1993) [ISBN 0415905826]. MacKinnon, C. Towards a feminist theory of state. (London: Harvard University Press, 1989) [ISBN 0674896467]. Mendes, E.P. Canada, Asian values and human rights: letting the tigers free 3 (1999): http://www.uottawa.ca/hrrcc/publicat/asian_values/html Sen, A. On economic inequality. (Oxford: Clarendon, 1997) extended edition [ISBN 0195647343]. Shivji, I. The concept of human rights in Africa. (London: Codresia, 1989) [ISBN 1870784022]. Tan, K. Constitutional law in Malaysia and Singapore. (Singapore: Butterworths Asia, 1997) second edition [ISBN 0409999083]).
Sample examination question The nature of human rights is contested; this is itself positive. Consensus would prevent the development of human rights. Discuss.
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the claim to speak on behalf of the oppressed is made less impressive by the stereotypical presentation of them as the African tribesman and the inhabitant of a Latin American shanty town, classic Othering talk in which they are very different from us. Activity 3.4 Some students believe that the correct way to answer such questions is to balance the answer between the two points of view. They say something like On the one hand there are points in favour of universalism, and on the other cultural relativism has something to be said for it. This is not what you are being asked to do in this question. The statement in the question comes down strongly in favour of the universalist position. You should respond by giving your own view on the question. Of course you should give a reasoned argument in favour of your view but you are expected to take a definite position! Activity 3.5 The approach to rights in Islam is different from that of the UDHR. Rights in Islam are rooted in a religious context and are derived from the central tenets of faith: Allahs revelation to the Prophet in the Holy Quran. From this perspective, Islamic rights predate those of other traditions; indeed Islam bestowed rights upon women and children long before similar recognition was afforded in other civilisations. More recently, documents such as the UDHR and the Cairo Declaration have been drawn up, but it is not possible to speak of an Islamic human rights system that could be compared to the UDHR. Rather, these documents show that the traditional defence of rights in Islam is not entirely incompatible with other traditions. There is a great deal of compatibility between the Cairo Declaration, the UDHR and the UNDH. However, Islamic particularism can be seen in various points of incompatibility. These focus on the defence of the Islamic faith, and thus tend to limit freedom of expression; the preservation of Shariah rules also contains provisions that are incompatible with rights stated in the UDHR. At the same time, it would be unwise to see Islam as homogenous. There are different interpretations of the sacred texts and commentaries that either move towards a greater compatibility with the UDHR, or, indeed, reject it completely. Activity 3.6 The title is an accurate description of Asian versions of human rights. The argument that they are relativist is only partially helpful. It does suggest that this understanding of rights comes out of a tradition that stresses its difference from the dominant Western tradition. For instance, it prefers values such as the solidarity of the community to an emphasis on individual freedom. However, Asian ideas of rights are also rooted in an attempt to define an Asian identity; and this means that one would do better to consider Asian history and culture as a central component of this claim to a distinct identity, rather than abstract arguments about cultural relativism. Besides, there must be a claim to universalism in any argument about cultural values that are of general relevance. Once you approach Asian ideas of human rights from this perspective, it is clear that the difference between, say, the Singapore School and Chinese Communist idea of rights, are pronounced.
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Activity 3.7 Feminist accounts of rights are important as they show how the great catalogues of human rights have ignored the oppression suffered by women. This oppression is peculiar to the place of women in most societies and is clearly particularly problematic in those societies that privilege social values that deprive women of full social being. Feminism has also shown how the universalism of human rights can operate as a cover for the privileging of values that exacerbate the oppression suffered by women. In the contemporary economic climate, for instance, women suffer the effects of poverty more acutely than men. Rights must take this reality into account.
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