Are there any universal human rights?

1. Introduction
Human rights discourse since its very early stages has generated several debates; one
of those, perhaps the most preponderant, is about their universality. Scholars all over the world
have argued for different points of view according to their perceptions of human rights and to
how they interpret the authority of culture. It is possible to distinguish between two main
radical positions that Jack Donnelly calls radical relativism and radical universalism.1 The
latter, as shown by the word itself, includes all those scholars who look at human rights and,
more specifically, at the Universal Declaration of Human Rights (1948) as universal. For this
reason they mostly believe that it is possible, hence desirable, to extend the principles listed
in that document to every single country. On the contrary, the former position embraces the
most sceptical scholars who hold several claims against the Universality of the Declaration.
Foremost they refer to the different

cultural

identities worldwide, presenting them as insurmountable obstacles to the successful global

spread of the same standard of human rights. However, the debate on the universality of
human rights cannot be limited to these two extreme views; the actual confrontation,
indeed, is much more complex. Several categorisations have been defined in an attempt to
put the different major
opinions into order. This specific contribution will focus on the positions of each of the
four schools of thought presented by Marie-Bndicte Dembour.2 She identifies four main
categories with dissimilar perceptions of human rights: natural scholars [] as given;
deliberative scholars as agreed upon; protest scholars as fought for; and discourse
scholars as talked about.3 Although the lines among them are porous, thus some academics
cannot be easily allocate in one or another school, it is possible to recognize connotative
features for each of the mentioned group, especially if the focus is on particular themes, such as
the foundation, the universality or the development of human rights.
First and foremost, it is important to highlight what universal means, then it is useful to stress
how and when the debate on the universality rose, with particular regard to human rights field.
Secondly, an overview of the four schools of thought, with a special focus on the different
Jack Donnelly, Cultural Relativism and Universal Human Rights (1984) 6 Human Rights Quarterly 400-19.
Marie-Bndicte Dembour, What are Human Rights? Four Schools of Thought (2010) 32 Human Rights Quarterly
1-20.
3
Ibid 1.
1
2

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

2. Universal
2.a Meaning

Che comprende, riguarda, interessa tutta lumanit

(which includes, concerns and affects the whole
humanity).4
Before starting the actual analysis of the different opinions about the existence of universal
human rights, it is essential to examine closely the meaning of the adjective. The Italian Treccani
encyclopaedia offers in its online dictionary a really interesting and specific definition of the
word
universal. Upon the above-quoted general assessment, it deepen the explanation stating that
universal is related with all populations and all times.5 Even more eye-catcher is the
definition founded on the Oxford Dictionaries online:
Relating to or done by all people or things in the
world or in a particular group; applicable to all
cases.6
In both cases the idea of a whole is underlined; however, the former definition refers explicitly
to humanity, while the second one gives a broader interpretation of the term, mentioning both
animated and inanimate beings. Moreover, the English source adds a further determinant
information: in the world or in a particular group.7 Also in the Italian dictionary something
similar might be read, but it is presented vaguely and right afterwards it specifies that universal
could be considered as an elevate synonym of the words general or total, as if to retract.8 Whether
universal is interpreted as concerning the whole world or just a part of it, different
explanations would be entirely justifiable.
The debate on the universality of human rights is also a legal topic, thus it is necessary to look

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

Ibid.
6
Universal1 (Oxford Dictionaries) < www.oxforddictionaries.com/definition/english/universal> accessed 5 March
2015.
7
Ibid.
8
Vocabolario Treccani (n4).
4
5

at the meaning of universal presented also in legal dictionaries. The definition offered by The
Law Dictionary featuring Blacks Law Dictionary Online is interesting since it is clear and
concise, with no place for misunderstandings.
Having relation to the whole or an entirety; pertaining to all without exception.9
On the one hand, this definition is in line with the previous ones since it mentions the whole;
but, on the other hand, it is more specific and it denies any sort of allusion to a possible
restriction of the whole: no particular group rather than the entirety might be considered.
Indeed, it even stresses that there is no place for any exception. However, not all the legal
authorities interpret the word universal as expressed in the latter dictionary; a good example
can be pointed out in the judgment of the Supreme Court of the UK in P v Surrey CC, P v
Cheshire West Chester Council.10 The case is about the universality of human rights in the
sense that they are the same for people with and without disabilities, that is why it can be
understood as universal in a particular group11 especially because it concerns the right of liberty
enunciated in the article 5 of the European Convention on Human Rights.12 In the main
judgment, Lady Hale states that the appellants had been deprived of their liberty and she
justifies this assessment referring to the universality of human rights13 with particular regards to
The rights set out in the European Convention14. However, the universality pointed out by Lady
Hale can be interpreted as a limited concept, because it is about the whole group rather than all
humanity. This understanding might derive from the acknowledgement of the ECHR as a
regional charter, thus with limited legal validity.
Whether scholars take into account a general definition or a more strict one, their perspective
can change radically; therefore, the analysis of the different points of view should be carriedout very carefully, referring to what they exactly mean when they debate on the universality of
human rights.
2.b Debate

The debate about universality in general roots in the Grecian world. The word
originates from the Grecian universalis: a vague term that can have several translations.15 The
What is UNIVERSAL? (Blacks Law Dictionry Free 2nd edn) < http://thelawdictionary.org/universal/> accessed 5
March 2015.
10
[2014] UKSC 19.
11
Oxford Dictionaries (n6).
12
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 5.
13
P v Surrey CC (n10) [36], [45] (Lady Hale).
14
P v Surrey CC (n 10) [36] (Lady Hale).
15
Carlo Marchini, Il problema degli universali da Platone ad oggi e suoi riflessi didattici Lezioni di Epistemologia
e Storia della Matematica I/1, 1 <http://old.unipr.it/arpa/urdidmat/SSIS/Marchini/2%b0anno/Universali.pdf> accessed
9

problem about the understanding of the concept is attributed to Socrates. Since then, many
other scholars have given their own interpretation i.e. in Platos philosophical theories
universal contrasts with individual and it anticipates and determines every particular
(real

things);

instead, Aristotle offers a conflicting explanation distinguishing between

universal and particular.16 Since that time, this debate has started to spread to several
disciplines, such as mathematics and, especially during the Middle Ages, theology.
When the debate turns into the field of rights, the ambiguity of the concept of universality
narrows to only two distinct areas, which can be linked with the previous definitions. Firstly, the
dispute can deal with the global recognition and validity of some or the totality of rights;
secondly, it can concern the implementation of rights toward minorities. An example of the latter
might be the case beforehand analysed, in which the universality of rights concerns a limited
group of people.17 Nevertheless, the present analysis focuses on the former, thus it is important
to start looking at the origin of this debate.
The universal applicability of human rights has already been contested in the aftermath of
the drafting of the UN Declaration on Human Rights18. The first objections came from
within: the Saudi Arabian delegation questioned some articles claiming that they were westernoriented and totally discordant with Islam.19 The incompatibility between Western human rights
and Islam is one of the weak points in this debate. Both parts remain strong in their positions and
are often unwilling to understand each other; although the debate is still vivid, new steps towards
the acknowledgement of human rights have been made by some Muslim countries.20 Other
adversary voices rose from the Far-East in the 90s. According to Professor Yash Ghai, the
Asian values debate roots from the end of the Cold War, when the West has started to show its
principles as globally valid and impose them.21 The Asian debate was presented in The Bangkok
Declaration of 1993 in which the Far- Eastern states made some insinuations about the
Western values related with human rights.22

6 March 2015.
16
Ibid 1-2.
17
P v Surrey CC (n 10).
18
Universal Declaration of Human Rights (adopted 10 December 1947 UNGA Res 217 A(III) (UDHR).
19
Michael Ignatieff, Human Right as Idolatry in Ignatieff and Gutmann (eds), Human Rights as Politics and Idolatry
(3rd edn, Princeton University Press 2003) 58-62.
20
For more detailed information: Abdullahi An-Naim (various writings); Arzu Merali, To liberate or not to
liberate: Universalism, Islam and Human Rights (2003); Ignatieff (n 19); Turan Kayaoglu, A Rights Agenda for
the Muslim World? The Organization of Islamic Co-operations evolving human rights framework (Brookings Doha
Center Analysis Paper 2013).
21
Yash Gahi, Rights, Duties and Responsibilities in Cauquelin, Lim and Mayer-Konig (eds) Asian Values: Encounter
with Diversity (Routledge 2000) 20.
22
For an in-depth analysis: Ghai (n21); Randall Pereenboom, Beyond Universalism and Relativism: The evolving
debates about Values in Asia (2003) 14(1) Indiana International and Comparative Law Journal 1-67; Asian
Values, China and Human Rights (The Rights Future) <http://therightsfuture.com/commontracks/asianvalues/>

3. The four schools of thought23

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

The theme of the universality of human rights reflects the main features of each school
of thought. The four interpretations range from a perception of the whole human rights
corpus as universal to a complete denial of human rights.
The natural school states that human rights are entitled to all human beings; therefore,
universality is one of their intrinsic characteristics. Scholars in this school believe that
principles of human rights are the same for all populations and that law is the only way in which
universal human rights values can find expression. However, they also acknowledge that human
rights might be implemented in several ways, according to the culture and time in which they are
realized.
The deliberative school considers human rights as principles founded on consensus. Those
principles are inspired by liberal value, thus universality of human rights can be certainly
achieved if the consensus on such values will spread over the world. Some deliberative scholars
accessed 5 March 2015.
23
Dembour (n2).

assume the necessity of cross-cultural dialogues in order to achieve universal consensus, thus
universal validity of human rights.
Protest scholars, instead, show human rights as a response towards injustices, thus they are
meant principally for those in need and they originated in struggles. This school accepts the
universality of the values of human rights, but it also asserts that they change continuously
because injustices and sufferance, which vary, but endure, are the driving force of human
rights. Cultural differences are important for protest scholars because injustices can be
perceived in diverse ways over time and space.
Lastly, the discourse school opposes the previous schools. It hardly considers human rights
asserting that they exist just because someone talks about them. Discourse scholars completely
deny the universal character of human rights recognising and valorising cultural diversities. They
identify the universality of human rights as a pretence of superiority of certain value and an
attempt to impose them over the rest of the world.
3.b Worldwide

scholars

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

Jack Donnelly,
if human rights are, literally, the rights (every)one has simply because
one is a human being, they would seem to be universal by
definition.25
He perfectly suits the above descripted natural school. Even though he does take into
account cultural differences, but he strongly believes that all human beings are entitled
to the same principles.

Francis Deng,
While there is considerable variation of cultural perspective on the
norms of human dignity, the principles involved in human rights
protection have become largely adopted by the international
community.26
Deng also considers cultural differences in the interpretation of human rights, but in
his writing he illustrates that Western value and Dinkas one are essentially based on the

The selected scholars views will be only explained briefly; further investigations are recommended to grasp a deep
knowledge. Suggested readings are those mentioned afterwards in this chapter.
25
Donnelly (n1) 400.
26
William Twining (ed), Human Rights, Southern Voices (CUP 2009) Francis Mading Deng 36.
24

same principles.
Deliberative school:

Boaventura de Sousa Santos,

All cultures aspire to ultimate concerns and values, [] we must
propose cross-cultural dialogues on isomorphic concerns.27
Although he shares the discourse view that the question of universality is a
particularly Western cultural question. [] The concept of human rights rests on a
well-known set of presuppositions, all of which are distinctly Western28 , de Sousa
Santos states that achieving an universal standard of human rights could be possible
through cross-cultural dialogues.

Turan Kayaoglu,
if the OIC were to have greater authority over individual states on
human rights issues, it could be a more effective force for promoting
human rights in the Muslim world. [] within the context of international human rights.29
He demonstrates that the Organization of Islamic Cooperation is facing the project which
would allow the Muslim countries to embrace the universal principles of the UDHR.

Protest school:

Upendra Baxi,
the universality of human rights symbolizes the universality of
collective human aspiration. [] (contemporary) human rights
enunciations ignore cultural and civilizational diversity.30
He fully pertains to the protest school. For Baxi human rights derive from sufferences
and he is very critical of the actual policies that should implement human rights, thus he
questions the concept of universality.

Arzu Merali,
Discourses that utilise the language of, or claim to represent the
aspirations of human rights theory and activism, suggest that inherent
within them is the idea of liberation. [] I feel that [] liberation is
neither, inherent within UDHR or indeed recent theory regarding it.31
Merali is sceptical about the UDHR and she agrees with discourse scholars who think

Boaventura de Sousa Santos, Toward a Multicultural Conception of Human Rights in Truyol and Berta (eds.), Moral
Imperialism. A critical Anthology (NYUP 2002) 46.
28
Ibid 44.
29
Kayaoglu (n20) 6, 22.
30
Twining (n26) Upendra Baxi 186.
31
Merali (n20) 4.
27

that the actual debate on universality is western-driven. However, she believes in

universal values, such as the Islam ones which refer to a journey of discovery.32
Discourse school:

Makau Mutua,
the Universal Declaration of Human Rights, the foundational
document of the human rights movement, sought to give universal
legitimacy to a doctrine that is fundamentally Eurocentric in its
construction.33
As de Sousa Santos, Mutua waver between deliberative and discourse schools. He states
that universality might be achieved through a multicultural dialogue, but the major idea
of his work is the imposition of Western.

Randall Peerenboom,
I show that the broad consensus that seems to exist when rights are
stated in a general, abstract form gives way to disagreement when the
rights need to be specified in more particular contexts'.34
Allocating him in one of the schools is not an easy task. He might be allocated in the
protest school since he believe that countries prioritize rights differently35; however, he is
very sceptical about universality and he also refers to the actual rights as Western-centred.

4. Personal view
Looking at the four schools of thought, the analysis carried out in this chapter would
be allocated in the protest group. Although it shares some points with the other schools as
well, the main idea is that human rights undergo an ever-changing process which makes them
not-universal in practice. In different time and space several human rights might be needed
because sufferance and peoples perception of them vary; but at the same time they will always
exist as sufferings are everlasting.36 However, some injustices occur all over the world and it
is the reason why it is
possible to find some similarities among the UDHR and the different regional
instruments37.
32

Merali (n20) 13.

Makau Mutua, The Complexity of Universalism in Human Rights in Sajo (ed) Human Rights with Modesty: The
Problem of Universalism (Kordinlinye Brill NV 2004) 61.
34
Peerenboom (n22) 14.
35
Ibid 14.
36
Twining (n26) Upendra Baxi.
37
ECHR (n12); African Charter on Human and Peoples Rights (adopted 27 June 1981, entered into force 21
October 1986) (1982) 21 ILM 58 (Banjul Charter); Arab Charter on Human Rights (entered into force 15 March
2008) (2004) 12 IHRR 893; ASEAN Human Rights Declaration (adopted 18 November 2012) (2012) Statement &
Communiques
<www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declaration> accessed 4 March 2015.
33

Although they have many distinctive features that can be find even in the titles themselves,
the
different charters give priority to certain rights, such as the right of life and human dignity or
the prohibition of torture, which might be consider universal. However, it does not mean that
they are treated in the same way, some small differences still remain in the actual application.
Referring to these common aspects, it might be generally asserted that, despite differences, all
populations share the same fundamental values, thus the universality of human rights
principles can be taken into account. Nevertheless, the implementation of these common values
and their embodiment in the diverse legislations is influenced by cultural differences, which
determine the different perception and enforcement of human rights norms, and by historical
background of one population, which might lead to prioritize specific claims that might overrule
upon other shared human rights. It might be underlined that not only non-Western instruments,
such as the Banjul Charter or the Arab one,
differs from the UDHR; the ECHR also has some distinctive aspects which are not mentioned
in other instruments, such as the right to conduct business and the rights of the elderly. 38 At this
point one might wander what would happen if representative authorities from diverse cultures
meet and discuss a new possible interpretation of human rights principles; after all, many
scholars, such as the

above-mentioned ones,39 suggested the

possibility of cross-cultural

dialogues. However, two

assumption ought to be done: firstly, No community has a static culture 40 and, secondly, trying
to
standardize human rights might lead to choices that will undoubtedly give priority to one or
another cultures interpretations and needs. Moreover, even though a general consensus might
be met, this cross-culturally agreed corpus of human rights would be universal only for a limited
period of time until new injustices will generate new claims and struggles.
Anyway, the debate regards the present time, if it turns to the future of human rights,
it becomes more intricate and unpredictable, especially due to the globalization, which
intensifies inter-cultural contacts, and to an increase of multicultural states, thanks to growing
phenomena such as migration.41 Each of these new states will face the problem of a wider
presence of different minorities and this could lead to a re-thinking of human rights in a
more complex perspective. According to Ghai, The task is difficult, but possible, even if it may
Katrin Nyman-Metcalf, The future of Universality of Rights in Kerikmae (ed), Protecting Human Rights in the EU:
Controversies and Challenges of the Charter of Fundamental Rights (Springer-Verlag 2014) 21.
39
De Sousa Santos (n27); Mutua (n31).
40
Twining (n26) Yash Ghai 113.
41
Yash Ghai, Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims
(2000) 21:4 CLR 1095; Alessandra Algostino, Lambigua universalit dei diritti: diritti occidental o diritti della
persona umana? (Jovene 2005).
38

not always be completely successful.42

5. Conclusion
The debated issue of universality is far from reaching a globally accepted definition and
scholars from all over the world will continue to develop their own opinions. However,
developing a personal idea about the concept of universality is not so simple and the existence of
plenty of different voices with very convincing arguments makes it even harder. What might be
helpful is carrying out a good scrutiny of existing human rights instruments.
Several things might be extrapolated from the accurate analysis carried out in this
composition. First and foremost there is not an univocal definition of universal, thus it is easy
to run into conflicting opinions related to this concept. As a consequence, it has generated
many debates since the ancient times, but it is from the second half of the 20th century that the
debate on the universality has entered the human rights discourse. Despite it is a relatively recent
issue, plenty of provocative voices have spread throughout the international arena. According to
many, especially the discourse scholars, this debate might be considered a mere opposition of the
rest of the world against the West and its new imperialism; and the concept of universality itself
is a Western attempt to impose its values. However, it has been demonstrated in this essay
that it is not totally true; indeed, there are Western scholars that disagree with the concept of
universality, i.g. De Sousa Santos,43 as well as there are voices from other part of the world
which admit the existence of
universal human rights, i.g. Deng44 and Kayaoglu45.
Finally, it is possible to state that there are not right or wrong views. When it turns to
the universality of human rights, at the present time protest theories which permeate this
composition as well as natural, deliberative and discourse ones, might be supported if
scholars provide good explanations. It will be very interesting to look at further developments
in this debate and how it will influence the human rights field.

42

Ghai (n41) 1102.

De Sousa Santos (n27).
44
Twining (n26) Francis Mading Deng.
45
Kayaoglu (n20).
43

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