Universalism as the key answer to current challenges to fundamental human rights - an abstract
Since the approval of the Universal Declaration in 1948, International Law of human rights has been designed as to state and promote the respect of all fundamental rights and freedom for all the human beings, in every country. This is the self-evident basis of the concept of “universalism” itself. However, the so called “regional approach” has been used by several governments and other entities to claim that universal standards should be applied by particular methods, pretending this is consistent and required by any regional, local or religious tradition. Traditions certainly deserve our respect, but this should not be used as a justification to authoritarianism and abuse. Meanwhile, large scale migrations urgently need from the host states to strengthen their capacity to ensure equal rights for each individual, independently from his or her native country or ethnic, religious, or other community. Acceptance of sectarianism would imply different levels of human rights protection within the same state – which, in essence, means the denial of rights. Strengthening international law by progressively reducing the areas of misapplication under “regional approach” is key to avoiding this phenomenon.
According to international law as developed after World War II, which has its fulcrum in the International Bill of Rights, peace and security can be guaranteed when not only the states, but also the individuals, as rights-holders, become relevant for international law. Under this concept, states are duty-bearers, and, if they don’t fulfil their obligations towards their own citizens, in serious cases other states and the competent institutions of the international community have the right and the duty to assist or intervene.
Each government has just two alternatives: either actually implement the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights and all the other conventions it has signed and ratified (or that it is otherwise required to comply with under customary international law), or claim to apply universal standards by its own particular method, pretending this is consistent and required by any regional, local or religious tradition.
Far from being an innocent principle, the second way is the single most dangerous attack to the concept of universal human rights and to modern international law as a whole. Theorists of this specific wave of cultural relativism point out that the Universal Declaration reflects a liberal-democratic point of view, mainly based on part of the Northern American and Western European experience. According to them, the main values and rights of human beings are neither interdependent nor universal, but are the result of different cultures in different societies – therefore not being the same for all. This is in contrast with the text itself of the Universal Declaration (which, according to the solemn Declaration of the UN International Conference on Human Rights convened in Tehran in 1968, “states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community” (Proclamation of Teheran, in: Final Act of the International Conference on Human Rights, United Nations, New York 1968).
We can indeed consider that, generally speaking, a certain stream of European and Northern American history gave a great role to the individual dignity, while several Asiatic or African societies gave usually more importance to the collectivism. This is particularly true, for instance, as for the Chinese tradition. However, exactly the example of China shows that the same specific traditions can evolve in different ways in different states and, even in the same country, in different periods. The Taiwanese experience remarkably diverges from the mainland; and in Taiwan itself the very same people, with the same average traditional and cultural background, faced a long period of authoritarian regime before entering a new age of political and social transformation, towards a fully participated democracy. We can recall also that the same Korean people have been living under two very different social and political systems for more than 60 years, notwithstanding their identical ancient national culture.
It is also worth mentioning that the Universal Declaration was not just drafted and voted by “Western” states. Its editorial board, established by the UN Commission for Human Rights and operating in 1947 and in 1948, was chaired by Eleanor Roosevelt and the main drafters were the Canadian Law professor John Peter Humphrey, the French Jewish jurist René Samuel Cassin, the Lebanese philosopher Charles Habib Malik – an orthodox Christian – and the Chinese philosopher Peng Chun Chang – a strong supporter of the universal value of Confucianism and an expert on Islam. The board included also a Chilean social democratic judge, a British trade unionist, a Soviet ambassador, and among those who contributed to its work was the representative of India Hansa Mehta – a Hindu woman who had been a nonviolent militant for the independence of her country, and particularly active for the rights of women. The diverse roots of the Declaration were confirmed during its final review: this was made by representatives of all 58 states then members of the United Nations, including some with a predominantly Buddhist or Muslim population. Finally, when the UN General Assembly, meeting in Paris, approved it on December 10, 1948, there were 48 votes in favour, 8 abstentions and no vote against.
The Universal Declaration included also several points that were the result of a non-liberal, non-western approach – such as the mention of social and economic rights, although not prevailing. This giant effort to put all human rights under the same, universal system of protection continued in the years following the adoption of the Declaration, and led to the specifications, with more formal juridical value, of the two Covenants of 1966, intended to have the same importance: The International Covenant on Economic, Social and Cultural Rights is a part of the International Bill of Rights as much as the Universal Declaration and the International Covenant on Civil and Political Rights.
In 1993, the Vienna World Conference on Human Rights, which I had the privilege to attend, clearly stated that human rights are indivisible and underlined the duties by the states, whatever may be their political, economic or cultural system, to promote and protect all human rights and fundamental freedoms.
Article 4 of the UNESCO Universal Declaration on Cultural Diversity, adopted in November 2001, states: “No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope”. Furthermore, according to Article 6, “Cultural rights are an integral part of human rights, which are universal, indivisible and interdependent […] and all persons should be able to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms”6.
Having regard to the above-mentioned process that led to the International Bill of Rights, a feigned contrast between the so called “Western” countries (actually including also some very Eastern ones, like Japan, Taiwan, or South Korea) determined to stress the civil and political rights, and the developing countries concerned of economic and social rights, should be considered as a mere political stand. Virtually always, the idea of a cultural relativism reducing the universal validity of human rights come from authoritarian regimes that have no intention of improving neither the social, nor the economic conditions of their fellow citizens – or subjects.
At the 1993 UN Vienna Conference, some states that tried to define many human rights as essentially “Western” had no common position about economy, culture, or religion; but they simply shared an authoritarian concept of the state, presented as beneficial for their peoples. Eventually, consensus was reached on universality; but the idea of “different values”, which would hamper the effective application of human rights, has later returned to surface many times, and also has been used by governments of states, that during the Vienna Conference had not yet decided to make it their own.
In this frame, a particular debate concerns the so called “Asian values”, in which Confucianism has a relevant influence – but this should not be a reason for violations of individual rights: it advocates ethical properties to private and public relationships which appear to suggest an acceptance of hierarchy and the need for social harmony, respect and reverence for family and benevolence in government. In political terms this might appear to consolidate the state’s authority in the interests of the “common good” and create a submissive population which accepts hierarchy and seniority. However, Amartya Sen observed that we have to recognize the diversity within a same “culture” – which is at the basis of individual human rights and fundamental freedom:
The recognition of diversity within different cultures is extremely important in the contemporary world […] Authoritarian readings of Asian values that are increasingly being championed in some quarters do not survive scrutiny. The thesis of a grand dichotomy between Asian values and European values adds little to our comprehension, and much to the confusion about the normative basis of freedom and democracy. (A. Sen, Human Rights and Asian Values, Carnegie Council on Ethics and International Affairs, New York 1997, p. 31.)
He also emphasizes the importance of freedom in another of the main Asian philosophical – and religious – traditions, while reminding that Confucianism should not be used as a justification to authoritarianism:
In Buddhist tradition, great importance is attached to freedom, and the part of the earlier Indian theorizing to which Buddhist thoughts relate has much room for volition and free choice. Nobility of conduct has to be achieved in freedom […]. The presence of these elements in Buddhist thought does not obliterate the importance for Asia of ordered discipline emphasized by Confucianism, but it would be a mistake to take Confucianism to be the only tradition in Asia – indeed even in China. […] Indeed, the reading of Confucianism that is now standard among authoritarian champions of Asian values does less than justice to the variety within Confucius’s own teachings […]. Confucius did not recommend blind allegiance to the state (Ibidem, p. 17).
A more difficult issue to deal with is the so called “Islamic approach” to human rights. While, as we noticed, the International Bill of Rights has been approved also by states whose population is predominantly Muslim, and even by states that define themselves as Islamic (thus rejecting the principle of separation of state from religion), many regimes inspired by Islamic formulas explicitly affirm that they consider human rights to be limited by their own interpretation of Islam.
The Cairo Declaration on Human Rights in Islam, proclaimed in 1990 by the Nineteenth Islamic Conference of Foreign Ministers, includes several such limitations. While, according to Art. 1, “All human beings form one family whose members are united by their subordination to Allah and descent from Adam” and “The true religion is the guarantee for enhancing such dignity along the path to human integrity”, other articles leave the governments with the possibility of voiding the very rights they refer to:
Art. 2 – (a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to safeguard this right against any violation, and it is prohibited to take away life except for a Shari’ah prescribed reason.
Art. 6 – (a) Woman is equal to man in human dignity, and has her own rights to enjoy as well as duties to perform, and has her own civil entity and financial independence, and the right to retain her name and lineage, (b) The husband is responsible for the maintenance and welfare of the family.
Art. 9 – (a) […] The State shall ensure the availability of ways and means to acquire education and shall guarantee its diversity in the interest of the society so as to enable man to be acquainted with the religion of Islam and uncover the secrets of the Universe for the benefit of mankind, (b) Every human being has a right to receive both religious and worldly education from the various institutions of teaching, education and guidance, including the family, the school, the university, the media, etc., and in such an integrated and balanced manner that would develop human personality, strengthen man’s faith in Allah and promote man’s respect to and defence of both rights and obligations.
Art. 10 – Islam is the religion of true unspoiled nature. It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism.
Art. 22 – (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah […].
Such formulations leave the states free to “take away life” if they deem it prescribed by Shari’ah (art. 2) and to enact many forms of discrimination: against women (second paragraph of art. 6), non-Muslims or anybody who would dare to speak or act against the official “values” – not to mention blasphemy or apostasy.
One might perhaps try to be optimistic, imagining anyway there is progress towards a commonly shared understanding and protection of human rights. However, in reality it is quite different. In the last decade, we have witnessed positive developments in this direction only in a few countries, while in many more the governments have strengthened their relativistic approach or have returned to assert their own pretended national, cultural or religious values that had not been exhumed for a long period of time.
This is the case, for instance, of the Russian Federation, where freedoms of association and expression have been severely limited, while the ideology of defending “traditional values” is being translated into laws and administrative measures, which according to many of the observers and activists constitute undue restrictions of human rights.
The European Court of Human Rights (ECtHR) highlighted in several sentences that “States must adopt all legislative and administrative measures in order to protect individuals under their jurisdiction against acts which violate human rights committed by individuals or by other entities not acting as State bodies”.
The relatively new phenomenon is that, through large-scale migrations, serious intra-communitarian abuse is spreading in other countries, and mostly in Europe. This implies an urgent need for the legal and judiciary systems of the host States to strengthen their capacity to ensure equal rights for each individual, independently from his or her native country or ethnic, religious, or familiar community. Never should a state downgrade the level of rights acquired in view of a misunderstood sense of respect for “other” cultures or habits, if these are in contrast with the historically conquered and internationally stated rights and freedoms. To mention just a few examples: female genital mutilations are not to be allowed in any country, and it would not be acceptable to tolerate them within any community; submission of women is in open infringement of international standards, notwithstanding the “regional” approaches implemented by some authoritarian regimes under any pretext; and the same applies to unequal family and inheritance rights, to child marriage, to forcing minors to beg, as well as performing a hate speech or violently impeding others’ legitimate freedom of expression.
What actually I believe should carefully be avoided is the acceptance of sectarianism, which would imply different levels of human rights protection within a same state according to different ethnic, religious or other communities. It would be a particularly worrying form of acquiescence to the theories of cultural relativism of human rights – which, in essence, means the denial of rights. On the contrary, strengthening international law by progressively reducing the areas of misapplication under “regional approaches” is, in my opinion, key to avoiding this phenomenon, along with updating the host countries’ internal legislative, administrative, educational and social tools.