The nature of human rights

7/29/2019 The nature of human rights

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University of London External Programme 45

Chapter 3 The nature of human rights

Contents

Introduction 453.1 The contested nature of human rights 463.2 The nature of rights 473.3 The Vienna Conference 1993 493.4 Universalism v cultural relativism: a confusing label? 523.5 Rights in Islam 573.6 The Bangkok Declaration: Asian human rights 633.7 Rights and social transformation 663.8 Towards a conclusion: relativism, universalism and the

politics of exclusion 693.9 Conclusion: rights, desire and identity 71

IntroductionIn 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 ofdispute 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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International protection of human rights

46 University of London External Programme

understand how the above issues are characterised via the categories ofuniversalism vcultural 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 humanrights norms: the United Nations system, pp.538552.

Recommended additional reading

Perspectives on Human Rights, Office of the High Commissioner for HumanRights, United Nations, World Conference on Human Rights, 1425June1993, 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 liberaldefense www.du.edu/gsis/hrhw/working

Evans, T. The politics of human rights: a global perspective. (London: PlutoPress, 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

3.1 The contested nature of human rightsIn this chapter we will provide an important intellectual and

political context for the debate over the supposedly universal

nature of human rights.

We need to identify, first of all, what it means to claim that human

rights are universal. At one level, human rights are universal

because a specific set of rights, identified as human and declared

to be universal, have been encoded in legal machinery authorised

by an authoritative source. This account of rights concerns itself

with questions such as:

How binding are international conventions? What enforcement mechanisms are required?Although these are valid questions, they are not the only way of

studying human rights; indeed, privileging these questions couldmean that other equally important issues are forgotten. In this

chapter we intend to engage with these sidelined questions.


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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 willargue 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.

3.2 The nature of rights

3.2.1 The meaning of human rights

The term human rights indicates both their nature and their source:

they are the rights that one has simply because one is human. They

are held by all human beings, irrespective of any rights or duties

individuals may (or may not) have as citizens, members of families,

workers or parts of any public or private organisation or association.

They are universal rights.

If all human beings have them simply because they are human,

human rights are held equally by all. And because being human

cannot be renounced, lost or forfeited, human rights are inalienable.

Even the cruellest torturer and the most debased victim are still

human beings. In practice, not all people enjoy1 all their human

rights, let alone enjoy them equally. Nonetheless, all human beings

have the same human rights and hold them equally and inalienably.

(Donnelly, 1998, p.18)

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 isalso a problem with this approach. Societies have not always been

organised around notions of human dignity. Historical and cross-

cultural examples show that societies have organised themselves

1 Enjoy here means are able to

possess and utilise.


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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 over-

arching 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.

3.2.1 The legal nature of human rights

How can we understand the legal nature of human rights? Weneed to think through some difficult issues.

We could ask about the semantics of rights. In the English

language, right has two senses: one is moral and the other is

political or legal. In the moral sense, right refers to what it is right

to do from a moral perspective: for instance, to assert that it is

wrong to steal, is to assert, in part, that it is morally wrong to

deprive people of their property without a compelling reason. The

second sense of the word refers to a relationship between right and

duty or obligation in the context of the law. In this second sense,

the meaning of right is stronger than in the former, in that a right

holder can compel a duty bearer to honour that right by calling onthe court to compel respect for the right. It is possible to speak of

rights in a number of legal contexts. For instance, a right derived

from a contract, in a private law sense, creates an obligation

through an exchange for value. If a party to the contract refuses to

undertake the obligations in the contract, the court may enforce it

through various remedies. Likewise, and again in a private law

sense, a beneficiary has certain rights under a trust that can be

enforced against the trustee. These do not rest in contract, but in

the equitable nature of the trust. Again, the court will enforce these

equitable rights. In other words, the distinction between the two

senses of the word moves from a statement of what is morallydesirable to a statement of an entitlement that can be enforced.

Public law rights are somewhat different, in that they do not

originate in private law agreements. Although this is a complex

point, we could perhaps suggest that public law rights are derived


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either from a constitution, which states the rights of citizens, or

from general principles of lawthat 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 tooverride 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?

Feedback: see page 74.

3.3 The Vienna Conference 1993

On the 45th anniversary of the UDHR (1948), the UN held a World

Conference on Human Rights in Vienna1on 1425 June 1993

(known as the Vienna Conference), attended by representatives of

171 states as well as many NGOs (Non-GovernmentalOrganisations). Those who wanted to drive the project forward

were frustrated by the limitations of the legal mechanisms available

to promote and enforce human rights internationally. Twenty-five

years on from the UDHR, it seemed little progress had been made.

However, first the whole issue of universal human rights had to be

re-argued and refined even redefined. A significant wave of

dissent from the universal human rights project had developed and

was strongly articulated at the Conference. There were different

strands to this dissent. These could be analysed as presenting two

main themes. The first theme presented economic, social and

cultural rights as downplayed in favour of the luxuries of civil and

political rights. Here, the universality of human rights was not

contested itself, rather it was the content and priorities of

implementation involved in the project. A key issue was that the

1 For the complete text of the

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. So-

called 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 enforceduniversally 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 theones that would genuinely be helpful for developing

countries? Why is there such reluctance to recognise a right todevelopment?

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. inIslam) 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 wereregarded 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.

3.4 Universalism v cultural relativism: a confusinglabel?Since the Vienna Conference the phrase universalism v cultural

relativism has become the standard way of understanding the

clashes over the nature of human rights. The current debate takes

place, most vocally, within the WestIslamic framework and the

NorthSouth/developeddeveloping countries dialogue. How well

are these captured by the label universalism v cultural relativism?

In particular, can the different strands of dissent at the Vienna

Conference all be lined up on the side of cultural relativism?

The UDHR is called the Universal Declaration of Human Rightsand the Vienna Conference re-asserted this universality. Therefore

it seems obvious that these human rights are asserted on behalf of

all human beings simply by virtue of their humanity. However,

merely asserting that rights are universal in scope and are to be

applied in a fair and equal manner is not necessarily the same as

having a developed underlying theory of universal human rights

the universalist perspective seeks this broader account of the nature

of human rights.

What universalist positions have in common is the underlying

presumption that human rights exist objectively, independent of

differences in culture, religion, ideology or value systems. Humanrights are based on human attributes or values that transcend or

run through all such local or concrete systems. Human rights are

also supposed to be inalienable: because they flow from and


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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 universallyrespected. 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 rhetoric2of 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?


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 thetradition 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

2 Rhetoric = persuasive talk;

according to Aristotles

formulation, a combination of

ethos, pathos and logos.


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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 lifein 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 universalismv 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 isoften 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,

individualismv collectivism is equated also with democracyv

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, non-

interactive and stagnant. There is no representation of how far

interaction has formed the entire world. Religions, especially, areprone 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 ofhuman 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 betweenreligious 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.

What is your view on this? 3


3 This is a matter that you may

like to debate with fellow

students, family or friends.


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3.5 Rights in IslamWe 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 The Universal Islamic Declaration ofHuman Rights

The UIDHR was drawn up by a private organisation, the Islamic

Council of Europe, and is not, therefore, an intergovernmental

document. However, it was granted credible international status

by UNESCO in 1981 (Brems, 2001, p.253).

The foreword to the Universal Declaration of Human Rights in

Islam reads as follows:

This is a declaration for mankind, a guidance and instruction to those

who fear God. (Al Quran, Al-Imran 3:138)

Foreword

Islam gave to mankind an ideal code of human rights fourteen

centuries ago. These rights aim at conferring honour and dignity on

mankind and eliminating exploitation, oppression and injustice.

Human rights in Islam are firmly rooted in the belief that God, and

God alone, is the Law Giver and the Source of all human rights. Dueto their Divine origin, no ruler, government, assembly or authority

can curtail or violate in any way the human rights conferred by God,

nor can they be surrendered.

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.

It is unfortunate that human rights are being trampled upon with

impunity in many countries of the world, including some Muslim

countries. Such violations are a matter of serious concern and are

arousing the conscience of more and more people throughout the

world.

A number of points can be made. Unlike the UDHR, the Universal

Islamic Declaration of Human Rightsisbased 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 followingparagraph:

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. Thishas 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 Islamicfiqh 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 thefiqh. (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 calledAllah 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) andAl-

sawm (fasting) (Al-Atiyyah, p.104); but also social duties that are

undertaken to preserve society and to protect the weak anddisabled. It is possible to work from the individual as a rights

holder to the notion that rights connect with social interests (Al-

Atiyyah, 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 broadertheory 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.

3.5.2 The Cairo Declaration on Human Rightsin Islam

As pointed out above, Islamic claims to human rights do not

operate in the same way as the UN system or even other regional

systems. There is no international, over-arching body that

supervises or protects Islamic rights. However, as we have seen,

there are declarations of Islamic human rights. In reviewing these

rights, we will return to a number of concerns outlined above. The

distinction between universalism and cultural relativism is only of

some use in understanding non-Western rights arguments. Perhapsof more importance is the affirmation of the political and cultural

differences that underlie these arguments. This is linked to the next

point. Islamic particularism is associated with arguments about the

centrality of Shariah law. Certain provisions of Shariah are in

opposition to rights in the UDHR. This could be understood as both

a clash between different traditions and an assertion of Shariah

law as a symbol of political identity.

We will now look in detail at the Cairo Declaration on Human

Rights in Islam. The Declaration contains 25 articles. Article 1

affirms that all human beings form one family whose members are

united by submission to God and descent from Adam and are thusequal in dignity, and the obligations they owe to others.

Commentators have drawn particular attention to this section of

the Declaration (Tan, 1997, p.112). Islamic human rights are based

not on the being of the individual, but on a foundation of religious

faith: the status of the person as Gods vicegerent in this world.

Rights are acknowledged in Islam as measures that allow the

individual Muslim to better serve Allah. As we have seen in

Jamaluddin Al-Atiyyahs argument, this then allows an argument

that posits a society in which the individual has duties towards

others. Tan then stresses the importance of the Shariah. Thus, it is

possible to appreciate the coherence of this articulation of rightsand the centrality of Shariah law to its realisation. We will return to

this argument below.


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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 isinteresting 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 How can we assess the CairoDeclaration?

The following extract gives us a sense of the extent to which the

Cairo Declaration is coherent with the UDHR:

Observing each and every right stipulated in both declarations, it is

found that almost every essential right is shared, even though they

must be seen with their different perspectives respectively.

However, the right to freedom of peaceful assembly and association,

which is in Article 20 of UDHR, is not embodied in the Cairo

Declaration. And conversely, the specific exclusion of usury (riba) in

the Cairo Declaration does not have place in the UDHR.

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. Thefact 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 thesame 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.

There are also civil consequences of apostasy:

...the apostate is not allowed to marry, and when a married person

becomes an apostate, the marriage is dissolved. Other rights that are

denied to the apostate are the exercise of custody over his children

and the right to inheritance. Also, the apostates rights to dispose of

his property are in abeyance and the legal effect of his acts are

suspended. (Brems, 2001, p.255)

Shariah criminal law distinguishes between different types of crime.

One of these is the set of crimes known as hadudcrimes. 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.

Activity 3.5

What are Islamic human rights?



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3.6 The Bangkok Declaration: Asian human rightsThe Bangkok Declaration represents a statement of intellectual,

political and legal autonomy by a block of Asian nations. It is a

catalogue of rights that was presented to the World Conference on

Human Rights in 1993. Commentators were surprised by the

resistance to the idea of universal human rights, and the

affirmation of a set of Asian values. It is worth considering the

document in detail, to ascertain the precise terms of the Asian

disagreement with the concept of universal human rights.

The document begins by stressing that international human rights

remain of profound significance, but the direction that the

Declaration is to take is indicated by the assertion that it is

necessary to have a just and balanced approach to the precise

nature of rights, and by the reference to the inheritances of Asian

nations, which do not share the values of Western nations. The

Declaration stresses the:

...universality, objectivity and non-selectivity of all human rights andthe need to avoid the application of double standards in the

implementation of human rights and its politicisation.

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 theway 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.

This is restated somewhat differently later on:

...the right to self-determination is applicable to peoples under alien

or colonial domination and foreign occupation, and should not be

used to undermine the territorial integrity, national sovereignty and

political independence of States.

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 narrowlythrough 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 ChokTong:

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 itsown understanding of the role that rights play in its history and

culture. Clearly, this is somewhat different from the Singapore

School. In 1991, theBeijing 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 historicaldevelopment. 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 humanrights 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 Rights and social transformation

Marxism and related accounts

Historically the most important critical account of human rights is

that provided by Marxism. The socialist revolutions of the 1900s in

Europe and Asia, and those that took place after 1945 in Africa and

other parts of the developing world, meant that one could refer to

socialist legality as a world legal tradition. This tended to be

hostile to the notion of human rights, seeing it as linked to Western

capitalism. Rights were understood as essential to the operation of

a capitalist mode of production. With the fall of the Berlin Wall in

1989, the collapse of the Soviet Union and the democratic

revolutions of the late 1980s and early 1990s, the Marxist account

of human rights seems to have been overtaken by events and

become obsolete. However, in more recent years, opposition to

capitalism and to globalisation has again sought inspiration from

Marxs work in understanding the workings of the world economy,

and the possibility of alternative social and economic orders.

The radical and transformationalaccounts of rights covered in thissection are not all necessarily Marxist, nor do they even draw their

inspiration from Marxism. They perhaps share a concern with the

centrality of material history in providing the foundations for an

account of human rights but, once again, this is not necessarily

drawn from Marx or the socialist tradition. In contrast to the

accounts discussed above, transformational accounts of rights seek

neither to preserve a faith, to further the hegemony of capitalist

modes of production nor to offer apologia for social orders that

claim to be socialist or communist. They could be linked to the

struggle against colonialism and the need to create a just

international economic order. Accounts of rights that stress thetransformational potential of rights could also be linked to

feminism and ongoing international campaigns for a more just

world order. Radical accounts of rights are thus perhaps linked to

the Utopian promise of human rights and a refusal to settle for

existing social and political orders.

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 propup 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 self-

determination, 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 socialtransformation. 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 rightsuntil 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 arewomen. 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. Asthere is a cultural tendency to see women as linked to the home

and to the private sphere, their participation in public decision-

making 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 theoppression 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 ofmens 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 Towards a conclusion: relativism, universalismand the politics of exclusionIn this chapter we have suggested that the relativismv universalism

debate may be something of a distraction when it comes to

understanding the pressing, contemporary problems of human

rights. The issue, as outlined by the UN, is perhaps more properly

understood as the exclusion of certain types of people from a

definition of rights that is now sensitive to the problems inherent in

the universalism of rights claims.

The contemporary defence of human rights brings together

universalism with a sensitivity to diversity and cultural specificity.

The following passage comes from the Report of the UN

Commissioner for Human Rights issued at the Vienna Conference of

June 1993. As such it represents a principled and sophisticated

defence of the Vienna Declaration and Programme of Action that

re-affirmed the universality of the UDHR. Recognising that the

significance of national and regional particularities, as well as

various historical, cultural and religious backgrounds, must be

borne in mind, the Report stressed that it is the duty of States,

regardless of their political, economic and cultural systems, to

promote and protect all human rights and fundamental freedoms.

From one perspective, the universalism of human rights is

indisputable, as it is based on a positive and universal instrument:

the UDHR. However, that the 1993 Conference could acknowledge

that the universal ratification of all the relevant international

instruments had still not yet been achieved suggests that, despite

the UDHR and the associated documents, it is still not possible to

speak of the universalism of human rights as a political reality. For

instance, in 1993 nearly one-third of countries had not signed up to

the International Covenant on Economic, Social and Cultural

Rights, and the International Covenant on Civil and Political Rights.

Furthermore, over 40 countries had refused to ratify the

International Convention on the Elimination of All Forms of Racial

Discrimination and nearly half of the member states of the United

Nations were not parties to the Convention that prohibits torture.

However, the Vienna Declaration shows that there can be an

account of human rights that is both universal and sensitive to the

arguments made by the so-called relativists. For instance, the claim

to a right to sustainable development, paradigmatic of a right that

privileges the economic conditions of the developing world, can be

incorporated into a broad vision of human rights:

Without sustainable development strategies to provide an adequatestandard of living for all people and without democratic structures in

place through which people can actively participate in the civic life of

their communities, human rights cannot be fully realised. At the same


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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 quasi-

universal 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 sect

The nature of human rights

Documents

Transcript of The nature of human rights