Concepts Of Universalism And Cultural Relativism International Law Essay
“Human Rights” is a relatively new expression, having come into international law only after World War II and the establishment of United Nations. Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations on December 10, 1948 is a milestone document in the history of human rights. And the debate, which arose along with the internationalization of human rights, is whether all human rights are universal, or there are certain rights and freedoms, which can be avoided for the cultural features. This essay examines the debate through the contradiction of concepts of Universalism and Cultural Relativism.
International law, which actually has started developing with the first states, has been a subject of significant changes especially during the period between Westphalian peace treaty (1648) and World War I. Traditional international law is a law of power, that is the war is considered to be an important attribute of state sovereignty. One of the essential qualitative differences between traditional international law and contemporary international law is the prohibition of aggressive wars and the idea of international protection of human rights. In other words, contemporary international law takes the rights of man under its patronage. The international protection of human rights is a revolutionary idea and traditional disciplines of international law have nothing to do with it at all. It has been an accepted doctrine that international law is to regulate the relations between nation-states, but not individuals. Thus Oppenheim, the leading authority on international law in the United Kingdom wrote, that “the so-called rights of man not only do not, but cannot enjoy any protection under international law, because that law is concerned solely with the relations between states and cannot confer rights on individuals.”Â Â
Shortly after the atrocities of World War II, the first step was taken to establish and recognize the universality of human rights in international law. It was proclaimed in the Purposes of UN Charter that human rights and fundamental freedoms are “for all without distinction as to race, sex, language, or religion.”Â Â The adoption and proclamation of the Universal Declaration of Human Rights was another major progress in the procedure of universalizing the human rights. The UDHR Preamble was clearly defining that “The General Assembly proclaims This Universal Declaration Of Human Rights as a common standard of achievement for all peoples and all nationsÃ¢â‚¬Â¦”Â Â Later the principles of UN Charter and UDHR were developed and affirmed in the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights both adopted by General Assembly resolution 2200 (XXI) of 16 December 1966, and in number of other international treaties and agreements. As a result, a universal system of rules was established for the protection of human rights.
The dilemma of international protection of human rights is the ideological conflict of Universalism and Cultural Relativism. Simply put, the concept of Universalism holds that each human being possesses certain inalienable rights simply because he or she is a human, regardless the national background, religious or political views, gander or age. The proponents of this concept claim that “the international human rights like rights to equal protection, physical security, free speech, freedom of religion and free association are and must be the same everywhere.”Â Â The concept of Universalism bases on three fundamental jurisprudential theories- the natural law theory, the theory of rationalism, and the theory of positivism. The roots of natural law theory go back to the ancient times. The main point of this theory is that natural law is standing above manmade positive law and defines the eliminable human rights, which are necessary for all the nation-states. Rationalism, a closely related concept, “is a theory of universal laws based on a belief in the universal human capacity to reason and think rationally.”Â Â Rationalism supersedes the idea of divine origin of natural law with the theory that each individual is endowed with certain rights due to the universal capacity of all individuals to think rationally. Both natural law theory and theory of rationalism consider universal human rights not to depend on cultural diversities and specialties. Theory of positivism demonstrates the existence of universal human rights noting the acceptance and ratification of human rights instruments by vast majority of states regardless their cultural background. It appears that the concept of Universalism with its supporting theories of natural law, rationalism and positivism finds the source of human rights in international law, rather than in individual cultures. Human Rights are extracultural.
Cultural relativism is the assertion that human values, far from being universal, vary a great deal according to different cultural perspectives.Â Â From my point of view one of the major drawbacks of the theory of Cultural relativism is the perception of “culture” as something unchanging and stable. In fact, all types of Cultural relativism, be it Strong or WeakÂ Â Cultural relativism, are based on stable conception of culture, which fails to recognize the flexibility of culture for social changes and ideological innovations. Whereas, I strongly support the idea that culture is an ongoing process of historical development, adaptation and evolution. Opponents of this theory argue that Cultural relativism can be dangerous for the effectiveness of international protection of human rights, since the nature of the theory fundamentally justifies human rights abuses linking to the customs and traditions of the society. Indian tradition of satiÂ Â is a bright example of human rights violation with cultural bases. An eighteen-year-old Rajput girl committed sati in 1987 during her husband’s funeral pyre. She was a university student and her marriage was insisted by her parents. There is no evidence whether she committed sati voluntarily or under pressure, however this case found a large response among Rajput society. As a sign of protest many human rights activists, both men and women, organized marches against the tradition of sati, meanwhile many others came out for the tradition, claiming that sati is a significant part of their ethnic culture. They not only made the young girl as a symbol of devoted wife, but also erected a shrine in honor of her. The human rights defenders and activists were branded as Western imperialists who were superseding old Indian traditions with Western ones. Obviously, the theory of Cultural relativism leads to the idea, that the main social unit is community, not individual. A question rises, does the community have rights to impose its will on an individual, or does it have rights to limit any eliminable right of individual?
As one of the ancient nations, Armenians have their own unique cultural traditions and scope of ethics, though our traditions are more flexible to meet the challenges of time. I do not hesitate to underline that Armenian traditions are quite humanistic, since they are largely inspired with the ideology of Armenian Apostolic Church. One of the greatest miracles of Armenian Apostolic Church is that there is not separate church and separate people, our church and people together is one whole unity, like a huge “cathedral”. And this “cathedral” caries inside it all the human values, like conscience, kindness etc.
Investigating the concepts of Universalism and Cultural Relativism, I came to the conclusion that in many societies or it is better to say in many communities social relations are regulated through native traditional norms. Indeed, rejection of international human rights may lead to systematic abuses of human rights within the societies or communities, still sometimes international protection of human rights can be used for political purposes. Human rights violations sometimes are reason for intervention of one country’s armed forces into another country’s territory. From this point, cultural relativism is not justified. I justify the existence of Cultural Relativism instead. In my opinion Cultural Relativism is a result of natural historical development, it is a problem which couldn’t be avoided.Order Now