At the beginning of the world, human beings were not regarded as having any right at all. But as time went on religious leaders and political philosophers started professing and postulating that human beings by nature were endowed with certain inalienable rights because they are human. Thereafter, human rights though recognized were considered to be issues or matters of domestic jurisdiction of each state which no other state can interfere. This situation existed until 1919 when the League of Nations came into being, but there was not much change on the status of human rights.
Human rights was recognized as international issue by 1945 on the formation of the United Nations Organisation. In 1948, the Universal Declaration of Human Rights was promulgated, since then there has been growing internationalization of human rights globally. But there appear to be conflict between cultures and human rights as countries in the Eastern Europe assert that human rights is imposition of western culture on the rest of the cultures, as such should be rejected. This paper therefore considers the universality of human rights, bases of universality of human rights as well as the limits of universality and offer useful recommendations and conclusions for this universality in human right.
A CRITICAL ANALYSIS OF UNIVERSALITY OF HUMAN RIGHTS IN THE INTERNATIONAL HUMAN RIGHTS LAW
DEPARTMENT OF LEGAL STUDIES
AKWA IBOM STATE POLYTECHNIC
The term universality in English connotes the absence of limitations, restrictions, differences or selection. It further connotes uniformity, comprehensiveness and general application without discrimination on any grounds or reasons whatsoever. The word universality is a noun form of the word universal. The term universal is defined in terms of “relation to the whole or an entirety; pertaining to all without exception”1. In fact the word universal is said to be a term “more extensive than ‘general’, which latter may admit of exceptions”2. The term universal is equally defined as any act or thing that involves all the people in the world or in a particular group, for instance, universal suffrage meaning the right of all the people in a country to vote3.
* LL.B, BL., LL.M (Ph.D candidate) Department of Legal Studies Akwa Ibom State Polytechnic
1. Black, Henry Campbell, Black’s Law Dictionary 6th ed. New York, St. Paul Minn, West Publishing Co. 1990. P.1535.
3. Hornby, A. S., Oxford Advanced Learner’s Dictionary of Current English 6th ed. New York: (Oxford University Press, 2000) P.1136.
UNIVERSALITY IN RELATION TO HUMAN RIGHTS
In relation to Human rights the term universality means that human rights are natural attributes of human beings and human rights are possessed by all people, irrespective of their colour, sex, place of origin, creed, ethnic group, religion or political opinion. It is submitted here that human rights are everywhere universal to all human beings. Human rights therefore cannot be seen as valid only in certain contexts. Their validity is derived from the very source of their existence, the nature of human beings. The socio-economic-cultural and political conditions of peoples do not define human rights. It is likewise said that due to the formal agreement by most states to the Universal Declaration of Human Rights and the subsequent human rights instruments, as well as their fulfillment of certain human rights, there is universal recognition of human rights.
It is asserted that the horrors perpetrated by Nazi regime before and during the Second World War evoked universal opposition to the denial of human rights. The United Nations Organisation (UNO) was founded in 1945 and its Charter constitutes the most basic document of today’s international relations. One of the principles of the Charter is the promotion of respect for and observance of fundamental human rights without discrimination based on race, sex, language or religion4. Article 55 provides that the United Nations shall promote “universal respect for and observance of human rights and fundamental freedoms” for all without discrimination. Under Article 56 member states have pledged to take joint and separate actions to achieve and promote self-determination of human rights.
The General Assembly of the United Nations Organisation may initiate studies and make recommendations for the purpose of helping to restore fundamental human rights5, and the Economic and Social Council has power to
4. Article 1(3) of the United Nations Organisation, 1945.
5. Ibid. Article 13
make similar recommendations to that effect6. It is worthy to note that the United Nations Charter is not a human rights document as it does not contain nor enumerate the human rights which the Charter seeks to protect. These rights are contained in the Universal Declaration of Human Rights which was adopted in 1948 and it is also in the International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social and Cultural Rights 1966 and the Additional Protocols to the International Covenant on Civil and Political Rights.
It is maintained that the Universal Declaration of Human Rights is the first comprehensive human rights instrument to be proclaimed by a universal international organisation7. It is submitted that because of its moral status and the legal and political importance it has acquired over the years, the Declaration that ranks with the Magna carta, 1215, the French Declaration of the Rights of Man and the Citizen, 1789, and the American Declaration of Independence, 1776, as a milestone in the mankind’s struggle for freedom and human dignity. Its debt to these great historic documents is unmistakable as it has stated in Article 1 that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. Also Article 28 of the Universal Declaration of Human Rights states that: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”.
The Universal Declaration proclaims two broad categories of rights namely civil and political rights on the one hand and economic, social and cultural rights on the other. Its catalogue of civil and political rights includes the right to life, liberty and security of person, the prohibition of slavery, of torture and cruel, inhuman or degrading treatment, the right not to be subjected to
6. Ibid. Article 62.
7. Eide, A., et al (eds) “The Universal Declaration of Human Rights” A Commentary (1992).
arbitrary arrest, detention or exile, the right to a fair trial in both civil and criminal causes, the presumption of innocence and the prohibition against the application of ex post facto laws and penalties. The Declaration recognizes the right to privacy and the right to own property. It proclaims freedom of speech, religion, assembly and freedom of movement. The freedom of movement embraces the right of everyone to live in any country, including his own, and to return to his country. It also guarantees the rights to seek and to enjoy in other countries asylum from persecution and the right to a nationality.
Important political rights are proclaimed in Article 21 of the Universal Declaration of Human Rights, including the individual’s right to take part in the government of his country, directly or through freely chosen representatives. That provision also declares that the will of the people shall be the basis of the authority of government and requires periodic and genuine elections by universal suffrage. The catalogue of economic, social and cultural rights proclaimed in the Declaration starts with the proposition, expressed in Article 22 that:
Everyone, as a member of society… is entitled to realization, through national effort and international cooperation and in accordance with the organisation and resources of each state, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
The Declaration also proclaims the individual’s right to social security, to work, and to protection against unemployment, to equal pay for equal work and to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. The right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay is recognized in Article 24. Article 25 of the Declaration states that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family. It also recognizes the individual’s right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The right to education is dealt with in Article 26 of the Declaration which provides among other things, that education shall be free at least in the elementary and fundamental stages. Article 26 also declares that:
Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
Article 27 of the Declaration deals with cultural rights and states inter-alia, that every human being has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. The Declaration recognizes that the rights it proclaims are not absolute. It permits a state to enact laws limiting the exercise of these rights provided their sole purpose is to secure due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society8.
A government’s authority to impose such restrictions is further limited by Article 30, which provides that “nothing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms”, proclaimed in the Declaration. In other words, a government would violate the Declaration if its reliance on the power to impose lawfully restrictions or limitations on the exercise of certain human rights was a mere pretext for denying these rights.
8. Article 29(2) of the Declaration.
The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 as a resolution having no force of law has undergone a dramatic transformation and today few international lawyers would deny that the Declaration is a normative instrument that creates no legal obligations for the Member States of the United Nations.
THE BASES OF UNIVERSALITY OF HUMAN RIGHTS
The universal character of human rights is based on the belief that human rights are natural attributes of human beings. The abstract idea of inherent existence of rights in all human beings is the key reason why human rights are possessed by all people, and thus their universality. Human rights therefore cannot be seen as valid only in certain contexts and invalid in others. The validity of human rights is derived from the very source of their existence, the nature of human beings. The socio-economic-cultural and political conditions of peoples do not define human rights. It is likewise said that due to the formal agreement of most states to the Universal Declaration of Human Rights and the subsequent rights instruments, as well as their fulfillment of certain human rights, there is universal recognition of human rights.
Advocates of human rights writers of this school of thought have argued that human rights principles are found in the doctrines of the world’s religions, thus supporting the view that human rights are universal. An examination of different cultures would reveal that human rights concepts do exist in them and Hurights Osaka submitted on this issue that:
Freedom, justice, solidarity are neither Western nor Eastern values: they are universal. Infact, they stem from their belief in a superior moral force – God. Loyalty to these values transcends loyalty to particular ethnic groups, governments or nations9.
9. Hurights Osaka, “Human Rights and Cultural Values”. A Literature Review P.4.
Universal human rights affirmations are expressed in indigenous cultural forms and can be grounded in values common to the great religious traditions of the world. The Persians have used the Arabic word Hagg, the Hindi and Bengali have their Adhikar and the Sanskrit svetve, the Thais their Sitthi, the Koreans their Kooahri (or Kwolni) and the Filipinos their Karapatan – all these mean “rights”.
The universal Declaration of Human Rights does not affirm the institutions westerners often equate with human rights, such as parliaments or supreme courts, but rather allows for various cultural norms by simply setting forth those political, social and economic rights that contribute to the dignity of the individual person10. Accordingly, Jack Donnelly has said that some human right writers of the universal school have argued that the human rights concept actually evolved in the west, but this does not mean that human rights are not universal11. Senger has equally argued that while the concept of human rights actually originated in Europe (but not designed to become universal due to exclusion of women and other non-European races), Universal Human Rights adopted after the Second World War are as “new to the west as they are for China”, and thus there has been only fifty years since the two cultural spheres were confronted with such a universal conception for the first time12.
Some other writers have argued that there exists a “common culture of modernity” that has engulfed all societies by virtue of the rise of the concept of global economy. That states, regions, cities and families patterns of life are all shaped by this culture. Human rights became part of the world social process, the institutional expression of which is the international law of human universal standards of human rights13.
10. Traer, Robert, Faith in Human Rights: Support in Religious Traditions for a Global Struggle. (Washington D.C. Georgetown University Press 1991), P.158.
11. Donnelly, Jack. Universal Human Rights Theory and Practice (New York: Cornell University Press 1986), P.50.
12. Harro Von Senger, “Chinese Culture and Human Rights in Human Rights and Cultural Diversity – Europe, Arabic – Islamic World, Africa and China, Wolfgang Schmale editor, Keip Publishing, Goldbach, London, 1993, P. 292.
13. Hurights Osaka, “Human Rights and Cultural Values”. A Literature Review P.4.
Regardless however of the basis of justification for the universality argument, the universality of human rights must be recognized in the context of the different cultures that actually exist. Human rights today are essentially universal, requiring only relatively modest adjustments in the name of cultural diversity.
The Vienna Declaration of 1993 in support of universality of human rights expressly stated thus:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights 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 states, regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms14.
But Dias identifies three main sources of attacks on the universality of human rights namely, proponents of the new world order, developing country governments and leadership of religious fundamentalism movements and ethnic anarchists. He further explained that these attacks are sustained for the following reasons:
a) to justify the denial of human rights to some sections of their people;
b) to deny new assertions of human rights by excluding groups such as women and indigenous people;
c) to negate and destroy cultural pluralism;
d) to impose disabilities based on culture, religion, ethnicity, etc, upon minorities15.
14. Section 5, Part 1.
15. Hurights Osaka, “Human Rights and Cultural Values”. A Literature Review P.4, Dias, Clarence. “The Universality of Human Rights: A Critique” in Lokay an Bulletin, New Delhi, India, Volume 103, 1993, P.44-45.
The concept of universal human rights does not disregard the reality of varied cultures in different societies. The concept of human rights is not static. It relates to all persons and situations.
As Bielefelt put it thus:
The universality of human rights does not mean the global imposition of a particular set of western values, but instead, aims at the universal recognition of pluralism and difference – different religions, cultures, political convictions, ways of life in so far as such difference expresses unfathomable potential of human existence and the dignity of the persons. To be sure, pluralism and difference apply also to the concept of human rights which itself remains open and must be open to different and conflicting interpretations in our pluralistic and multi-cultural political world. Without the recognition of such difference within the human rights debate, the discourse would amount to cultural imperialism. Nevertheless, it seems clear that the very idea of human rights precludes some political practices, such as oppression of dissidents, discrimination against minorities slavery and apartheid16.
The principle of universality of human rights is also founded on the notion that all human rights apply uniformity and with equal force throughout the world. It thus opposes the doctrine of the so-called relativity of human rights, which maintains that in the application of human rights in concrete situations allowance should be made for particularities that attend to cultural, ethnic or religious varieties.
The principle of the universality thus addresses the assumption that distinct cultural traditions or religious tenets provide justification for the denial to individual members of a group of certain basic human rights. It censures “adaptations” of human rights to suit non-libertarian practices founded on customs within indigenous, ethnic or religious communities.
16. Hurights Osaka P.4, Heiner Bielefeldt, “Muslim Voices in the Human Rights Debates”. Human Rights Quarterly, John Hopkins Baltimore University Press, November, 1995, P.594.
THE ETHNICS OF COMMON HUMANITY OF MANKIND
Some human rights thinkers and activists express the view that the principle of universalism embodied in the Universal Declaration of Human Rights are given authority by deeply rooted traditions of universalism and tolerance in different cultures and religions from around the world. It is often argued that these traditions reflect centuries of diverse cultural practices, religious beliefs, philosophical reasoning and reflection on the nature of the human condition. Throughout human history, rules of behaviour have emerged that govern how people should treat one another, and in response to religious beliefs and ethical convictions, individuals and groups from diverse cultures and backgrounds have emphasized the importance of universalism and tolerance as the basis for peaceful co-existence. The importance of universal principles – the recognition that all people share a common humanity, that all individuals everywhere ought to be treated with equal respect and that individuals have negative and positive obligations to respect the dignity of others. This in fact has emerged as a fundamental and re-occurring element of philosophical reasoning, ethical conviction and religious belief. Arguably, these traditions provide solid cross-cultural foundations for the idea of human rights. This idea was reflected in a recent statement made by the immediate past United Nations Secretary-General Kofi Annan that suggested that ideals of tolerance and mercy have always and in all cultures been ideals of government rule and human behaviour. According to Annan:
Human rights are the expression of those traditions of tolerance in all cultures that are the basis of peace and progress… Human rights are universal not only because their roots exist in all cultures and traditions… The principles enshrined in the Universal Declaration of Human Rights are deeply rooted in the history of humankind. They can be found in the teachings of all the world’s great cultural and religious traditions17.
17. Annan, Kofi, Universal Declaration of Human Rights Illuminates Global Pluralism and Diversity: Statement by Secretary-General Kofe Annan on the Fiftieth Anniversary Year of the Universal Declaration of Human Rights. All Human Rights for all: 10th December, 1997, the University of Tehran, Iran.
Amnesty International has also expressed the view that the idea of human rights is given authority by different ethical and religious traditions from around the world. The demands of human rights movement are grounded ultimately, in the conviction that every human being has an intrinsic value. Over the centuries, this conviction has been given considerable authority from many sources – the dominant beliefs of many diverse cultures, the major world philosophies, and more recently, International declarations and laws18.
In supporting this statement, Amnesty International cites expressions of an idea that will describe the notion of ethic of common humanity from around the world. For instance:
i) Brahamanism: “Do naught unto others which would cause you pain if done to you”. The Mahabharata.
ii) Buddhism: “Hurt not others in ways that you yourself would find hurtful”. Udana-Varga 5, 18.
iii) Christianity: “Always treat others as you would like them to treat you”. New Testament. Mathew 7:12.
iv) Islam: “No one of you is a believer until he desires for his brother that which he desires for himself”. Sunnah.
v) Confucianism: “Do not unto others that you would not have them do unto you”. Analects, xv 23.
vi) Judaism: “What is hateful to you; do not to your fellowmen”. The Talmud, Shabbat, 31a.
vii) Taoism: “Regard your neighbour’s gain as your own gain, and your neighbour’s loss as your own loss” T’ai Shang Kan Ying P’ien.
viii) Zoroastrianism: “That nature alone is good which refrains from doing unto another whatsoever is not good for itself”. Dadistani-dinik, 94:5.19
18. Amnesty International (1992) Handbook. London P.10-11.
Despite the great diversity of religious, cultural and ethical belief and practice, similar expressions of the idea of the ethic of common humanity have been identified in different practices, religions and philosophies in different cultures and countries, and going back to history. The ethic is sometimes referred to as the “Golden Rule” – a “summary principle” that recognizes that all people share a common humanity and that the intrinsic value and dignity of all individuals everywhere ought to be respected and protected. In its negative form, this ethic rules put away double standards and aspires to uniformity and consistency in ethical practice, and recognizes that all individuals ought to be treated, with respect for their dignity, with equality and consistency of treatment.
This principle provides an element of protection for others with whom the individual has no direct links, including others who are different, and others who are distant. In this way, the ethic of common humanity aspires to establish interpersonal obligations beyond a person’s immediate connections or loyalties to individuals, families and groups. In its positive form, the ethic of common humanity establishes positive obligations of assistance and aid. Many people from diverse parts of the world argue that expressions of the ethic of common humanity reflect a shared commitment to these ideals, and are adopting these ideas as the basis for the construction of modern theories of human rights.
COMMONNESS OF CERTAIN RIGHTS ACROSS CULTURES
The Sudanese scholar Abdullah An-Na’im has developed a framework for thinking about the cross-cultural foundations of human rights that builds on the propositions that human cultures are:
i) identifiable and distinguishable from each other;
ii) are characterized by their own internal diversity; and propensity to change and mutual influence.
In An-Na’im’s view, these characteristics can be used to promote normative consensus within and among cultures through processes of cultural transformation20. In particular, An-Na’im has advanced the idea of an hermeneutical approach to cross-cultural and inter-faith dialogue. This is an approach that recognizes that religions are interpreted and re-interpreted and can be subject to change. The famous author puts it that: “Religious traditions are hermeneutical processes: they do develop, change and sometimes-improve in response to circumstances and in dialogue with their context”21.
Working within this framework, An-Na’im has rejected the traditional emphasis of liberal political theory, arguing that it is neither possible nor desirable to identify a set of neutrally formulated human rights. For An-Na’im, the central issue is not the possibility of abstract or absolute neutrality from any religious, cultural or ideological regime, but rather how to reconcile commitments to diverse normative regimes with a commitment to a concept and set of universal human rights. Given the facts of cultural and religious diversity, can human rights be interpreted and justified from within religious traditions, such that they are supported, rather than undermined as the “common core” of a universal morality. In considering this question, An-Na’im suggests that cross-cultural dialogue can promote universality at a theoretical or conceptual level by highlighting moral and philosophical commonalities of human cultures and experiences. The learned author opined as follows:
The Golden Rule of treating others as one would wish to be treated by them – which is found in some formulation or another in all the major cultural traditions of the world-can be presented as a universal moral foundation of human rights norms. This principle of reciprocity could provide universal rationale for human rights as those rights which
20. An-Na’im, A.A. “Cultural Transformation and Normative Consensus on the Best Interests of the Child”. The Best Interest of the Child: Reconciling Culture and Human Rights”. P. Alston, Oxford: (Oxford University Press 1994) P.63.
21. An-Na’im, A.A. et al, Preface. Human Rights and Religious Values: An uneasy Relationship. (Michigan; Eerdmas Publishing Co. 1995) P.vii.
one would claim for himself or herself, and must be founded on mutual respect and sensitivity to the integrity of other cultures, especially in view of colonial and post-colonial power relations between the North and South22.
An-Na’im, went further to suggest that though some religious value systems including orthodox perceptions of Judaism, Christianity and Islam – tend to deny women equality with men. Consequently, the enforcement of equality for women by the state could infringe the right of certain Jewish, Protestant, Roman Catholic and Islamic communities to religious freedom. But all the same there are certain rights that are common to some cultures in the world as demonstrated in the golden rule enunciated by An-Na’im.
For instance human rights thinkers and activists have responded by challenging the impression of a monolithic Islam and highlighted the heterogeneity and diversity of Islamic thought, practices and religious interpretations and suggest that societies with large Muslim populations cannot be represented by a single homogenous system of values. For example, Halliday notes that there are over fifty Muslim states in the world – with a variety of legal and political systems – and that there is no single body – political or religious – that speaks for the Muslim world as a whole. In contrast to Christianity, the Muslim religion is highly fragmented and operates without even a purported theological and legal central authority. Hence in Halliday’s view:
While many aspire or claim to speak in the name of all Muslims, none do. There is, for example, a world of difference between the position of Saudi Arabia, on the one hand, with its promotion of a conservative Islamic code of rights, and that of Tunisia, which has been in the forefront of the battle for universal rights and when even proposed at the pre-Vienna ‘African’ conference a denunciation of the threat to human rights posed by religious fundamentalism. In
22. See Note 20 Supra at 68.
confronting the claims made by governments, individual writers or organisations, one has to take account of their specific context and not assume that they speak for one ‘Islamic’ world or tradition, or that theirs is the only possible or legitimate interpretation of the religion. We are dealing with a diversity of views and interpretations, not a single body of thought23.
It is gratifying to note that despite these differences in the traditions, practices and interpretations of Islamic code; there is deep rooted nature of traditions of tolerance, rights, equality and social justice within the Islamic world. This is highlighted by Lauren in the famous “Charter of Cyrus” elaborated by “Cyrus the Great” in the Persian Empire more than two thousand years ago. This Charter recognized certain rights of liberty and security, freedom of movement and religious belief, inspiring the Sultan Farrukh Hablul Matin to write that: “For he, it was who, with supreme insight, launched an Empire based not on physical might but on the vision of a family of nations, linked by bands of humanity, truth and right”24.
In this context, Lauren focused attention on the work of Al-Farabi, an Islamic philosopher of the tenth century, who wrote in his book, “The Outlook of the People of the City of Virtue”, a vision of a Moral Society in which all individuals were endowed with rights and lived in love and charity with their neighbours25. Similarly, the UN Secretary General has highlighted the relevance of Islamic traditions of equity and mercy to the Universal Declaration of Human Rights, noting that Imam Ali, the fourth Khalifa after Prophet Mohammed, instructed the Governor of Egypt to rule with mercy and tolerance towards all his subjects. He stated thus:
23. Halliday, F., Islam and the Myth of Confrontation: Religion and Politics in the Middle East (London: I. B. Tauris, 1996) P.142-143.
24. Lauren, P. G. The Evolution of International Human Rights: Visions Seen. (Philadelphia, University of Pennsylvania Press 1998) P.11.
25. Ibid. P.11.
…Let the dearest of your treasuries be the treasury of righteous action… Infuse your heart with mercy, love and kindness for your subjects. Be not in the face of them a voracious animal, counting them as easy prey, for they are of two kinds: either they are your brothers in religion or your equals in creation”26.
Annan also highlighted the work of Sa’adi, the thirteenth century Persian poet, who offered a moving tribute to the values of tolerance and equality among all peoples and nations. He stated thus:
The children of Adam are limbs of one another. And in their creation come from one substance. When the world gives pain to one another, the other members find no rest. Thou who are indifferent to the sufferings of others do not deserve to be called a man27.
It is important to recognize that Islam is a highly rights focused religion and certain Islamic precepts and principles place a great emphasis on reform and rights to protect the interests and well-being of vulnerable, oppressed and needy groups. Arguably, these precepts and principles comprise important antecedents of the modern idea of human rights and when analyzed in their historical context, these precepts and principles can provide foundations for modern ideas about human rights. For example, more than 1400 years ago, Qur’anic injunctions emphasized the importance of human diversity, tolerance and respect for human rights, condemned, limited and regulated the practice of slavery, protected the interests of vulnerable children including orphans and girls, recognized rights that limited the harsh consequences of discrimination against women, and introduced reforms to ensure better provision for the poor.
It is observed that in some Muslim countries women still suffer by denying them certain human rights. In fact, the idea of a separate Islamic
26. Annan, Kofi, “Universal Declaration of Human Rights Illuminates Global Pluralism and Diversity”: Statement by Secreatary-General Kofi Annan on the Fiftieth Anniversary Year of the Universal Declaration of Human Rights. 10th December, 1997, the University of Tehran, Iran.
concept of the human rights of women has been promoted by movements for Islamization and fundamentalist movements in Muslim countries. Yet these difficulties and complexities should not be allowed to obscure the fact that millions of Muslims from all over the world rely on these deep rooted Islamic traditions of tolerance, freedom, equity and rights as a foundation for criticizing the violation of human rights. Hence, in response to the deteriorating human rights situation in the Sudan in 1997, an Imam stressed that Islam does not accept oppression and confiscation of the rights of the people and suppression of the freedom of expression28.
In Iran, a distinguished cleric and religious leader, the Late Ayatollah Taleghani, reasoned that the religion of Islam does not deprive people of their rights to protect, criticize, protest, discuss and debate. The famous religious leader stated thus:
The most dangerous of all forms of oppression are laws and restrictions forcibly imposed on people in the name of religion. This is what the Monks, through collaboration with the ruling classes, did with all the people in the name of religion. This is the most dangerous of all impositions, because that which is not from God is thrust upon the people to enslave and suppress them and prevent them from evolving, depriving them of the right to protest, criticize and be free. These very chains and shackles are the ones which the Prophet Mohammed came to destroy. Islam is an invitation to peace and freedom. Let us keep aside opportunism, group interests, forcible imposition of ideas and, God forbid, dictatorships under the cover of religion. Let us raise our voices with the toiling, oppressed, the deprived masses. Islam as we know it, the Islam which originates from the Qur’an and the traditions of prophet, does not restrict freedom. Any group that wants to restrict people’s freedom, the freedom to criticize, protest, discuss and debate, does not comprehend Islam29.
28. Mayer, A. E., Islam and Human Rights: Tradition and Politics 3rd ed. (Oxford, Westview Press, 1999), P.25.
It is sometimes proposed that East Asian countries including China, Japan, Korea, Taiwan, Hong Kong, Singapore and Vietnam share a common Confucian culture. The precepts that are thought to be representative of this culture are often encapsulated in the term “Asian values”. A second proposition that Confucian culture and “Asian values” constitute an obstacle to the full implementation of international standards in the field of human rights has also come to the fore in recent years, and was particularly influential in the negotiations at the World Conference on Human Rights. These international events have unleashed an unprecedented debate within East Asian societies about the nature and scope of so-called “Asian values” and their compatibility with ideas about human rights. Many Asian NGOs during the Vienna process contested the representation of Confucianism in terms of values that are opposed to modern human rights standards, and the representation of Confucian culture in terms of a monolithic set of “Asian values” has been challenged. Many authors have suggested that East Asia is a diverse region, with heterogeneous cultures and traditions, many of which are consistent with, and provide a foundation for, modern ideas about human rights. For example, Leys argues that imperial Confucianism only extolled those statements from the master that prescribed submission to the established authorities, whereas more essential notions were conveniently ignored – such as the precepts of social justice, political dissent, and the moral duty for intellectuals to criticize the ruler (even at the risk of their lives) when he was abusing his power, or when he oppressed the people30.
There are three main injunctions issued by Confucius which reflects on the emphasis on the ideas of universalism and tolerance as a basis for general morality. These are:
i) Do not impose on others what you yourself do not desire;
ii) Love your fellowmen as yourself;
30. Leys, S. “Introduction. The Analects of Confucius. Translation and Notes” by S. Leys. (London, W.W. Norton. 1997), P.xvi.
iii) Tell the master the truth even if it offends him31.
From the above Confucius Analects stated above certain human rights are deducible particularly the right to freedom of expression and this right is also recognized in Islam.
ANTECEDENTS OF CERTAIN RIGHTS IN CHINA
It is important to emphasis here that Chinese human rights thinkers have challenged the view that there is a fundamental incompatibility between socialism and human rights. It is variously argued that a range of political priorities and goals – such as political stability and order, economic growth, development, poverty reduction, the achievement of basic needs and the fulfillment of economic and social rights should take priority over the implementation of political and civil rights.
However, in Chinese culture there are certain rights traditions of old that are still observed today. These are:
i) LAW ABOVE POWER: Never alter a law to suit the whims of a ruler; law is superior to the ruler”31a.
ii) INDIVIDUAL RIGHTS AND JUSTICE AS A BASIS FOR HARMONY AND UNITY: What makes society possible? Individual rights. What makes individual rights tenable? Justice. Therefore when justice and rights are adjusted, there is harmony. Where there is harmony, there is unity31b.
iii) INDIVIDUAL RIGHTS AND WELL-BEING AS A BASIS FOR CORPORATE LIFE: The consequence of individual life without mutual aid is poverty; the consequence of corporate life without
31. Sen., A. K., “Human Rights and Asian Values”. The New Republic 33 July, 14-21, 1997.
31a. Ibid, Kuan-tzu, on Legislation, 4th to 3rd Century B.C. China: (UNESCO, 1969, 122).
31b. Ibid, Hsun-tzu, The Ways of Kings, 3rd Century B.C. China: (UNESCO, 1969, 522)
recognition of individual rights is strife. Poverty means anxiety; strife spells misfortune. In order to relieve anxiety and eradicate strife, nothing is as effective as the institution of corporate life based on a clear recognition of individual rights31c.
In China, Karl Max emphasized the importance of freedom of expression and the press when he stated thus:
A free press is the eye of the spirit of the people, ever and everywhere open, the confidence incarnate which a people has in itself, the bond of words that links the individual to the state and to the world, the culture personified which transforms material struggles into spiritual struggles, and turns the crude and the concrete into the deal. It is the confession without reservations of a people to itself… It is the spiritual mirror in which a people sees itself and self knowledge is the first prerequisite for wisdom. It is the light of the public mind that can be carried to the humblest dwelling more cheaply than gas can be laid on. It is universal, omnipresent, all-knowing. It is the ideal world constantly springing from the real world and flowing back to it, always enriched in spirit, in order to bring fresh life to it32.
ANTECEDENTS OF CERTAIN RIGHTS IN BUDDHIST TRADITIONS
Buddhism has many deep-rooted traditions of compassion, benevolence, universalism, tolerance and freedom. These traditions are applied as the basis of individual action, for inter-personal relations, and in public ethics. Many Buddhists believe that the ideals of the “righteous king” were reflected in the life, principles and actions of the great Emperor Ashoka, who ruled a huge Indian Empire in the third century B.C.. Ashoka witnessed the violence and carnage that resulted from battle between his own armies, and those of the king of Kalinga (Orissa), with horror and remorse. Convinced that the human cost of
31c. Ibid, Hsun-tzu, 3rd Century B.C. China: (UNESCO, 1969, 303).
32. Marx, Karl, Debates on the Freedom of the Press, Rheinische Zeitung, 1842: (UNESCO, 1969, 239).
violence and war are too high, and determined to learn the lesson of human history, and to ensure that the tragedies of war and violence would not occur again, the Great Ashoka renounced all violence and war. He converted to Buddhism, and set out to expand his influence not through annexation and force, but through “righteousness rule” – based on the idea of dharma, or right conduct. He developed new principles of public ethics and civil morality reflecting the values of compassion, tolerance, benevolence, and impartiality in an attempt to inaugurate a new era of justice and peace. He introduced new standards relating to the need for the tolerance of diversity, the obligations of leaders to the ruled, the administration of justice and concern with the responsibility for, the fulfillment of basic needs. These principles and standards which are now exemplified in the various human rights recognized world over were declared in stone inscriptions across the Empire. Although Ashoka was a benevolent ruler, rather than a democrat, or an advocate of human rights in the modern sense, his elaborations and practical applications of these new principles and standards are the bases of his reputation as a great leader and state-man, and Ashoka’s idea of right conduct is often ranked alongside democracy as one of the great ideas in human history33.
ANTECEDENTS OF CERTAIN RIGHTS IN AFRICAN TRADITIONS
Human Rights activists and thinkers have challenged the view that the modern idea of human rights is alien to traditional African values and practices and irrelevant to African needs and priorities. As Kofi Annan has remarked:
I am aware of the fact that some view the concept of human rights as a luxury of the rich countries for which Africa is not ready. I know that others treat it as an imposition if not plot by the industrialized west. I find these thoughts truly demeaning of the bearing for human dignity that presides in every African heart34.
33. Sen., A. K. “Human Rights and Asian Values”. The New Republic 33 July, 14 and 21, 1997.
34. Annan, Kofi, Address to the OAU Assembly of Heads of State, Harare, 2 June, 1997.
In this context some Human Rights activists have identified the presence of many human rights values in traditional African societies. For instance, the Akkan traditions. The term Akkan refers to a group of related languages found in West Africa and to the people who speak them, living predominantly in Ghana and parts of Cote d’lvoire, Wiredu suggests that:
Akkan thought recognized the right of a new born to be nursed and educated, the right of an adult to a plot of land from the ancestral holdings, the right of any well-defined unit of political organisation to self-government, the right of all to have a say in the enstoolment or destoolment of their Chiefs or their elders and to participate in the shaping of governmental policies, the right of all to freedom of thought and expression in all matters, political, religious and metaphysical, the right of everybody to trial before punishment, the right of person to remain at any locality or to leave, and so on35.
Deng argues that certain human rights values can be identified in the traditions and practices of the Dinka of Southern Sudan which are also found in other cultures. In his view, there is no doubt that some notions of human rights are defined and observed by the Dinka as part of their total value system36. While it is true that traditional Dinka society was highly stratified and characterized by inequalities, notions of human rights and human dignity nevertheless formed an integral part of Dinka value systems in terms of both the overriding goals for life and ideals for relationships between people. Deng suggests that these deeply – rooted values could be of practical application today, providing a basis for cross-cultural communication in Sudan, and enriching the process of universalization in the promotion of human rights.
35. Wiredu, K, “An Akkan Perspective. Human Rights in Africa: Cross-Cultural Perspectives”. A.A. An-Na’im and F. M. Deng, Washington, D.C. Brookings Institution, 1990, P.257.
36. Deng, F., “Human Rights Among the Dinka, Human Rights in Africa: Cross-Cultural Perspectives”. A.A. An-Na’im and F. M. Deng. Washington, D.C., Brookings Institution 1990, P. 271.
Others have emphasized that the ideas of the fulfillment of basic needs and distributive justice are deep-rooted in many African societies and traditions, and these ideas are often cited as antecedents of modern theories of economic and social rights. For example, Kazenambo suggests that in some cultures in Namibia, land was distributed to families for use on the basis of need. While recognizing that societies were stratified – not only by age and sex, but also into castes of nobles, freemen and slaves and that a certain proportion surplus food was given to the Chief, Kazenambo notes that the Chief’s control over surplus food was a “stewardship” on behalf of the group. Food was distributed for ritual occasions or stored for periods of poor harvest in the future, and Kazenambo expresses the view that mechanisms of this type reflected the principle (if not always the practice) that each individual was guaranteed adequate land for his or her sustenance37.
COMMON ANCESTRY OF MAN AND DIGNITY OF HUMAN PERSON
The idea of creation of mankind is similar in the history of major religions of the world. For instance in Christian religion, it was the decision of the Almighty God and the host of His heavenly bodies to make man in their own image38. In the Christian belief Adam and Eve are said to be the progenitor of mankind from whom all human beings be it black or white, male or female, rich or poor originated. All human beings are made up of blood, flesh and bone. There is therefore no distinction among or between them. They all bleed red if their blood vessel is punctured. Human beings, the world over therefore have common ancestry and origin with Adam and Eve as their original parents. This
37. Kazenambo, K. “The Right to Development. The Southern African Human Rights Reader. Towards Creating a Sustainable Culture of Human Rights, B.F. Bankie, C. Marias and J. T. Namiseb. Windhoek, Namibia, Gamsberg, Macmillan, 1998, P.118.
38. Genesis 1:26-28. Here God said “And now we will make human beings; they will be like us and resemble us. They will have power over fish, the birds, and all animals, domestic and wild, large and small. So God created human beings, making them to be like himself. He created them male and female and bless them.
Christian belief of common ancestry of mankind is not strikingly different from the beliefs of other major religions. This general belief is demonstrated in various myths and beliefs of other religions where human beings are regarded as brothers, sisters, neighbours or friends. That no harm should be done by one against the other as that would mean doing such harm to oneself.
In Islam, Moslems regard one another as brothers, but regard non-Moslems as infidels and less than human beings. In Qur’an both male and female human beings are equal without any distinction. There are verses in the Qur’an that support the normative equality bestowed by God on both men and women, and the best attribute of mankind is established by righteousness, rather than gender. This is demonstrated in a popular portion in the Quoran as follows:
We created you male and female and gave you nations and tribes so you may know one another. Indeed, the most noble of you from Allah’s perspective is whoever is the most righteous39.
In Islam both men and women are equal since they were so created male and female; as such both are endowed with human dignity and rights. The Organisation of Islamic Conference (OIC) Declaration on Human Rights states thus:
Woman is equal to man in human dignity and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage40.
So human beings from inception are regarded as equal and endowed with human dignity and other inalienable rights for self-development. But the horrors perpetrated by Nazi regime before and during the Second World War where human beings were subjected to indignities, torture, brutality and bestiality
39. Qur’an 49:13.
40. Article 5 of the QIC Declaration on Human Rights in Islam.
evoked universal opposition to the denial of human rights and dignity to human person. The United Nations Organisation (UNO) was founded in 1945 and its Charter constitutes the most basic document of today’s international relations. One of the principles of the UN Charter is the promotion of respect for and observance of fundamental human rights without discrimination based on race, sex, language or religion41. In 1948, the General Assembly of the United Nations Organisation adopted the document termed “Universal Declaration of Human Rights”. The preamble of this international document clearly recognized the dignity and equality of man and that these rights are inalienable to all members of mankind as human family and as the foundation of freedom, justice and peace in the world. The Universal Declaration of Human Rights in its Article 1 states thus:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
This 1948 Declaration has universal application to all individuals in all countries. This important document went further to enumerate the rights which includes the right to the dignity of human person. For instance Section 34 of the 1999 Constitution of the Federal Republic of Nigeria states that:
Every individual is entitled to respect for the dignity of his person and accordingly;
a) No person shall be subjected to torture, or inhuman or degrading treatment;
b) No person shall be held in slavery or servitude and;
c) No person shall be required to perform forced labour or compulsory labour.
41. Aricle (3).
In practical terms, torture and inhuman or degrading treatment take many forms and no person should be made to feel less than a human being. For instance, a greater percentage of Africans are living in abject poverty in the midst of plenty where the few leaders are enjoying, most people are denied access to justice while some do not know how to go about to seek for justice. Women are relegated to the background through the manipulation of culture and religion. Women are therefore subjected to all forms of humiliating and degrading treatment. In some places adults are still subjected to corporal punishment, and death sentence on convicted criminals are done either by public execution or hanging on the neck rather than more humane methods of electrocution or lethal gas which are currently available. Public execution which was introduced by our colonial masters and retained by the military should never be allowed. An individual’s last moments on earth – criminal or not should not be deliberately made a public spectacle subject to morbid curiosity and ribald comments of society that sanction it42. It is therefore asserted that human rights are meant to be universal standards, coupled with the inherent dignity that protect it based on common vision of all mankind. And without sufficient knowledge of common ancestry of mankind, dignity of human being cannot suffice as the ultimate goal of human rights43.
THE LIMITS OF UNIVERSALITY
Unfortunately, the very motivations and benefits of human rights pose direct challenges to their existence. Human rights are universal since they are said to belong to all humans in every society. Human rights are also supposed to be inalienable; because they flow from and protect human existence, they cannot be taken away without endangering the value of that existence. However,
42. Jadesola, Professor, “A Search for Decency and Human Dignity” Text of Paper Delivered at the Annual NBA Conference, Abuja 2004.
43. Donnelly, Jack, Universal Human Rights in Theory and Practice. (Ithaca: Cornell University Press, 1989), P.17.
these universal and inalienable qualities of human rights are disputable in both their conception and operation.
To some extent, the universality of human rights depends upon their genesis. Moral standards, such as human rights, can come into being in two manners. They may simply be invented by people, or they may only need to be revealed to, or discovered by, humans. If human rights are simply an invention, then it is rather difficult to argue that every society and government should be bound by something they disagree with. If human rights have some existence independent of human creation, however, then it is easier to assert their universality. But such independent moral standards may arise in only two ways: if they are created by God, or if they are inherent in the nature of humankind or human society. Unfortunately, both these routes pose substantive pitfalls. No divine origin for universal human rights would be acceptable, nor is it often advanced, since there is no one God that is recognized universally; just because Christians or Moslems claim that their divinity has ordained and proscribed certain treatment of humans does not provide the legitimacy needed for that moral code to bind devotees of another religion.
The alternative origin that could justify universally would be the acceptance of human rights as natural rights that anyone could deduce from the nature of humankind or human society. However, an atheistic critique of divine moral standards is just as telling when applied to rights derived from human nature. The God or human nature that is said to be the source of human rights may be nothing more than an invention of the human mind, an invention that may vary according to whoever is reflecting on the issue. A less stringent argument is still just as damning. Even if one accepts that there is a God or a core human nature, there is no definitive way to sort out differing visions that people have of God or human nature. The universal authority of any particular view is initially endorsed only by the adherents of that view. Nevertheless, it is possible for human rights to have their genesis in religion or the prerequisites of human society. Even if human rights start within a specific religious or societal tradition, they could acquire universality as other people come to agree. It is also possible for human rights to become globally recognized because several different approaches may reach the same conclusion. For instance, atheistic natural rights theorists, Christians and Muslims, may all eventually agree for quite different reasons on a number of ways in which people should be treated; these then can form the basis of human rights standards. However, the different paths to that agreement only lead to an agreement on the benefits, not necessarily on their origin, justification, or application. The differences become important when one moves from a focus on the benefits identified as “human rights” to their practical operation; there is a great difference between a duty-based and claim-based fulfillment of the benefits.
Another set of problems arise if human rights are creations, pure and simple, of the human intellect. Human rights standards could be created in a variety of ways. In one method, a gradual growth of consensus builds around norms of behaviour that eventually acquire an obligatory character. It may be difficult to trace the epistemological origins of this consensus, but the end result is a broad base of agreement that human beings should be treated in certain ways. In another method, there may be a conscious attempt to create binding rules of behaviour in a more contractarian manner. A certain group of individuals or state government may lead the development of international agreements on human rights. And, as more states join in these agreements, the more and legal force of the international accords becomes stronger and stronger. Essentially this is the course that has been followed in the development of the human rights documents created by the United Nations and other regional international organisations.
In both these approaches to the creation of human rights, the motivation may be principled or consequentialist. If principled, human rights are necessary because they reflect certain moral standards of how humans should be treated. If consequentialist, human rights are needed because their standards may prevent the awful repercussions of having no limits on the manner in which governments or groups may treat other human beings.
Beyond the genesis of human rights, wherever they come from, lies a fundamental challenge to their universality, regardless of their origin. With any inception of human rights, one is faced with having to acquire acceptance of their authority. There is a problem in that not everyone will share the same motivation or inspiration for human rights. Not everyone will agree that everything asserted as a human right is indeed one. At a very basic level, the proclamation and acceptance of human rights norms inherently involves majoritarian morality. Human rights are agreed to exist because a majority says they do exist. Specific goods and benefits are treated as human rights because a majority says they do. But, what of the minorities who object to the concept of universal human rights, or disagree with the particular entitlements to be included in lists of human rights? Why should they be bound by what others believe? What happens when a minority sincerely believes that some benefit being deliberately denied them by the majority is a matter that they view as a human right? In many specific human rights contexts, a problem of moral majoritarianism assumes central importance.
With either an invented or natural genesis, human rights are meant to protect some aspect of humanity. Human rights may be those entitlements that we have by virtue of being human, but there are real difficulties in determining which attributes of human life require protection under human rights standards.
Basic human traits are determined by both physical attributes and the activities undertaken by a human. The most obvious physical qualities encompass gender, race, size, shape, and health-including disabilities. Among human activities, one can distinguish between those necessary for sustaining life and those which fill that life. The requirements for sustaining life include; nourishment, shelter, clothing, and sleep. Proper health care is needed for human life to be sustained in the long term. And the human species can only survive with procreation. But most humans do not merely exist; they fill their lives with myriad activities. Perhaps the most important activity is that which is usually referred to in order to distinguish humans from all other animals: humans have a creative imagination that provides higher forms of thought that lead to intellectual inquiry and spirituality. Humans also communicate constantly the results of their thinking. Physical movement from one place to another is another continuous activity of all but the most disabled humans. Human beings are in essence very social animals and much of our activities take place through associating with other humans. In some instances, this association is the special intimacy of kinship or close friendships. In others, humans act gregariously with acquaintances and many prefer strangers.
The consequences of this gregariousness furnish the underlying problems of establishing universality in the human attributes described above. Most humans live within readily identifiable social units, such as family, tribal, or national groups, that fundamentally shape the manner in which an individual’s most basic characteristics are manifested. These social groupings determine what languages one learns to speak, the style of dress, acceptable food, religion, form of communication and etiquette, sense of physical beauty and ugliness, the kind of shelter, and the notion of division of roles within one’s social groupings. These are not simply superficial differences. While some individuals willingly adopt new life styles, many believe that their lives can only be satisfying by maintaining their traditional ways. For some, indeed, styles of dress, food and behaviour are inextricably linked to deep religious beliefs. One group’s delicacies or even staples may be quite unacceptable to others. There may be just disdain or revulsion, such as the reaction of many people to eating raw fish, or there may be a strong, religious offence taken to certain foods, such as offering pork to Moslems or beef to Hindus. Thus, many profound differences emerge among human beings that are the product of where they were born and with whom they grew up. While one could identify various qualities of human life that are universal, there is tremendous variation in the manner in which those qualities are realized.
These acquired societal values pose difficulties when they define, or even conflict with, the basic attributes of human life. Individual societies develop particular conceptions of what constitutes a dignified life, the essential needs of humans, as well as the relationship between individuals and their community. Particularly complex issues arise when there is a clash between conflicting spiritual and temporal values within or between societies. These difficulties come to the forefront when one tries to ascertain whether global standards can be set by human rights on the treatment that must be given to all human beings.
It is observed that there are strong objections to the manner in which human rights have been conceptualized. Many lists of human rights read like specifications for liberal democracy. A variety of traditional societies can be found in the world that operate harmoniously, but are not based on equality let alone universal suffrage. The question then arises; whether the ‘human rights’ advocated today are really civil rights that pertain to a particular liberal conception of society? To a large extent, the resolution of this issue depends upon the ultimate goal of human rights. If human rights are really surrogate liberalisms, then it will be next to impossible to argue their inherent authority over competing political values. In order for human rights to enjoy universal legitimacy they must have a basis that survives charges of ideological imperialism. Human rights must have a universally acceptable basis in order for there to be any substantial measure of compliance. And the present state of human rights as demonstrated in the Vienna Declaration and Programme of Action, 1993 has brought to the fore the fact that human rights is universal even in the midst of certain religious, cultural and historical variations.