Cultural Relativity and International Human Rights Laws - Assignment Example

Tutor: xxxxx Title: Institution: xxxxx Date: xxxxx Introduction Cultural relativism, described as the contention that individual values, apart from being universal, differ to a large extent based on diverse cultural perspectives.1 According to Ayton-Shenker (1995), cultural relativism can also linked to the promotion, interpretation, protection in addition to the upholding of human rights which is applied within diverse ethnic, religious and cultural traditions. On the basis of this viewpoint, human rights can be described as culturally relative as opposed to being universal. It is against this backdrop therefore that cultural relativism requires tolerance towards the practices and cultural traditions of people in different societies. What is evident is that cultural relativism has ignited a hazardous risk to the efficiency of the application of international law and the international human rights system.2 As international human rights law continues to become more proactive to demand the freedoms of individuals across the world, certain practices and ideologies promoted by cultural relativism have affected these efforts. This particular paper therefore aims to highlight the problems affecting international human rights law, as a result of the notion that cultural relativism requires tolerance towards the practices and cultural traditions of other people. The international human rights laws are basically instruments that have been devised through international consensus and consultation with the fundamental purpose of protecting the rights and freedoms of people in society.3 This includes rights specified by the Universal declaration, which is understood as an attempt to promote pluralism. For instance, Article two of the declaration guarantees freedoms of all individuals without any sort distinction such as language, religion, sex, race and many other factors. 4On the other hand as highlighted by Ayton-Shenker (1995), cultural relativism is grounded on two major postulates. The primary viewpoint argues that a person is not able to come up with moral judgements with reference to another culture since judgements are relative to the culture in which an individual was brought up. The second assumption is that substantive human rights differ from one particular culture to another as a result it is essential for human rights to reflect the political, religious , cultural and legal practices that exist in a particular society . This therefore sets up a plea for mutual tolerance and acceptance. However, according to Ayton-Shenker (1995), taken to its extreme, the notion that cultural relativism requires tolerance towards the practices and cultural traditions of other people, presents serious danger to the efficiency of the application of international law and international human rights system that has been thoroughly developed over the decades. 5 One of the problems affecting the international human rights law as a result of cultural relativism is that cultural relativism acts as a justification for exploitive as well as an inappropriate behaviour in the application of human rights .6 Ayton-Shenker (1995) argues that in the context whereby cultural traditions single-handedly govern the compliance of states with international standards, the prevalent abuse, disrespect and defiance of people’s rights would be accorded authenticity. Additionally, this notion implies that the other societies or states are not entitled to any comments about states that have leaders who carry out slavery or even starving their own citizens. As evidence of this statement, opponents of the notion point out to the case of the South Africa apartheid. The United Nation’s obligation of mandatory sanctions during the year 1977 on the South African regime implied that the global community did not support the viewpoint that apartheid case was merely an affair of South Africa. The Security Council had the authority to proclaim any case an incident of threat to universal security and peace, in spite of the fact that the nation most challenged deems can be described as a component of internal affairs.7 Claude and Weston (1992) argues therefore that the unintended consequence of relying on cultural relativism is that the notions associated with it is capable of giving comfort to dictators who defend abusive practices by taking advantage of historical sanctions in local traditions, for instance, the use of limb amputations as a form of punishment in some countries. Cultural relativism therefore raises new challenges to the continuing pursuit of universal human rights since human rights cannot be reconciled with the clash of cultures that has come to characterize our time (0). A further problem ignited by the doctrine of cultural relativism is based on the fact that it has been adopted as part of government Meta – narratives that involve actively rejecting the application international human rights laws in state politics. The acceptance of relativism by governments has directly brought about conservative political repercussions such as dictatorship and violation of human rights. Another major assumption propagated by the cultural relativism view that has presented a challenge for the international human rights law is the assertion that contemporary global human rights laws are largely devised from western moral perspectives.8 Described as the theory of conspiracy of human rights, this theory claims that people’s rights are a creation of the Machiavellian views of the West intended to harm the progress of the developing nations. These notions challenge the plain fact that there is an increasing awareness in the world regarding the need to reinforce respect for human rights. According to Claude and Weston (1992), this theory, just like the Marxist postulation that political and civil rights are set aside for bourgeois freedoms that cater simply for the welfare of the capitalists maintains that human freedoms provide the same function in the globe. It therefore views people as mechanisms of control due to the fact that they are indissolubly connected to the right to properties, and since within the area of global economic relations, the international human civil rights association encourages unlimited trade that critically affects the economies of the developing nations. Furthermore, advocates of the conspiracy theory allege that human rights support only results to moral imperialism. In essence the outcome, if not the plan of such a restricted political fixation is to open the entrance for most brutal and voracious economic forces in the global community which is brought about by the use of the international framework of human rights protection. 9 Cultural relativism is also a setback to affecting the international human rights law due to the fact that it causes a great challenge to women’s rights. 10The special Rapporteur reports by the Office of the High Commission for Human Rights revealed that women are more often than not given the role of cultural producers or repositories of traditional culture in the context of a fast changing society. Sexual discrimination of women is often defensible as being in line with culture and religion. Arguments are therefore made to defend such notions from state inquiry through the relegation to the private realm of the home as well as the protection of men’s privacy in personal and matters related to the family. As a result of this notion, women have therefore been particularly susceptible to human rights exploitation within the private sphere, with respect to issues such as marriage, custody of children, inheritance, sexuality and reproduction. Cultural ideologies are also used as a means to control and police female sexuality, for instance, in the phenomenon of honour killings as well as forced marriages. 11 . A major challenge for the application of international human rights law also arises from the relationship that exists between individuals and the society.12 According to Okafor, (2007), in the framework of cultural relativism individuals are actually viewed as different from the society. Cultural relativism is therefore used as an intentional excuse to evade responsibility for violations of human rights. 13 For instance, many African traditional cultures have been perceived as placing a lot of emphasis on the community or society as opposed to individuals, yet it is individuals or the people who contribute to the existing values in society. One notable example is that existence of dangerous practice such as female genital mutilation which still exists in certain African cultures. Such practices affect the right to life for many women, who sometimes bleed to death, however based on the fact that the practices are part of the societies culture, fulfilling societal culture becomes important as opposed to preserving the humans rights of individuals as propagated by the international human rights law. 14Okafor, (2007), also reveal that even in the context of western cultures, there are still many societies that do not share the opinion that that there should be a lot of emphasis on the rights of every person. For instance as when evaluating the manner in which people belong to an organic or hierarchical society, every individual focuses on how they can contribute to the society. This results to a situation whereby progressing societal development is emphasized as opposed to equality of individuals which is a major postulate of international human rights law. Another challenge that cultural relativism has brought to the application of global human rights law is based on the character of human rights as viewed by the relativism perspective. In many cultures of the world, what is evident is the analogy that, human rights are not necessarily required for the protection of people freedoms.15 A study conducted by Perry (1997) revealed that there are cultures that do not require the protective values. These particular cultures therefore put little or no consideration to human rights protection which further develops a set back to the application of global human rights law.16 For instance, in the previous years, the United States had adopted an approach of cultural relativism in relations to death penalty for juveniles, yet this particular practice was widely acknowledged as a violation of the international customary law. Another evident example that reflects the minimal consideration by cultures in the protection of human rights occurred in 1948 after the formulation of the Universal Declaration of Human Rights. Perry (1997) reveals that the initiation of the 1948 Universal Declaration of Human Rights begun with a promising start, however sentiments mostly propagated by cultural relativism have derailed the protection of human rights in certain societies. As expected all countries were supposed to observe and implement the specific rights proposed by the Universals Declaration however this has been difficult basically due to cultural relativism. For instance in countries where marriages that are arranged are customary, one would definitely expect that Article 16, clause 2 of the universal declaration shall be applied (one shall enter into marriage only with full and free consent of the soon to be spouses). However, this particular clause has been routinely disregarded by many nations and cultures. For instance in many Islamic and Indian cultures couples are often forced to get into the marriage institution without their consent. According to Donnelly (2003) a scholar of universalism, cultural relativism has challenged the international human rights law based on two different levels .The initial level entails the list of human rights that are supposed to be protected. Donnelly (2003) concludes that the cultural relativism thesis is grounded on the fact that societies are different and, different societies have different viewpoints concerning what is write or what is wrong, as a result substances of human rights should also be perceived as different. For instance if one society perceives female genital mutilation as a violation of women’s rights another society perceives the practice as legal and moral because it upholds the religious and cultural practices of that particular society . Donnelly (2003) further highlights that, the perspective that different societies have different views concerning what is right or what is wrong has caused a problem in the application of international law because it has become difficult to develop critical morality standards that are dependant on the level of support from different society. This is because every society tries to set moral standards based on their own cultural and religious interests.17 The second level proposed by Donnelly (2003) concerning how cultural relativism has challenged the international human rights law is grounded on the aspect of interpretation of human rights violation. According to Donnelly (2003), the interpretation of cultural relativists, about human rights violation is also a key element in the application of human rights. Cultural relativists believe that different people interpret the violation of human rights differently, and most essentially this depends with their cultural, social and religious socialization. As a result the application of similar standards in every individual’s life or society through international human rights law becomes rather difficult.18 For instance in certain communities mob justice is not perceived as a violation of the right to justice and the right to life, but rather it is embraced as an approach of reducing the level of criminal activities in society. Cultural relativism is also inclined in the notion that development of the economic and social rights of the state is the most essential aspect in facilitation of human rights.19 According to Stamatopoulou (2007) cultural relativism promotes precedence of economic and social rights as opposed human, political and civil rights. The argument raised is that if the economy or the society is well developed, individuals will have the human rights they require. Stamatopoulou (2007) however argues that this sort of precedence of economic rights has resulted to violation of human rights in many nations where the international human rights law is not effectively observed. For instance, the Chinese White paper of 1999 stated that the fundamental rights of the people were to ‘’eat and get filled and also to dress warmly’’. These were the primary demands for the Chinese people who had experienced many years of hunger and cold. Civil rights and political rights which are entrenched in the international human rights law did not take any sort of precedence to the illiterate and poor multitudes. The Chinese White paper of 1999 further reveals that many Asian states have over the years used cultural relativism on the basis of economic development a support for them to violate human rights and also endanger the security of their own people. Ironically, economic development is usually practiced along authoritarian regimes which practice political repression while at the same time they starve their people in torture houses in the name of improvement of economic rights. In addition, the victims of oppression are those who undergo torture or imprisonment. Furthermore they are the same individuals who usually speak against the errors of the government such as failure to alleviate suffering among its people. On the other hand an ending to oppression implies elimination of poverty through depriving bodies that facilitate accountable governance such the media, their freedoms such as free press.20 A conclusive argument raised concerning how cultural relativism affects the application of international human rights law is the affirmation that traditional cultures are evidently sufficient in the protection of human self-respect and that international human rights laws are basically pointless .In addition as those in disagreement continue to propagate that international laws such as the universal human rights are just disruptive and intrusive to the protection of liberty, human life and security. 21More, (2006) highlights that cultural relatives believe that rather than the international law framework working towards suiting the human rights of a given culture, it embodies common cores and values that are different from one culture to another. As a result as argued by Sen (1999), international human rights laws limit human rights from fitting in a particular culture. 22More, (2006) therefore proposes that it is essential to draw or derive human rights from the traditional cultural values of the people .In addition traditional cultures should be recognized and approached as partners in the observation and promotion of human rights. Based on common values and like-minded practices from customary cultures would facilitate mutual understanding and respect for human rights and also foster a more efficient international cooperation in the application of human rights. Without the better understanding of the manner in which customary cultures work towards the protection of human rights, international human rights becomes extremely difficult to implement.23 More, (2006) also proposes that there should be a more detailed understanding concerning the ways in which traditional cultures facilitate the protection human rights. This particular insight would allow advocacy of international human rights law to assert what is referred to as cultural relevance and legal obligation within different cultural contexts. More, (2006) concludes that the appreciation and recognition of a certain cultural context serves to facilitate as opposed to reducing human rights observation and respect. As a result if such an approach is adopted in the application of international human rights law relativism would not be a challenge but rather a catalyst for ensuring that human rights are well observed and implemented.24 Conclusion From above analysis a number of key issues can have been raised. One of the issues is that if human rights are supposed to be perceived as universal they should truly be based on cross cultural norms rather than the doctrines and views of particular culture. Universal human rights laws are maximally all-encompassing. Within the confines influenced by the standards of autonomy, global human rights law has room for the biggest cultural diversity understanding of human self-respect; as a result, it is a significant liberal aspect of cultural pluralism. Secondly, it is also exceptionally suitable mechanism to offset the challenges to the human dignity caused by states, its outcomes and mechanisms. Acknowledging human rights universality is therefore not to challenge the relativity of value or cultural pluralism. The paper also acknowledges the normative energy of the system of international human rights in the face of the set backs caused by cultural relativist, which, eventually, seem to state minimal demands of the international legal system .Universalism in human rights has to be integrated with cultural sensitivity, with the capability for diversity, but also with sovereign ethical standards that can redefined to cultural particularism. Although cultural relativism has resulted to a number of varied challenges to the application of international human rights law as highlighted by the paper, the debate ought not to be a challenge pitting both viewpoints, nor engulfed in the ancestry of human rights. To a certain extent, it ought to be a discourse that can facilitate effectiveness in the observation and implementation of human rights across different cultures. References Ayton-Shenker, Diana, The Challenge of Human Rights and Cultural Diversity (1995). Claude Pierre, Human rights in the world community: issues and action, implications of cultural relativism (2006). Claude, R & Weston, H, Human Rights in the World Community: Issues and Action, (2002). Donnelly Jack, Universal human rights in theory and practice (2003). More, E, The Universal Declaration of Human Rights in Today’s World (2006)11. Moller, C & Fanny, B, Violence against Women: Cultural relativism: An enduring challenge (2009). Perry, Michael, ‘’Are Human Rights Universal? The Relativist Challenge and Related Matters’’ (1997), 19 Human Rights Quarterly. Sen, K, “Beyond the Crisis: Development Strategies in Asia”, in Sustainable Development and Human Security, Second Intellectual Dialogue on Building Asia’’ (1999) 98 Asian Studies, 22-24. Sabina, A, Conceptual Framework for Human Security (2002). Okafor, OC, The African human rights system (2007). United Nations, World Programme for Human Rights Education (2004). Stamatopoulou, Elsa, Cultural rights in international law: Article 27 of the Universal Declaration of Human Rights and beyond Elsa (2007). Read More