Universal Human Rights versus Legal Pluralism - Essay Example

Universal human rights versus legal pluralism Introduction: Minimal human right standards may exist throughout the world, but the correct implementation of such standards is a controversial issue. In view of the latest spate of international conflicts, the relationship between human rights and religion, in particular Islam, is a vital topic. Human rights generally rely upon the standards of morality that are deemed just in the Western world and these are applied on a universal basis. But the enormous amount of cultural and religious diversity existing among individuals from different ethnic groups in effect means that different standards are applied by different groups in assessing what constitutes freedom and rights that must be mandatorily protected. What constitutes an inalienable right on the part of one ethnic group might for example, be repugnant in the context of moral standards that are held to be the ideal by another cultural group. Nowhere is this more evident that Islam, where religious precepts based on Sharia may in some instances, contravene the principles underlying human rights and liberty, as conceived in the Western world. The decision of the European Court of justice in the case of Welfare Party v Turkey1 appears to support the conclusion that the protection of human rights may in some instances, take precedence over the preservation of religious and cultural diversity. The question that rises in this context is whether universal human rights are essentially incompatible with legal pluralism? The concept of universal human rights raises the issue of a controversy in the relationship between (a) institutionalization of religion in the State through religious beliefs or practices versus human rights norms.2 This study will examine whether universal human rights could be compatible with maintenance of religious and cultural diversity. Analysis: Those advocating universality claim that international human rights “are and must be the same everywhere”, just like the rights to equal protection, physical security, rights to freedom of speech, expression and religion and the right to a fair trial3. As pointed out by Donnelly, human rights on a world wide basis are irrevocably tied to claims of universality4. Human rights, if taken literally, are understood to be the rights one has simply because one is human. On this basis, rights accruing to every individual must of necessity be equal rights, because everyone is human, and these rights would be inalienable, because they are associated with the human state. On this basis, basic human rights can be seen to be universal. But as Donnelly points out, the moot question is whether such rights do exist in practice, because universal human rights is more an abstract concept5. Are the rights recognized under the Universal declaration of Human Rights universal, bearing in mind the diversity in cultural systems all over the world? The legal instrument exemplifying human rights is the Universal Declaration of Human Rights and the fundamental assumption underlying this legislation is “equal human dignity.”6 Hence, the notion of universal human rights aims to elevate those who are treated in an inferior manner, or those who occupy an inferior position in society, to a position of equality with the others. An absolutist view holds that there is a set of moral principles that are “universally valid as standards of judgment……[but] it is the content of moral principles, not their existence, that is variable among human beings.”7 As opposed to this, the advocates of cultural relativism are of the view that “rights and rules about morality are encoded in and thus depend on cultural context, the term culture often being used in a broad and diffuse way that reaches indigenous traditions and customary practices to include political and religious ideologies and institutional structures8. On this basis, the notion of what rights should accrue to each individual will be determined on the basis of what constitutes right and wrong, which would differ in different cultures, because the underlying moral basis within which these values take root would themselves differ. From this perspective therefore, it would be difficult to arrive at a universal standard of human rights that would be universally acceptable across all cultures and groups. Multiculturalism therefore accords greater importance to respect for diversity and the local autonomy associated with it. There is also an important consequence arising out of this diversity, namely that that no single culture is justified in imposing its own ideas upon another culture, albeit it be in the guise of enforcing international human rights9. Cultural relativism developed “because of the realization that there is no way to play this game of making judgments across cultures except with loaded dice.”10 Investigators and advocates working with human rights may also take into account the cultural context within which events occur, but they are likely to assess a State’s conduct against international human rights standards, based upon which they may condemn the State and require it to institute corrective measures, thereby advancing the Human Rights movement11. There has been a considerable amount of controversy over the development of an international human rights regime. Engle argues that when one is in support of human rights, it could also be construed as opposing all cultural practices that may be seen to be in conflict with one’s own interpretation of those human rights12. Similarly, if certain cultural practices are supported, then it may be argued that they rise in violation of human rights. As a result, culture and human rights may largely be seen as oppositional forces. Steiner et al have discussed the legal conundrums inherent in applying human rights to local places. Firstly, human rights law sets “universal standards using legal rationality” but this position impedes the adapting of those standards within different legal contexts. Secondly, human rights need to be presented within the local cultural context which helps to package them in familiar terms, but this becomes more difficult when they challenge the existing assumptions about power and relationships inherent within that culture. Thirdly, if human rights are to have a local impact, they must be framed in terms of local values and images, but to attain international legitimacy, they must be framed in terms of transnational rights principles.”13 Universal human rights as set out under the Universal Declaration of Human Rights largely constitute the views and culture of western democratic societies, which are put forth as basic human rights that should be available to every individual anywhere in the world. But as Engle et al point out, to be for human rights may in some instances oppose the acceptance of cultural practices in other parts of the world that could conflict with this Western interpretation of human rights norms. This issue is especially relevant in the context of the Islamic faith, where certain restrictions on basic human rights could be viewed to be acceptable on religious grounds. This is the essential conflict posed between human rights and cultural pluralism and was raised especially clearly in the case of Welfare Party v Turkey, where the attempt by one party to impose a religious state in Turkey was held by the Court to be a violation of secular, democratic principles ensuring basic human rights and freedoms to all people. The Welfare Party v Turkey case: In the case of Welfare Party and others v Turkey14 (European Court of Human Rights, 2001), the European Court of Human Rights unanimously held that Turkey had not violated Article 11 of the European Convention of Human Rights on freedom of association, in dissolving the Islamist Welfare Party (Refah Partisi). The Court upheld the decision rendered by the Turkish Constitutional Court to dissolve Refah, a religious organization which was accused of carrying out activities contravening the secular principles of a democratic society. Some of the religious goals that were being actively promoted by the party included the introduction of sharia and the development of a theocratic society, both of which were fundamentally opposed to a secular democratic society. The Appeal in this instance was filed by the Welfare Party, which contended that there had been a violation of its rights to freedom of association under Article 11 of the European Convention of Human Rights, which states: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State15. The Rafisi party contended that the state of Turkey in banning its Party, has violated the individual rights provided under Article 11, for individuals to gather together and form associations to protect their own interests, religious or otherwise. In finding for the Defendant Turkey in this case, the Court outlined a plethora of evidence suggesting that the Welfare Party posed a potent threat to the secular and democratic framework of Turkey. Although the composition of Turkey is 99 percent Muslim and there has been a tendency for political parties to use religion as a tool, this has not generally been successful in overthrowing the secular and democratic principles on which the country is founded. Secularism has been strictly enforced in the country, to an extent that to Western societies, may seem excessive. In the case of the Welfare Party, Mr. Erbakan of the party had called for implementing a plurality legal systems that would be based upon the individual’s religion16. Another member of the Party, Hasan Huseyin Celan had openly stated, “If you want the solution it’s Sharia”.17 The Court also found that yet another member of the Welfare Party, Sevki Yilmaz had “issued a clear call to wage a jihad (holy war) and had argued for the introduction of Islamic law.”18 In a speech in Parliament, yet another Welfare Party member, Ibrahim Halil Celik had declared, “I too would like blood to flow…..I will fight to the end to introduce sharia.”19 These and other statements evidenced the intent of the members of the Party to introduce Sharia, the Islamic law and a theocratic society in Turkey. In rendering its judgment favoring Turkey, the Court pointed out that a regime based on sharia does not conform to the human rights and democratic ideals spelt out under the human rights Convention, especially in regard to “its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.”20 In the Court’s opinion, the actions and speeches of the members of the Party clearly revealed its long term policy of setting up a regime based upon Islamic law, within the framework of a plurality of legal systems. The Court also set out standards by which the actions of such freedom restricting against which such parties must be judged. It stated that "a political party may campaign for a change in the law or the legal and constitutional basis of the State on two conditions: (1) the means used to that end must in every respect be legal and democratic; (2) the change proposed must itself be compatible with fundamental democratic principles."21 The Court also clarified that only when there are “convincing and compelling reasons” can a restriction on political parties be justified.22 In justifying its decision supporting the dissolution of the Welfare Party by Turkey and declaring that there had been no violation of Article 11, the Court also noted that a State cannot be required to wait without intervening, until the party had taken power and started implementing steps to contravene democracy, especially when there were earlier signs evident of the party’s intent to do so. The Court also held that in ascertaining whether dissolution of a political party is necessary, three important aspects were to be taken into account (a) whether there was plausible evidence that an imminent risk to democracy existed (b) whether acts and speeches of the leaders could be imputed to the Party and (c) whether there was a clear indication that the model of society proposed by the Party was incompatible with democratic principles23. Are universal Human Rights incompatible with legal pluralism? Bielefeldt applies an epistemological perspective to the problem of whether legal pluralism is compatible with human rights. He points out that the current dominant worldview in politics and economics is liberal. While this forms grounds to recognize such dominance as a matter of fact, it is not also grounds to equate such dominance to proof that these liberal norms and practices have more solid epistemic foundations and are therefore closer to truth. On this basis, Bielefeldt further argues that the Islamic ideology is such that it could conceivably lead to a community building rationale based upon Islamic practices and principles, thereby causing what he refers to as the Islamicising of liberalism rather than the liberalizing of Islam24. Human rights and the maintenance of pluralist systems may not necessarily be incompatible with each other. Michael Peletz argues that it is better to allow each community, including the Muslim ones, to build upon its inherent moral base rather than inflicting external standards of morality which may not accurately reflect the consensus existing in that country25. According to Peletz, Islam in Malaysia is quite pluralistic, and Malaysian courts play a vital role in defining Islam’s role in modern society, allowing scope for the existence of Islam while simultaneously allowing scope for the exercise of ethnic groups, religious communities and social classes26. There are several nations such as India, Malaysia and Nigeria where there is a balance between religious rights of groups and other rights, by allowing religious communities to govern the affairs of their members, especially in managing family and marriage issues27. These personal areas include marriage, divorce and inheritance, where individuals may consider it very important to retain their rights to religious autonomy and privacy as paramount. Legal pluralism existing in these countries could support human rights even under Muslim standards, so long as the religious control does not unduly impair individual human rights. In particular, where human rights are concerned, the issue of national security is a very important one, where ministers of a State will be granted broad jurisdiction to act as they think best. For example, the Privy Council’s decision in the case of R v Brown dealt with the compatibility of section 172 of the Road Traffic Act of 2000 with Article 6 of the Convention. In the Brown case, the defendant faced charges of drink driving and her lawyers argues that her rights under Article 6 had been infringed because it amounted to compulsion to self incrimination.28 The Court held that there were technical instances where the breach of Article 6 could be permitted, depending upon whether a disputed provision is in the public interest, satisfies the test of proportionality and has been reasonably used. This indicates that the rights of the State could be paramount in some instances, in particular those that entail security measures, where the sanctity of individual human rights may be overridden for a collective benefit. In the Welfare Party case however, the Court did not choose to uphold the right of the Party because of the dangers that it posed to the freedoms available under democratic systems. But the decision in Welfare Party v Turkey is significant in this context because it provided a clear indication that adjudicating issues purely from the Muslim perspective can never be consistent with democracy or the preservation of basic individual rights. The difficulty that arises in marrying Western democracy with Muslim ideals is that the conception of core human rights differs in Western and Islamic societies. An area that is especially thorny is in respect of individual rights versus group rights. While individual rights protect rights to privacy, expression, etc, group rights may include the right to association, the right to self determination and the rights of minority groups. Since individual rights may be linked to group rights, the nature of the Government which emerges will depend upon which rights are given precedence.29 There is an emphasis on individualism in western cultures, while in Islamic cultures, there is a greater emphasis on community welfare rather than the sole welfare of the individual; as a result dissent may often be considered contrary to the Islamic faith30. Hence, while the Western model of human rights may align itself with a strong belief in the importance of individual human rights, that can only be achieved through a liberal democracy emphasizing those individual rights, the Islamic model views the purposes of rights as being collective, for the benefit of all mankind. It must also be noted however, that the Western model of democracy does not accord unlimited individual rights. Rather, there is the underlying understanding that a person may exercise his or her rights only to the extent that the exercise of those rights do not impact negatively upon the rights of others; hence individual human rights are fashioned within the framework of certain restraints. As a result, international law tradition that applies is individuals “exist neither in a pure vacuum nor in a pure flux, but in a society.”31 As a result, the goal in each nation is to find the appropriate balance between individual and group interests that is a true reflection of its own particular morality. If human rights is to be adequately protected within a particular nation, it must first take into account its own unique morals and culture, wherein law and the Government is decided on the basis of what is held to be right and proper and with individual human rights enforced to the extent it bears upon an individual’s relationship to society. Rowan explains this in terms of the philosophical association between morality and law, wherein he concludes “that which is morally required…….should inform that which is legally required.”32 But this must also take into account the nature of the conception of what is considered to be moral and good within a particular society and must therefore incorporate the cultural context within which the rights are derived. This conception of freedom and rights will therefore be derived in every society on the basis of the balance that is achieved in that particular society, between individual and group interests that reflects its own particular morality33 . Donnelly underlines the importance of preservation of individual human rights, which allow people, both “individually and in groups that give meaning and value to their life, to pursue their own visions of the good life.”34 But he also points out that in the context of international human rights, it is very important for these rights to be allowed without attendant imperialism which could overpower cultural diversity and the right of every country and/or society to derive a conception of human rights that it deems to be the best balance for its own particular society. He is of the view that great care must be exercised in displaying sensitivity and caution in advancing arguments about the universality of human rights when confronted with clashing cultural views. When there is a suspicion of imposition of Western values and the western standards of universal human rights, it is likely to be met with resistance from local cultural groups in other countries. As a result, any conception of universal human rights must be relative and must take into consideration the balance of rights that has been derived in other cultures. On this basis, it may be worth questioning whether the decision of the European Court in Welfare Party v Turkey constituted an interference with balance of collective rights that is characteristic of the Islamic culture. Turkey is predominantly a Muslim country, but as already pointed out earlier, it also adheres to secular, democratic principles. Since the Government in power represents the collective conception of human rights and freedom in accordance with the balance of individual and collective rights that has been achieved in that particular country, the conception of universal human rights has to be applied in a relative fashion. Despite being a Muslim country, the government is a democracy and represents the will of the people who have opted for a secular state rather than a religious State where the principles of Islam will be dominant. On this basis, it may be argued that the definition of universal human rights as applied by the European Court in the case of Welfare party v Turkey was accurate because it upheld the secular, democratic principles which have been chosen as the correct balance of rights in Turkey. Another important aspect pointed out by Donnelly is that certain basic rights of human beings will prevail in every nation, irrespective of the cultural context within which they exist. For example, he highlights practices such as bonded labor in India and anti-Semitism in the West, which despite being culturally accepted, cannot be held to be in accord with human rights, irrespective of the balance achieved in that particular society between individual and collective rights35. Another example he cites is homosexuality. While international human rights law does not permit discrimination on the basis of sexual orientation, allowing cultural diversity could mean that in certain cultures where the majority is against homosexuality, such individuals could be persecuted and discriminated against. But “everyone is entitled to security of the person.”36 He argues that in such instances, if the State refuses to protect these individuals against private violence on the grounds that it is immoral by the standards of the society, it is a violation of the basic human rights of those individuals. On the basis of such arguments, Donnelly argues in favor of a universal standard of human rights, in order to ensure that no one state is able to exercise imperial tendencies in imposing its views of morality upon others, while also ensuring that individual human rights are protected. This suggests that universal human rights and legal pluralism are not necessarily incompatible. There may be scope for the exercise of cultural and religious diversity and the differing conception of rights in different societies, provided that there is a basic respect accorded to individual human rights that protect the individual. He argues that universal human rights, if properly understood, can also allow scope for regional and cultural diversity37. The case of Welfare Party v Turkey involved an instance where allowances made for cultural diversity would have caused a violation in fundamental human rights. It may be argued that universal human rights must not constitute an imposition of Western values upon other cultures, especially Islamic where the conception of human rights is collective rather than based upon the individual; cultural diversity must be preserved. But this must also be balanced against individual human rights. In the case of Welfare Party, the objective and goals the Party were espousing were violative of basic human rights of for example, women, since sharia allows several atrocities against women in the name of religion. The imposition of a religious law that advocated bloodshed was not in accordance with the principles of secularism and democracy chosen by the majority of people in Turkey, although they are Muslim. In the Welfare Party case, there was an essential conflict posed in that the preservation of basic human rights was at issue. This does not however, necessarily indicate that cultural diversity cannot be introduced within the framework of human rights law, for example, in the way it is managed in countries such as India and Nigeria. The case of Welfare Party demonstrates the existence of such a conflict, which in this instance was decided in favor of universal human rights from a western democratic perspective. But this was in accordance with the secular democratic framework chosen by a majority of Turkey’s citizens, hence it allowed for the incorporation of cultural diversity. Legal pluralism may therefore not necessarily be incompatible with universal human rights, rather what is needed is to recognize where the balance must be established, so that fundamental human rights are not violated on grounds of greater importance being accorded to collective rights, thereby giving rise to the danger of imperialism. References: * Article 11 of the ECHR, http://www.hri.org/docs/ECHR50.html#C.Art11; * Alston, Philip, 2001. “Peoples’ rights: Peoples rights, vol 9, no:2”, Oxford University Press. * Arzt, Donna E, 1996. “Heroes or heretics: Religious Dissidents under Islamic law”, 14 Wisconsin International Law Journal 349 * Bielefeldt, Heiner, 2000. ‘Western versus Islamic Human Rights Conceptions?’, Political Theory, 28 (1): pp.90-121 * Crawford, James, 2001. “The Right of Self-Determination in International Law: Its Development and Future, in Peoples Rights” 7, 8 IN Alston, Philip, 2001. “Peoples’ rights: Peoples rights, vol 9, no:2”, Oxford University Press. * Donnelly, Jack, 2007. “The relative universality of human rights”, Human Rights Quarterly. * Engle, K, 2001. “From scepticism to embrace: human rights and the American Anthropological Association from 1947-1999”, 23 Human Rights Quarterly, 536-59 * Foster, Steve, 2006. “The Judiciary, Civil Liberties and Human Rights”, Edinburgh University Press at pp 75 * Peletz, Michael G, 2002. “Islamic modern: Religious Courts and Cultural Politics in Malaysia”, Princeton University Press * (Refah Partisi) Welfare Party and others v Turkey (European Court of Human Rights, 2001) No: 41340/98, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; * Rowan, John R, 1999. “Conflicts of Rights: Moral Theory and social policy implications”, Westview Press Inc * Steiner, Henry J, Alston, Philip and Ryan, Goodman, 2008. “International Human Rights in context: Law, Politics, Morals”, Oxford University Press, at pp 517 * Sullivan, Donna J, 1992. “Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution”, 24 New York University Journal of International Law and Politics, 795, 834-36 Read More