Problems of Cultural Relativism on International Human Rights - Essay Example

Problems of Cultural Relativism on International Human Rights Student’s Name: Instructor’s Name: Course Code and Name: University: Date Assignment is due: Problems of Cultural Relativism on International Human Rights Abstract Human rights remain ever hot issues whose different aspects are never out of debate either across the entire global scene or, at least within different parts of the world. While the whole idea of human rights may evoke different concepts in each person’s mind, what can never be in doubt is that, at least everyone has their version of what issues they consider as rightly belonging to the realm of human rights. Whereas the philosophy of human rights has all along been presented and understood within the lens of the philosophy of universalism, an antithesis to universalism known as cultural relativism has recently been the subject of discussion. This paper seeks to discuss the possible problems that cultural relativism poses to the international human rights. Key words: culture, cultural relativism, universalism, human rights. Introduction Human rights human rights are the entitlements due to a person by virtue of their being human beings. Such rights may be derivable out of moral or legal based claims (Bullon, 2003; Garner, 2004). Traditionally and “conventionally’ human rights issues have been viewed within the lens of universalism, rather than cultural relativism. The debate notwithstanding, it is imperative that each of these philosophies of human rights be interrogated to determine what they mean and the impacts that they may have for the human rights debate. While the essay explicitly gives universalism what may appear to be a wide berth thus giving the impression that the same is outside its scope, nothing could be further from the truth. In order for the discussion to be put into sharp focus and perspective, the philosophy of universalism must be understood as contradistinguished from cultural relativism. Universalism may be understood to mean an understanding or practice that involves everyone in the world (Bullon, 2003). Within the contextual framework of this paper, universalism (also variously known as moral objectivism or universal morality) refers to the philosophical position that human rights apply equally to all individuals universally. Based on the universalistic approach, human rights have thus been bandied as having attributes such as inalienability, almost bordering on being absolute (Heard, 1997). The corollary to this position is that human rights accrue to each and every human being just by virtue of them being human beings, no qualifications required whatsoever. On the other hand, relativism is the belief in the philosophy that not anything is really absolutely true. The consequence of this assertion is that things can only be judged in comparison with others (Bullon, 2003). In the contextual framework of this discussion, cultural relativism refers to the principle that human rights should be construed and understood within the cultural limits (i.e. limits pertaining to a people’s way of life, beliefs and practices). Cultural relativism is thus an antithesis to the position offered by universalism, which asserts that principles of human rights do apply uniformly cross culturally globally. The flipside of this assertion is that cultural differences are conditions precedent in the attempts to understand human rights conceptions of every person. Whereas these two philosophies have co-existed side by side, albeit uncomfortably, the question one may want to ask is which of them may be weighty to tilt the balance of human rights conceptualization to its side? Since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, a practice has emerged internationally in which most international treaties and covenants are couched in universalistic in language. This is more so to the extent that such international legal instruments avail the rights envisaged therein to every human being without exceptions as to race, colour, creed, sex, et cetera.1 What then comes out very conspicuously is that the trend that discussions on international human rights have adopted over the years is universalistic, rather than cultural relativism, at least going by the non exclusive language of the international covenants and treaties. Consider the case of UDHR which by its very name, presupposes the fact that human rights are universal; hence the first part of its name is called universal. In fact Articles 1 and 2 leave no doubt as to the instrument’s universalism. Article 1, among others, restates the position that all human beings are born free and equal in dignity and rights. On its part, Article 2 grants everyone, without a distinction as to social origin, race, political, sex, religion, colour, national and other opinion, birth and property as well as, other status the rights and freedoms set forth in the UDHR. However, notwithstanding the fact that universalism is the de jure philosophy, it cannot be ignored for instance that evidence exists to the effect that in certain parts of the world, human rights discourses as well as practice are influenced by cultural relativism (Tharoor, 2001). Tharoor, and indeed other cultural relativists, assert that the subsistence of grave violations of human rights even in situations where the countries concerned have ratified innumerable international human rights instruments which are largely universalistic, is a pointer to the fact that cultural relativism is a relevant factor in accounting for the disparities in the levels of appreciation of human rights development (Tharoor, 2001). Be as it may, the universalism may be the de jure international human rights philosophy but cultural universalism also stubbornly stuck its neck out to be the de facto philosophy of human rights within not so few areas of the world. Tharoor’s assertion of human rights being culturally relative is vindicated by the clear departure of the African Charter on Human and Peoples’ Rights, ACHPR from its European counterpart, and by extension all the other international human rights instruments which have been mooted by the Western interests. Mr. Tharoor’s assertions of communitarian interests in the non Western societies are best illustrated by the “group rights” concept couched within the African Charter instrument to help capture the culturally important aspect of communal living among the Africans.2 Within Articles 20-24 of this instrument, group rights have been captured; a position which just illustrates how much communitarianism is central to the lives of Africans. What then, could be the reasons informing the stubborn subsistence of cultural relativism in the midst of an international onslaught that outrightly leans favorably towards universalistic philosophy? Cultural relativists offer two substantive reasons which are both philosophically and historically informed. Firstly, they argue that all human values as well as rights are defined by cultural realities. However, since there is no universal culture it can therefore only mean that there cannot be human rights which are universal (Tharoor, 2001). On the second scale, they argue from a historical perspective, pointing out that given the time and circumstances under which the Universal Declaration of Human Rights was adopted, the developing countries, really did not have much of a choice in the matter of their adoption. Thus, Tharoor argues that the adoption of UDHR and the others like it were only thin veiled opportunities which the western countries needed, in order to justify their meddling into the affairs of such countries. The discussions hereinabove, have illustrated that there is indeed a philosophical dichotomy to explain disconnects between human rights issues. Further, the cultural relativists want to sit pretty and savor the beauty of the fact that cultural relativism is a reality that cannot just be wished away, at least going by the fact of the formulation and adoption of certain international treaties, like the ACHR, which are culture specific. However, a fundamental question which must be addressed soberly is the effect that the dichotomy has on the international human rights. Put another way, how does cultural relativism augur for the development of international human rights within the framework of universalism as a standard setting philosophy? A fundamental issue that cultural relativism is bound to raise in the international human rights is the question of human rights standards. This is because there needs to be internationally accepted baseline principles in the realm of international human rights. In fact, the moment cultural relativism would take the centre stage in propulsion of the world human rights agenda, even the very conceptualization of international human rights would collapse and instead there be national and regional human rights standards which may not really augur well for protection of human rights in the world. The world is awash with issues across the globe, which raises fundamental issues touching upon international human rights standards. Among these issues are child slavery and labour issues within Africa, as well as a number of Caribbean nations like Haiti. How does cultural relativism cause a problem of standards within this particular matter of child slavery and labour? Let us interrogate this matter within the jurisdictions of Haiti and the African continent. In Africa, as has been pointed out, its charters are couched to incorporate certain human concepts unique and peculiar to the people of the continent. Other than the African Charter of Human and Peoples’ Rights (ACHPR) which introduces the concept of group rights, the continent’s charter on the rights and welfare of the child is no exception either. The African Charter on the Rights and Welfare of the Child (ACRWC) has provisions which also clearly depart from its counterparts in other jurisdictions. This instrument, like the ACHPR, leaves room for the co-opting of African specific culture on matters respecting the rights and welfare of the child. Among the culture, specific provisions co-opted into the instrument, are those which set out the responsibility of the child.3 Among others, the child is given the responsibility to work for the cohesion of their family, subject to their age. This provision has been held to mean, children have a duty to perform house hold chores. These responsibilities are considered forms of child abuse, in the western countries but are perfectly in order among the Africans. The question relating to this matter therefore is on how to reconcile the provisions of the ACRWC vis-à-vis other international conventions such as the Convention on the Rights of the Child (CRC), the International Labour Organization (ILO) among others. These latter conventions have their provisions subtly capturing the universalistic position, hence setting the international human rights standards upon the matters on which they provide, while the ACRWC is culturally relative. There is a near dilemma witnessed in Haiti concerning the labour rights of children referred to as restavecs. The word restavec comes from two French words, reste avec (also rester avec), literally means one who stays with. Specifically, it refers to a child in Haiti whose parents have sent to go and labor as a domestic servant for a host family. The circumstance precipitating a restavec is because the parents for such a child lack adequate resources to support the child. It is indicated that the term may be used to refer to any child who lives with a host family, although at a more specific level, it is used to refer to those children who are abused within such host family settings (Cohen, 2010). A host refers to someone at a party, meal et cetera who has invited the guests and who provides the food, drink et cetera (Bullon, 2003). A family on the other hand refers to a group of people who are related to each other, especially a mother, a father and their children (Bullon, 2003). Taken within the Haitian context, therefore, the phrase refers to the family who takes in a restavec. It is the family which exploits the restavec and in return provides the hosting facilities. The origins of the restavecs practice are deeply rooted in the Haitian culture. It emerged from a practice where poor parents not in a position to take care of their children, especially out of economic hardships, sent their children to go and live with their affluent families, usually distant relatives. The practice is founded on the basis that among the Haitians, it is only the proper thing for housing to be shared among family members, including the extended category. In return for staying and performing the household chores for the host family, the restavec receives food and sometimes, an education (Cohen, 2010). The restavecs practice, while contributing to very severe child abuse rights, does not seem to be just about to fade off. The government, perhaps bowing to international human rights pressure, did pass a legislation which outlawed the restavecs practice. However, the government, for very strange reasons, has declined to enforce the legal provisions thereby letting the problem continue to run unabated. While the practice remains illegal in the statute books, its practice continue while the government is reportedly arguing that the practice has relevant cultural significance among the Haitian people (Haskell, 2010). The restavecs problem, as may be seen, evokes very conflicting positions on the very relationship of cultural relativism vis-à-vis international human rights. This is because the position of the international human rights, as espoused within the relevant labour related and child welfare rights’ conventions like the International Labour Organization, Convention on the Rights and Welfare of the Child et cetera, are so unequivocal as to the fate of the practice. On the other hand, the practice continues on the basis of the fact that cultural practices of the Haitian people hold the practice in high esteem. This then raises the question of how exactly can the Haitian cultural practices and standards on the restavecs issue be reconciled to the internationally acclaimed standards as set out within the relevant provisions of the international human rights. Another problem which the cultural relativism vis-à-vis international human rights raise is the politically sensitive matter of state sovereignty. A sovereign country or state is one that is independent and governs itself (Bullon, 2003). Similarly, Garner (2004) defines the adjective form of the word as meaning the characteristic of a state of being endowed with the supreme authority. Sovereignty on its part is the power of self government for the country or state in question (Bullon, 2003) or the ultimate political authority of an independent state (nation), or even the state itself (Garner, 2004). How then would nuances of issues relating to state sovereignty be compromised when cultural relativism? A number of times, the universalistic philosophy in the international human rights discourse have been viewed, especially in Africa and other developing countries, as being largely alien to such peoples’ cultural conceptions. The argument fronted by many a people within the developing countries has been to the effect that the people within the countries in question should be left to determine their own standards of human rights while the West have been very adamant in demanding that these countries put in place civil and political rights within the threshold of international human rights. This disconnect’ then becomes the entry point of disagreements touching on the question of state sovereignty (Tharoor, 2001). This is usually out of the fact that the Western countries constantly apply diplomatic as well as economic pressure upon the developing countries requiring the putting in place of requisite civil and political liberties. The developing countries have instead argued that the said actions by the Western countries stand in flagrant breach of their sovereign rights. In fact, like Tharoor (2001) pointed out earlier in this discussion, more often than not, the adoption of international human rights conventions and treaties have been viewed by the developing countries as opportunities by the western countries to interfere with the internal operations of the said countries. Cultural relativism vis-à-vis international human rights also raise the problem of women rights. This has been more so in circumstances touching on cultural relativism that border on religion (Tharoor, 2001). Tharoor points out that when people view human rights within the lens of religion, they are bound to ignore international human rights conventions and treaties which do not give effect to their God (Tharoor, 2001). Further to the above, cultural relativism may denigrate gender equality principles espoused within the framework of international human rights instruments such as the UDHR, Convention on the Elimination of all forms of Discrimination Against Women, CEDAW. Such problems arise in situations such as those where the relative cultural relativism is a patriarchal society or a religious community which considers women as being inferior to men. Tharoor (2001) argues that such paternalistic authoritarianism cause the problem of repression, which rather than promote development, inhibit it instead. He thus argues for the putting in place of enhanced political and civil liberties to promote the rights of everyone. Other than the problems of cultural relativism already discussed, the philosophy of human rights also promotes the performance of certain culturally retrogressive practices, such as female gender mutilation, commonly referred to by its abbreviation as FGM. Take for instance in Kenya, where the practice is practiced among the Somalis, a number of clans among the Meru and Kisii et cetera. These communities have argued time and again that the practice is an essential component of their culture and human rights (German Development Cooperation, GTZ 2007). Whereas these communities, and indeed all others, which practice FGM have remained adamant that the practice is within their cultural rights and heritage, these practices have occasioned untold suffering to the young girls and women. Further, the practice flagrantly violates the international human rights as envisioned within such international conventions like the Convention on the Rights of the Child (CRC),4 Convention Against Torture (CAT)5 and Convention for the Elimination of all forms of Discrimination Against Women (CEDAW). One other serious problem with the cultural universalism in matters respecting human rights is the fact of its near inherent “rebellious” nature, which makes it presuppose that each member of any society may opt out of the arrangement they find themselves in. The corollary to such a presupposition, Tharoor (2001) observes, is that people are able to back out at any given time and be able to assert their own individual conceptions of human rights. He, for instance, illustrates this problem with the right of Muslim women in India who are given the option to have the right not to marry under Muslim Personal Law. This cultural relative shortcoming brings with it inconsistencies out of lack of objectively determinable standards. The purpose of international human rights is to ensure that well known and determinable standards within the human rights regime are set out. Thus, the moment the same is lacking, this causes unnecessary subjectivity in human rights standards; which subjective standards may never portend an enhancement in the field of international human rights as should be the case. The list of problems associated with the effects and or impacts of cultural relativism in matters relating to international human rights can never possibly be exhausted. The examples that have been identified and discussed hereinabove may suffice to illustrate the problems in question. However, granted as has been seen through the discussions, cultural relativism is fraught with innumerable problems that make its contribution to the field of international human rights shaky, at best. However, it may be appropriate to ask ourselves whether cultural relativism, notwithstanding its innumerable problems within international human rights realm, has anything positive to offer. There is no doubt that it has made its not so little contribution to the development to various developments within this area. The truth is that cultural relativism has served to greatly enhance distinct cultural identities that cannot be reflected within the usually individualistic western model of human rights. The philosophy’s contribution, for example, to the formulation and the subsequent adoption of the two African charters already discussed herein is very telling. It, therefore, calls for the finding of a middle ground for the co-existence of both the universalism and cultural relativism because the two are but flipsides of the same coin called international human rights. References Bryan, G. A. (Editor) (2004). Black’s Law Dictionary, (8th edition). St Paul, MN: Thompson West Publishing Company. Bullon, S. (Managing Editor) (2003). Longman Dictionary of Contemporary English. England: Pearson Education Limited. Cohen, E. (2010). “Painful plight of Haiti’s ‘restavec’ children- CNN.com”. CNN. Retrieved January 21, 2010 from http://www.cnn.com/2010/HEALTH/01/29/haiti.restavek.sende.sencil/index.html Freeman, M. D. A. (2005). Lloyd’s Introduction to Jurisprudence. UK: Thomson Sweet & Maxwell. Gardiner, K. R. (2003). International Law. London: Pearson Education Limited. Gigi, C. 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International Human Rights in Context- Law, Politics and Morals (3rd edition). UK: Oxford University Press. Read More