Relativism and Universalism of Human Rights and Regional Protection

by

Claudio Corradetti

• LAST REVIEWED: 24 February 2021
• LAST MODIFIED: 27 June 2017
• DOI: 10.1093/obo/9780199796953-0153

Introduction

The international system of human rights is organized around both a universal and a regional system of protection. This article provides guidance on the universal and the regional level of human rights understood as a single system. This might appear as a problematic relation that raises philosophical puzzles with regard to how to reconcile rights protection of local practices under a universal framework of human rights. The difficulty consists of the following: if it is the case that there is a link between prescriptive relativism and regional human rights, then regional conventions must show how to reconcile context-specific protections with the rights enshrined in the Universal Declaration of Human Rights (UDHR). This is not an easy relation to tame. Indeed, already in 1947, during the drafting of the UDHR, the American Anthropological Association observed that the document reflected values only of the Western world. Among UN members of that time, forty-eight states voted in favor, none voted against, and eight abstained (six from the Soviet bloc plus South Africa and Saudi Arabia). On 10 December 1948, with the General Assembly resolution 217A (III), UN Document A/810 at 71, the UDHR was adopted. The purpose of the UDHR was to set a springboard of inviolable rights in the wake of the Second World War. The UDHR was followed by the creation of several conventions and treaties safeguarding a number of specific areas, such as women’s rights, children, workers’ rights, and so on. The UDHR was shortly anticipated by the American Declaration of the Rights and Duties of Man (cited under Americas) (2 May 1948), a regional declaration with the purpose of strengthening solidarity within the Organization of American States (OAS). Furthermore, on the European front, in 1949 the Council of Europe was founded, and in 1950 it released the European Convention on Human Rights (ECHR). The first human rights treaty after the Second World War was of a regional scope. In addition to the regional protection, the recently introduced Universal Periodic Review system represents an innovative cooperative process among all 193 states and the Human Rights Council. From the genesis of the modern system of human rights protection presented earlier in this section, it follows that the international and the regional levels stand in a biunivocal relation, one where the American Declaration of the Rights and Duties of Man has influenced the UDHR and the latter has contributed to shaping the formulation of a regional convention as, primarily, the ECHR.

Introductory Works

For Nickel 2006, human rights are primarily the “rights of the lawyers” and not just “the rights of the philosophers.” Nevertheless, as James Nickel and many others recognize, human rights remain legitimate claims even when governments are not willing to recognize them. Churchill 2005 notices how this is due to the moral component of human rights and to its compatibility with cultural variety. Yet, as Goodale 2009 notices, the risk is always latent on superimposing a comprehensive, mostly Western, conception of human rights by use of apparent universal language. Is there the possibility of identifying intercultural overlapping categories? This is the question answered in Renteln 1990. Indeed, for some scholars, such as in Shelton and Carozza 2013, if the overlapping between universal and contextual legal conceptions is recognized, the tension between the international and the regional levels disappears.

• Churchill, Robert Paul. Human Rights and Global Diversity. Basic Ethics in Action. Upper Saddle River, NJ: Pearson Education, 2005.

  This introductory work defends the idea of a compatibility between universal human rights norms and cultural and value pluralism. The book shows that there is no inherent contradiction between the universality of the interests protected by human rights and the worthiness of values negotiated by cultures.

• Goodale, Mark. Surrendering to Utopia: An Anthropology of Human Rights. Stanford Studies in Human Rights. Stanford, CA: Stanford University Press, 2009.

  This monograph is a significant criticism of the “neoliberal” approach to human rights conducted from an anthropological perspective. Neoliberalism is seen here as marking the end of the welfare state model, and human rights are manipulated for the sake of the privatization of public interest.

• Nickel, James W. “Eight Responses to the Relativist.” In Making Sense of Human Rights. 2d ed. By James W. Nickel, 168–184. Oxford: Blackwell, 2006.

  This is an excellently written introduction to the most-fundamental challenges that cultural relativism advances to human rights.

• Renteln, Alison Dundes. International Human Rights: Universalism versus Relativism. Frontiers of Anthropology 6. Newbury Park, CA: SAGE, 1990.

  Arguing from a social-anthropology perspective, the author claims that within cultural plurality it is still possible to determine cross-cultural category equivalents to rights. Indeed, cross-cultural investigation, when conducted on empirical bases, shows that there is widespread share of human rights standards.

• Shelton, Dinah L., and Paolo G. Carozza. Regional Protection of Human Rights. 2d ed. Oxford: Oxford University Press, 2013.

  This work represents the first comprehensive attempt to investigate the existing regional systems of human rights protection. Following legally sophisticated analysis, the book also considers the prospects of growth of new regional systems in the Middle East and Asia. Now in its second edition, it is still a valuable resource as a textbook for courses at the graduate and research levels.