Stephen Vasciannie
MOST MODERN conceptions of human rights take their origins -- or at least draw substantial inspiration from -- the Universal Declaration on Human Rights of 1948. This is a resolution of the General Assembly of the United Nations which spells out a rather full list of the rights to which we are entitled as human beings: the right to life, freedom from cruel and inhuman treatment, freedom of expression, freedom of thought, conscience and religion, and so on.
One of the primary features of the Universal Declaration on Human Rights is, of course, that it is intended to be universal. This is evident from the title of the resolution, but it is also apparent from the actual formulation of the rights in the body of the resolution. Thus, "everyone" is entitled to each of the rights listed, and "no one" should be required to bear certain burdens.
The language of universality is deliberate: the Universal Declara-tion and other human rights instruments - such as the International Covenant on Civil and Political Rights - have been formulated on the assumption that certain minimum standards of treatment must be available for all human beings, without argument.
COLONIALISM
But, to be sure, the idea that human rights should be universally available has always been subject to criticism. Perhaps the strongest criticisms come from the cultural relativists. Generally speaking, cultural relativists argue that the human rights recognized by a society should take into account the cultural and social norms of that society: human rights, in short, must emanate from within the society, and must not be imposed from above.
The relativist critique of universal human rights is at least superficially attractive. For a start, the history of colonialism is replete with instances in which cultural and social norms have been imposed - often by force - by one society on another. And so, there is natural resistance throughout the former colonial world to the idea that human rights may be imposed from the outside, and from above.
Similarly, even passing - and eclectic - reference to Nkrumah, Lenin and Said should remind us that in the post-colonial stage, developing countries have remained subject to external interference on a variety of issues. In this context, it is natural, again, for leaders in developing countries to react negatively to the idea that countries of the West can define the scope and content of human rights, and then impose those rights on individual societies.
FGM AND DEATH
For these kinds of reasons, therefore, the approach based on relativism tends to be popular in the Third World. With respect to several issues, however, I am inclined to the view that the type of universality contemplated by the Universal Declaration of Human Rights can actually withstand the relativist critique, and that the relativists do not have a full appreciation of how human rights standards should work in practice. I elaborate by reference to two controversial practices: female circumcision or female genital mutilation (FGM) and the death penalty.
Female genital mutilation, as practised in some West African States, is a prima facie example of cruel and inhuman treatment - with adolescent girls being circumcised, usually against their will. The relativist is required to argue that although this may be brutal, it emanates from indigenous cultural norms and should therefore not be barred by universal human rights standards.
Surely, however, if the concept of human rights is to have any meaning, it must mean that innocent people should not be harmed against their will. And, if a country is party to an arrangement that says that persons should not be subject to cruel and inhuman treatment, that country should not be entitled simply to disregard that commitment on the basis that it has 'grandfathered' the right to be brutal. To allow this would be to fly in the face of the clear language of the Universal Declaration and other international instruments.
With respect to the death penalty, Western European countries, in particular, have been campaigning to have the sentence abolished in practice. Notice, however, that neither the Universal Declaration on Human Rights nor the International Covenant on Civil and Political Rights seeks to abolish the death penalty.
Thus, there is no rule to the effect that all States must abolish the death penalty. In other words, when a State applies the death penalty, it is not violating the idea that human rights are universal.
Legally binding human rights should be universally applied. The real challenge lies in identifying which human rights are to be regarded as legally binding.
Stephen Vasciannie is a professor at the University of the West Indies and a consultant in the Attorney-General's chambers.
