Cultural relativism, the universality of human rights and US arm bearing laws

COMMENTARY - Recently, international outrage arose after the numerous mass shootings that took place in the United States of America (USA), sparking conversations on the Second Amendment and its legitimacy in the context of universal human rights. In the midst of all this, many different countries condemned the USA’s laws for arm bearing, and a large number of arguments used to oppose this constitutional right were concerned with the protection of international moral standards. This article will start by providing a brief overview of the history and meaning of international human rights. It will then move on to studying common critics of these rights and their application. Finally, it will concentrate on the case of gun ownership in the US, and use it as an example to illustrate the flaws of the current universal rights system, before considering power dynamics between domestic laws and universal human rights. 

English

The history and meaning of universal human rights

The most “fundamental” human rights that world leaders and international representatives deemed worthy of universal protection are listed and defined in the Universal Declaration of Human Rights (UDHR). It was drafted in 1948 and proclaimed by the United Nations General Assembly “as a common standard of achievements for all people and all nations”. [1] The main rights the document aims to safeguard are freedom of speech and belief, and freedom from fear, for “all members of the human family”, thus also underlining the idea of equality between all human beings regardless of sex, race, class, religion etc. Furthermore, cooperation between nations in promoting these rights seemed to be a key objective, as all members of the United Nations were legally binded to take action in the upholding of these clauses. In this sense, all states and their citizens are concerned by human rights, which applies uniformly to everyone. [2]  

Notable examples of the actions the treaty aims to prevent include slavery (Article 4), torture (Article 5), unlawful treatment (Article 6), discrimination in front of the law leading to arbitrary arrest, detention or exile (Articles 7 and 9), arbitrary interference with one’s privacy and attacks to one’s honor and reputation (Article 12), interference with one’s freedom of movement (Article 13),  or interference with one’s right to leisure, education or health (Articles 25, 25 and 26). Furthermore, the declaration prevents any state, group or person to use the human rights outlined to overstep on the rights and freedoms of others. [3]

However, before the United Nations took action to establish clear guidelines in terms of human rights, the idea was developed domestically throughout the 17th century, with the ratification of the English Bill of Rights in 1689, limiting the powers of the monarch and parliament, and setting out basic civil rights such as the prohibition of cruel punishment, and awarding all citizens equal status in front of the law, regardless of religion. [4] During the 19th century, the issue of slavery brought new light on the need for universal and non-discriminatory human rights, followed during the 20th century by the aftermath of the World Wars, and the realization of the extent of losses and abuses that had taken place. This subsequently led to the ratification of the United Nations Charter in 1945, making a commitment to promoting international human rights and “high standards of living” for all world citizens.

Since the UDHR, many international treaties have been signed in an attempt to eliminate specific forms of human rights abuses and discriminations across the world. Examples include the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 or more recently the Convention on the Rights of Persons with Disabilities (CRPD) in 2006. Other tools used as means of human rights safeguarding are customary international law, punishing torture, genocide and slavery for instance, and international humanitarian law through the Geneva Conventions, whose role it is to protect the rights of individuals involved in armed conflicts.

Finally, actors other than the United Nations are involved in the promotion of human rights, such as Non-Governmental Organizations like Amnesty International. They have considerable power in lobbying and in advocacy work with the United Nations or states, additionally from enjoying a major influence on citizens.         

Flaws of universal human rights

Although many consider international human rights an immense moral achievement, critics have been made ever since the mainstreaming of the concept.

To start with, non-state actors have questioned the effectiveness of the international standards. Examples like the political authoritarianism in Russia, the violation of LGBT rights in Nigeria, the use of torture against civilians during the American occupation of Iraq, or reports of the remaining 21 million people forced to work against their will across the world are used to suggest that human rights are consistently violated, and that laws have failed to meet the objectives set under the UDHR. [5] Indeed, very little evidence can be provided to substantiate that the passing of declarations and treaties previously mentioned have done anything to improve the living standards of individuals around the world. [6]

Experts have claimed that the universal declaration was in fact built on weak foundations, as it was not thought of as a legally binding document from the start, issues such as the ties between France and its colonies were not covered, and powerful countries like Russia failed to vote in favor of the declaration. This all seems to demonstrate the lack of commitment and impartiality the treaty contained in the outset of its creation. [7] Additionally, the clauses have been said to be too numerous, vague and open to interpretation, rendering the declaration as a whole “ambiguous”. [8] Indeed, within the framework of human rights, state governments have historically chosen which freedoms to promote at the expense of others, as a holistic application may be inconsistent with a country’s limited budget. [9] These decisions also vary among countries, whose interpretations may contradict one another. For instance, freedom of expression has a very different signification in the USA than it does in Europe. In the former, the principle of “free speech” allows US citizens to express openly discriminatory opinions as long as they do not incite violence, while in the latter, hate speech making references to racist ideas, for instance, are formally prohibited by the government and often punished by the law. [10] The reason behind these discrepancies is the discretion given to governments to decide through their own legal systems what each right mentioned in the declaration implies and encompasses on their respective territory.   

Moreover, western countries like the USA or European states, considered “champions of human rights” within the international community, make the respect of human rights a condition for international aid. In this context, many scholars have pointed out the dangerous influence some countries are given by virtue of their military or economic power, to impose human rights regulations on other states. This grip leads to control that has been compared by academics to imperialism, as developed countries are today able to dictate the political, economic and social directions developing countries should take, supported by the international human rights contention. For instance, regulated markets have been established over the years as fundamentally superior to alternative systems.  [11]

Another dimension to take into account is the issue of cultural specificities and histories between states. Although we have previously established that human rights regulations’ implementation depends on each government’s interpretation, it has been noticed by professionals in the field that powerful developed countries have a tendency to impose their perceptions on smaller and poorer nations, whose culture is oftentimes disregarded and devalued. In this context, it is pertinent to examine the doctrine of cultural relativism - the view that varying moral and ethical systems are all equally valid and exempt of criticism from outsiders - and apply its core concepts to universal human rights. Foreign judgement is evidently present in the case of human rights, and a tension is built between relativity and universality. In effect, because human nature itself – on which human rights are based - is in some measure culturally relative, arguments that these same rights cannot be universal have been put forth. [12] Cultural relativity may be an explanation for the open-endedness of the articles of the UDHR, but the subsequent ambiguity coupled with global power dynamics have led to domination and western state’s constructed moral supremacy. Some practices have therefore been suppressed in the name of universal human rights, like birthing traditions in Sierra Leone, [13] and others were able to emerge by virtue of the misuse of cultural relative assertions, such as the practice of salongo, a form of “traditional” communal labor revived in 1971 by President/Dictator Mobutu Sese Seko in the Democratic Republic of Congo (then Zaïre), that in fact resembled colonial practices of slavery more than indigenous traditions. [14]

Furthermore, it has been reported that those involved in the drafting of the UDHR were in fact “cosmopolitans who had international experience and enjoyed certain privileges in their societies” whose “perspectives did not reflect the concerns of ordinary people.” [15] Along these lines, it is important to ask ourselves whether or not human rights as we know them today should be universal, considering their disposition to interpretation, the variability of culture and history across the world, and the holding of power to dictate codes of morality by developed countries and individuals enjoying significant privilege.  

The case of the USA

Nonetheless, the term “human rights” is said to be used today 100 times more frequently than “constitutional rights” or “natural rights”, suggesting it is more present in the collective consciousness and has become a “go-to” concept to discuss individual freedoms. [16] However, in light of the arguments put forth in the previous section, questions on its legitimacy have been raised, in particular related to other domestic laws. Should universal human rights overpower domestic laws and dictate a country’s policies?

In reflecting on these considerations, the USA arm bearing laws can be used as a case study illustrating the present challenges. Indeed, the USA have very particular legislation concerning gun ownership, which can be traced back to their colonial history. During the American war of Independence (1775-1783), militias had been created to combat the British, and the responsibility of protecting the civil society was in the hands of the citizens themselves, given their right to bear arms. Since then, gun ownership has become an integral part of American culture, under the principle of self-defense. [17] It legally became a fundamental right through the drafting of the Bill of Rights in 1791, with the Second Amendment stating that “the right of the people to keep and bear arms, shall not be infringes”. [18] Although it has been vastly contested throughout the years, many Americans continue to see the Second Amendment as an individual freedom - to which any opposition is considered unconstitutional - and as a moral right to security. [19]

Internationally, lawmakers and human rights advocates have been increasingly critical of the American right to gun ownership, especially in light of the alarming cases of mass killings striking the country over the past few years. Some have argued that the right to bear arms does not answer to basic human needs, and is not essential to the identity of a human being. [20] On the contrary, guns are statistically used more commonly to inflict violence, causing many to maintain that arm bearing is in fact an infringement of human rights, as it can impact other people’s freedom from fear. For these reasons, the international community has been trying to influence American policy-making for years, and has been pushing forward ideas of government gun control. [21] Putting aside debates on the pros and cons of arm bearing, the consideration we are left with pertains to this desire to control the rights a country gives to its citizens in the name of international human rights: should domestic laws surpass universal human rights or vice versa?          

Conclusion

Although answering this question represents a difficult and tedious task, it does illustrate the key issues deconstructed throughout this article. Research has shown that there is a reluctance by US courts to find that US domestic law has “gaps” which can be filled by drawing on international sources, making it unlikely that international standards will be incorporated in US law in the future. [22] However, the UDHR lists self-determination as a human right, suggesting that the interpretation of countries previously discussed is desirable as long as it is not used to undermine any other individual freedom. In this sense, the debate on arm bearing policy or other historically/culturally specific laws comes down to whether or not these pieces of legislation guarantee or deprive the citizens of a nation of other human rights. This can solely be answered by the concerned communities themselves, rendering international human rights mere guidelines to follow in the establishment of just and effective laws protecting individual freedoms. In other words, international contribution should give the general direction to follow, and thereupon not only allow diverse interpretations, but most importantly ensure an accurate representation of citizens’ needs in legislation, rather than attempting to impose culturally inadequate regulations.

 

By Manon Arundhati Fabre – Research Assistant at CIPADH

 

Bibliography

[1] United Nations. Universal Declaration of Human Rights. Retrieved on November 17, 2017 from http://www.un.org/en/universal-declaration-human-rights/

[2] IBID

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[4] UK Parliament. Bill of Rights 1689. Retrieved on November 17, 2017 from https://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/revolution/collections1/collections-glorious-revolution/billofrights/

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[11] Easterly, W. (2006). The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much and So Little Good. New York: The Penguin Press.

[12] Donnelly, J. (1984). Cultural Relativism and Universal Human Rights. Human Rights Quarterly, 6(4), 400-419.

[13] Packer, C. (2002). Using Human Rights to Change Traditions. School of Human Rights Research.

[14] Donnelly, J. (1984). Cultural Relativism and Universal Human Rights. Human Rights Quarterly, 6(4), 400-419.

[15] Le, N. (2016). Are Human Rights Universal or Culturally Relative? Taylor & Francis.

[16] The Guardian. The case against human rights. Retrieved on November 17, 2017 from https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights

[17] CIPADH. Etats-Unis : le port d'armes, le principe constitutionnel et les tueries. Retrieved on November 17, 2017 from http://www.cipadh.org/fr/etats-unis-le-port-darmes-le-principe-constitutionnel-et-les-tueries

[18] The Guardian. The right to bear arms: what does the second amendment really mean? Retrieved on November 17, 2017 from https://www.theguardian.com/us-news/2017/oct/05/second-amendment-right-to-bear-arms-meaning-history

[19] CIPADH. Etats-Unis : le port d'armes, le principe constitutionnel et les tueries. Retrieved on November 17, 2017 from http://www.cipadh.org/fr/etats-unis-le-port-darmes-le-principe-constitutionnel-et-les-tueries

[20] The Guardian. Gun ownership is not a human right. Retrieved on November 17, 2017 from https://www.theguardian.com/commentisfree/2016/oct/29/gun-ownership-is-not-a-human-right

[21] Schmidt, C. (2007). An International Human Right to Keep and Bear Arms. Wm. & Mary Bill Rts. J.

[22] Bilder, R. (1981). Integrating International Human Rights Law into Domestic Law - U.S. Experience 4 Houston Journal of International Law 1 (1981); Univ. of Wisconsin Legal Studies Research Paper No. 1332.)

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