The relative universality of human rights

Human Rights Quarterly

Volumn 29, Issue 2, 2007, Pages 281-306

  Donnelly, Jack ^a  

^a UNIVERSITY OF DENVER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INTERNATIONAL CONFLICT; POLITICS;

EID: 34249932409     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2007.0016     Document Type: Article

References (117)

1. Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western Human Rights Conceptions, 76 AM. POL. SCIENCE REV. 303-16 (1982);
2. Jack Donnelly, Cultural Relativism and Universal Human Rights, 6 HUM. RTS. Q. 400 (1984);
3. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (Ithaca: Cornell Univ. Press, 1989);
4. Jack Donnelly, Traditional Values and Universal Human Rights: Caste in India, in ASIAN PERSPECTIVES ON HUMAN RIGHTS (Claude E. Welch, Jr. & Virginia A. Leary 1990);
5. Jack Donnelly, Post-Cold War Reflections on International Human Rights, 8 ETHICS & INT'L AFF. 97 (1994);
6. Jack Donnelly, Conversing with Straw Men While Ignoring Dictators: A Reply to Roger Ames, 11 ETHICS & INT'L AFF. 207 (1997 );
7. Jack Donnelly, Human Rights and Asian Values: A Defense of "Western" Universalism, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS (Joanne R. Bauer & Daniel A. Bell eds. 1999);
8. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2d ed. Ithaca: Cornell Univ. Press, 2003);
9. Rhoda E. Howard & Jack Donnelly, Human Dignity, Human Rights and Political Regimes, 80 AM. POL. SCIENCE REV. 801 (1986).
10. This section draws directly from and summarizes DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2d ed.), supra note 1, at ch. 5.
11. Adamantia Pollis & Peter Schwab, Human Rights: A Western Construct with Limited Applicability, in HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES 1, 15 (Adamantia Pollis & Peter Schwab eds., 1979);
12. compare Makau Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VIRGINA J. INT'L L. 339, at 358 (1995);
13. David R. Penna & Patricia J. Campbell, Human Rights and Culture: Beyond Universality and Relativism, 19 THIRD WORLD Q. 7, at 21 (1998).
14. Fouad Zakaria, Human Rights in the Arab World: The Islamic Context, in PHILOSOPHICAL FOUNDATIONS OF HUMAN RIGHTS 227, 228 (UNESCO ed., 1986).
15. Dunstan M. Wai, Human Rights in Sub-Saharan Africa, in HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES 115, 116 (Adamantia Pollis & Peter Schwab eds., 1979).
16. Ibrahim Anwar, Special Address presented at the JUST International Conference: Rethinking Human Rights (7 Dec 1994) in HUMAN WRONGS 277 (1994).
17. Radhika Coomaraswamy, Human Rights Research and Education: An Asian Perspective, in INTERNATIONAL CONGRESS ON THE TEACHING OF HUMAN RIGHTS: WORKING DOCUMENTS AND RECOMMENDATIONS 224 (UNESCO ed., 1980).
18. Ralph Buultjens, Human Rights in Indian Political Culture, in THE MORAL IMPERATIVES OF HUMAN RIGHTS: A WORLD SURVEY 109, 113 (Kenneth W. Thompson ed., 1980);
19. compare Yougindra Khushalani, Human Rights in Asia and Africa 4 HUM. RTS. L. J. 403, 408 (1983);
20. MAX L. STACKHOUSE, CREEDS, SOCIETY, AND HUMAN RIGHTS: A STUDY IN THREE CULTURES (1984).
21. For detailed support for this claim, see DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2d ed.), supra note 1, at ch. 5;
22. RHODA E. HOWARD, HUMAN RIGHTS IN COMMONWEALTH AFRICA, at ch. 2(1986).
23. Wai, supra note 5, at 116.
24. Compare Asmarom Legesse, Human Rights in African Political Culture, in THE MORAL IMPERATIVES OF HUMAN RIGHTS: A WORLD SURVEY 123, 125-27 (Kenneth W. Thompson ed., 1980);
25. Nana Kusi Appea Busia, Jr., The Status of Human Rights in Pre-Colonial Africa: Implications for Contemporary Practices, in AFRICA, HUMAN RIGHTS, AND THE GLOBAL SYSTEM: THE POLITICAL ECONOMY OF HUMAN RIGHTS IN A CHANGING WORLD 225, 231 (Eileen McCarthy-Arnolds, David R. Penna, & Debra Joy Cruz Sobrepeña eds., 1994);
26. for non-African examples, Abdul Aziz Said, Precept and Practice of Human Rights in Islam, 1 UNIVERSAL HUM. RTS. 63, 65 (1979)
27. Raul Manglapus, Human Rights are Not a Western Discovery, 4 WORLDVIEW (1978);
28. Adamantia Pollis & Peter Schwab, Introduction, in HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES xiii, xiv (Adamantia Pollis & Peter Schwab eds., 1979).
29. Hung-Chao Tai, Human Rights in Taiwan: Convergence of Two Political Cultures?, in HUMAN RIGHTS IN EAST ASIA: A CULTURAL PERSPECTIVE 77, 79 (James C. Hsiung ed., 1985).
30. Manwoo Lee, North Korea and the Western Notion of Human Rights, in HUMAN RIGHTS IN EAST ASIA: A CULTURAL PERSPECTIVE 129, 131 (James C. Hsiung ed., 1985).
31. JOHN LOCKE, TWO TREATISE ON GOVERNMENT (London, W. Wilson 1821) (1689).
32. See DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2d ed.), supra note 1, at ch. 4;
33. compare Michael Goodhart, Origins and Universality in the Human Rights Debate: Cultural Essentialism and the Challenge of Globalization 25 HUM. RTS. Q. 935 (2003).
34. ARVIND SHARMA, ARE HUMAN RIGHTS WESTERN IN ORIGIN? A CONTRIBUTION TO THE DIALOGUE OF CIVILIZATIONS (2006) extensively and critically explores the wide variety of senses in which human rights have been held to be "Western."
35. HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY 29-34 (1980).
36. Ratification data is available at http://www.ohchr.org/english/ countries/ratification/index.htm and http://www.ohchr.org/english/bodies/ docs/status.pdf.
37. ALISON BRYSK, HUMAN RIGHTS AND PRIVATE WRONGS: CONSTRUCTING GLOBAL CIVIL SOCIETY (2005).
38. JOHN RAWLS, THE LAW OF PEOPLES xliii-xlv, 11-15, 174-76 (1999 );
39. JOHN RAWLS, POLITICAL LIBERALISM 31-33, 172-73 (1993).
40. RAWLS, POLITICAL LIBERALISM, supra note 19, at 133-72, 385-96.
41. Id. at 133.
42. RAWLS, THE LAW OF PEOPLES, supra note 19. Rawls' own extension involves both a wider political conception of justice and a narrower list of internationally recognized human rights. The account offered here is Rawlsian in inspiration but not that of John Rawls.
43. Heiner Bielefeldt, "Western" versus "Islamic" Human Rights Conceptions?: A Critique of Cultural Essentialism in the Discussion on Human Rights, 28 POL. THEORY 90 (2000) makes a similar argument for overlapping consensus universality, illustrated by a discussion of recent trends in Islamic thinking on human rights.
44. See also Ashwani Kumar Peetush, Cultural Diversity, Non-Western Communities, and Human Rights, 34 PHILOSOPHICAL FORUM 1 (2003), which deals with South Asian views.
45. Vincanne Adams, Suffering the Winds of Lhasa: Politicized Bodies, Human Rights, Cultural Difference, and Humanism in Tibet, 12 MED. ANTHROPOLOGY Q. 74 (1998) presents an account of the suffering of Tibetan women activists that stresses their instrumental adoption of human rights ideas to grapple with injustices and suffering that they understand in very different terms.
46. For a looser account of cross-cultural consensus, see HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS (Abdullahi Ahmed An-Na'im ed. 1992).
47. ANTHONY J. LANGLOIS, THE POLITICS OF JUSTICE AND HUMAN RIGHTS (2001) offers perhaps the best overview.
48. HUMAN RIGHTS AND ASIAN VALUES: CONTESTING NATIONAL IDENTITIES AND CULTURAL REPRESENTATIONS IN ASIA (Michael Jacobsen & Ole Bruun eds., 2000);
49. THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS, supra note 1, are good collections of essays.
50. "Confucians can make sense of rights out of the resources of their own tradition." May Sim, A Confucian Approach to Human Rights, 21 HIST. PHIL. Q. 337, 338 (2004).
51. Compare Joseph Chan, Moral Autonomy, Civil Liberties, and Confucianism, 52 PHIL. EAST & WEST 281 (2002);
52. Joseph Chan, Confucian Perspective on Human Rights for Contemporary China, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS, supra note 1.
53. On Confucianism and modern social and political practices, see CONFUCIANISM FOR THE MODERN WORLD (Daniel A. Bell & Hahm Chaibong eds., 2003).
54. Even that seems to me not obviously correct. I read hypocrisy more as evidence of the substantive attractions of hypocritically endorsed norms.
55. Laura Hebert in a private communication pointed out that I previously described my views as weak relativist or strong (but not radical) universalist, but that in an earlier version of this essay I used the label weak universalist. The careful reader will note that here I have avoided such formulations in favor of a notion of relative universality that is open to differing emphases. This reflects my growing appreciation of the advantages of approaching the continuum between relativism and universalism less as an ideal type account of all possible positions and more in terms of the spectrum of views that happen to be prevalent among actively engaged participants in the debate at a particular time and place. The actual spectrum of views actively engaged at any given time and place is likely to cover only a portion of the ideal type spectrum. My arguments have always been formulated primarily, although implicitly, with respect to the former. Over the past decade, much of the relativist end of the Cold War era spectrum has disappeared from mainstream discussions. Therefore, views such as my own that once appeared near the edge of the universalist end of the spectrum now appear more moderately universalist. I must also admit, though, that given this new political context I have intentionally given greater emphasis to the space available for diverse implementations of universal human rights norms. See Donnelly, Human Rights and Asian Values, supra note 1; Section 13, 14 below.
56. For a recent attempt to defend ontological universality, see WILLIAM J. TALBOTT, WHICH RIGHTS SHOULD BE UNIVERSAL? 3-4 (2005).
57. John J. Tilley, Cultural Relativism, 22 HUM. RTS. Q. 501 (2000) carefully reviews a number of particular conceptions and cites much of the relevant literature from anthropology.
58. Compare Alison Dundes Renteln, Relativism and the Search for Human Rights, 90 AM. ANTHROPOLOGIST 56 (1988).
59. MELVILLE J. HERSKOVITS, CULTURAL RELATIVISM: PERSPECTIVES IN CULTURAL PLURALISM (1972).
60. Even Renteln, Relativism and the Search for Human Rights, supra note 29, at 56, who claims to be advancing "a metaethical theory about the nature of moral perceptions," thus making her position more like what I have called methodological relativism, insists on "the requirement that diversity be recognized" and the "urgent need to adopt a broader view of human rights that incorporates diverse concepts."
61. Alison Dundes Renteln, The Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 HUM. RTS. Q. 514, at 540 (1985). Such substantive propositions simply do not follow from methodological relativism or any causal or descriptive account of moral perceptions.
62. Exec. Comm., Am. Anthropological Ass'n, Statement on Human Rights, 49 AM. ANTHROPOLOGIST 539, 543 (1947).
63. Rhoda E. Howard, Cultural Absolutism and the Nostalgia for Community 15 HUM. RTS. Q. 315 (1993).
64. A variant on such arguments popular in the 1980s held that each of the three "worlds" of that era - Western/liberal, Soviet/socialist and Third World - had its own distinctive conception of human rights, rooted in its own shared historical experience and conception of social justice. See, e.g., Hector Gros Espiell, The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches, in HUMAN RIGHTS: THIRTY YEARS AFTER THE UNIVERSAL DECLARATION (B. G. Ramcharan ed., 1979);
65. Adamantia Pollis, Liberal, Socialist, and Third World Perspectives on Human Rights, in Toward a Human Rights Framework 1 (Peter Schwab & Adamantia Pollis eds., 1982).
66. This story was often associated with a claim that the West was focused on "first generation" civil and political rights, the socialist world on "second generation" economic, social, and cultural rights, and the Third World on "third generation" solidarity rights. See Stephen P. Marks, Emerging Human Rights: A New Generation for the 1980s?, 33 RUTGERS L. REV. 435 (1981);
67. Karel Vasak, Pour une troisième génération des droits de l'homme, in STUDIES AND ESSAYS ON INTERNATIONAL HUMANITARIAN LAW AND RED CROSS PRINCIPLES IN HONOUR OF JEAN PICTET 837 (Christophe Swinarski ed., 1984);
68. Karel Vasak, Les différentes catégories des droits de l'homme in LES DIMENSIONS UNIVERSELLES DES DROITS DE L'HOMME. VOL. I. (André Lapeyre, François de Tinguy, & Karel Vasak eds., 1991).
69. MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS: FROM ANCIENT TIMES TO THE GLOBALIZATION ERA (2004) presents a relatively sophisticated post-Cold War version of this argument.
70. For a counter-argument, see J. Donnelly, Third Generation Rights, in PEOPLES AND MINORITIES IN INTERNATIONAL LAW 119 (Catherine Brölmann, René Lefeber & Marjoleine Zieck eds., 1993). The three worlds story suggests that level of development and political history impose priorities on (groups of) states. Socialist and Third World states, it was argued, could not afford the "luxury" of civil and political rights, being legitimately preoccupied with establishing their national sovereignty and economic and social development. While usually acknowledging the long run desirability of civil and political rights, they were dismissed as (at best) a secondary priority, a distraction, or even a serious impediment to progress in countries struggling to achieve self-determination and economic development. The claim, though, that benevolent governments that denied civil and political rights could deliver development more rapidly and spread its benefits more universally, unfortunately found almost no support in the experience of developmental dictatorships of the left and the right alike during the Cold War. Quite the contrary, pursuing economic and social rights without civil and political rights in practice usually led to poor performance in realizing both, particularly over the medium and long run.
71. Exec. Comm., Am. Anthropological Ass'n, supra note 32, at 542.
72. Roger T. Ames, Continuing the Conversation on Chinese Human Rights 11 ETHICS & INT'L AFF. 177 (1997).
73. For excellent brief applications of this understanding of culture to debates over human rights, see Ann-Belinda S. Preis, Human Rights as Cultural Practice: An Anthropological Critique, 18 HUM. RTS. Q. 286 (1996);
74. Andrew J. Nathan, Universalism: A Particularistic Account, in NEGOTIATING CULTURE AND HUMAN RIGHTS (Lynda S. Bell, Andrew J. Nathan & Ilan Peleg eds., 2001).
75. Compare also Neil A. Engelhart, Rights and Culture in the Asian Values Argument: The Rise and Fall of Confucian Ethics in Singapore, 22 HUM. RTS. Q. 548 (2000);
76. Elizabeth M. Zechenter, In the Name of Culture: Cultural Relativism and the Abuse of the Individual, 53 J. ANTHROPOLOGICAL RES. 319 (1997).
77. Critical Marxian perspectives, however, make similar arguments from a foundationalist perspective. See, e.g., TONY EVANS, US HEGEMONY AND THE PROJECT OF UNIVERSAL HUMAN RIGHTS (1996);
78. HUMAN RIGHTS FIFTY YEARS ON: A REAPPRAISAL (Tony Evans ed., 1998).
79. Anthony Woodiwiss, Human Rights and the Challenge of Cosmopolitanism 19 THEORY, CULTURE & SOCIETY 139 (2002).
80. For example, Makau Mutua writes of "the biased and arrogant rhetoric and history of the human rights enterprise," which is simply the latest expression of "the historical continuum of the Eurocentric colonial project." Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARV. INT'L L. J. 201, 202, 204 (2001).
81. The hegemony of international human rights norms, in this reading, amounts to granting Western culture "the prerogative of imperialism, the right to define and impose on others what it deems good for humanity." Id. at 219.
82. Makau Wa Mutua, The Ideology of Human Rights, 36 VIRGINIA J. INT'L L. 589, 591 (1996).
83. David Kennedy, The International Human Rights Movement: Part of the Problem?, 15 HARVARD HUM. RTS. J. 101 (2002).
84. DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM (2004).
85. Gil Gott, Imperial Humanitarianism: History of an Arrested Dialectic, in MORAL IMPERIALISM: A CRITICAL ANTHOLOGY 19 (Berta Esperanza Hernández-Truyol ed., 2002);
86. compare Susan Koshy, From Cold War to Trade War: Neocolonialism and Human Rights, 58 SOCIAL TEXT 1 (1999);
87. Pheng Cheah, Posit(ion)ing Human Rights in the Current Global Conjuncture, PUBLIC CULTURE 233-266 (1997).
88. Michael Ignatieff, Human Rights as Politics, Human Rights as Idolotry, in HUMAN RIGHTS AS POLITICS AND IDOLATRY 3, 53 (Amy Gutmann ed., 2001) expresses similar worries from within a very traditional Western liberal perspective.
89. See, e.g., Bonaventura de Sousa Santos, Toward a Multicultural Conception of Human Rights, in MORAL IMPERIALISM: A CRITICAL ANTHOLOGY 39 (Berta Esperanza Hernández-Truyol ed., 2002);
90. Berta Esperanza Hernández-Truyol & Sharon Elizabeth Rush, Culture, Nationhood, and the Human Rights Ideal, 33 U. MICH. J. L. REFORM 233 (2000).
91. Towards this end of the spectrum, compare Fred Halliday, Relativism and Universalism in Human Rights: The Case of the Islamic Middle East, 43 POL. STUD. 152 (1995);
92. Michael J. Perry, Are Human Rights Universal? The Relativist Challenge and Related Matters, 19 HUM. RTS. Q. 461 (1997);
93. Charles R. Beitz, Human Rights as a Common Concern, 95 AM. POL. SCIENCE REV. 269 (2001).
94. HUMAN RIGHTS, CULTURE & CONTEXT: ANTHROPOLOGICAL PERSPECTIVES 23 (Richard Wilson ed., 1997);
95. compare Fred Dallmayr, "Asian Values" and Global Human Rights 52 PHIL. EAST & WEST 173 (2002);
96. Charles Taylor, Conditions of an Unforced Consensus on Human Rights, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS, supra note 1;
97. Penna & Campbell, supra note 3.
98. Nathan, supra note 37;
99. compare Preis, supra note 37;
100. Declan O'Sullivan, Is the Declaration of Human Rights Universal? 4 J. HUM. RTS. 25 (2000).
101. Donnelly, Cultural Relativism and Universal Human Rights, supra note 1;
102. DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2d ed.), supra note 1, 6§.4.
103. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, arts. 3, 22, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949).
104. Id. art. 21.
105. For example, Article 14 of the Convention against Torture specifies that: Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, art. 14, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985).
106. I am implicitly speaking from the perspective of an engaged participant in international society. A different and more complex "subject position" may be important "on the ground" where ordinary people have more local and particularistic understandings of their values. I suspect that much of the "talking past each other" in debates on cultural relativism and human rights arises from taking arguments that may be well formulated for a particular setting, be it local or international, and applying them directly in another discursive setting, without the adjustments required to give those arguments resonance and persuasive force in that context. For example, in much of rural China today, direct appeals to internationally recognized human rights are unlikely to be politically efficacious, and often will be positively counter-productive, either for mobilizing peasants or persuading local authorities. Those working directly to improve the day to day life of Chinese peasants needs to give central place to this fact. But I would suggest that it says more about the Chinese state and the enforced isolation and systematic repression of Chinese peasants than about "Asian values."
107. Defensible categorical differences between "developed" and "developing" countries, I would argue, involve, at most, differing short-term priorities among particular internationally recognized human rights, not major differences in the list of rights appropriate for individuals in such countries.
108. Universal Declaration, supra note 50, art. 18.
109. Even where there is a broad pattern of systematic violations of international human rights norms, we often would do well not to focus too much on the issue of apostasy, which is likely to have a much stronger internal justification than many other violations of internationally recognized human rights. A better strategy, at least where apostates do not suffer severely, would be to work to improve broader human rights practices, with the aim of creating a situation where we would be "willing to live with" at least some forms of prohibition of apostasy.
110. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, art. 4, ¶a, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966).
111. International Covenant on Civil and Political Rights, adopted 19 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 20(2), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
112. I probably would not object to readers who took this as implicit acknowledgment of certain shortcomings in some of my previous work on relativism, although I suspect that we might disagree about the range of applicability of such criticisms.
113. For clarity, let me explicitly note that I am not endorsing these judgments but simply arguing that even if they are accepted they do not justify violating human rights.
114. Compare Julie Mertus, The New U.S. Human Rights Policy: A Radical Departure, 4 INT'L STUD. PERSPECTIVES 371 (2003).
115. See available at www.whitehouse.gov/nsc/nssall.html; www.whitehouse.gov/nsc/nss/2006/print/intro.html. The prefaces of the Clinton national security statements of 1996, 1997, and 1999, taken together, use "democracy" twenty-one times, "human rights" seven times, and "freedom" six.
116. See available at www.fas.org/spp/military/docops/national/ 1996stra.htm; www.fas.org/man/docs/strategy97.htm; www.dtic.mil/doctrine/ jel/other_pubs/nssr99.pdf.
117. DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2d ed.), supra note 1, 1§1.3