The Blackwell Companion to Sociology (25 page)

judicial process, of the country (Steiner and Alston, 1996, p. 26). In other

words, domestic compliance with a state's international obligations to protect

human rights can only be achieved by the official organs of the same state.

Thus, while intended to ensure the protection of certain minimum rights,

international protection is dependent on the active cooperation of states in

limiting their freedom of action within their own domestic jurisdiction. The

paradox of self-regulation by the state of its own behavior is, of course, also

true of domestic constitutional and legal protection of rights. The crucial difference, noted above, is that constitutional rights are the product of internal

dynamics, whereas the human rights paradigm seeks to influence domestic

situations in favor of upholding certain internationally recognized standards.

In other words, the paradox is sharper for the human rights paradigm because it

has to overcome internal opposition within the country in question, without

having the power to impose its will on states which refuse to comply. The need to mediate this enduring paradox calls for a clear understanding of the nature and

functioning of social and political forces and institutions within each country, and in its relations with other countries.

It is not helpful to simply call for formal limitations on state sovereignty,

because that is neither practically feasible nor necessarily good for the protection of human rights in the long term. Formal limitations on sovereignty are not

feasible because sovereignty is integral to the foundations of the present international order, as entrenched in Article 2(7) of the UN Charter and other

international documents, and fundamentally affirmed by national constitutions

around the world. Since states are the principal actors at both the international and national levels, they are unlikely to relinquish their own autonomy by

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abandoning sovereignty or allowing other actors to achieve that result. Even if

they were practically feasible, formal limitations might also be counterproduc-

tive because sovereignty is the essential expression of the fundamental collective right to self-determination, as the practical vehicle of domestic policy and the necessary medium of international relations.

A more realistic and desirable approach, I suggest, is to seek to diminish the

negative consequence of the paradox of self-regulation by infusing the human

rights ethos into the fabric of the state itself and the global context in which it operates. In that way, the protection of human rights becomes the outcome of

the free exercise of the right to self-determination, instead of being seen as an external imposition which violates that right. This paradigm shift can best be

achieved by upholding the universality of human rights as, in the words of the

Preamble to the Universal Declaration, ``the common standard of achievement

for all peoples and all nations.'' Since external imposition will probably be

resisted as a clear violation of sovereignty, while voluntary compliance with

commonly agreed standards is likely to be seen as vindication of sovereign

authority, the universality of human rights must reflect true consensus around

the world. At a formal level, that is said to be achieved through agreement

among states, as the representatives of their societies under international law.

But according to the human rights paradigm itself, and as a matter of practical

politics, international agreements are legitimate and sustainable only to the

extent that they express the genuine consent of national societies and local

communities.

The Quandary of Universality and Relativity

The issue of popular acceptance of the human rights paradigm is frequently

discussed in terms of a binary of universality and relativity (Steiner and Alston, 1996, p. 166; Negengast and Turner, 1997), as if one has to either fully accept or completely reject the universality of certain rights for all human beings. At one end of this purported spectrum are said to be countries which claim cultural/

religious relativity or contextual specificity to justify rejecting or qualifying certain universal human rights norms, in contrast to those which are supposed

to fully accept the universality of all human rights, at the other end. Whereas

some Islamic and East Asian countries are commonly placed on the relativist

side, Western countries are commonly assumed to be universalist. Upon reflec-

tion, however, one can see that such a binary view of this issue is both misleading and difficult to substantiate or maintain in practice.

A binary view is misleading in assuming either that human rights can be

culturally and contextually neutral, or that a conception of human rights emerg-

ing within one culture or context can be accepted by other cultures for applica-

tion in their context. To explain, I would first note that, as a normative system that seeks to influence people's behavior and direct the institutions which regulate their lives, human rights can only be the product of culture, to be interpreted for practical application in a specific context. In other words, human rights

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norms can be neither imagined nor understood in the abstract, without reference

to the concrete daily experience of the people who are supposed to implement

them. As indicated above, the human rights paradigm is founded on the belief in

the possibility of universal rights, due to all human beings, everywhere, as the basis for international concern about how people are treated in any part of the

world. Yet, since any conception of human rights as a normative system is the

product of some culture(s), a given set of these rights can be perceived as alien or unacceptable to other cultures. That is exactly the quandary of universality and relativity: namely, how to determine universally valid and applicable human

rights norms, which would naturally tend to reflect certain cultural values and

institutions, without expecting one society to submit to the normative system of another.

It is difficult to substantiate a binary view of universality and relativity of

human rights because that would ignore the realities of power relations in the

world, and oversimplify the positions and behavior of countries on both sides of this alleged divide. For example, the criteria and process by which the present set of international human rights was established in the first place were not as

inclusive as they ought to have been. As noted earlier, the vast majority of the peoples of Africa and Asia were not represented at the UN, except by the same

colonial powers which had for decades violated the basic human rights of

colonized peoples. Upon achieving independence, African and Asian states had

no choice but to at least pretend to accept the pre-established concept, structure, and content of the human rights paradigm as a condition of membership in the

international community. That is to say, the balance of global economic, milit-

ary, and political power relations in the postcolonial world has enabled the

developed countries to raise the human rights paradigm they have established

themselves as the condition for membership in the international community.

This does not mean that this paradigm can never become universally accepted

and applied. Rather, the point is that efforts to promote universality should be founded on a clear understanding of the issues from different perspectives.

It is profoundly problematic, in my view, to assume that the universality of

human rights is ``self-evident'' or has been `èstablished,'' and all that remains is tò`pressure'' a few ruling elites in developing countries to abandon their

`òpportunistic'' denial of the obvious. This view, on the hand, encourages

hypocrisy among the governments of developing countries who have to pay

lip-service to human rights in exchange for favorable treatment by developed

countries in such matters as development assistance, support for credit from

international financial institutions, and/or the grant of special trade status. The nature of existing power relations, on the other hand, enables the governments

of developed countries to raise the human rights paradigm selectively, in the

service of their own foreign policy objectives (compare the US positions regard-

ing China and Cuba), without regard to the integrity and credibility of this

paradigm as a whole. The application of double standards in judging similar

situations is possible because of the lack of an independent check on the alleged commitment of developed countries to the universality of human rights. Since

these states dominate international relations, they are the primary judge of their Human Rights

93

own behavior, as well as that of developing countries. In fact, developed coun-

tries have not shown consistent acceptance of the universality of human rights in their own national policies. This is reflected, for example, in the resistance of Western countries to accepting that economic, social, and cultural rights are

actually human rights, as proclaimed by the Universal Declaration and numer-

ous international treaties (Eide et al., 1994; Steiner and Alston, 1996, p. 256).

For instance, Article 25 of the Declaration provides that everyone has à`right to a standard of living adequate for the health and well-being of himself and his

family, including food, clothing, housing and medical care and necessary social

services.'' Thus, these economic and social rights are as much human rights as

the right to life, liberty, and security of person (Article 3), protection against torture, cruel, inhuman, or degrading treatment or punishment (Article 5), and

freedom of opinion and expression (Article 19). No one would suggest that

torture or suppression of freedom of expression be condoned or tolerated any-

where in the world today. Yet there is little objection to the denial of food,

shelter, and medical care to the majority of human beings around the world,

especially those living in developing countries. Western countries also find it

difficult to accept the possibility of protecting any collective or group claim or entitlement as a human right within an existing state, although the first Article of both the 1966 Covenants provides for a collective human right to self-determination of `àll peoples'' (not nations, countries, or states). Since this Article clearly envisages political independence as a means to achieving such objectives as

political participation, social development, and economic well-being, denying

any group of people any of the essential elements of this right is a violation of the right itself.

It is true that some economic, social, cultural, and/or collectivèìnterests'' are substantially provided for within the national jurisdictions of developed Western countries through the normal political and legal processes of each country;

sometimes with special constitutional or legal protection against easy violation.

But the essence of the human rights paradigm is to ensure that such interests are safeguarded against the contingencies of national politics and legal processes. In fact, the idea emerged from the experience of Western countries which sought,

through constitutional protection, to place certain fundamental civil liberties

beyond daily politics. That is, recognition of a specific entitlement as a human right is supposed to enhance the prospects of its practical implementation more

than can be expected from the normal political and legal processes of any

country. To the extent that they do in fact respect and protect economic, social, and cultural rights, or collective rights, developed countries have nothing to fear from accepting those rights as human rights. Conversely, such acceptance is

necessary whenever those rights are not sufficiently respected in the manner

and to the extent required by international human rights standards.

It is true that economic, social, cultural, and collective rights are presently

difficult to specify and enforce in the same way one can do with civil and

political rights. For example, since the right to work cannot practically mean

an obligation on the state to actually provide work for every person, the question is: what should be the content of this right and how can it be implemented?

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Abdullahi Ahmed An-Naìm

Collective rights raise issues of human agency in determining membership and

boundaries of groups, or more generally the dangers of elite appropriation of the collective voice of groups and communities. However, difficulties are only to be expected because formal recognition of these rights is much more recent, in

comparison to civil and political rights. Moreover, these rights need not neces-

sarily fit the model of civil and political rights to qualify as human rights. The processes of concrete definition and implementation of these rights, which

require social scientific analysis as suggested here, are not likely to make significant progress unless they are taken seriously as human rights, rather than

simply objectives of public policy.

The real reason for Western resistance to accepting these rights as human

rights, in my view, is ideological or cultural. Subject to national and regional variations, the liberal ideology/culture of these countries tends to hold that

economic, social, and cultural benefits or services should be provided for

through the normal political process, instead of being given legal sanction as

rights. Because of its emphasis on individual autonomy and privacy, against