Are Human Rights Universal?

The notion that human rights are universal stems from the philosophical view that human rights are inextricably linked to the preservation of human dignity. This means that respect for individual dignity is due equally to one and all, regardless of circumstance. In this way, human rights must apply universally.

This is clearly the thrust behind the world’s main human rights instruments in operation today. The earliest human rights Charter of the modern era – the French Declaration on the Rights of Man and of Citizen 1789 – refers to the "natural and inalienable rights of man" and that "[m]en are born free and equal in rights". (Note the term ‘man’ is used in the sense of all human beings or ‘mankind’.)

The same sentiment was expressed almost 160 years later in the Preamble to the Universal Declaration on Human Rights which refers to: "the inherent dignity and … the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".

The human rights contained in both of these instruments, and the many others that share their aspirations, are considered essential to the respect of every human being’s dignity.

"… this single page of print, which outweighs libraries, and is stronger than all the armies of Napoleon". Lord Acton (British Law Lord), on the French Declaration on the Rights of Man (1789)

What does ‘universality’ mean?

The central tenet of the notion of universality is that human rights are themselves the right of all human beings. The most important rights of all, in other words, are everyone’s right to human rights!

Some argue that the concept of universality is culturally constructed. Human rights are viewed as representing the particular belief systems of some cultures and societies rather than those of all cultures and societies. This is the so-called ‘cultural relativist’ argument, the very rationale of which is to deny claims of universality. Accordingly, in their modern form, human rights are considered a Western construct of limited application to non-Western nations. This is the so-called "West versus the Rest" debate.

Some Asian political leaders have adopted this cultural relativist argument, for example, Dr Mahathir Mohamad, the Prime Minister of Malaysia, and the former Singaporean Prime Minister Lee Kuan Yew. However, others have counter-argued that Asian values and the universality of human rights are complementary, for example, President Kim Dae Jung of South Korea, Anwar Ibrahim, the former Deputy Prime Minister of Malaysia, and President Habibie of Indonesia. In addition, the recently drafted Asian Charter on Human Rights (1998) forcefully reiterates the universality of human rights.

If we in Asia wish to speak credibly of Asian values, we too must be prepared to champion those ideals that are universal and belong to humanity as a whole. It is altogether shameful, if ingenious, to cite Asian values as an excuse for autocratic practices and denial of basic rights and civil liberties. To say that our freedom is Western or UnAsian is to offend our traditions as well as our forefathers who gave their lives in the struggle against tyranny and injustices. Anwar Ibrahim, Former Deputy Prime Minister of Malaysia

One of the reasons why this diversion of opinion exists within Asia is that supporters of the cultural relativist argument believe the notion of universality to be promising more than it can deliver. Universalists disagree, pointing out that in fact the notion has definite limits.

The universality of human rights does not mean that the rights of every human being are the same for everyone, all of the time and in every circumstance. In fact, this would be impossible to achieve. Individual human rights do not exist in isolation of each other. In fact, they are inextricably linked together. Sometimes they complement one another and at other times, there is tension between them. The potential for rights to conflict is often present. For example, the rights to freedom of expression or a fair trial may clash with the right to privacy; the right to cultural or religious practice may clash with the right not to be discriminated against on certain grounds; and the rights to a healthy environment, to an education, to health care or to welfare benefits may be in competition with each other over the same limited resources.

In practice, compromises are made and balances are struck to enable individual rights to operate in concert with one another. For example, as Australians we are generally free to say whatever we like, though not to defame someone, or to invade their privacy to obtain information for public consumption. We can practise any religion of our choice, but we cannot use faith as an excuse to unfairly discriminate against others at work or in any other public forum. In the allocation of public resources, the environment may be favoured over expansions in health care, or the other way around. Welfare benefits might be enhanced at the expense of educational institutions, or the other way around. At times, all of these rights will lose out in the pursuit of some other policy goal.

This differentiation between human rights is constantly changing. However, it should never develop into a formal or semi-formal hierarchy of rights, as this would jeopardise the concept of universality. Consider, for example, the perceived distinction between civil and political rights and economic, social and cultural rights. The Universal Declaration on Human Rights broadly covers both sets of rights in equal measure, though they are separated in by two covenants – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Part of the reason for this perceived distinction flows from the distinct form and nature of these two sets of rights.

It is argued that civil and political rights are ‘negative’ rights or freedoms, as they generally require States not to interfere in the affairs of their citizens (eg privacy, freedom of expression, thought and religion, freedom of movement and assembly, and freedom from torture, arbitrary arrest and discrimination). Economic, social and cultural rights, on the other hand, are considered ‘positive’ rights – in that they require States actively to implement measures to secure these rights (eg right to a clean environment, and rights to education, health, welfare assistance, and the right to substantive equality).

It is important to note that this distinction applies not only between the two Covenants mentioned above, but also in respect of those rights covered within other human rights instruments. For example, consider the many different kinds of rights covered in the Convention on the Rights of the Child (CROC), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of all forms of Racial Discrimination (CERD), the Declaration on the Rights of the Disabled Persons, the Refugee Convention and certain ILO Conventions.

To support such a distinction, it is argued that the protection of civil and political rights is not as demanding of public resources as is the protection of economic, social and cultural rights. It is further argued that by some lawyers that the latter set of rights rely on (political) policy decisions rather than on principle, and as such, are less amenable to implementation and more difficult to enforce through the courts. They are, it is claimed, not justiciable. In this way, economic, social and cultural rights are distinguished from civil and political rights - and deemed ‘second order’ human rights or not human rights at all.

This line of reasoning is employed most often at the domestic level; it is, for instance, a primary reason why the United States has not ratified the ICESCR.

"Convinced that it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights." Preamble, African Charter on Human and Peoples’ Rights (1986)

Many reject such an ‘artificial distinction’ between rights for the reason that it supposes that some human rights are more important than are others. At the international level, the United Nations and other international organisations, have consistently emphasised the equal status of, and interrelationship between, these two sets of rights. The 1993 Vienna Declaration, for example, proclaims that "all human rights are universal, indivisible and inter-dependant and interrelated" (para.5).

The inconsistency between the international and (some) domestic levels is a matter of concern for international law and international relations. The force of international human rights norm-setting is significantly diluted if countries believe that they are able to say one thing in Geneva or New York but do something else at home.