Human rights have become a hotly debated topic in both the academic and the political world, one of the main points of contention being whether they are universal or not. As Eva Brems has shown, feminists and cultural relativists are among the staunchest opponents of the claimed universality of human rights, criticizing its male bias and Western bias respectively. Thus, many debates discuss the universality of human rights at what Jack Donnelly calls the historical or anthropological level, examining its historical roots. However, most of such debates (and debates with different approaches, for that matter) ignore the fundamental question: How can we know for sure if any or all human rights are (not) universal? My answer is that we cannot. We may make claims, but the social, legal, moral and philosophical complexity involved in human rights demands that we always acknowledge the uncertainty of our own claims. In other words, the debate about the universality of human rights is irresolvable, which has significant international implications.
Before elaborating on these implications, it is helpful to distinguish between two aspects of human rights: the philosophical and the legal aspect. Obviously, human rights are a philosophical phenomenon, with the core idea that all humans are entitled to certain universal, individual, inalienable rights simply by being human. The philosophical aspect conceptualizes what human rights are, but tells us little about how to observe them, which is where the legal aspect of human rights comes in. The legal aspect refers to the many international human rights treaties that have been established since the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations in 1948. These treaties jointly form a framework of international law in which all countries are supposed to operate, as there is no country that has signed no human rights treaty at all.
The abidance to human rights is thus a matter of international law. Thereby, it is important to understand that international law, in order to be effective, must be based on consensus, as there is no world government that can enforce international rules on countries. In this context, Donnelly argues that the UDHR is acknowledged, but not in practice respected by virtually all countries. To illustrate, Donnelly mentions China as an example of a country that merely pays lip service to the UDHR. Indeed, the Chinese constitution states that China respects human rights, but most Tibetans will tell a different story. So, based on the empirical fact that many states fail to foster human rights, we can say that a global consensus on human rights is arguably not in place yet.
However, as mentioned, building consensus is essential in crafting an international human rights law framework, which is necessary to protect the observance of human rights on a global level. A lot of attempts to build this comprehensive consensus take the assumed universality of human rights as a starting point, the argument being that because human rights are universal, all countries should respect them. Yet, as stated earlier, since the question whether human rights are truly universal is irresolvable, this philosophical claim is in all likelihood not going to lead to an international consensus, and might even lead to a deadlock in human rights discussions. Countries will comply to human rights treaties only if they genuinely agree with these treaties, not because other countries claim human rights to be universal, which is ineffective at best, and increases tensions at worst.
Hence, to break the deadlock and ease the tensions, we should shift the focus away from the universality debate, in order to build an international consensus on which an effective international human rights law groundwork can be established. When such a groundwork is made, countries will not just pay lip service to human rights anymore, but they will actually protect them. How such a consensus can be reached remains of course an open question, but a relevant option is to focus on the spirit of the UDHR, rather than its universality. If we cannot agree upon the universality of human rights, we can (hopefully) agree on their function, which is according to Donnelly to protect human dignity all over the world. Human dignity then, should be both the basis and the outcome of the process. If we can form a consensus on the notion that all human beings deserve to live a dignified life, it is my sincere hope that we can also build an international legal framework to make that consensus a reality.
Koen Donatz is a bachelor student Cultural Anthropology.