Relativism vs. Universal Human Rights

Introduction

Relativism in human rights is an approach that argues against the universal values of human rights and instead proposes that cultural values and customs can be used to pose exceptions to universal values of human rights. Universalism in human rights, which is the opposite approach to relativism, posits that certain human rights are inalienable and inherent in all people around the world, irrespective of their nationalities and cultures. Notably, the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948, exemplifies such universal values. Donnelly writes “universal human rights, properly understood, leave considerable space for national, regional, cultural particularity and other forms of diversity and relativity.” This would mean that even when human rights are considered to be universal, there is space for exceptions and relativism in the application of these human rights in the national and cultural contexts. In international law of human rights, such an approach is seen in the way specific approaches have been constructed to allow such particularism or relativism. In this essay, an example of such particularism will be discussed with the focus on the doctrine of margin of appreciation developed by the European Court of Human Rights (ECtHR).

The Universal Declaration of Human Rights (UDHR), was drafted after considering the diverse cultural and religious traditions in the world and so even when the declaration is stated to be universal, its universality encompasses the diversity of the world and allows certain relativism. However, even when relativism is allowed in international law of human rights, the effect is not to completely obliterate the core of human rights values. Instead, the qualifications that are allowed in the application of universal values of human rights are those that are recognised only to a limited extent. In Europe, the ECtHR has evolved the doctrine of margin of appreciation to allow such qualifications to the rights protected under the ECHR. The doctrine of margin of appreciation was considered to be a useful construct because it would allow domestic political institutions the primacy of determining Convention Rights questions. However, over time the doctrine has become controversial.

The primary criticism of the doctrine of margin of appreciation is that it is a means for preventing development of universal human rights standards because it permits national authorities to dilute the universal standards by introducing particularist or relativist exceptions. At the same time, it may be noted that although the ECtHR defers to the judgement of the national authorities, it is not exclusively dependent on such judgement. The reason why the court considers the national authorities is because the latter are ‘better placed’ to determine the demands of a particular situations in local and cultural contexts. Therefore, there is an involvement of relativism in the doctrine of margin of appreciation.

Actual application of relativist claims in the European context can be seen in different judgments of the ECtHR. In Handyside v UK, the Court held that the UK is justified in making a law for penalising the disseminating of ‘obscene’ publications and the confiscation of copies of the publication for the protection of morals, irrespective of the right to freedom of expression protected by the European Convention of Human Rights in Article 10(2). Moreover, the ECtHR also held that such margin of appreciation is wider in case of claims of national security, morality or religious feelings of others.

This brings up the issue of cultural relativism and its impact on international law of human rights. Cultural relativists claim that distinct culture and practices of a people may pose reasonable limitations on the universality of human rights. It may be noted that one of the impacts of cultural relativism in international human rights context is that there are impediments to the evolution of international human rights because of relativist objections. An example can be seen in the claims of many ethnic societies, such as, Arab societies, that the universality of human rights is unacceptable to them because this is just a way of ‘cultural imperialism’ by the West. The acceptance of the UDHR principles in such societies also pose a problem due to such claims . Morsink also relates the complex and complicated negotiations that took place to avoid ethnocentric language in the UDHR. This despite the significant proportion of the UN membership accepting the UDHR in 1948.

This study will use desk based research methodology to identify and analyse the impact of relativism on the international law of human rights. In this, the study will particularly consider the development of doctrine of margin of appreciation, for applying relativist positions to regional arrangements on human rights. The study will also consider the impact of relativism on the acceptance and application of UDHR principles.