Human Rights Act 1998: Are all human rights absolute and inalienable?

Relativism and Universalism

The rights contained within the ECHR are also available for ratification, by States at an international level within the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both of these Covenants are widely ratified, giving credence to the argument that the rights contained within are of universal application and apply across cultures. The radical universalist position therefore suggests that culture has no relevance to the validity of moral rights or rules, which are valid across all cultures equally. At the opposite end of the spectrum, the radical cultural relativist holds that culture is the only source of validity of a moral right or rule.

Although most scholars do not take these absolute positions, both views have been expressed within academic legal scholarship and within the international community. Donnelly, adopting a weak cultural relativist standpoint, suggests that certain human rights enjoy a cross-cultural consensus, such as the prohibition of torture and the requirement of procedural due process. International custom purports to represent rules of international law which are supported by the majority of States, in that they are rules they believe themselves to be bound by (opinio juris) and the subsequent acts of States (state practice).  A number of authors have suggested that human rights prohibitions against genocide, torture and slavery are rules of customary international law and are hence binding upon all states, whether or not they have expressly agreed to them through the ratification of an international treaty.

The contrary position of cultural relativism argues that for every culture, some moral judgments are valid, but no moral judgment is universally valid, or valid for all cultures. Thus, the view is suggested that every judgment is culturally relative, or is subject to a cultural values or norms. The cultural relativist position has been raised since Western States have largely been the advocates of so-called 'universal' human rights norms, but that such norms, which originated from Western values, should not be imposed upon non-Western societies. 

Relativists have regarded some basic human rights, such as the right to life and the freedom from torture, are absolute in the sense that even cultural traditions may not override them. Relativists have not always regarded other rights, such as the right to participate in free elections, the right to free trial, to freedom of expression, or the prohibition of discrimination as necessary values. They argue that respect for human rights depends upon, or can be modified by, local cultural conditions. One area where a cultural relativist might argue local cultural conditions apply is in the realm of discrimination on the ground of sex.

Relativism and Discrimination

An example of this can be seen in regard to the numerous reservations to the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW), on the basis that there is a conflict between the Convention and Sharia law. Many Islamic States have entered reservations to its central provisions, Article 2 (the obligation to pursue a policy of eliminating discrimination against women) and Article 16 (to take measures to eliminate discrimination in marriage and family matters), on the basis that they conflict with Sharia law.  The problem with advocating such a position based upon cultural norms is that those cultural norms only appear to represent the interests of the male members of that society. These cultural norms, which advocate female subordination, are not naturally occurring phenomenon but are politically constructed and maintained by patriarchal interests, ideology and institutions and hence cannot be regarded as adequately challenging the universalist position. 

Conclusion

A balance between relativism and universalism must be achieved and is beneficial when this leads to the upholding of human rights norms. However, when it is used as an excuse to the subordination of one half of the population to the other, cultural relativist views struggle to effectively challenge a universalistic position with relation to human rights.

References

Cases

• A and Others v Secretary of State for the Home Department [2004] UKHL 56
• Al-Adsani v United Kingdom 34 EHRR 11
• Chahal v United Kingdom 1996-V; 23 EHRR 413

Legislation

• Committee Against Torture's Concluding Observation on Germany, Thirty-second session, CAT/C/CR/327 11 June 2004
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987
• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (Rome, 4 November 1950; TS 71 (1953); Cmd 8969
• Human Rights Act 1998
• Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644
• United Nations International Covenant Economic, Social and Cultural Rights 1966
• United Nations International Covenant on Civil and Political Rights 1966

Books/Journal Articles

• Baker, R.B. Customary International Law in the 21st Century: Old Challenges and New Debates (2010) 21(1) European Journal of International Law, 173
• Bunch, C. “Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights” (1990) 12 (4) Human Rights Quarterly 486
• Donnelly, J., Cultural Relativism and Universal Human Right (1984) 6 Human Rights Quarterly, 400
• Ewing, K.D. 'The Human Rights Act and Parliamentary Democracy' (1999) 62 Modern Law Review 79
• Mavronicola, N., What is an ‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights (2012) 12(4) Human Rights Law Review, 723-758
• Murphy, C.F., Objections to Western Conceptions of Human Rights (1981) 9 (2) Hofstra Law Review, 433
• Roberts, A.E ‘Traditional and modern approaches to customary international law: a reconciliation’ (2001) 95 American Journal of International Law, 757-791
• Tesón, F.R., International Human Rights and Cultural Relativism (1985) 25(4) Virginia Journal of International Law, 869
• Tilley, J.T. ‘Cultural Relativism, Universalism, and the Burden of Proof’ (1998) 27(2) Millennium Journal of International Studies 275

Online References

• United Nations Human Rights, Status of Ratifications, [online] < http://indicators.ohchr.org/> accessed 6th April 2016