The Realities and Objections to the Universality of Human Rights
It has been claimed that the development of human rights in the Global North over the last century has been a ‘a sign of moral progress.’[1] Joseph Slaughter, however, states that this progression of human rights has led to the regression or ‘rollback’ of human rights in the Global South.[2] This has been caused by neoliberalism, which is the ideology that society’s political and economic institutions should be liberal and capitalist in nature.[3] Additionally, the regression has been influenced by the individualisation of human rights and the creation of a ‘moral economy.’[4] This article will therefore discuss how modern interpretations of the universality of human rights have further subordinated the Third World and Indigenous peoples by ignoring their contributions to international law and their already existing methods of conducting international legal relations.
Shashi Tharoor states that there is a clear case for universality but that there are also many objections to the assumption of its existence.[5] Therefore, rather than dismissing the possibility of universalism, we should be identifying the common denominators of each society such as concepts of justice and law, legitimacy of government, dignity of the individual, protection from oppressive or arbitrary rile and participation in community affairs.[6]
The Problematic ‘Origins’ of Human Rights
What Slaughter refers to as the ‘strict Eurocentric version’ of human rights is based on the American Declaration of Independence and the 1789 French Déclaration des droits de l’homme et du citoyen which influenced the 1948 Universal Declaration of Human Rights (UDHR).[7] He highlights the danger of this hegemonically ‘Western’ background as it exacerbates the ‘liberal and moral arrogance’ of the Global North.[8]
The UDHR was also not created to have legal effect[9] but promotes a ‘common standard’ for all peoples and strives to ‘secure [the] universal and effective recognition and observance’ of the rights included.[10] The idealistic nature of the Declaration has been criticized by many Asian and African writers who, despite being included in this category of ‘all peoples,’ were not represented at the United Nations (UN) in 1948 and were therefore excluded from its drafting. Furthermore, many of these nations were under the colonial rule of the drafting states in 1948.[11] Although it has no direct legal effect, these exclusions of Third World and Indigenous communities are significant as the Declaration was used as a model for the International Convention on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Plurality of International Legal Systems
Indigenous peoples employ existing international frameworks to mediate relationships with other communities and political structures, indicating that the Eurocentric international legal system is merely one of many.[12] Rigney refers to these frameworks as ‘Indigenous international law’ and draws on four cases brought to the League of Nations to represent the opportunities that the Eurocentric form of international law had to engage with Indigenous international law.[13]
In a case brought by Deskaheh, the Hereditary Chief of the Six Nations in Turtle Island, the tradition of creating legal treaties, in this case the Iroquois treaty practice of Wampum, was used to support the claim that Indigenous law-making is practiced at an international level.[14] Another example of Indigenous international law is the ‘Uluru Statement from the Heart’ which concerned the collaboration of Indigenous groups in Australia seeking to have their communities recognised in the Australian Constitution. Rigney argues that this is an example of Indigenous international law rather than domestic public law as the dialogues between the groups included engagement in diplomatic and law-making acts to create a Statement that relies upon the concepts of sovereignty, jurisdiction and justice.[15] This statement also highlights that terms such as ‘sovereignty’ are not universal between legal systems; the sovereignty alluded to by the Indigenous groups is derived from ancestral beings, humans and land[16] whereas the Eurocentric definition is connected to the possession of property.[17]
The European and Indigenous international legal systems can be differentiated on the basis of their political projects; the European political project being to colonise territory and the Indigenous political project being to maintain sovereignty in the face of invasion.[18] Many contemporary examples of Indigenous peoples engaging in international law relate to Eurocentric international law such as lodging complaints under the ICCPR.[19] These complaints include those made by the ‘Torres Strait Eight’[20] against Australia and the ‘Lubicon Lake Band’ made against Canada.[21] In the latter of these cases it was held that because Article 1 of the ICCPR is not an individual right, it is non-justiciable. There is therefore no remedy available to Indigenous peoples whose right to self-determination may have been violated. The Declaration on the Rights of Indigenous Peoples was adopted by the UN in 2007, but it has been argued that it ‘both recognised and limited self-determination’ and essentially excluded the right to external self-determination.[22]
The League of Nations has been criticised for using the language of self-determination in a manner that is ‘imperial and conservative,’ preserving a racially hierarchal structure[23] and deliberately ignoring the voices of Indigenous peoples.[24] By failing to engage with Indigenous peoples, the League missed the opportunity to implement the universality of human rights and further subordinated these communities. The denial of existing Indigenous jurisdiction, sovereignty, and internationalism such as this are what led to the perception that European international law is the ‘universal and neutral mode’ of governing international relations rather than one of many international legal orders.[25]
Collective and Individual Human Rights
Charles Malik, a representative on the UDHR drafting committee, claimed that the UDHR accounted for the views of ‘all systems, all religions, all cultures, and all outlooks.’[26] Nonetheless, the UDHR emphasizes the rights of individuals over states.[27] own that transcend those of individuals.[28]
The ‘cultural objection’ reflected in cultures such as Hindu, Islamic, Arab and African traditions similarly reject the separation of the individual from society.[29] In Africa, communities often employ the ‘kinship system’ which promotes respect, restraint, responsibility, and reciprocity giving group rights precedence over individual rights.[30] The significance that Third World and Indigenous communities award to collective rights is undermined by the priority given to individual rights included in the Eurocentric international legal system.
Amnesty International and the democratic capitalist governments of the Global North have also contributed to this supranationalisation of individual rights.[31] Furthermore, this restricted focus on individual political prisoners has been linked to the neo-liberalisation of the ‘moral economy’ of international affairs[32] which consists of treating political prisoners and prisoners of conscience as human rights trade goods.[33]
Conclusion
This article has discussed the plurality of existing international legal frameworks, specifically that of Indigenous international law, and the ways in which the Eurocentric international legal order has failed to engage with it. The perception of the Eurocentric international legal order as the ‘universal and neutral mode’ of governing international relations has therefore ignored, rejected, and cast aside these existing frameworks. Furthermore, when Indigenous peoples have attempted to engage with the Eurocentric international legal order, their claims have been dismissed and their concerns disregarded.
The ideological, cultural, foreign policy, and developing country objections to the universality of human rights and the many ways in which they reveal the hegemony of the Eurocentric international legal system have been explored throughout.. The supranationalisation of individual rights over collective rights, promoted by neoliberal governments and global organisations such as Amnesty, have led to the ‘rollback’ of human rights in the Global South and the subordination of Third World and Indigenous communities.
Achieving the universality of human rights would consist of the formulation of rights that ‘reflect our common universal humanity from which no human being must be excluded’ rather than transcending the philosophical, cultural, and religious differences between the world’s societies.[34] The non-uniform application of human rights standards by countries in their own legal systems can therefore attract new perspectives which can in turn strengthen the universality of human rights.[35] This tolerance of different perspectives would prevent the one-sided interpretation of human rights which leads to the rejection and exclusion of certain communities and undermines the goal of universality.
[1] Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press 2001)4
[2] Joseph R. Slaughter, ‘Hijacking Human Rights: Neoliberalism, the New Historiography, and the End of the Third World’ (2018) 40(4) Human Rights Quarterly 735,736
[3] Kevin Vallier, ‘Neoliberalism’ (Stanford Encyclopaedia of Philosophy June 2021) Neoliberalism (Stanford Encyclopedia of Philosophy)accessed 10 April 2022
[4] n2
[5] Shashi Tharoor, ‘The Universality of Human Rights and their Relevance to Developing Countries’ (1990) 59 Nordic Journal of International Law 139,140
[6] ibid,145
[7] n2,737
[8] Joseph R. Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law (Fordham University Press 2007) 65
[9] Lord Hoffmann, ‘The Universality of Human Rights’ (Courts and Tribunals Judiciary 19 March 2009) para 24 Speech by Lord Hoffmann: The Universality of Human Rights | Courts and Tribunals Judiciary accessed 5 April 2022 para 19
[10] ‘Universal Declaration of Human Rights Preamble’eng.pdf (ohchr.org) accessed 10 April 2022
[11] n9, para 20
[12] Sophie Rigney, ‘On Hearing Well and Being Well Heard: Indigenous International Law at the League of Nations’ (2021) 2 TWAIL Review 122,123
[13] ibid,124
[14] ibid,138
[15] ibid,146
[16] Aileen Moreton-Robinson, ‘Introduction: Critical Indigenous Theory’ (2009) 15(2) Cultural Studies Review 15
[17] n5,147
[18] n12,127
[19] ibid,143
[20] ‘The Torres Strait 8’ (Australian Human Rights Commission)https://humanrights.gov.au/node/16886accessed 13 April 2022
[21] Lubicon Lake Band v Canada (OHCHR)Jurisprudence (ohchr.org)accessed 9 April 2022
[22] Karen Engle, ‘The Elusive Promise of Indigenous Development: Rights, Culture, Strategy’ (2010)44(3) Journal of Latin American Studies 595
[23] Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (Princeton University Press 2019) Chapter 2
[24] Irene Watson, Aboriginal Peoples, Colonialism and International Law (Routledge 2015)90
[25] n12,126
[26] Charles Malik, Man in the Struggle for Peace (Harper and Row 1963) 89
[27] n2,745
[28] n5,145
[29] ibid,146
[30] ibid
[31] n2,752
[32] ibid,766
[33] ibid,766
[34] n5,151-52
[35] ibid,152