Are human rights universal
What does «universality of human rights» mean?
The expression “universality of human rights” means the general validity of human rights in the sense of a validity claim: The claim is made that human rights should apply to all people everywhere.
The "validity for all people" has two different, interrelated meanings:
- Every human being can invoke the same human rights to protect its elementary interests.
- Every human being should recognize the validity of the same human rights.
Universality as a moral claim
The first, subjective meaning of general validity can only be realized in practice if the second, intersubjective meaning is fulfilled, namely the demand for general recognition of human rights. Because if someone appeals to human rights and those around them are not recognized, that does not lead to the goal.
The second meaning of the universal claim to validity includes, in addition to mere recognition, a moral requirement: Everyone is obliged to respect the human rights of all of their fellow human beings. Since it cannot be expected that everyone will adhere to this moral principle, viable legal instruments are needed to guarantee the universal recognition of human rights and to make them effective in practice.
Universality as a positive legal fact
The claim to universal validity thus results in the creation of positive legal precautions, which aim to institutionalize the protection of human rights of all people in an effective way. This is the step from general validity as a moral claim to general validity as a positive legal fact.
By joining the UN, all states entered into the moral obligation to take this step and to ensure that human rights are fully enforced in their national legal systems. In other words: All states are under the moral appeal to ratify the international human rights treaties and thus also to legally undertake to enforce human rights norms on their territory.
The most fundamental human rights such as the prohibition of torture or the prohibition of slavery are now part of customary international law; they are directly binding for all states and are therefore also universally valid in the positive legal sense.
Many states have also ratified a number of legally binding international human rights treaties. In these cases, the question of validity is legally decided, even if the universality of positive law is still incomplete.
Universal obligation to protect human rights
In summary: The moral claim to the universal validity of human rights gives rise to the obligation for all individuals, institutional, state and non-state actors to respect and protect the human rights of all people. But so far it has only been possible for the states to dress this obligation in a binding legal form; Only for states does the universality of human rights have a certain positive legal significance.
All non-state powerful actors such as large business enterprises, mass organizations, religious associations etc. are for their part subject to the moral obligation to respect and protect human rights in their sphere of influence. However, to this day this obligation has only been partially bindingly regulated in an indirect form through the general legal system.
Claim and Reality
The question of universal validity arises again differently if we consider not only the level of moral and legal norms, but also practical action. In fact, an unmanageable number of individuals and very many state organs and other powerful actors around the world ignore the protection of individual or even most human rights. The actual validity of human rights, anchored in the minds, hearts and institutions, is very modest compared to their universal moral claim and their legal recognition.
This painful gap between aspiration and reality is characteristic of human rights - for some a reason to resign, for others a reason to stand up for the actual universalization of human rights with increased commitment.
Two ways of reasoning
The universal validity of human rights can be substantiated in different ways with justifications. They can be roughly divided into absolutistic and dialogical reasons.
Absolutist arguments justify the validity of human rights in an absolutely posited authority, be it God, reason, human dignity etc. From this point of view, all those people who do not share the conviction of the general validity of human rights appear as false believers, misguided, malevolent or morons - at least as an inferior category. Absolutist arguments do human rights a disservice, because they are not wrongly perceived as arrogant, opinionated and culturally imperialist by those who prefer other convictions.
Arguments that are open to dialogue for the general validity of human rights are characterized by the fact that they represent their own position with conviction, but at the same time they do not absolutize it, but rather recognize that there are good or less understandable reasons for many people to take another position . In the best case scenario, it is possible to enter into a real dialogue with them.
What are the practical consequences of universalism capable of dialogue? The universal claim of human rights is expressed in the endeavor to enforce the recognition of human rights for all people worldwide. The greatest challenge is to advance the universalization of human rights without missionary arrogance.
The focus is on the principle of tolerance: transcultural value judgments expressed in the name of human rights may not be converted into intervening action within the framework of what is tolerable. In this area of tension to be endured, one may condemn, but not use any means of power to enforce one's own judgment. In the application of human rights policy, this is the area of criticism without sanctions.
If the dialogue fails ...
Tolerance ends where critical dialogue has failed and moral self-respect would be negated if one did not try to intervene. Serious human rights assets are at stake in such cases. It is obvious that there is such a limit of tolerance. Where exactly it is to be applied cannot, however, be generally determined, but requires a situation analysis, which is always carried out by subjective agents.
In practice this means: It is perfectly legitimate to qualify certain forms of punishment prescribed by Sharia law as cruel and inhuman, i.e. forbidden. But universalists with human rights should not be astonished to come across the defensive attitude of an equally universally conceived religious discourse. If attempts at dialogue have turned out to be futile, it is legitimate for the responsible UN bodies to be called upon to exert massive pressure on those states that use the forms of punishment of flogging and limb amputation with the aim of ending these practices put.
The illusion of universal consensus
If the content of human rights could be renegotiated and all people with all possible ideal backgrounds took part in the discussion: Could human rights be re-enacted in a consistent manner?
This question of a general consensus on the content of human rights can be answered in the negative without hesitation. How could it be otherwise? Experience shows that differentiated norms, which claim to be valid for all people, are never accepted by all people. Human stubbornness and self-righteousness, the power of tradition and religion, but also the interest in maintaining existing power relations are too strong for that. Such sources feed the tireless doubts about the universal validity of human rights. Human rights activists too must learn to deal with doubts and objections calmly and, if possible, constructively.
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