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The primary issue this essay focuses upon is whether an international human rights framework can better deal with issues of injustice Han the internal domestic laws and cultures of states and I assert that the latter is more appropriate when it comes to dealing with issues Of injustice. I will analyses some selected discourses within the framework this issue. Feminists Hilary Charleston, Christine Chinking & Shelley Wright (1991) argue that human rights are masculine and patriarchal and so in endorsing the universality of rights would be to reproduce male thinking.
These authors believe that the whole conception of ‘rights’ is masculine in that it is men think in terms of rationality, rights and reason, whereas females think in terms of intent and relationships (Charleston, Chinking & Wright 1991). However, this line of thought is based upon their support of Carol Shilling’s model of development theory, which in itself is controversial as it Ignores cross-cultural empirical realities and ignores that women too think in terms of rationality and reason. Furthermore, the conceptual ideal of rights has been contested by men in Western discourses as well as non-western discourses.
For example, when the conception of ‘natural rights’ was created, Jeremy Beneath (cited in Bedaub 2000, p. 263) opposed the idea of rights stating that t was, ‘nonsense upon stilts’. In a contemporary non-Western setting former leader Lee Khan Yew of Singapore and Mathis Mohammad of Malaysia stated that there is an incompatibility with Asian values and human rights values because Asian culture values stability over public dispute and collective interests rather than individual interests (Befit 2006).
Similarly, Jack Donnelly (1998) puts forward the view that ‘human rights’ can be conceived by the non- Western states a form of hegemony in that human rights are symbolic of a new standard of civilization. Charleston, Chinking and Wright (1991) also argue that human rights do not necessarily benefit women because they are androgenic in nature. That is, they do not have rights specific to women, for example the right to reproductive freedoms.
Although they criticism the universal declaration of human rights, they do however acknowledge that the Convention on the Elimination of All forms of Discrimination Against Women (CEDED) is more beneficial in terms Of dealing with issues which women face. Their recommendation is that the international legal framework should develop a court which enforces CEDED principles onto member states which have signed and ratified the convention.
One of the issues with this recommendation is that there is the problem of enforcing such principles onto CEDED states which have ratified the convention with attached reservations. For example, Saudi Arabia has ratified CEDED with the reservation that, ‘In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention’ (United Nations 2000-2009).
This issue deals with one of the central debates regarding the justification of human rights, which is moral universalism versus cultural elitism. Given that human rights claim to apply equally to all human beings every”here without distinction of race, gender, religion and so fourth implies an underlying universality in its expressed principles. During the World Human Rights conference in 1 993, the Vienna Declaration and Program of Action stated with regard to human rights that, ‘the universal nature of these rights and freedoms is beyond question’ (cited in Donnelly 2007, p. 88). However, there lies a controversy as to whether human rights are indeed universal. Proponents of the universality Of human rights concede to strands f cosmopolitanism whereas anti-cosmopolitans and cultural relativists dispute the universal quality of human rights (Captors 2010). In his article titled, ‘The relative Universality of Human Rights’, Jack Donnelly (2007) moves beyond the moral universalism and cultural relativism dichotomy and claims that there are numerous ways in which human rights are conceived to be universal.
He supports the universality which he describes as functional universalism (the idea of inalienable and equal individual rights grew from functionalist circumstances during the early modernization of Europe such as he rise of market economies), overlapping consensus universalism (drawn from the Rawlins theory of justice and where consensus occurs on an international scale for political reasons only) and international legal universalism (the protection and endorsement of an international legal framework without necessarily needing to deal with whether or not such legal rights have moral justifications).
However he does not support the universality which he describes as Anthropological universality (the argument that human rights are universal because all cultures represent an adherence o human rights trans-culturally and trans-historically) or Ontological universality (a single trans-historical foundation which manifests through a single moral code). Given that Donnelly describes the many ways in which one can conceive of rights being universal, he claims that there is a relative universalism to human rights.
In listing the relativity of universalism however, Donnelly detracts from making a strong case for universality in human rights. In response to Donnelly, Michael Goodhearted (2008, p. 1 83) contends that, ‘in defending the relative universality Of human rights Donnelly obscures or characterizes the bases of their legitimacy’. Goodhearted is a proponent for human rights, however his position is that human rights do not need to be universal in order to be legitimate.
He argues that human rights would be more so enriched if they could be continually reformulated through a ideological process. While Donnelly and Goodhearted support human rights, they are not clear on whether working towards a more enforceable international human rights framework is desirable. There are a few issues with working towards a international legal framework which enforces human rights conventions. One of them is what Donnelly (2007) calls particularity in universal rights whereby different articles of the UNDER can be conceived and interpreted in many different ways.
If there was a supranational body which enforced human rights law onto states, judges could interpret the law in any way to punish states or heads of states. Another issue is that of state sovereignty and whether international human conventions should override national sovereignty. For women, one of the ethical concerns is the infringement of human rights of women in Islamic countries and whether Islamic norms are compatible with human rights. This issue again deals with cultural relativism and whether it is just to allow cultures to practice their beliefs and values even if it contradicts rights conventions.
Bronzy Winter (2006) argues that cultures are not monolithic or fixed and that traditions can be distinct from culture. She further argues that traditions in Islamic countries such as female genital mutilation can be changed or removed entirely. She uses Martha Ammonium’s argument to support her claim being that, traditional practices… Are not worth preserving simply because they are there, or because they are old; to make a case for preserving them we have to sees the contribution they make against the harm they do'(Nassau cited in Winter 2006, p. 90). Winter and Nassau believe that the use of rights conventions is an appropriate framework to change culture and Feminist Susan Miller Kin (cited in Winter 2006) argues that it is not better to deal with women’s injustices in the domestic contexts because most cultures, particularly Islamic cultures, exert male dominance over women. I do support the position that culture is malleable and can change, however it is better to deal with injustices through a domestic framework rather than in international rights framework.