Do you agree that human rights are a western or modern concept, if not please cite two imperial examples of universal Human Rights in practice during pre-historic times. And the unending challenges in conflict with diversity, culture and religion in contemporary times?
This essay will defined, explore and analyse the historical, theoretical and philosophical concept of universal human rights with comparative analysis of international instruments and its applications of human rights both in theory and context with empirical examples from different countries, culture and religion. The evolution of Human Rights in terms of its enduring challenges and successes will also be explored. The crux of this essay will focus on the controversial clash of culture and religious in practice against the backdrop in adapting to the concept of universal human rights. For example, this essay will attempt to present both opposite views and justification from a cultural and religious perspectives and against the practice of Female Gentile Mutilation (FGM) in Sierra Leone, and the violation of certain women’s rights in Saudi Arabia, from a universal human rights perspective, which others tend to view as western liberal ideology.
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The first part of this essay will focus on the historical and theoretical aspect of human rights with comparative analysis of contemporary challenges and success in an attempt to juxtapose universal human rights against national laws and its direct challenge to cultural and religious justification in national defence with respect to these controversial topics, with an example of which both national activists and International actors continue to campaign against cultural practice such as FGM around the world with a direct focus on Sierra Leone. The Third section will explore and analyses human rights in Saudi Arabia and the cultural and religious influence with respect to the conflicting laws and individual rights challenges, particularly women. The fourth section will draw comparative analysis with Western countries like UK and USA in an attempt to explain cultural relativism with respect to the differences and common accepted human rights practices among these states.
Human right history has been a long and controversial subject that stem from little known concept and history of human rights before 1945 around the same period the United Nations was established. Before then, certain intellectuals tend to hold the view that contemporary human rights history stems from the United Nations concept. The international convention on Economic, Social and cultural rights, is known as one of the fundamental declarations adopted by the General Assembly of the UN in the Declaration of Human Right, with provision for everyone to take part in cultural life, to enjoy the benefit of scientific progress and its applications, and to enjoy the protection of scientific, literary or artistic works. Article 13 points the rights of everyone to education, which shall be directed to the development of human personality and the sense of its …, (UNESCO: 1998; 1). Although cultural rights are also indicated in numerous UNESCO conventions and recommendations, likewise in several other international documents, there is yet an unending challenges to implement cultural rights to its full potential. There is a clear evidence to suggest that there is a common relation between cultural rights and fundamental freedoms and individual rights such as freedom of belief and religion, the right to education, freedom of association and freedom of expression. (1998; 1).
On Locke’s view in his famous and influential ‘Letter Concerning Toleration’ 1689 the state is concerned with external acts of human beings and not with the care of their souls and hence has no right to restrict individuals’ liberty in matters of faith. Churches are to be be understood as a voluntary societies for the public worship of God. Their members do not surrender their natural liberty in matters of religion to their church and so the church has no right to coerce its members beyond that of expelling them for appropriate reasons. (Charvet and Kaczynska- Nay: 2008; 29)
The major theorist of the seventeen century who invented the individualist doctrine of natural rights were all Northern European protestants: Hugo Grotius of the Netherlands, Thomas Hobbs and John Locke of England and Samuerl Pufendorf of Germany. They developed a new understanding of the idea of natural law that was to serve as the foundation of a legitimate social and political order.
Hugo Grotius who is widely known as the founder of modern natural law theory is also accepted as the originator of modern theory of international law, which is grounded on the law of nature, which is also grounded of the domestic theory.
However, there is also a more inquisitorial common view of a long human right history way beyond contemporary history of human rights, which many refers to as a much better approach. Even though it is plagued with controversy, but it gives an opportunity to search beyond 1945 and challenge the former position with respect to the historical and philosophical aspects and concepts of human rights. “Some argues that the concept of Human has a universal history in the various religious and philosophies of the world. The code of Hammurabi (c.1792-50 BC), King of Babylon, is said to be the oldest surviving text establishing the rule of law, Cyrus the Great (died 529 BC), King of Persia, proclaimed a policy of religious tolerance and abolished slavery.
The Buddhist King Ashoka of India (c.264-38 BC) also proclaimed a policy of religious tolerance, provided for the health and educations of his people, and appointed officials to prevent wrongful punishments (Weeramantry 1997: 7-8). (Freeman 2011: 15-16). There are numerous challenges towards the view that human right is a western concept, such as the self evident of protections with non western cultural settings, which weakens the position of those claiming human rights to be a western concept.
In1979, the UN General Assembly adopted the convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the realization of this document stemmed from a cummulation of over three dacdes of work by the UN Commission on the Status of women including years of efforts by Women’s rights activist and governments. This was initially commission in 1947 under the Commission of Human Rights as a sub-commission, with unending demands from women activists it was eventually promoted to a full commission, This is seen as the authoritative instrument of Women’s bill of rights, which seek to protect women around the world. The Convention defines discrimination against women as:
Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (Article 1), (2008;201)
Whiles most states have ratified CEDAW, there have been an exceptionally high number of reservations made to it by states ratifying, several countries have entered reservations to Article 2 and 16 in particular; for example, Bangladesh and Egypt on grounds that they conflicts with Sharia law (Bangladesh subsequently withdrew its observation to Article 16). Saudi Arabia entered a general reservation stating that: ‘[i]n 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’. An Elimination of Discrimination Against Women stated: Article 2 and 16 are considered by the committee to be core provision of the convention. Although some states parties have withdrawn reservations to those articles, the committee is particularly concerned at the number and extent of the reservations entered to those articles. The commission holds the view that article 2 is central to the objects and purpose of the Convention. States parties which ratify the Convention do so because they agree that discrimination against women in all its form should be condemned and that the strategies set out in article 2, subparagraph (a) to (g), should be implemented by States parties to eliminate it. Neither traditional, religious or Cultural practice nor incompatible domestic laws and policies can justify violations of the convention. The Committee also remains convinced that reservations of article 16, whether lodged for national, traditional, religious or cultural reasons, are incompatible with the Convention and therefore impermissible and should be reviewed and modified o withdrawn. (2008; 204)
In 1517, Martin Luther pinned his famous ninety-five these stacking Catholic practices and beliefs to a church door in Wittenberg, which eventually led to the unbelievable split of the Christian Church in the West known as the Reformation. Because of the anxiousness exhibited by leaders who were desperate to free themselves from the interference of the pope and emperors, they seized the opportunity to affirm their total independence by embracing the new protestant version of Christianity, which had achieved wide spread popularity. During this period the liberty of religious conscious was never acknowledged by the Medieval Catholic Church, violent persecution of heretical beliefs was frequent by the state. This eventually led series of suppression and war in the West. It has to be said that Protestant were not really reacting to the persecution by the Catholics.
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The main reformed churches, Lutheran, Calvinist and Anglecan, were as ardent persecutors of those who did not accept the ‘true’ faith as the catholics. The indirect influence of the Reformation on the movement for the huge and continuing scale of the religiously inspired carnage and the direct influence of the Reformation on support of toleration came from the radical protestant sect such as; the Anabapitists and Baptist, Socinians and Unitarians. The main natural rights theories were directly involved in these concerns. Their main argument was that the naturalness of radical disagreement between human beings over religion and their idea of natural law was that it constitutes common ground in abstraction from areas of disagreement. Thus, they supported a minimalist view of Christian dogma and both Pufendorf and Locke wrote widely read works specifically on toleration using an argument from natural liberty. (Charvet and Kaczynska- Nay: 2008; 29)
The complexity and contradiction of human rights law is nothing new when it comes to the human rights law and the relationship with the subject of culture and religious with respect to oppression and injustice, which is not always compatible. Human Rights law may have operated and practice around the world, but there is a disparity in terms of its universal acceptance and approaches different member States, which sometimes operates more or less in the same context, but sometimes produce inconsistent results. The process of ratification or legalizing human rights law have proved to be challenging, especially the subject of Women’s rights and its relationship with religion, Culture and traditional resistance. Particularly the parochial world that view such move as threats to male privilege or centuries old practices, which others interpreted as an attempt by Western liberal to subjugate their culture, religion or traditional heritage. The 1993 Vianna World Conference on Human Rights can be noted as another defining moment in the struggle of Women’s rights history to gain the recognition of women’s rights and Human rights, which is another result derived from the complex and contradictory quagmire of legalizing women’s rights.
It is a heterogeneous project which precludes any formulation of grand theory. Its commonality lies in providing critical and necessary challenges to explanations about women’s subordination that have been furnished by liberal and ‘Western’ feminist positions, especially those that come to occupy the international human rights arena in their understanding and articulation of concerns of ‘Third World’ women. Post colonial feminism furnishes the tools for exposing the imperial and essentialist assumptions about the ‘Third World’ women and culture and a reliance on a centre-periphery model or world culture that have come to inform lrgal responses to women’s human rights concerns. (Kapur 2005). (Meckled-Garcia and Cali: 2006;103)
Women and the veil
However, the cantering of a women’s claims to social justice to human rights, the law has also have some serious limitation. The pursuits of women human rights has come to focus on laws and legal strategies, encouraging the view that the law is the exclusive language in which to express claim to social justice and emancipation and consequently marginalize the benefit of others/emancipatory and vocabularies’ (Kennedy 2004; 5). It encourages the belief that freedom and emancipation lie in the objectivity, universality and rational basis of human rights laws. (106)
These claims made in and through Human rights law ultimately rely on a universal subject: a subject that resembles the uncomplicated subject of liberal rights discourse.
Cultural essentialism tends to reinforce the notion of human rights as a primary concern with relation to the law, with main focus on the consequences and effects of violence against women in third world countries.
Alhough they are invariably portrayed as victims of their culture, reinforcing stereotyped and racist representations of that culture and privileging the culture of the West. Many human rights law textbooks address the issue of violence against women in other contexts, primarily in a chapter on ‘universality and cultural Relativism’ implying that universality is not a cultural concept that emerged from a specific historical and political context, and reinforcing the inaccurate assumption that the primary wary in which women in the ‘Third world’ experience violence is through some particularly egregious cultural practice. This portrayal of women in Sierra Leone that practice FGM or (Bondo society) for example is encouraged by traditional and some influential members of that country, even though others vehemently opposed this practice as proposed by some feminist and human rights activist particularly in the international realm, which reminiscent of imperial interference in the lives of native people, which they often interpret as the backwardness of ‘African culture and women society’ and ‘uncivilized culture’. It recreates the imperialist move that views the native subject as different and civilizationally backward (Sinha: 2000). And this culture is cast in opposition to the universal project of human rights. Some Cultural practices have come to occupy our imaginations in ways that are totalizing of a culture and its treatment of women, and are nearly always overly simplistic or a misrepresentation of the practice. For example, the multiple meanings of the veil, through different cultural and historical contexts, get subsumed in the legal arguments that focus on almost exclusively on veiling as an oppressive and subordinating practice that typifies Islam and its degrading treatment of women. It is read in a uniform, linear manner as an oppressive practice because it erases women’s physical and sexual identity and is symbolic of the subjugation of women in Islam. For some it does not represent honor, and an effective mechanism on avoid tempting men.
More significantly, the veil has also been a very empowering symbol for muslim women in some countries. In Iran it was the sign of rebellion and rejection of the shah and Western imperialism. Amongst immigrants communities in the West, it is the symbol of an exclusive cultural space, where women are often marginalised. (Merinissi: 1994; 112-22). This complexity has been obscured in several recent attempts to ban or uphold the ban on headscarves. The European Court on Human REoights in Strasbourg has recently upheld the ban on the wearing of headscarves in class at University of Istanbul. It upheld Turkish Constitutional Courts ruling that wearing of a headscarves was in contravention of the principle of secularism and gender equality and that the upholding of such a ban did not violate rights to religious freedom and practice. One of the factors considered by the Court was ‘the fact that there were extremist political movements in Turkey which sought to impose on society as a whole their religious symbols and conception of a society founded on religious
(Meckled-Garcia and Cali: 2006;106)
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