Let’s not talk about universality

by: in Law
human-rights blog Lea Raible_MLR

Seventy years to the day have passed since the Universal Declaration of Human Rights was adopted. International human rights have since gained ground in theory, discourse, and practice. In this short post, I argue that for human rights to regain some of their traction, we should take care not to use claims to universality in order to avoid substantive moral and legal debates.

Why would I suggest that we refrain from talking about universality? After all, the game is in the name: The Universal Declaration of Human Rights (UDHR) is supposed to be universal. That’s the point. This is true in some sense, of course. However, the universality of the Declaration is not the kind I take issue with. Rather, I want to suggest caution when it comes to the shift in vocabulary introduced most prominently by the Vienna Declaration and Programme of Action in 1993, which calls the rights (as opposed to the document) universal. My argument is threefold. First, I describe the difference between these two takes on universality. Second, I outline the flaws in using claims to universality to replace substantive moral and legal debate. And third, I point to two advantages of opting to use universality sparingly.

The UDHR insisted on the instrument’s universality. This reflects the period’s unease with relying solely on national institutions. The Holocaust had brought to the fore how such institutions on their own can still fail so many people so miserably. Such a reference to universality, then, is a plea for an institutional safety net at the international level. The Vienna Conference shifted the narrative of what we should take to be universal. It is no longer a document or an institution that is supposed to transcend nations, but the rights themselves. This is a different claim. Instead of an institution it is now moral and legal propositions that are held to be universally true.

Why might this be cause for worry?
To my mind, the most important aspect is that claims to universality could (and sometimes do) crowd out substantive debates on why we should have human rights in international law and what they are supposed to protect. Now, to be clear, I am not denying that there are or could be values that should be adhered to universally speaking. However, this suggestion does not tell us anything about what these values might be, let alone what individual rights they generate.

Consider the example of the right to privacy as enshrined in article 17 of the International Covenant on Civil and Political Rights. Why would we want to protect an individual’s privacy? What exactly forms part of the private sphere? Is there a difference between reading someone’s emails and recording their conversations? All of these questions need to be answered one way or another to implement the right to privacy in practice. Answering these questions happens through substantive debate. We find and exchange moral and legal arguments, and work out what the best answer is. Claiming that there is a universal right to privacy would, to my mind, entail that at least some of the answers to these questions are valid universally speaking and thus applicable to all persons. I would not want to preclude this but saying that the answers – should we find them – are valid for everyone is not the same as actually finding them. In itself, this is not a problem. It only becomes problematic when we stop trying to find the answers and instead jump to the claim that they would be universal. These are simply different issues: finding the answer does not mean that it is universal, and saying that the answer is universal, does not supply said answer.

Now that we have worked out this difference we can turn to the importance of recognising and using it. To do this, we have to change our perspective. One of the challenges for international human rights is (cultural) relativism. This challenge maintains that no moral (and, as a consequence, no legal) propositions can be true universally speaking and that, accordingly, this is the case for human rights as well. Relativist objections have been particularly pronounced in relation to the tension between cultural practices and human rights norms (see, for an institutional setting in which it has been discussed, the Report by the United Nations High Commissioner for Human Rights on the Workshop on Traditional Values of Humankind). However, relativism challenges the universal nature or applicability of rights, not their content as such. In other words, by claiming that rights as opposed to the instruments enshrining them are universal, we have opened ourselves up to a potent challenge of international human rights in general. At the same time, we are not in a very good position to defend international human rights against relativist challenges. Why should this be?

It is here where the difference between substantive debate and relativist or universalist convictions starts to matter. When we claim universality instead of focusing on substantive disagreement, we expose human rights to the relativist challenge. But because we are in fact trying to solve the substantive debate, we lack arguments to defeat relativism. They are plentiful but involve a good deal of metaethical thought (listen, for example, here and here), which is not something human rights advocates usually find in their repertoire. To put it differently, using universality to distract from the fact that we do not know whether and when a government might be entitled to read our emails despite a right to privacy is a trick that comes back to bite us.

What should we do instead?
I suggest that we should face our substantive disagreements. We should focus on debating exactly the hard questions we are trying to avoid when we make claims to universality. We should argue about whether or not governments may read and store our emails, not whether this is a universal proposition. This has two advantages. First, we would be in a position to insist that anyone who wants to argue that governments should be allowed access to seemingly private conversations should provide reasons for this, rather than attack the supposed universality of human rights. If we conflate substantive debates with claims to universality, we cannot coherently insist on this and end up having to accept bad arguments. Second, by not talking about universality, we open up space for substantive and potentially deliberative discourse. This, in turn, would be an opportunity to subject our own practices and international human rights institutions to some much-needed rigour.

Finally, in an important way, implementing my proposal would mean returning to the UDHR’s version of universality. Tweaking our discourse would allow for renewed focus on international and thus – in some sense, at least – universally shared institutions. In this spirit, let me close by wishing the UDHR – and us – many happy returns.

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