The Vienna Declaration and Programme of Action asserts that the universal nature of human rights is beyond question. A similar notion exists in the Universal Declaration of Human Rights. In fact, most, if not all human rights instruments provide that human rights are universal – after all, if human rights are rights that we enjoy by virtue of being human, and if all humans are equal in dignity and worth, then surely human rights must apply to everyone regardless of location, time, or personal characteristics. However, as seen in Africa’s stance toward homosexuality, this issue is not a straightforward one.

Currently, 32 out of the 54 African states criminalize homosexual practices, making up nearly half of the 71 countries in the world that criminalize homosexuality. The criminalization of homosexuality clearly violates, among other rights, the fundamental right to equality and non-discrimination as recognized in human rights instruments such as the International Covenant on Civil and Political Rights (which has been ratified by several African States, including those that criminalize homosexuality).

However, such African states have typically responded with what is essentially a cultural relativist argument, stating that human rights, or at least certain human rights, are a ‘Western construct’ that should not be forcefully imposed on other cultures. This is evidenced by the African Union’s recent call for the African Commission on Human and Peoples’ Rights to withdraw the observer status it had granted the Coalition of African Lesbians, labelling homosexuality as an import that contravenes African values and traditions.

Cultural relativism promotes tolerance of other cultures and challenges the universality of human rights. While it is true that different cultures have different values, this post argues against blindly adopting the entirety of the relativist argument. On a theoretical level, it is self-refuting - by claiming that moral validity can only come from individual cultures themselves, cultural relativism precludes one from making any consistent moral judgments. Moreover, by stating that tolerance for other cultures is to supersede all else, the cultural relativist is in fact making a universalist judgement. Practically, relativist arguments adopted by states to reject certain human rights as a ‘Western construct’ are often less about tolerance for other cultures and more about fulfilling their political aim as to the acceptable relationship between the state and its people.

Yet, in acknowledging that different cultures have different values, surely the absolutist view of human rights, which precludes any variation in the application of human rights, cannot hold true. It is thus posited that the notion of universality should be, and can be, flexible enough to take into account cultural divergence. In this light, it is opined that the Margin of Appreciation doctrine developed by the European Court of Human Rights, while not perfect (having been criticized for according states with too much discretion), at least represents a respectable attempt to strike a fair balance between the universal application of human rights and cultural differences between states.  Under this doctrine, a state (e.g. an African state) that curtails the application of a particular right in the ‘interests of the public’ (e.g. criminalizing homosexuality to ‘protect’ African values), must prove that doing so is necessary, and that the measures taken are proportionate to achieving its desired ends. This reconciles the demands of universality (in that states still have to justify any curtailment of rights), with the need to take into account cultural variations (by according states with some deference).

In conclusion, the challenges to the universality of human rights do not serve to undermine it in its entirety. Instead, the universalist/relativist debate remind us to constantly reevaluate our views on human rights by taking into account cultural differences, to make them more inclusive. This approach is evident in the Margin of Appreciation doctrine, which, though not perfect, at least strives to give meaning to human rights amidst the plurality of cultures, and is something that many states can learn from.