Can ‘human rights’ offer significant protection to individual persons?
The advisory opinion of the IACtHR recognises that ‘ humans possess fundamental rights by virtue of the unassailable attributes inherent to human dignity.’ (Kesby 2012, p.92). Such a perception of a shared humanity is one that transcends cultural, political and racial differences to recognise individuals for who they are: moral, sentient beings. Political realities , however, involving, for instance, the treatment of refugees and stateless people reveal that some human beings are perceived to be ‘more human’ than others’. Costas Douzinas poses a haunting question: ‘How can we understand this paradox that not all humans have humanity in a human rights world?’
Alison Kesby explores the argument that an individual has the ‘right to have rights as humanity’ regardless of a person’s immigration status or nationality. Such an argument may be grounded in the view that ‘individuals are recognised as holding human rights directly under international law’ (Kesby 2012, p.95). From this perspective, international human rights treaties and conventions such as the ICCPR protect rights of individuals as subjects ‘irrespective of their nationality, both against the State of their nationality and all other contracting States.” (Kesby 2012, p.95).
This idealism reflecting the universality of human rights protection is evinced in the ideas of Hersch Lauterpacht who crafted Art.6 of the Nuremberg Charter, recognising ‘crimes against humanity’ as an international crime. He argued the source of international law lies in natural law such that international law is ‘indirectly under an obligation to the notion of inherent human rights.’ (Kesby 2012, p.95).
However, the ideological and political tensions between the legal status of citizenship and rights grounded on national laws, and cosmopolitan ideas of human rights based on humanity, embedded in International human rights treaties remain. For instance, while the ICCPR requires State parties to ensure and protect the Covenant rights of all individuals within their territory without distinction of any kind, discrimination on the grounds of the legal status of nationality and, or citizenship continues to take place against boat refugees by countries like Australia and Italy. It is arguable that one reason for such a poor enforcement of international human rights treaties is that the ‘views of UN human rights treaty bodies in relation to individual human rights communications are not legally binding on State parties.’ (Kesby 2012, p.96).
What are the major limits to universal human rights?
Ignatieff discusses the cultural challenges to the universality of human rights as conceived by the text of the the Universal Declaration of Human Rights 1948 and International treaties and Conventions such as the ICCPR. These cultural challenges find their sources in ‘resurgent Islam, from within the West itself, and from East Asia.’ The State of Brunei, for instance, has decided to introduce Shariah laws from the 3rd of April 2019 imposing the death penalty by, for instance, stoning, for sodomy, adultery and rape, and amputation for theft. Relativists argue that international human rights instruments fail to take into account the cross -cultural differences between Western and Islamic traditions. For instance, during the drafting stage of the UDHR, the Saudi delegation’s critique of Art 16 ,freedom of marriage , was that ‘it was not for the Committee to proclaim the superiority of one civilization over all other or to establish uniform standards for all the countries of the world.’ ( Ignatieff p.102-103) .
It is arguable that cultural sensitivity to practices in, for instance, patriarchal, socialist or collectivist societies is necessary to avoid alienating or demeaning such societies. The communitarian policies of the Singapore government in this respect subscribe to the ethics of placing the State and its communities first before the individual; practices such as the judicially sanctioned death penalty and detention without trial under the Internal Security Act is justified in part by political narratives that draw from the socio-cultural and historical context of the State to point to ‘existential threats’ faced by society.
It is submitted, however, that where State centric practices result in physical and psychological harms to the individual, such harms should be recognised for what they truly are,: a violation of international human rights norms underpinning respect for individual human dignity; this should be the case regardless of whether such practices are an integral part of the cultural practices of a society
As Ignatieff argues, ‘human rights norms are not so much a declaration of the superiority of European civilization as a warning by Europeans that the rest of the world should not reproduce their mistakes. The chief of these was the idolatry of the nation-state, causing individuals to forget the higher law commanding them to disobey unjust orders. The abandonment of this moral heritage of natural law and the surrender of individualism to collectivism, the drafters believed, led to the catastrophes of Nazi and Stalinist oppression.’ (Ignatieff, p. 107).
Individual human rights are therefore vital for the protection against group oppression and state sanctioned violence.