*I will be presenting occasional notes/ reviews of important old and new scholarly articles in migration studies/ law/ political science. When possible I will link to the article*
Article: Massimo Iovane; "The Universality of Human Rights and the International Protection of Cultural Diversity: Some Theoretical and Practical Considerations" (2007)
International Journal on Minority and Group Rights 14.
In this article Iovane explores an apparently unresolvable conflict between two conceptions about morality as it relates to international law.
On the one hand, in order for human rights law to be binding on all sovereign states, it must express to some degree universal conceptions of morality. For example, a prohibition against genocide is considered universally binding because it is agreed upon apart from political or cultural considerations. However, much of human rights law relates to less overarching norms. In fact, they often come from a individualist, western perspective that is hardly uncontroversial. As Iovane states, this conception starts from the position that human dignity is paramount, and moves from there to the belief that individual freedom is the most crucial way to protect human dignity. "Human dignity is thus equated with individual autonomy, and the capacity of independent action is accordingly the only hub and ultimate achievement of human rights."(@232) And this vision is chiefly achieved by states refraining from action that tends to limit individual autonomy. (E.g., not censoring politically sensitive newspapers, not preventing groups from protesting against government policies.)
On the other hand, this vision is not shared by all states. The rise of cultural relativism theory in the 1960's led to the recognition of alternative visions of human rights based on, eg; preservation of tradition, protection of the community interests above those of the individual, and cultural autonomy. This conception may also require a policy of non-intervention: "towards persons with whom we morally disagree, relativist conceptions usually predicate a position of tolerance and non-interference." (@237) But it may also require positive action on behalf of the state such as intervening to protect groups at risk of assimilation.
The problem then arises at how to conciliate these two values. How, for example, do we explain why Female Genital Mutilation (FGM) is a violation of human rights, when it is also a cultural tradition? Further, how do we reconcile a condemnation of a non-western tradition such as FGM but still for allow for widely practiced circumcision of males in the western world? Doesn't this reveal a heavy bias towards western/liberal/ capitalist models?
And continuing with the argument, doesn't the allowance of local, traditional forms of justice and human rights also negate universality? The obvious 'slippery slope' of cultural relativism is a denial of any forms of universal ethical norms, and for individual states and cultures to be able to rationalize any form of abhorrent behavior in the name of cultural relativism. Eek! (Let us, however, also recall here that Western states tend to make exceptions to their support of individual rights when it comes to the overall security of the group, see, for example, the Patriot Act.)
In sum, there are good and bad arguments for both positions, but overall it seems necessary to some degree to find a balance between equality of treatment of individuals and the occasional interference or even discrimination between people to protect minority and group rights.
So, having set up this straw man dichotomy, Iovane strikes it down during the later sections of his article by suggesting that judicial actors, such as the European Court of Human Rights, are best situated to negotiate between these two competing and even mutually exclusive values. As he sees it, several cases addressing linguistic, religious and cultural rights "illustrate the difference between protecting a human right seen from the individual point of view and safeguarding the same right seen as a binding element with a given community"(@256). By being able to make case-by-case decisions, weighing all relevant facts and detaching as much as possible from political considerations, Courts are in a unique position to protect both values while not making overly broad rules that hurt both interests.
I tend to agree with Iovane that Courts are in a better position to make these tough decisions than governments or conventions. However, Courts are also inherently political mechanisms that push the values of the societies they represent, values which may support or crush cultural and political difference. Ultimately, I don't think the very difficult question of how to weigh the rights of the individual with the rights of community is adequately resolved by any Court, but then, what is the alternative institution?
At any rate, this article excellently sums up an interesting dillemma and also has a super bibliography. Can't find a free copy right now, but will post it if I can find one!