Limitations of human rights?
The ever long debate of cultural relativism versus universality has thrown down the gauntlet to the legal experts and has entered the public discourse of international law and human rights. To date this remains the biggest challenge, especially in light of recent incidents in Europe following the Charlie Hebdo incident and the escalation of both hate crimes and Islamophobic attacks. Such incidents have now instigated reviewing of the efficacy of human rights.
Human rights have been constructed on the basis of universalism. The UDHR is “Universal” Declaration of Human Rights. The Universalists are of the view that there is an underlying presumption that human rights exist ‘objectively’, independent of differences in culture, religion, ideology or value systems. Human rights are also supposed to be inalienable: because they flow from and protect human existence.
However, this approach leaves the cultural relativists unguarded. Cultural Relativists object and argue that human rights are culturally dependent, and that no moral principles can be made to apply to all cultures. They argue that the principles embedded in the Universal Declaration of Human Rights (1948) are the product of Western political history. Indeed, the origins of the Universal Declaration are rooted in political landmarks in Western history, such as Magna Carta of the United Kingdom (1215), the French Revolution (1789) and the American Bill of Rights (1791). Cultural Relativists argue that Universalism, in its attempt to extend a Western ideal to the rest of the world, is a form of cultural imperialism.
The problem which we are facing today is how to regulate a few specific human rights for the greater good while abiding by the utilitarianism theory. Human rights experts have raised a ruckus ever since 9/11 on the precautionary measures national security states have adopted in order to combat the rise in terrorist attacks around the globe. With the rise of terrorist groups like Al-Qaeda, Taliban, ISIS and other non-state actors, there has been downright vagueness in the ambit of law itself. Particularly international, human rights and international humanitarian law are being evolved as we speak. The dynamics of these laws are changing with every passing second with the presence of new factors such as technology, Islamophobia, terrorism; it has become increasingly tricky to define the parameters of laws which are neither draconian and at the same time can be used to curtail such threats.
While certain human rights are being infringed by states in national security concerns, freedom of privacy and liberty per se, another challenge to be dealt with is the scope of freedom of speech and expression and the instance when this freedom converts into defamation/hate speech or blasphemy. While the French argue that Charlie Hebdo was an example of freedom of expression, Muslims residing in France would argue that wearing a veil is their fundamental right of freedom of expression. Analysing this example it can be argued that human rights are no longer universal and hence, certain traditions, religions, customs and cultures should be respected and taken into consideration in order to allow pluralism to survive.
Freedom of speech and expression is an inherent right safeguarded in most constitutions of states, under Universal Declaration of Human Rights and by the European Convention on Human Rights. Despite this, it is a qualified right and has certain limitations to it. Limitations are the exception, permitted only to protect: the rights or reputations of others, national security, public order, public health and morals. However, there is a very fine line between freedom of speech and hate speech/defamation or even blasphemy and it is a real trial to achieve the right balance.
The events followed by the Charlie Hebdo attacks, the PEGIDA movement in Germany, Chapel Hill shooting, ISIS, Al-Qaeda and other non-state actors, all of these combined question the legitimacy of human rights. This calls for strengthening the framework of human rights law so that individuals and groups feel empowered by the language of human rights and by the framework that has grown up to develop solidarity in ensuring respect for these rights. When these claims are articulated as human rights demands, they often represent political participation rather than isolated individualism. The time now is to change things, including how human rights themselves are perceived. The human rights movement is now concerned with global social justice. Human rights are vibrant and not static.