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References
See M.A. Gillespie,Hegel, Heidegger, and the Ground of History (Chicago: The University of Chicago Press, 1984), 128.
Already in 1975, the Harkin Amendment on clause 116 of the US law on external aid was enacted, denying aid to any country that engages in “consistent pattern of gross violations of internationally recognised human rights.”
See R. Gaete,Human Rights and the Limits of Critical Reason (Aldershot: Dartmouth, 1993), 1–5.
Ibid., See at 168 ff.
R.J. Vincent,Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), 50.
See B.S. Turner, “Outline of a Theory of Human Rights”,Sociology 27:3 (August 1993), 459–512, at 496ff.
Z. Bauman,Postmodern Ethics (Oxford: Blackwell, 1993), 42.
Ibid., at 39.
“Cultural Relativism and Universal Human Rights”,Human Rights Quarterly 6:4 (1984), 401–19.
See P. Hirst and P. Woolley,Social Relations and Human Attributes (London: Tavistock, 1982).
R. E. Howard, “Cultural Absolutism and the Nostalgia for Community”,Human Rights Quarterly 15 (1993), 315–338, at 319.
Ibid., at 327.
Donnelly,supra n.12, at 411–412.
Reza Afshari, “An Essay on Islamic Cultural Relativism in the Discourse of Human Rights”,Human Rights Quarterly 16 (1994), at 272.
Supra n.14, at 315.
As reactivated by Rawls, human rights are the principles of justice that people would select if they were stripped of their identity and culture, ideas about the good and preferences except the aversion to risk-taking, becoming unencumbered selves. Rawls rightly believes that they would play safe and would select principles similar to those that are dominant in his culture since our principles of justice must “accommodate our firmest convictions” (A Theory of Justice (Oxford: Clarendon Press, 1972), 20). The ground of Justice ceases to be ontological and becomes contingent.
For example, Mohammed Mahmoud Taha, executed without trial in Sudan in 1985, as mentioned by Bassam Tibi, “Islamic Law/Shari'a, Human Rights, Universality and International Relations”,Human Rights Quarterly 16 (1994), 277, at 286.
Ibid., at 292.
Ibid.
J.F. Lyotard and J.L. Thebaud,Just Gaming (Manchester: Manchester University Press, 1985).
Art. 27(2).
Art. 3.
This is particularly the case in relation to the requirements of morals: see for exampleDecision in Handyside v.U. K., Eur. Court of H. R. Series A, No 20 (1976). For a commentary, see Gaete,supra n.6, at ch.6.
Publ. ECHR Series A 27 (1978).
Article 3 of the European Convention of Human Rights reads: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. In his opinion inIreland v.U.K., Judge Fitzmaurice stated: This wording, perhaps deliberately because of the virtual impossibility of arriving at any completely satisfactory definition of the notions involved, attempts none respecting torture, inhuman treatment or degrading treatment. It is thus left to be determined in the light of the circumstances of each particular case ... Such a determination must necessarily be an entirely subjective one, so that differently constituted courts or commissions, functioning at different periods, might, on the basis of similar or analogous facts, reach different conclusions in border-line, or even not so border-line cases. (2 E.H.R.R. 25, at 125).
In the US, an old debate is still going on whether the Constitution can be interpreted in the light of general principles and of international human rights standards or in the light of principles resting in the American conscience: “so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Snyder v.Massachusetts, 291 U. S. 97, 105 (1934). On the other hand, Justice Cardozo, in the same case at 122, invoked “immutable principles of justice, acknowledgedsemper ubique et ab omnibus”.
The European Court of Human Rights has held that “the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it, the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the Member States of the Council of Europe.”Tyrer Case, para. 31 of the Judgment of the Court, 25 April 1978, A. 26 (1978).
This reservation follows the same logic than the declaration of the Saudi Minister of Foreign Affairs stating that for Moslems human rights can only be derived from the Islamicshari'a (as cited by Tibi,supra n.19, at 278).
Lyotard and Thebaud,supra n.22.
Supra n.10, at 38. Those we accuse share this fundamental insight with us. Women doing anthropological research in some African villages are very reluctant to admit that they have not been circumcised so as not to be considered dirty and morally impure. As Asch comments: “Social conditions not only enforce particular practices; they also inclucate the conviction of their rightness ...” (as quoted by A. D. Renteln,International Human Rights: Universalism Versus Relativism (London: Sage, 1990), 65). There is an old English saying that encapsulates this moral confidence: “All the world's daft save me and thee and thou art a bit queer.”
Ibid., at 54.
Ibid., at 56.
Kant,Critique of Judgment translated by J. H. Bernard (New York: Hafner Press, 1951), section 22.
H.-G. Gadamer,The Relevance of the Beautiful and Other Essays (Cambridge: Cambridge University Press, 1986), 18.
“By an aesthetical idea,” writes Kant, “I understand that representation of the imagination which occasions much thought, without however any definite thought, i.e. anyconcept, being capable of being adequate to it; it consequently cannot be completely compassed and made intelligible by language. We easily see that it is the counterpart (pendant) of arational idea, which conversely is a concept to which nointuition (or representation of the imagination) can be adequate” (supra n.35, section 49).
There is no sign for the concept of person in the Chinese language. See on this P.K.Y. Woo, “A Metaphysical Approach to Human Rights from a Chinese Point of View”, inMaking Sense of Human Rights, ed. James W. Nickel (Berkeley: University of California Press, 1987), 119.
L'Espace Public: Archéologie de la Publicité comme dimension constitutive de la société bourgeoise (Paris: Payot, 1978).
The United States was implementing a doctrine of intervention for human rights reasons, as explained by Jeanne J. Kirkpatrick and Allan Gerson in “The Reagan Doctrine, Human Rights and International Law”, inL. Henkin, Right v.Might: International Law and the Use of Force (New York: Council on Foreign Relations Press, 1989). The International Court held that “Nicaragua is accused by the 1985 finding of the United States Congress of violating human rights ... However, where human rights are protected by international conventions, that protection takes the form of such arrangements for the monitoring or ensuring respect for human rights as are provided for in the conventions themselves” (Nicaragua v.United States, 1986 I.C.J. Reports 14).
Barcelona Traction, Light and Power Co. Ltd. (Belgium v.Spain), 1970 ICJ Report 3, at 32.
As Redfield argues, sceptical and prescriptive relativism are different. For sceptics, values are relative because “people are brought up to see the value in things that their local experience has suggested”. A sceptic does not necessarily respect all systems of value; he “might just as well hate them all”. For prescriptive relativism, one ought to respect them (as quoted by Renteln,supra, at 73).
InM. K. v.France (Doc. A/45/40 Apx.) and inT.K. v.France (Doc. A/45/40, Apx.), the Human Rights Committee stated that a declaration, made by France upon accession to the Covenant stating that there are no minorities in France according to the Constitution, was equivalent to a reservation to the Covenant. Therefore, it had the legal effect of exempting France from the application of its Art. 27 that provides for the protection of minorities.
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Gaete, R. Rites of passage into the global village. Law Critique 6, 113–126 (1995). https://doi.org/10.1007/BF01128504
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DOI: https://doi.org/10.1007/BF01128504