Download PDFA More Flexible Set of Rights
These numerous problems raise questions on how we are meant to treat each other as human beings and whether it is possible to find ubiquity amongst so many differing cultures. Can a more flexible, tailored, and subjective set of rights be agreed upon?
The Contradiction
Recognizing the rhetorical pitfalls of the UDHR is an important step towards trying to come to a less absolute and more variable interpretation of the articles, as well as the means of their enforcement. The success of the UDHR has been compromised by a lack of compatible governments, overidealized attempts to counter cultural relativism, and a near global misunderstanding of the terms of basic humanity. The rhetoric used in the document is too vague in some areas, is too specific at others, and has an overall air of judicial and purposefully abstract language. While many believe that cultural relativism is the key to providing individuals with the most protections, it is also widely believed that there should be one standard that all nations should adhere to. This, of course, is the contradiction. It is not plausible that the rhetoric of the UDHR can be both completely culturally sensitive and completely standardized at the same time. Trying to achieve both universal and specialized rights at once is one of the root issues in creating effective documentation, as demonstrated by the issues posed by cultural relativism: "the ability to understand a culture on its own terms and not to make judgments using the standards of one’s own culture” (“Cultural Relativism”). It is a school of thought that says that no culture can be verifiably correct in terms of morality and ethics. Ideally, this leads to the perspective that no culture is superior to another, that no one culture holds the key to absolute morality, that one’s own culture may contain flaws and missteps, and that there is something to be gained by learning from differing values and principles. Although cultural relativism is appealing philosophically, while complicated, it is a field of thought that cannot be blindly applied to the UDHR, nor can it fail to be incorporated at all. The key is to avoid taking an absolute stance on topics so complex.
Abandoning the Genre
One of the fundamental problems with the UDHR is the genre in which it is written—the genre of legal opinion. Although the document likely implores the legal style to appear authoritative, unbiased, and clear, the genre actually works against these goals and perpetuates a language of marginalization and patriarchal hierarchies. Gibson argues that the “rhetorical commitment to abstraction that shapes the genre of legal opinion” resists language changes that attempts to contextualize laws and their sanctions, and that the demand for broad rhetoric serves only to add force to documentation that hides embedded patriarchal interests (129). The rights in the UDHR are written to appear declarative, neutral, and transcendent, but fall short on securing justice and protecting for all individuals. Gibson further cites Wetlaufer as stating that ‘‘’[Legal] rhetoric operates by predisposing us to render as black and white that which is gray,’’’ and explains how this is done through the law’s voice of closure and finality that suggests a singular version of humanity (qtd. in Gibson 131). Rules need to be adapted in response to varied and contextualized situations instead of declared without consideration. The articles should instead include concessions for differences and work to contextualize and personalize rights per the issue at hand. The document’s tone suggests that the authors intended the UDHR to be the final say on human rights and that it would solve all problems on a global scale. There is no mention of what to do if an issue does not line up directly with an article, or if there are extenuating circumstances that created an issue. Nor is there any indication as to what happens when an article is violated, or the nature of the sanction required to amend it. Abandoning the legal method encourages the inclusion of marginalized groups into the creation of articles and rights and helps to promote a more just universal system by criticizing and contesting its current state, holding the document accountable for its claims. As Gibson concludes: “Perhaps we will only be comfortable with the indeterminate and polysemic nature of the law once we are confident in our role as citizens to contribute to the law’s voice and demand a language that represents our lived experiences” (136). In addition to abandoning the genre of legal opinion, the UDHR would also do well to adopt the style of plain language instead, so that even individuals with basic education levels can read it without difficulty. A document that is meant to be universal should be one of the easiest documents in the world to read, so that everyone can access it when they need it.
Opportunities for Revision
Language in the UDHR suggests that all rights are now, and have always been, ubiquitous and ahistorical (Barnard). The UDHR is written as a fixed document that denies review and revision necessary as the years go by and standards change. The preamble to the UDHR refers to the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family,” as well as the “conscience of mankind.” Each quote reinforces the idea that rights are endowed by some larger creator outside of social constructs specific to time and place. No set of rights should be decontextualized, and it is important that every act is situated and recognized as unique. Acknowledging this further universalizes the prospect of a global set of rights and helps understand the vast range of possibilities that surround a law or sanction. Gibson writes that “the voice of the law emerges from the expectations and needs of its citizens,” which suggests that laws need to change as society changes and to adapt to evolving culture and life, remaining conscious of differing culturally beliefs and practices (136).
The UDHR is not a self-executing document and requires certain measures to ensure adherence from an international governing body. Even of the rights that are the most universally accepted, the lack of actual enforcement of these laws remains largely problematic. Some articles of the UDHR require a serious tightening of the rhetoric, like Article 19 on the freedom of expression. As discussed earlier, Article 19 is problematic in that it lacks the language necessary to grant the rights of expression without limitation or tact. Instead of allowing people to express themselves “without interference,” freedoms should contain limitations within their own right instead of in relation to other articles of the document. This issue with Article 19 is combatted by Article 30, which states that “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” Verbose and vague, this final article attempts to declare that none of the other 29 rights should be “destroyed,” or violated, however its elevated wording and position at the very end of the document make it relatively easy to miss or ignore. Because of this, articles like Article 19 require stricter wording that establishes that “without interference” only applies so long that free opinion does not incite violence or hate speech. Without these provisions, the lack of context that would be needed from the entire document ceases to function properly.
Alternatively, other parts of the UDHR could be amended by weakening the rhetoric that surrounds them, such as with Article 16 concerning marriage and family rights. The Saudi Arabian abstention and the issues with female representation both demonstrate how the overly specific phrasing of Article 16 fails to meet the needs of a universal audience (Danchin). Issues with Article 16 also stem from the heteronormative assumptions that only a man and a woman can marry and that this union is the only correct definition of a family worth protecting. The article begins with “(1) men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family” and ends with “(3) the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Since this is the only time the word “women” appears within the articles, the strong suggestion that family is the only place a woman belongs becomes relevant and forces scrutiny of the document as a whole. The end of the article thus becomes problematic as well because it positions male/female relationships as the singular measure of family and elevates it on a pedestal, claiming that this version of family is “natural” and “fundamental.” At the start of the article, “men and women” can readily be replaced with “persons,” which clears issues with representation and also eliminates the “natural” issue in the third section. It is easier to agree on the-family-as-fundamental when “family” stops referring solely to the fruitful union between a man and a woman. Insofar as Saudi Arabia may have criticisms of this article, there would need to be a discussion concerning the complex conflicts of ideology here. The document’s language cannot both adhere to universal rights and limit the rights of women, however an agreement must come to pass. A complicated matter, to say the least.
Enforcement
As far as enforcement is concerned, the UDHR does not supply the language necessary to prompt serious consequences in most cases. The rhetoric of the document defers the responsibility of upholding laws to the nation and government where a person resides, and that matters should be handled domestically. It becomes clear that:
It was the privilege of the powerful states to obtain redress even by use of force for injury to life or property of their nationals living abroad in case they were 'denied justice' by the local authorities. In the very nature of things this was the privilege of the strong against the weak only and was not an evidence of the rule of law in world affairs. (Jain 149)
As discussed in Article 8, the “effective remedies” to a violation are “granted [to] him by the constitution or by law,” referring to the law of one’s own nation, not the law of the UN, which is supposed to be the international, universal, governing body. This is the same problem that was earlier discussed on Article 6, which also distinguishes that the right exists “before the law,” but fails to establish whose law. When the UN does take action in response to article violations, the process is complicated, slow, and often discriminatory towards those without power, which is just more reason to acknowledge the flawed nature of international law and the challenges facing a possible amendment. The UDHR does not need to be self-executing, but it does need to include language that grants it the authority to appropriately deal with rights infringements outside of the specifics of a singular culture’s legal system. This method of leaving the law in the hands of individual states renders the standardized set of laws powerless and ineffective.
An important facet towards the pursuit of international law enforcement has been the creation of the U.N. Security Council which deals with provisions, trade embargos, and the promise of armed force, although this force is never called upon or used as intended (Kirgis). The Council is made up of five permanent members who all have ultimate veto power over each other. Logically, this means that all five nations need to come to a unanimous decision to reach a conclusion. This is dangerous. Under the current international law enforcement model, the stark imbalance of power between nations and the unquestionable authority of the ruling elite is openly acknowledged and demonstrated through the authoritative and closed language of the UDHR perpetuated by the Council. It is the job of the Security Council to determine threats to or breaches of the peace and enforce obligatory sanctions to correct the situation. Frederic Kirgis explains the many issues with the Council and how it does not appropriately represent the many nations who fall under its global jurisdiction:
Its five permanent, unelected members-China, France, Russia, the United Kingdom and the United States-can veto any substantive measure. One of them-the United States-has dominated the Council in recent years. To the extent that law enforcement finds its legitimacy in democratic institutions, the Security Council is vulnerable to criticism. (par. 7)
This leads to questions about the legitimacy of the organization itself, and how qualified it is to dole out sanctions. The Council should instead be governed by alternating, rotating Member States and without any ultimate veto power, and such balances to power should be included in the rhetoric of the UDHR. As it is set up now, it is clear that the ideals and agendas of Western cultures dominate the Council and therefore dominate the way that rights violations are interpreted and dealt with. Integration and acceptance of other dissenting opinions and the language they utilize is necessary to create a truly just, inclusive, and effective Council.