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The Unviersality and Relativity of Human Rights—An Approach from ICCPR
November 26,2014   By:chinahumanrights.org

THE UNVIERSALITY AND RELATIVITY OF HUMAN RIGHTS
—AN APPROACH FROM ICCPR


Sun Shiyan

China

There have been many debates about the unviersality and particularity/relativity of human rights, or the relations between human rights as a universal value and the diversity of cultures. However, most debates have been approached from rather abstract, conceptual and comparative approach. It is therefore desirable to discuss the issue from the perspective of international human rights standards, which have been generally accepted by the whole international community.

It is a fact that there are different and diverse cultures in the world, it is also a fact that international human rights standards are universal, at least in their forms, and so is a fact that these two facts coexist with each other in the world. How can these two facts coexsit? In other words, what is the relationship between the diversity of human rights and universality of human rights in the context of international human rights standards? If it is not the case that one side dominates the other, then how are they balanced? The following part will briefly address this problem from the perspective of International Covenant on Civil and Political Rights (ICCPR), which has 161 State parties and “is probably the most important human rights treaty in the world”.

I.The universality of human rights as reflected by the ICCPR

Firstly it is for certain that no provisions in the ICCPR leave any room for relative interpretation from the cultural or other perspectives. Article 2(1) of the ICCPR merely provides that “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”, without any unreasonable distinctions. In this article or any other parts of the ICCPR, there are no provisions by which the State parties are entitled to interpret, accept and implement the ICCPR at their own wills and in accordance with their specific conditions and situations.

Secondly, the Human Rights Committee (HRC), the organ responsible for monitoring the implementation of the ICCPR, has always denied, or more accurately, ignored the justification of noncompliace with the ICCPR on the ground of particular situations – cultural or of other natures – in specific State parties. There are many examples to show that the HRC has never permitted any exceptions to the requirements of the ICCPR on the cultural ground. For example, in contrast with the European Court of Human Rights that has developed, elaborated and applied the “margin of appreciation doctrine” in dealing with many delicate cases, the HRC has never recognized that the State parties enjoy any margin in applying and implementing the ICCPR, with only one execption of quite obscure reference to “margin of discretion” in Leo R. Hertzberg et al. v. Finland. This approach of the HRC may seem strange, for it would be more reasonable to make use of the doctrine in the sphere of the ICCPR, which applies to a more heterogeneous world, comparing with the the European Convention on Human Rights applying to a relatively homogeneous area. The HRC has never explained its reluctance in this respect. Nevertheless, it could be arguable that the HRC has a strong justification to do so: if the State parties were allowed to have a certain of margin of appreciation/discreation in applying the ICCPR, it would give rise to the frequent and enormous noncompliance with and even avoidance of the ICCPR obligations by way of invoking so called “specific conditions and situations” of the State parties concerned. However, it is an important task of the HRC to maintain and uphold the universal applicability of the ICCPR requirements. If the State parties were to be allowed to apply the ICCPR in any ways they wish, the HRC would not be able to carry out its monitoring functions, and even its very existence would become a redundance.