Discussing Universality of Human Rights: Case Law Analysis

This essay critically examines the ongoing debate surrounding the universality of human rights, exploring whether they are truly universal, incontrovertible, and permanently valid or merely a construct of modern Western culture. The introduction traces the historical development of human rights concepts, highlighting their origins in ancient civilizations and philosophical traditions. The main context delves into the arguments for and against universality, considering cultural relativism, the influence of Western culture, and the role of international declarations like the UN Declaration of Human Rights. The essay analyzes the arguments of both proponents and critics, examining the impact of tradition, culture, and the potential for abuse. It then presents relevant case law, including Rabindra Prasad Dhakal v Nepal, Social and Economic Rights Action Center v Nigeria, and Toonen v Australia, to illustrate the practical application and challenges of human rights in different contexts. The conclusion synthesizes the findings, reaffirming the importance of human rights while acknowledging the complexities and ongoing debates surrounding their universal application.

International Human Right and Law
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Table of Contents
Introduction.................................................................................................................................................3
Main context................................................................................................................................................3
Case law......................................................................................................................................................7
Conclusion...................................................................................................................................................8
References.................................................................................................................................................10
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Introduction
All over history, ideas of human dignity, ethical behavior and justice have been essential for the
progress of human societies because of the question regarding relationship of the person to the
broad community. These concepts can be traced back to the early civilization of China, India and
Babylon. The laws of Roman and Greek society and are central of Buddhist, Christen, Islamic,
Hindu, Confucian, and Jewish teaching had been contributed by these countries. The other
important concepts for society were ethics, dignity, and justice. There are no written records
available however, contain oral histories of Australian indigenous people. According to the
philosophers of the middle ages, the ideas about justice were prominent1. An important stand
regarding this thinking was a natural law that was beyond the law of rules. It refers that people
have definite rights for being human. Important change regarding the thinking of human rights
took place in the seventeenth and eighteenth century.
Main context
Human rights are universal, incontrovertible, and permanently valid or merely a construct of
modern Western culture?
It is essential to all human beings to enjoy human rights solely because of being human
regardless of where they live2. It was created for providing equal dignity to all human beings and
also targets to protect it. Human rights are considered to be universal as all individuals are born
free and also equal in dignity and rights. This normative statement on universality contained in
the Universal Declaration where it has been brought out as compulsory law in the international
human rights agreements of the United Nation. The experience of injustice at the time of the two
1 Donnelly, J. (2013). Universal human rights in theory and practice. 4th ed. Ithaca: Cornell University
Press.
2 Donnelly, M. (2018). Democracy and sovereignty vs international human rights: reconciling the
irreconcilable?. The International Journal of Human Rights, 55(7), pp.1-22.
3

world wars and decolonization movement can be considered as the origin of contemporary
human right treaties. The majority of the state has ratified almost all of the human right treaties
and also the essential agenda for the execution of human rights. There are states that have not
approved a particular agreement yet are still assured to perceive definite human rights. The ban
on killing, right to life, slavery, torture, and judgment based on race is binding all states under all
conditions. The most common question is whether anything can be considered as universal in
pure-culture, the multipolar world, the problem is whether human rights are essentially Western
concepts. It is difficult to ignore the very different culture, politics and economic realities of the
other part of the world. Can the consumer society’s standards be applied to a society that does
not have anything to consume? While discussing human rights it needs to explain that both poor
and rich people have the same right of sleeping under a bridge and flying in first class3.
The philosophical protest declares essentially that there is nothing that can be universal. Each
and every value and rights are distinct and limited by culture perception and if there is no
universal culture then how human rights could be universal4. Proof must be given for declaring
human rights as universal towards their availability and also the accessibility. The perception that
human rights are universal disclosure is being served as a flag of benefit for others. Additionally,
it is a questionable political agenda account for the degree to which the concept of human rights
is being interrogated and struggled by both states and intellectuals. Despite of these, it is clearly
mentioned under the article 2 of the United Nation universal declaration of human rights that all
humans are eligible for enjoying all the rights and freedom set forth in this statement, without
any discrepancy of color, race, sex, religion, language, politics and another opinion, property,
3 Nickel, J. (2016). International Human Rights; International Human Rights Law: Cases, Materials,
Commentary. Nordic Journal of Human Rights, 34(1), pp.67-68.
4 Duan, F. (2017). The Universal Declaration of Human Rights and the Modern History of Human
Rights. SSRN Electronic Journal, 52(3), pp.255-261.
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national or social origin, birth, and another position. Additionally, there must not be any
distinction based on the political, international position of the state to which an individual
belongs, regardless of being independent, non-self-governing or under any other limitation of
sovereignty. At the same time tradition and culture of society take priority over the rights of the
individual within Particular County. However, it is being suggested by universalism that
humanity is more important and comes before tradition and culture. People follow one religion
and share their duties, to be respectful to and follow certain rules within. At the same time, their
religion ensured some human rights that need to be followed and also require putting the same
stress on both duty and rights5.
Rights of the humans are universally accepted not entirely but at least the concept of it. It is
being proclaimed regularly by all of the states that standards of human rights and charges of
human right violation are one of the strongest objections that can be made in international
relations6. An international legal obligation has been taken by three-quarter of the world states
for implementing these rights to the international Human Right Covenants and it was approved
by almost all other nationalities. The United Nation Declaration of human rights was approved
without any against the vote in the year of 1948. As human rights are being accepted widely, it
should be considered as universal. There are some cultures of nowadays believes that human
rights are the concept of western countries. They also blame the human right's concept is a cover
for interventionism in the affair of the developing world. It is just an instrument of western
politics neocolonialism. Though, they do not consider the fact that the Universal Declaration of
human right had been created by people who belong to different tradition and culture including a
Confucian philosopher of China, Us Roman Catholic, An Arab language representative and a
5 Weissbrodt, D. (2009). International human rights. 5th ed. New Providence, NJ: LexisNexis Matthew
Bender.
6 Finch, V. and McGroarty, J. (2010). Human rights. 4th ed. Dundee: Dundee University Press.
5

French Zionist, amongst other and drew upon advice from thinkers like Mahatma Gandhi.
Though the concept of human right was originated by western countries but it was pushed by
non-Western countries for adopting the declaration, against unwillingness of the governance of
western countries. Asian, Middle East and Latin American philosophers and leaders had
combined with Western intellectuals and activities for supporting human rights. It is clear by
evaluating those evidence that concept of human right is not a construct of modern Western
culture. It is true that human rights were presented by western states but it was approved and
carried out by the Eastern nation afterward. It was common for both eastern and western states
and both of them worked with each other for promoting the universality of human rights7.
While it is considered that idea of human right is being used by western countries as a tool for
interceding developing countries, at the same time the cultural relativism of human rights can
also be considered as an excuse used by those specific countries for avoiding the criticism, if
somehow the human rights are getting violated by them8. Claims of Asian region are presented
by the culture relatives as they are opposed to western. Westerns focus on the role of the
individual while Asian countries emphases of community, family, and respect of authority, that
our collective societies. It has been pointed out by many philosophers that economic
development and the creation of nation-state are more important than human rights as it is
declared by some Asian countries. Though, as per the evidence that abuse of a human right is
neither supported by nation-states nor enhanced by economic development. The majority of
Africans to hunger and dependent on international charitable aid is condemned by such leaders
7 Gibney, M. and Skogly, S. (2010). Universal human rights and extraterritorial obligations. 5th ed.
Philadelphia: University of Pennsylvania Press.
8 Guinn, D. (2016). Human Rights as Peacemaker: An Integrative Theory of International Human
Rights. Human Rights Quarterly, 38(3), pp.754-786.
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which is ignorance of human right. The first priority that has been given to most of the Asian
countries is social and economic rights and then come political rights.
Case law
Rabindra Prasad Dhakal and Advocate Rajendra Prasad Dhakal v Nepal
28 separate origin and other supplementary appeal for habeas corpus and mandamus were filed
during 1996-2006, following the lunch an armed revolt by the Nepal communist party. It was
asked through the petition for releasing and finding of person who had been arrested reportedly
by security personnel and there was a doubt that family members and friends were not aware of
his arrestment. It was also asked through the petition that an action must be taken against the
officers who were responsible for gross and systematic violation of human rights. It was found
by the Nepalese Court that to fulfill its international human right obligations, including
individuals from enforced, disappeared and especially the case of mass disappearance and the
legal framework of Nepal was not sufficiently effective9.
Social and Economic rights action center and center for Economic and social rights v Nigeria
Toxic waste had been disposed of by Nigeria in local waterways. Nigeria was responsible for a
number of preventable spills in the nearness of villages. This caused pollution and resulted in
contamination of soil, water, and air that leads to serious health issues for the community. It was
reported that an operation had been conducted by the army that made thousands of villagers
homeless. It was also responsible for destroying the source of food and livestock of local people.
Unarmed villagers had been shot by the army while they were trying to run away from soldiers.
9 Ihl-databases (2019). National Implementation of IHL - Rabindra Prasad Dhakal on behalf of Rajendra
Prasad Dhakal (Advocate) v. Nepal Government, Home Ministry and Others, Supreme Court, 1 June
2007. [online] Ihl-databases.icrc.org. Available at:
https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/5EAB6202E55A6FF3C125753F003A5722 [Accessed
13 Apr. 2019].
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The case of SERAC has a good claim for being considered as the most significant case as the
African Commission on Human and rights of people and human had decided10.
Toonen v Australia
Nicholson Toonen was a gay man and resident of Hobart, Tasmania. Section of the 1924
Criminal code was challenged by Toonen. The section was forbidden different sexual acts
between men in public and private both. It was alleged by Toonen that his privacy and liberty
was being threatened through these constituted laws. It was found by the UN Human Rights
Committee that consensual sexual activity among adults was covered by the term known as
“privacy” under Article 17 of the International Covenant on Civil and Political Rights11.
Conclusion
Human rights were created for providing equal dignity to all human beings and also targets to
protect it. Human rights are considered to be universal as all individuals are born free and also
equal in dignity and rights. it is clearly mentioned under the article 2 of the United Nation
universal declaration of human rights that all humans are eligible for enjoying all the rights and
freedom set forth in this statement, without any discrepancy of color, race, sex, religion,
language, politics and another opinion, property, national or social origin, birth, and another
position. Human rights are universally accepted not entirely but at least the concept of it. The
United Nation Declaration of human rights was approved without any against the vote in the year
10 Escr-net (2019). Social and Economic Rights Action Center & the Center for Economic and Social
Rights v. Nigeria (Communication No. 155/96) | ESCR-Net. [online] ESCR-Net. Available at:
https://www.escr-net.org/caselaw/2006/social-and-economic-rights-action-center-center-economic-and-
social-rights-v-nigeria [Accessed 13 Apr. 2019].
11 Hrlibrary (2019). Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992
(1994). [online] Hrlibrary.umn.edu. Available at: http://hrlibrary.umn.edu/undocs/html/vws488.htm
[Accessed 13 Apr. 2019].
8

of 1948. As human rights are being accepted widely, it should be considered as universal. There
are some cultures of nowadays believes that human rights are the concept of western countries.
They also blame the human right's concept is a cover for interventionism in the affair of the
developing world. The concept of human right was originated by western countries but it was
pushed by non-Western countries for adopting the declaration, against unwillingness of the
governance of western countries. It is clear by evaluating those evidence that concept of human
right is not a construct of modern Western culture.
9

References
Donnelly, J. (2013). Universal human rights in theory and practice. 4th ed. Ithaca: Cornell
University Press.
Donnelly, M. (2018). Democracy and sovereignty vs international human rights: reconciling the
irreconcilable?. The International Journal of Human Rights, 55(7), pp.1-22.
Duan, F. (2017). The Universal Declaration of Human Rights and the Modern History of Human
Rights. SSRN Electronic Journal, 52(3), pp.255-261.
Escr-net (2019). Social and Economic Rights Action Center & the Center for Economic and
Social Rights v. Nigeria (Communication No. 155/96) | ESCR-Net. [online] ESCR-Net.
Available at: https://www.escr-net.org/caselaw/2006/social-and-economic-rights-action-center-
center-economic-and-social-rights-v-nigeria [Accessed 13 Apr. 2019].
Finch, V. and McGroarty, J. (2010). Human rights. 4th ed. Dundee: Dundee University Press.
Gibney, M. and Skogly, S. (2010). Universal human rights and extraterritorial obligations. 5th
ed. Philadelphia: University of Pennsylvania Press.
Guinn, D. (2016). Human Rights as Peacemaker: An Integrative Theory of International Human
Rights. Human Rights Quarterly, 38(3), pp.754-786.
Hrlibrary (2019). Toonen v. Australia, Communication No. 488/1992, U.N. Doc
CCPR/C/50/D/488/1992 (1994).. [online] Hrlibrary.umn.edu. Available at:
http://hrlibrary.umn.edu/undocs/html/vws488.htm [Accessed 13 Apr. 2019].
Ihl-databases (2019). National Implementation of IHL - Rabindra Prasad Dhakal on behalf of
Rajendra Prasad Dhakal (Advocate) v. Nepal Government, Home Ministry and Others, Supreme
Court, 1 June 2007. [online] Ihl-databases.icrc.org. Available at:
https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/5EAB6202E55A6FF3C125753F003A5722
[Accessed 13 Apr. 2019].
Nickel, J. (2016). International Human Rights; International Human Rights Law: Cases,
Materials, Commentary. Nordic Journal of Human Rights, 34(1), pp.67-68.
Weissbrodt, D. (2009). International human rights. 5th ed. New Providence, NJ: LexisNexis
Matthew Bender.
10