ISSN 2277-0844; Volume 1, Issue 6, pp 179-184; September 2012.

Online Journal of Social Sciences Research ©2012 Online Research Journals Full Length Research Available Online at http://www.onlineresearchjournals.org/JSS

The Universal Declaration of Human Rights: A Legal or Moral Force? Remarkable Contributions of Anthropologists to International Human Rights Father Jean-Marie Did'ho Kuzituka Department of Anthropology and Archaeology University of South Africa (UNISA). Email: [email protected]; Tel. (+27)11 982 7399. Downloaded 23 August, 2012

Accepted 13 September, 2012

Since the birth of the Universal Declaration of Human Rights in 1948, the world has witnessed various kinds of violations and abuses of human rights. Many of the violators of these rights have never been brought to book and some of them are even leaders in defence of human rights and social justice. This article asks a question; is the Universal Declaration of Human Rights a legal or moral force? How can anthropologists promote human rights to make it fully a legal force? This article attempts to answer this question and sub-question in the light of the works of prominent anthropologists. The answer given is that the universal declaration of human rights is partially a legal force and fully a moral force. To make it fully legally binding, the author suggests democratic values, activism and advocacy, awareness and education of people as key to the full advancement of human rights worldwide. The author also suggests that besides Non Governmental Organisations of human rights, activists and advocates of human rights, international human rights bodies should involve scientists (anthropologists in particular) in the promotion of human rights due to their closeness with the people they study. Keywords: Human rights, anthropology, cultural relativism, activism, advocacy.

INTRODUCTION The concept of human rights had little history before the establishment of the United Nations (UN) in 1945. With this in mind, the history of human rights would be the history of the United Nations concept. The Universal Declaration of Human Rights (UDHR) was adopted by th the United Nations General Assembly on the 10 of December, 1948 at Palais de Chaillot in Paris, France. This declaration arose from the experience of the Second World War and it represents the first global expression of rights to which all human beings are inherently entitled. One of the chief aims of the organisation is “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. One of the principal purposes of United Nations (UN) as stated in its first article is ‘to achieve international co-operation... in promoting and encouraging respect for human rights and

fundamental freedoms for all’. As one can notice, when the Universal Declaration of Human Rights was adopted in 1948, many countries especially in Africa were still under colonial rule. Most of UN members who endorsed the Declaration were from Europe and North and Latin America, with a few countries from Africa and Asia. Since the adoption of the declaration, UN membership has increased significantly with new members coming mainly from Africa and Asia. Freeman [1] says that the Universal Declaration of Human Rights was intended to prevent a repetition of atrocities of the kind that the Nazis had committed. This is shown in the second paragraph of the preamble, which states that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” [1]. Since 1945, UN has done a lot to create a platform for human rights promotion and

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one could say that the concept of human rights is one of the most influential of our time, and many poor and oppressed people appeal to it in their quest for justice. The question arises; is ‘the Universal declaration of Human Rights’ a legal or moral force? Since it’s (the Universal Declaration of Human Rights) adoption by UN General Assembly in 1948, anthropology as a discipline embraced a predominantly ethical relativist stance toward the idea of human rights as a legitimate universal concern for all cultures. In their fieldwork researches, however, anthropologists witnessed the rising abuse and infringement of human rights. Thus, the question whether UN declaration of human rights has a legal or moral binding force to all UN members. In other word, how can universal human rights be legalised and/or legitimised in different societies without succumbing to universalism or to the paralysis of relativism? This article tries to answer this central question. I wish that the universal declaration of human rights should become part of the legal culture of any given society. And in doing so, all signed member states of the United Nations must embark in the awareness and public consciousness, activism and advocacy. This article argues that the universal declaration of human rights is more of a moral force than a legal force. Some rights in this declaration have legal force but the majority of them remain as moral force. For it to become fully an international legal force, as Fox [2] argues, this challenge needs to be met; universality and specificity are not intrinsically oppositional forces. In other word, they are not mutually exclusive. Cultural relativism must also be taken into account. There is, however, an assumption that all cultures promote human dignity as is the case for the universal declaration of human rights. In saying so, cultural relativism ceases to be a stumbling block in making the universal human rights fully an international legal force. To demonstrate this point, I must look at the concepts of universal rights and cultural relativism; what can anthropologists do to promote human rights? And how to strengthen human rights globally as a legal force. The Concepts of Universal Rights and Cultural Relativism What are human rights? When one asks this question to an ordinary villager living in a remote deep rural African village, the answer expected is most probably: ‘I don’t know’. When asked the same question to the one living in a city, he/she might answer: ‘yes I know human rights’ without giving a clear definition. Most people say they know and believe in human rights but when asked to define or even enumerate those rights, they fumble. Some even say the human rights declaration is a new st phenomenon of the 21 century. As stated in the introduction, the United nations General Assembly adopted the universal declaration of human rights in 1948.

In this document, the UN defined the freedoms considered essential to humankind. freedom of movement, privacy, a nationality, a family, property, freedom of thought, UN declaration of universal human rights includes 30 articles which proclaim that all people are entitled to a fair and public hearing, presumption of innocence until proven guilty, religion, opinion, expression, association, assembly, work, rest, health, education and culture, everyone is entitled in addition, to freedom from discrimination, slavery, torture, arbitrary arrest, detention or exile. Cultural relativism in turn is a key concept in anthropology and it “asserts that since each culture has its own values and practices, anthropologists should not make value judgements about cultural differences” [3]. Cultural relativism is therefore viewed as all beliefs, customs, and ethics relative to the individual within his/her own social context. In other words, “right” and “wrong” are culture-specific; what is considered moral in one society may be considered immoral in another, and, since no universal standard of morality exists, no one has the right to judge another society’s customs. The role of the anthropologist in that case is simply that of observer and recorder. This view today, however, receives critics inside and outside the discipline of anthropology, “especially those who want anthropologists to take a stand on key human rights issues” [3]. Fluehr-Lobban [3] goes far in agreeing with those who want anthropologists to take a stand on key human rights issues. She comments that the time has come for anthropologists to become more actively engaged in safeguarding the rights of people whose lives and cultures they study. History tells us that anthropology as a discipline declined to participate in the debate that produced universal human rights declaration. To take but one example, in 1947, the executive board of the American Anthropological Association (AAA) withdrew from discussions that led to the ‘Universal Declaration of Human Rights’. The AAA withdrew from these discussions because it believed that no such declaration would be applicable to all human beings. But the world and anthropology has now changed as Fluehr-Lobban [3] argues. The research of anthropologists involves long interactions with people of all walks of life and this places them in a unique position to lend knowledge and expertise to the international debate regarding human rights. Fluehr-Lobban [3] says that in doing so, anthropologists do not break with the traditions of the discipline. She continues reminding us of the tremendous work done by anthropologists in the past in speaking out against some reprehensible practices such as Nazi genocide and South African apartheid. I shall elaborate more on the activism and advocacy works of anthropologists in the second part of this paper. Generally anthropologists have not been very outspoken against human rights abuses in many

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countries and cultures. For example, denouncing female circumcision practiced in many African countries, neocolonialism and/or dictatorship in many African countries for decades, in which acts of communal violence such as the clash between Tutsis and Hutus in Rwanda in 1994, the xenophobic attacks of Rwandan citizens in the Democratic Republic of Congo in 1998 and of African immigrants in South Africa in 2008. Fluehr-Lobban [3], however, argues that “the exchange of ideas across cultures is already fostering a growing acceptance of the universal nature of some human rights, regardless of cultural differences”. If the international Human Rights Conference of 1993 in Vienna condemned the female circumcision it was partly because of the research results of anthropologists like Carolyn Fluehr-Lobban on her research conducted in Sudan on female circumcision. Delegates at that conference came to view female circumcision as a violation of the rights of children as well as the rights of women who suffer its consequences throughout life. In the light of the outcomes of this conference, one sees that human rights are more a moral force than a legal one. Some cultures are now beginning to change, even though it is difficult to determine their cause and effect. For example, the members of the Yanzi tribe of Southwestern Democratic Republic of Congo are no longer compulsory marrying their young girls by force to their male cousins. The practice is called Kintsuidi. At her birth, the baby girl is already given in marriage to her grown male cousin without her consent. This cultural practice infringes the girl’s freedom of thought, opinion and expression. Fluehr-Lobban, however, argues that to be sure, “it is not easy to achieve consensus concerning the point at which cultural practices cross the line and become violations of human rights. But it is important that scholars and human-rights activists discuss the issue” [3]. According to Fluehr-Lobban [3], anthropology as a discipline has begun to change its attitude toward cultural relativism and human rights. The convention of the American Anthropological Association of 1994 had as theme human rights. At this convention, many anthropologists refused to commit themselves absolutely to cultural relativism. Hence the formation of a Commission for Human Rights was created. This commission is charged to develop a specific anthropological perspective on human rights, with challenging violations and promoting education about human rights. The concept of cultural relativism is still, nevertheless, supported by many anthropologists. Those who support cultural relativism must bear in mind that their arguments are often abusively used by repressive governments to avoid international criticism of their abuse of their citizens, says Fluehr-Lobban [3]. Anthropologists are called to condemn such misuse of cultural relativism, even if it means that they may be denied permission to

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conduct research in the country in question. I would like to agree with Fluehr-Lobban [3] that we (anthropologists) should not let the concept of relativism stop us from using national and international forums to examine ways to protect the lives and dignity of people in every culture. Because of our involvement in local societies, anthropologists could provide early warnings of abuses – for example, by reporting data to international human-rights organisations, and by joining the dialogue at international conferences. When there is choice between defending human rights and defending cultural relativism, anthropologists should choose to protect and promote human rights. We cannot just be bystanders. What can Scientists do to Promote Human Hights? When one looks at violations of human rights in Africa as it has been going on for decades both at institutional and cultural levels without adequate international outcry, one argues that the Universal Declaration of Human Rights has moral force and lacks legal force. Since its adoption in 1948, numerous attempts have been made to strengthen the declaration. The most important and dynamic are the International Covenants on Human Rights, published in 1976. These covenants include the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR) and the optional protocol to the ICCPR. These covenants were followed by UN convention against torture and other cruel and inhuman or degrading treatment or punishment [4,5]. Member countries which ratified these covenants and conventions are required to protect human rights. In order to comply, non-governmental organisations such as Amnesty International and the United Nations as an intergovernmental body are placed as watchdogs. However, when one looks at around the world, there is clear evidence that human rights are not well protected and that there are no easy solutions to the problems of abuses of human rights. In order to have proper solutions to the problems of human rights abuse, we need information. We need to conduct more fieldwork research, surveys and interviews. This is where scientists in general and anthropologists in particular are needed. Anthropology and the Promotion of Human Rights Anthropological studies are objective, and because of their objectivity, they are not likely to please everybody (particularly oppressive or autocratic governments). However, they are helpful to many other scholars (of political studies, sociology, international studies, migration studies, etc) and to the activists of human rights who strive to foster human progress. In his thinking of human rights anthropologically, Goodale [6] argues that it is important to understand the ‘conceptual and historical foundations’ that inform

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anthropology’s engagement with human rights because these foundations have been recently laid. Speaking in terms of interdisciplinary relationship to human rights, chronologically anthropology is a mere infant compared to other sciences such as philosophy. However, if one compares disciplinary relationship to mountain ranges, Goodale comments that anthropology would be the Himalayas. The author means that the engagement of anthropology with human rights started late compared to other disciplines. However, what anthropology has contributed in its understanding of human rights is of great significance and importance. This section informs anthropology’s engagement with human rights and its contribution to the advancement of people’s rights. The 1999 ‘Declaration on Anthropology and Human Rights’ developed by the American Anthropological Association (AAA) defines the basis for the involvement of anthropologists in human rights. It stipulates that the capacity for culture is tantamount to the capacity for humanity. Therefore, “Anthropology’s cumulative knowledge of human cultures, and of human mental and physical capacities across all populations, types and social groups, attests to the universality of the human capacity for culture” [7]. This 1999 declaration I believe has a universal relevance because generically people have the right to realise their capacity for culture and to change the conditions of their personal and social existence, as long as their activities do not undermine the existence of other peoples and groups. The American Anthropological Association (AAA) says that this idea entails an ethical commitment to the equal opportunity of all cultures, societies and persons to realise this capacity in their cultural identities and social lives. Anthropologists are committed to the promotion and protection of the rights of people everywhere to the full realisation of their humanity, which is their capacity for culture. The preamble of the 1999 Declaration stipulates that when any culture or society denies such opportunity to its members, the AAA has an ethical responsibility to protest and oppose such deprivation. This entails the ethical commitment anthropology has in the promotion and protection of human rights. Anthropologists like Franz Boas already in his time engaged himself “in what we would today describe as a ‘public anthropology’ that was fundamentally concerned with what we would today describe as ‘human rights concerns’ – especially through his research and public advocacy around immigration and what was called at the time the ‘race question’ [6]. Anthropologists formally confronted the idea of human rights soon after World War II. In his history of the drafting of what became the Universal Declaration of Human Rights (UDHR), Goodale [6] quoting Johannes Morsink (1999) explains that the United Nations Educational, Scientific and Cultural Organisation (UNESCO) solicited expert advisory opinions on the

possibility of an official declaration of universal rights. UNESCO solicited anthropology as a discipline through the well-known anthropologist, Melville Herskovits, who was at that time the chairperson of the Committee for International Cooperation in Anthropology of the National Research Council, a post that he assumed in 1945. Herskovits was a prominent American anthropologist and a member of the American Anthropological Association’s executive board, and Chairperson of the Department of Anthropology at North Western University. Herskovits was himself a student of Franz Boas at Columbia University. Herskovits wrote a statement on human rights after he received a document sent to him by UNESCO on behalf of the Commission on Human Rights. His statement became known as ‘Statement on Human Rights’ and was sent to the Executive Board of the American Anthropological Association (AAA). The American Anthropological Association made the statement published in the journal, American Anthropologist in 1947, a year before the UDHR was ratified by the United Nations’ General Assembly. Herskovits’s and then the American Anthropological Association’s statement on human rights mark a convenient beginning of anthropology’s engagement with the modern doctrine of human rights. This contribution of anthropology to the discourse of human rights marks the era of a new relationship based on the advancement of human progress and on the universality of human rights. Studying or thinking human rights anthropologically, says Goodale, is the basis for both political action and ethnographic study. An anthropologist of human rights is neither a politician (nor a political analyst) nor an activist of human rights. Anthropologists studying human rights have a keen interest in the relationship between culture and human rights. Some cultural practices in certain societies go against the norms of human rights. Anthropologists always take into account this aspect as well, since they grapple “with the wider body of scholarship that seeks to use variations on hermeneutics in order to “translate” human rights between distinct cultural and religious traditions” [6]. The 1999 ‘Declaration on Anthropology and Human Rights’ urges anthropologists to be involved in the debate on increasing their understanding of human rights based on anthropological knowledge and research. In the words of Goodale [6], the 1999 ‘Declaration on Anthropology and Human Rights’ declared, “anthropologists are to advocate for the growing body of international human rights law, and create a new category of human rights scholarship, one that combines the findings from anthropology’s different methodologies with a commitment to critical social and political engagement”. This declaration opened a new chapter in the relationship between anthropology and human rights. Since then anthropology has become an influential disciplinary voice on certain problems of concern to the wider human rights community. A fine example among

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many others, says Goodale [6], is the following; anthropologist, Ellen Messer, one of the eight founding members of the ‘American Anthropological Association’ (AAA), Commission on Human Rights, has been a leading advocate in the fight to have a “right to food” recognised within international human rights law. In her work, Messer says Goodale [6] provided an overview of anthropology’s relationship to human rights and she made a series of arguments for how the work of anthropologists can and should contribute to a transformed human rights practice. Anthropologist Victoria Sanford has been at the forefront of the anthropology of human rights in Guatemala. In her fieldwork, she wrote about the exhumation of secret mass graves that contained the victims of Guatemala’s civil war. She went further in participating in the public analysis of the genocide. She also strongly focused her study on debates and the truth and reconciliation process in Guatemala [6]. The research of Paul Farmer on medical practice and public health advocacy, led medical anthropology and human rights activism to innovative and powerful ways of promoting human rights. Farmer was one of the cofounders of ‘Partners in Health’, an international charity organisation that began its work in Haiti by providing free medical care as a form of social justice. Farmer urged anthropologists and health professionals to work toward a ‘practical solidarity’ by deploying medical materials and resources to improve the health and well-being of those who suffer from a structured violence. By structured violence Farmer meant the violence orchestrated by the leadership of the society, those in governance [6]. Scheper-Hughes pioneered another kind of anthropology of human rights, one that tracks and exposes what she calls the “biopolitical terrorism of free trade transplant” [6]. This biopolitical terrorism takes the form of networks of organised crime. She denounced ambulatory organ buyers. She like Farmer also founded a nongovernmental organisation called ‘Organs Watch’ in 1999 along with her colleague and fellow anthropologist Lawrence Cohen. ‘Organs Watch’ today brings attention to the “social and economic context of organ transplantation, focusing on the human rights implications of the desperate, world-wide, search for organs” [8]. Anthropology Southern Africa in its ‘Ethical guidelines and principles of conduct for anthropologists’ is committed to the establishment of a just and humane society based on the principles of anti-racism and antisexism. Anthropologists have a responsibility to call attention to inequities, injustices, violence and intrusions of freedoms that they may encounter in the course of professional activities [9]. Fiona [10], an associate professor at the University of Cape Town, explored questions of violence, gender, human rights, redress, social justice, testimony and voice in her work on South Africa’s Truth and Reconciliation Commission. This work has been influential in shaping

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international transitional justice processes [11]. South(ern) African anthropologists have for years promoted human rights in an activist way during apartheid. The late Eileen Kridge once served as a member of the ‘Black Sash’ movement. The ‘Black Sash’ movement is a human rights movement that has tirelessly campaigned and continues to campaign for justice and equality throughout South Africa. Graham [12] says that “anthropologists who research and study people suffering human rights abuses and forms of social injustice have an ethical obligation to seek ways to improve these conditions. And as a humanistic field, the discipline of anthropology has an obligation to promote social justice”. Many questions have been asked about the involvement of anthropologists in human rights’ promotion. One of these questions is, “do anthropologists have an ethical obligation to promote human rights?” Prominent anthropologists such as Terence Turner, Carolyn Fluehr-Lobban and Laura Graham responded to this question by arguing that the obligation to promote human rights should be understood as a professional responsibility, Graham, a moral choice Fluehr-Lobban, or a matter of moral and intellectual principle Turner” [6]. We have seen in the light of the above works of anthropologists that there is essential work for anthropologists and other scientists in the promotion of human rights. They make a unique contribution to human rights through the application of scientific methods and techniques to the investigation of human rights violations. Compare to verbal testimony, the scientific evidence is luckily to be more accurate and effective in legal prosecution when evidence is required. How to Fully Strengthen Human Rights Globally as a Legal Force? In order to fully strengthen human rights globally as a legal force, democracy is the only eligible regime to implement the respect of human rights. Real and true democratic states are guided by a fundamental commitment to human rights. Even one can find some little abuses of human rights here and there within those countries, but their constitutions and other policies are drafted in the light of the universal declaration of human rights. Democracy as a regime with good institutions alleviates human suffering therefore restores human dignity. Beside democracy being the only credible regime to implement the culture of rights, international human rights bodies must be more vocal and given absolute powers to intervene without delay in countries that abuse and infringe human rights. One would argue in this case about the autonomy and the independency of each country members of these bodies. But I think that the international human rights bodies such as the United Nations Human Rights Council (UNHRC) and the International Criminal Court (ICC) must be granted the

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powers to quickly intervene in case of grave human rights abuse within member states when the national human rights body is unable to prosecute the offenders; this without violating the sovereignty and the independence of member states. These two bodies are to couple with continental, regional and national treaties to reinforce human rights around the world. Scientists in general and anthropologists in particular are to work hand in hand with these bodies for the promotion and implementation of human rights. The international human rights community has already significant power to point out and confront those member states who violate peoples’ rights. But it is very slow to bringing change and to encourage the value of democracy. All member governments in the UN organisation must abide to the respect, protection, promotion and implementation of human rights. They must all defend human rights and social justice, avoid political and rhetoric claims about democracy and human rights and create a more secure world for everyone. In defending human rights and social justice, I insist, the international human rights community must not leave behind scientists, particularly anthropologists. Ordinary people, however, must not be left behind too for they have something to do to advance human rights. The work of ordinary people in advancing human rights should be mostly that of activism. And activism must begin in their communities wherever injustice and abuses are found. In its preamble, the Universal Declaration of Human Rights recognises “the inherent dignity and ...the equal and alienable rights of all members of the human family (as) the foundation of freedom, justice and peace in the world” [13]. This gives all people, regardless of their background or ranks in the society, the opportunity to speak out when their rights or others’ rights are violated. People need to be aware of their rights, and they need to be educated. If the international human rights community wants to be more effective in its campaign of strengthening human rights worldwide, it has to take up the awareness, education and action campaigns seriously both locally and globally. Nobody should be left behind. Both ordinary people and scientists are to do work of activism and advocacy of human rights in their own ways and democratic values are to be guaranteed in all UN member states so as to make the Universal Declaration of Human Rights a fully legal force. REFERENCES [1] Freeman M. Human Rights. Cambridge: Polity Press. 2002. [2] Fox J, Diana HN. Women’s Rights as Human Rights: Activism and Social Change in Africa. New York: Edwin Mellen Press. 1999 [3] Fluehr-Lobban C. "Cultural Relativism and Universal Rights," Chronicle of Higher Education (June 9, 1995): Bi-B2. 7. Barbara Johnson, ed., Freedom and Interpretation: The Oxford Amnesty Lecture* 1992. (New York: Basic Books, 1993).

[4] http://www.unhchr.ch/html/menu3/b/a_cescr.htm [5] http://www.globalgovernancewatch.org/human_rights/theinternational-covenant-on-civil-and-political-rights [6] Goodale M. Human Rights: An anthropological reader. Malden: Blackwell Publishing. 2009 [7] http://www.aaanet.org/stmts/humanrts.htm [8] http://sunsite.berkeley.edu/biotech/organswatch/pages/about.html [9] www.asnahome.org/index.php?...anthropology-Southern-Africa [10] Fiona R. Bearing Witness. Women and the Truth and Reconciliation Commission. Pluto Press. December 2002 [11] http://www.lib.uct.ac.za/index.php [12] Graham RL. Anthropologists Are Obligated to Promote Human Rights and Social Justice. Anthropology News. 2006; 47: 4-5. [13] http://www.un.org/events/humanrights/2007/hrphotos/declaration%20_e ng.pdf

Author

Jean-Marie KUZITUKA DID’HO is a Roman Catholic priest of the Archdiocese of Johannesburg. He holds a masters degree in Social Anthropology from the University of the Witwatersrand, Johannesburg, where he concentrated on the issue of National (South African) identity and immigration from Africa and durable solution on xenophobia. Jean-Marie is currently a doctoral (PhD) candidate in the department of Anthropology and Archaeology at the University of South Africa (UNISA). Research Interests: Anthropology of human rights; immigration and integration; anthropology of religions; cultural Anthropology.