Problems and Prospects of Human Right Instruments
- 1. 13083915 Work Count:2192 How have Human rights of women within Afghan communities revealed the prospects and problems of Universal Human rights instruments? The Universal declaration of Human rights (1948) states ‘all Human beings are born with equal and alienable rights and fundamental freedoms’. This declaration exemplifies the universal culture in which HR theory and practice exudes. This universal culture has provided problems in the moral philosophy that guides human rights instrument, though it has also allowed the flourishing of instruments due to the contemporary dynamic of the world. Within this commentary, to support and substantiate this claim I will reference Afghan women in accordance to HR instruments. The contemporary recognition of Women within Afghanistan can be seen to demonstrate the prospects and problems of HR instruments. First, the commentary will conceptualise the multicultural tension within human rights. I will exemplify this through the Pashtun cultural practice of ‘Ghagh’ and its tension with the HR instrument, End Violent against Women law. Second, the commentary will detail the cultural imposition HR instruments retain, problematizing their aim of liberating women. I will delve into this, by discussing the individualistic notion and homogenising feature of the law. Third, the commentary will detail the prospects HR instrument has, through their universal cultural features. I will demonstrate this through detailing culture as ongoing and also how globalisation has helped to implement the instruments. The preponderant argument within this commentary is that due to the nature and characteristics of Human Rights instruments it has problematized them and made it difficult to implement HR. Although, one could deem these characteristics occasionally working to allow HR implementation, aided with aspects such as globalisation. Universal human rights canbe defined as ‘rights inherent to all human beings, whateverour nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status’ (OHCHR,2016). HR instruments can be seen to embody these characteristic; they are defined as international documents or treaties that allow or protect HR. The alienable, universal rights thus restrict no individual in the enactment or accumulation of such instruments. The institutional man made instruments with their natural and given characteristics leaves the instruments up for negotiation, contestation and deliberation. The mutual morality that HR instruments evoke through its universal
- 2. 13083915 Work Count:2192 culture can be seen to contest with the moral diversity. Moral diversity brings forth the philosophy of cultural relativism which argues, ‘culture is the sole source of the validity of a moral right or rule’ (Donnelly, 1984:400). In order to exemplify this, one can detail the contestation between Convention on the Elimination of all Forms of discrimination against Women (CEDAW) and the Pashtun community practice of Ghagh. The Pashtun community within South Eastern Afghanistan is the largest ethnic group in the country. They are a group oriented community with authority being condensed by the male figures in the family. They live their lives incorporating the Sunni Muslim sectsand the ethical code that is Pashtunwali. One cultural practice within the Pashtunwali is Ghagh; described as when ‘a man forces his marriage proposal on a woman’ (Siddique, 2012). Such a practice contests with the Convention on the Elimination of all Forms of discrimination against Women (CEDAW), which is identified as an international HR instrument. The CEDEW within Afghanistan was created in 1980, though was ratified in 2003. An instrument derived from CEDEW is the law End Violent Against Women (EVAW). This consists of ‘nullified forced marriages and early marriages without consent of the girl, punishing the perpetrators with imprisonment’ (Frogh, 2010). The HR principle of female self-determination and liberation is not a controversial act, although when creating instruments that determine this end within non-western societies the implementation and reasoning causes tensions. The case of women in the Pashtun community demonstrates the problem of cultural imposition that HR instruments represent. Rather than a universal instrument which is created to maintain the HR theory and philosophy, one could acknowledge a Eurocentric mechanism that imposes on the Pashtun community. This problematizes Human rights instruments, for they can be deemed legitimate tools for this. This cultural imposition can be shown first by the notion ‘consent to marriage’ is an individualistic universal right. The individualistic notion of consent disregards the collective moral right that is common within non-western communities. Full consent to marriage can be classified as a liberal and ‘peculiar modern view of marriage as a union of individuals rather than linking of lineages’ Donnelly, 1984:416). The non-western corporeal means of thinking is deemed primitive as opposed to the individual post enlightenment means of thinking. One could deem the ‘legitimate claims of self-
- 3. 13083915 Work Count:2192 determination as manipulations of a dying, lost, or even mythical cultural past’ (Donnelly, 1984:411). For imposing such instruments within non-western societies based on collectivism with weak infrastructure creates an easy cultural imposition. ‘It is said that non-western societies value communities more than individuals or that each society should balance communities and individuals according to its individuals. (Freeman, 2011:122). This is case for the Pashtun community, for their livelihood is focused on the collective good rather than an individual’s actions. Therefore it can be argued that the EVAW law on the Pashtun community is ‘systematic and may lead to the predominance of distinctive social types in different’ (Donnelly, 1984:403). This non-western means of life consequently can be used to explain the need for the practice of Ghagh. The conservative nature of Pashtun people limited interaction, decreasing the chance of marriage and reproduction, thus justifying a male’s dynamic selection of a wife. This reasoning and justification uses empirical relativism, from the protection and continuous survival of the community, detailing the strong and undeniable historical variability. The historical variable and empiricism thus diminishes the universal philosophy of consent to marriage, for the cultural need diminishes the supposed universal right. The inability to justify consent to marriage as a universal right has enacting instrument like the EVAW as problematic, for it can be seen as a legitimate means of cultural impositions. Such instruments fail in acknowledging ‘Human nature,at the levels of the individual, the group, and the speciesalike, is a range of possibilities, varying, in part in response to culture’, rather focusing on the supposed fixed psychology of women (Donnelly, 1984:403). Regardless of the argument of cultural imposition, one can note the international collaboration that occurred in order to produce the EVAW. The afghan division of the CEDEW consisted of Afghan women with western women in order to formulate the gender specific law to end violence. Rather than westernculture we canidentify this HRlaw deriving from a hybrid moral ideology. Though this doesn’t represent the whole of Afghan women, here we can identify a bigger problem of internal homogenising within the Afghanistan in regards to women’s interests. Here we can critic the universal culture, for the laws are once again constructed to generalise to all through with the purpose of individualism ‘The aim of instruments are and must be to protect human agency, not to legislate moral, political, or cultural
- 4. 13083915 Work Count:2192 conformity’ (Ignatieff, 2001:143). One other mean to show the cultural imposition of HR instruments is through the homogenising of women interests it promotes. This problematizes HR instruments for they are made reductionist in order to generalise, consequently lacking specific tools to aid all. The homogenisation of women universally perpetuatessimilarity in interests and ideology, thus disregarding the alternate interests of the supposed oppressed women. One must first determine whether the Pashtun women deem consent to marriage as her personal human rights, same as the western women. This can be conceptualised using post -colonial critique and analysis, to exemplify the case of‘false universalism’ (Donnelly, 2013:117). Post-colonial theorist, Gayatri Spivak coined the term ‘White men saving brown women from brown men’, in relations to the case study and HR instruments this can be interpreted to be the western world saving the Pashtun women from patriarchy (Spivak,1983:61). ‘The need for the protection and liberation of Afghan women has been framed to popularize and construct the enemy as Afghan men’ (Tuso, 2015:28). Though one can ask, does the Pashtun women really need saving? If an instrument such as the EVAW law is implemented will women really be liberated and obtain the type of self-determination that is relative to them and not simply in the way of the western liberal women. There are women who support societies that use practices such as Ghagh, thus not deeming them violations. One other Post-Colonial theorist, Edward Said would explain the western viewpoint of such a women as ‘uncivilised’ or ‘uneducated’ (Said, 1978:2). The Eurocentric perspective that fails to understand this ideology promoted the idea of Human rights tools to educate, civilise and enlighten such non-western women. Notwithstanding, the notion of cultural imperialism, one can acknowledge ‘the idea of human rights was equally foreign to the western world prior to the mid- seventeenth century’, this challenges the argument that HR instruments are used for a western cultural imposition (Donnelly, 2002: 81). Instead we can see the ethical progress in which the west made in adapting such instruments guided by foreign ideology. This demonstrates ‘culture as an ongoing historical and institutional process’ (Donnelly, 2013:110). With this specific understanding of culture, the argument of cultural relativism that prevents the Pashtunwomen using these instruments is not valid, for it ignores the changing process of humanity. Philosopher and Political theorist Immanuel Kant acknowledges this development of humanity in which
- 5. 13083915 Work Count:2192 he describes as human progress with the end of enlightenment. Enlightenment is an individualistic process which is then made communally, through free thinking. This process is guided by Laws and Maxims; one could deem the Human rights instrument EVAW as a maxim to human rights of women within the Pashtun community. If culture is a ‘congeries of ways of thinking, believing and acting that are constantly in the state of being produced’, then this gives plausibility of the Pashtun women adhering to the Universal Culture of HR (Donnelly, 2003:110). If this is the case, then the instruments are a symbol of human progress. Their existing presence thus demonstrates a possible use in the future, highlighting prospects. In the case of women who deem practices like Ghagh a violation, the universal means of HR instrument can allow liberation and self-determination. The current dynamic of the globalised world, has been beneficial. The universal culture of HR inadequately engaging with the cultural framework within non- western counties doesn’t diminish universalism as a complete means in promoting HR instruments. The universal culture of human rights can be deemed a positive consequence of globalisation. Universalism in the era of globalisation can be beneficial against violations by the nation state,for the nation state can be acknowledged as an obstacle to HR instruments. Political globalisation can erode the states sovereignty; dispersing the power, as opposed to the states concentration of power. Furthermore political globalisation has functioned to allow ‘International norms and institutions for the protection of human rights. (Brysk, 2002:1). ‘With the universal declaration of Human Rights, the rights of individuals received an international legal framework’; therefore the dynamic of this globalised world and the universal culture is a means for prospering HR instruments (Ignatieff,2001:5). Nevertheless the universal culture of HR has provided elements that maintain the use of instruments. Human rights instruments lack enforcement mechanism that restrains behaviour and also lack investigations leaving women unheard and unnoticed in cases of violations (OHCHR,2014). ‘Human rights instruments have given bystanders and witnesses a stake in abuse and oppression both within and beyond their borders and this has called for advocacy revolution’ (Ignatieff, 2001:9). The global knowledge of violations pressure governments to act accordingly to the instrument. If doesn’t proceed the violating settings justify the intervention of other states and organisations. In order to represent how
- 6. 13083915 Work Count:2192 this universal culture works in the benefit of females, one can detail the effects that activists and advocacy has made within Afghan communities. The use of the universal culture in accordance with globalisation can be shown to reveal the prospects of HR instruments. To exemplify, I will detail the case and effects of the Afghanistan Criminal Procedure code (2014). The law passed on by the Afghan parliament, consisted of alterations of article 26, criminal prosecution code. The change consisted of ‘prohibit the questioning of relatives of an accusedperpetratorof a crime, effectively eliminating victim testimony in cases of domestic violence’ (Naderi, 2014). The implementation of article 26 can be seen to prevent article three of the universal declaration of human rights, ‘Everyone has the right to life, liberty and security of person’ (UDHR, 1948). Specifically, Afghan women would be exempt from obtaining the right to security for the lack of protection after domestic violence. For the perpetrator has a more increased chance of no punishment thus the higher chance to reoffend, preventing the negative HR of protection. The discussion that this case created was evident within West and the East. The disapproving connotation from journalists and NGO’s were a means of shaming the country and its executives. One could deem such knowledge of malpractices within the country led to the vetoing of change by the Executive, ‘President Karzaiblocks law protecting perpetratorsof domestic violence’ (Amnesty,2014). One could deem the reasons and agendas of the president was not of HR intentions or of a moral individual duty to maintain the instruments. One could acknowledge the reasoning behind such a move was due to representation or the economic relations with western countries which in the global world can be seen to work together with HR. Though the end can be seen to liberate females, the means disregards the rights inherent to individuals and the philosophical duty that the universal culture holds. In conclusion HR instrument as a practice of HR theory can be seen to exemplify the conceptual issues of the theory. The core concept that is critiqued it the universal culture, the moral similarity in which the instruments implements creates the issue of cultural imposition. The case study of the Pashtun women and their practice of Ghagh can be seen to detail this tension, for the ridding of a practice which is linked to great aspects of the culture problematizes HR instruments. Although, despite this universal cultural justification of practicing HR one can deem it also allowing prospects of liberating females.
- 7. 13083915 Work Count:2192 The connection with universalism and the globalised dynamic of the world has allowed the practice of global communication which has allowed enforcement of such instruments. Though the reasoning of this implementation is contestedwith economic agendas, once again question the natural characteristics of these man made instruments. References
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