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According to the quote from Perry, we may see the view of universalism of human rights, since he said every human being is sacred. However, from the words “certain choices should be made” and “certain thing ought to be done”, we may find the opinion of cultural relativism, since certain may also mean uncertain. The universalism and cultural relativism of human rights have always been a disputed topic for the scholars. Universalism thinks that the main body, value and the standards of human rights should be universal. At the same time, many scholars think that the meaning and the guarantee mechanism about the human right should not be identical because of the difference of the history and the cultural. They doubt about the existence of Universalism. In this essay, we will talk about the emergence, development of the two opinions. We will also give an example about that. This example is about the dimensionality of the international criminal law. Finally, the opinion of the author and the solution for the example will be proposed.
2. The engender and development of Universalism
In the history, Universal Declaration of Human Rights mentioned the universality for the first time. Some scholars think that the universality of human rights was produced by the combination of liberalism and the Christianity doxy. From seventeen century and eighteen century, the torchbearer established the foundation for the contemporary human rights theory. Based on the natural law and the individual logos, they set up the freeness of human being under the natural condition, and discussed the requirement of social contract to ensure that rights. The industry revolution showed that the unfair human rights guarantee can make the society unstable. Therefore, the engendering of human rights was produced by the development of industry society, market economy and the bureaucrat country.
The universality of human rights was accepted after the Second World War. In 1945, the Charter of United Nations used the word “human rights” for the first time, and made it clear that human rights should be taken without any irrational difference. In 1948, Universal Declaration of Human Rights was approved by the third United Nations meeting. (Sonia, 2003)On the preface of declaration, it showed that human rights was based on the inherent respect for the dignity of human being, and this kind of respect is the foundation for the free, justice and peace of the world. After the Universal Declaration of Human Right was approved, the United Nations continued to make a lot of international human rights law, and the theory and practice of Universalism come into an agreement around the world.
There are two kinds of guarantee mechanisms for the human rights in the U.N. The first is the charter mechanism; the other is the treaty mechanism. The two mechanisms ensured the human rights law can be bring into effect in the countries worldwide.
3. The response and refutation of cultural relativism
In the theory of cultural relativism, the theory and practice of universalism are the demonstration of the “European center theory”. Human rights are not the only way to guarantee the humanistic. The value of Asia and Islam should be coequally important to the value of Europe on the humanistic. Otherwise, the emphasis on the universalism looks like a kind of new imperialism. It can not be denied that the cultural relativism has some rationality to some extent. The culture is the source for the moral rights and criterion. (Alison, 2009) Any existence of policy and consciousness has very close relationship with the local history and culture. Based on the difference of history and culture of the countries, the opinion and content of universalism of human rights could not grow out of western countries, and there is not any idea of human rights in these countries.
The author thinks that cultural relativist takes the culture as isolated among the different countries. However, under the trend of globalization, especially after the foundation of U.N, the culture is influenced and connected. The universal international agreement is formed gradually. The concept of human rights does not have the character of specific history and culture any more. Cultural relativism could not deny the human rights. Nowadays, almost all the countries declared to support the human rights.
Even though, it is difficult to describe the universal human rights. In the early time, the universality of human rights intended to describe all the rights in the rights list that people should take without the consideration of the nationality. However, the universality does not mean identical rights. Since the history and culture are different, the standard and the guarantee mechanism are also different. (Reza, 2004)Therefore, the focus of universality should be among the rights in the scope of excusable by the civilization of the countries. With the development of global civilization and the cooperation between all the countries, the agreement on human rights will be enlarged, and the scope of universality will be wider and wider.
4. One example about human rights
The naissance and development of international criminal law was the same with that of human civilization, and could not avoid the influence of human rights. Although some scholars think that the international criminal law will face many problems with the consideration of human rights, such as the status of human rights in the law, the evaluation standards of human rights, the influence on delivery and other activities, the problems are still worth researching. Here we would like to think about the human rights from the dimensionality of international criminal law.
As a global problem, the dispute and sensitivity are mainly about three aspects. Firstly, the content of human rights is closely related with the period. With the change of time, the human rights keep progressing, developing and enlarging. Secondly, the descriptions of human rights are very complex. It is normal that the concept is disputed. Thirdly, the prevalence of human rights is a process full of inconsistence, collision and antinomy. (Brems, 2007)Therefore, when the human rights are drawn by the international criminal law, the inherence dispute will inevitably become the vexed point in the new theory.
Thinking of human rights based on the perspective of international criminal law, international criminal law and human rights are showing a positive interaction. On the one hand, international criminal law can be promoted with the rapid development and improvement by the goal of safeguarding the common interests from human rights defenders. On the other hand, human rights have more thorough, more comprehensive, more practical protection through international criminal law. However, despite the ideological contradictions of human rights, a number of controversial problems of human rights itself also affects the effectiveness of international criminal law. Therefore, although I can not solve all the disputes on human rights issues, but still want to express the implication of human rights, property, subject and contents in international criminal law, in order to promote human rights protection of international criminal law further.
In terms of the implication of human rights, it is the unity of natural rights and the real rights, also the unity of moral rights and legal rights. Human rights in international criminal law should be a natural right firstly, which that people should enjoy as human beings. Article 2 of “Universal Declaration of Human Rights” of United Nations can be used as the best footnotes to understand this. As to the property of human rights, Human rights in international criminal law are no longer a purely domestic matter of jurisdiction, because the traditional international law does not adjust the relationship between the State and the individual. From the relevant international conventions and implementation of the system, legislation to promote political, civil, economic, social and cultural aspects of human rights is no longer essentially within the domestic jurisdiction of the matter, and this is obvious. However, implementation of human rights lacks of normative provisions, which is also obvious. Therefore, the protection of human rights remains essentially within the jurisdiction of national issues, even if the state participates in international conventions in accordance with the strict order. (Jack, 2004) In accordance with 25 species international crime contained in 274 relevant international conventions, human rights in international criminal law can be divided into three categories: one is the individual’s human rights, including the prohibition of slavery, the prohibition of torture. The second is group human rights, including children and women. The third is the collective human rights, including the right to peace, national self-determination, and so on.
This essay mainly introduced two opinions of the human rights which are opposite to each other. However, no matter what interpretation was made based on any position, human rights are one of the concepts commonly accepted by almost all countries in today’s world. Although the understanding is different, human rights is a basic consensus as fundamental values of human dignity, and the respect and protection of human rights are universal ideals. Human rights protection is not only necessary but also possible, which was the foundation for international community to build beliefs for human rights.
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