It is helpful to clarify that most human rights scholars differentiate between moral universalism and moral absolutism. On the one side, moral universalists affirm that there exists a universal moral truth equally valid for all; on the other, moral absolutists consider that there are certain actions that are always right or wrong, regardless of context, such that moral precepts cannot be altered under any circumstances or at any time. The difficulty with universalism is that universalists assume that human rights can only be legitimated by absolute justification; therefore, they cannot ultimately satisfy the requirements of such a distinction. Similarly, there is always at least one principle that cannot be breached. True, the fixed or immovable character of an ultimate moral norm acts against universalism. However, the agreement on a universally moral norm may suffice and serve–at least temporarily–as a source of justification for the existence and effectiveness of a morally universal valid norm. This distinction is profoundly debated in the context of establishing the sources of justification of human rights, particularly between naturalism, voluntarism, and empiricism.
353 Donnelly, above note 344 (I), p. 294.
354 Arnd Pollmann, “Der menschenrechtliche Universalismus und seine relativistischen Gegner” in Menschenrechte: ein interdisziplinäres Handbuch A Pollmann und G Lohmann (eds.), 2012, pp. 332 et seq. e.g. Decontextualism, Eurocentrism, Anti-pluralism, Individualism, Imperialism. See also Walter Kälin and Jörg Künzli “Universeller Menschenrechtsschutz”, 2005, pp. 22-35.
355 Menke & Pollmann, above note 188, p. 71.
How universalism does relate to self-determination? One fundamental aspect of the political debate, with clear repercussions for the legal dimension of human rights, is the fact that this universalist moral doctrine is often in tension with the particular interests of the state and a globalized private sector. A classical controversy between universalists and relativists is that referred to as ethnocentrism and imperialism.
According to relativists, the argument of universal ethnocentrism, namely, that one moral judgement is valid for all, reflects an unjustified attitude of cultural superiority.356 The relativist argues that, applying a set of "westernized" norms to limit some cultural and religious practices, is in itself a violation of a country's sovereignty. They rest their thesis on the principle of self-determination, a principle that proves to be a highly controversial political right when linked to cultural identity and cultural rights.
Relativists contend that human rights are a product of Western traditions, which are imposed on non-Western cultures as a form of imperial domination. For them, respect for self-determination means that there is no legal or moral standard that can trespass established state boundaries.357 However, anti-authoritarian and non-instrumentalist thinkers interpret this principle of self-determination as the entitlement of individuals to democratic government and basic human rights. The counter position to the universalist claim of human rights is that self-determination must be understood in the sense of internal self-determination; that is, that peoples or nations have the right to create whatever form of government they want; they possess a right that implies a duty of non-intervention in internal affairs.358 This claim is supported on the basis of self-determination and freedom from foreign domination.
The right to self-determination is recognized in Article 1(2) of the UN Charter, as well as in Article 1 of the Two Human Rights Covenants (ICCPR, ICESCR). The right to self-determination has been designed to protect peoples from oppressive power, both internal and external, and also in order to strengthen universal peace. Self-determination also carries with it a notion of the preservation of cultural identity and cultural autonomy; in this sense, self-determination is rather inclined to sovereignty, to non-intervention, and to the equality of states. Furthermore, the principle of self-determination expressly refers to the right of peoples freely to pursue their
356 Tilley, above note 351, p. 516.
357, Tesón, above note 350, or idem, p. 871.
358 Ibid., p. 880.
economic development. Nevertheless, self-determination as a collective right has the purpose of protecting the rights and interests of individuals, too.359 Beyond the specificities of a right to self-determination, such as non-intervention, respect for cultural autonomy, and economic development, in all cases the idea of a life of dignity is a part of a people's right to self-determination, as established in the two human rights covenants (ICCPR and ICESCR), according to which this collective right is embedded in human dignity; this is why, whenever the notion is at stake, the exercise of the right must be aware of some kind of moral constraint or moral framework relative to moral dignity. In this way, the foundation of the collective right to self-determination is moral autonomy, not only of the collective or the polity, but also of individual realization in terms of human dignity, which implies also a limit upon collective self-determination.360 Human rights advocates believe that there are different ways to achieve agreement on universality. As already noted, one of the most common intermediate positions between fundamentalist universalists and relativists seeking to achieve the acceptance of the idea of a universal moral norm is in proving the existence of the universal norm through consensus.361 An approach typical of scholars is to appeal to features common to all human beings (global justification by means of communalities); that is, appeals to beliefs and values internal to a particular culture or religion that are also common to all cultures, even if in more abstract and general terms. In this way, such values as human dignity and human equality are endorsed by pre-eminent doctrine in diverse regions of the world.362 In specific terms, this may take the form of an interdiction on humiliation or inhuman treatment, and a repudiation of degrading living conditions and a lack of basic needs.363 Another important way of demonstrating the universality of fundamental human rights is through a consensus based on global and regional human rights treaties as well as domestic constitutions. In addition, another way to render true a concept such
359 Tomis Kapitan, “Self- Determination and Human Rights” in Theoretical Foundations of Human Rights, Collected Papers: 2nd International Conference on Human Rights 17-18 May 2003, p. 359.
360 Daniel Kofman “Human Rights, Self- Determination and Relativism” in Theoretical Foundations of Human Rights, Collected Papers: 2nd International Conference on Human Rights 17-18 May 2003, p.458
361 Donnelly, above note 344 (I), p.289. Citing John Rawls “Political Liberalism”, 1993 pp. 133-72 and pp. 385-396. Donnelly uses Rawl‘s overlapping consensus political theory in order justify the justice of human rights. See also Riedel, above note 345, pp.144 et seq. See also Katherine E Kim, “Human Rights and Consensus” in Theoretical Foundations of Human Rights, Collected Papers: 2nd International Conference on Human Rights 17-18 May 2003, p. 461.
362 Donnelly, above note 344 (I), p. 291.
363 Oscar Schachter “Human Dignity as a normative concept” American Journal of International Law 1983 Vol. 77 No. 4, p.852, Schachter, above note 277, p. 852.
as universal human rights is if we conceive culture as universal.364 That is, the culture of a universal community. In addition, the idea of proving the existence of a universal community receives support from the objective process of globalization. An increasing identification with a global community by public sector politicians, private sector companies, and individuals in general, is among the factors to be taken into account when reflecting upon a process of effective power.