Human Rights Act 1998: Are all human rights absolute and inalienable?

The Human Rights Act 1998 (HRA) incorporates the majority of rights within the European Convention on Human Rights (ECHR) into the UK legal system. Some rights therein are considered to be absolute and inalienable such as the prohibition on torture, whereas others such as the right to liberty are derogable in times of emergency. Legal and anthological scholars have introduced the dual concepts of cultural relativism and universalism into the human rights debate.

While both positions have their strengths in leading to the enhancement of human conditions, cultural relativistic positions have also been used in relation to the subordination of women. Hence, it is revealed that culture itself is never absolute, and when constructed by institutions, such cultural defence is unable to undermine the opposing notion of the universality of human rights. The Human Rights Act The introduction of the HRA was intended to receive the ECHR into domestic law.

[1] Section 3(1) HRA requires that legislation must be interpreted by national courts as compatible with Convention rights. [2] Section 2 HRA requires that the national judiciary should take account of any relevant Strasbourg jurisprudence. [3] Section 4 enables a court to make a declaration of incompatibility if it is not possible to construe the relevant legislation to harmonise with the Convention. [4] Some of the Convention rights contained within the HRA are absolute and inalienable. An example of which is Article 3 ECHR (freedom from torture, inhuman and degrading treatment or punishment).

Article 3 has been regarded as an 'absolute right' by the European Court on Human Rights (ECtHR), [5] over a significant length of time and producing an extensive body of case law. [6] It may be thought of as perplexing to talk of an 'absolute' human right within a national human rights system;[7] however, there is also support for the absolute nature of the prohibition on torture within the UN system. [8] Furthermore, the Torture Convention[9] is widely ratified with 159 States Parties and 10 Signatories. [10] Derogable Rights

There are other rights within the Convention, which are subject to derogation. Article 15 ECHR permits the derogation of a Contracting Party's commitments under the Convention 'in time of war or other public emergency threatening the life of the nation… '. [11] In the aftermath of the September 11th, 2001 attacks on Washington and New York, the UK government entered a derogation under Article 15 and attempted to derogate from Article 5 ECHR (the right to liberty) in section 23 of the Anti-Terrorism, Crime and Security Act 2001.

Derogations can be challenged however, and in A and Others v SSHD [2004],[12] the House of Lords held that the UK's Derogation Order[13] was disproportionate to the level of threat of terrorism to the UK. Relativism and Universalism The rights contained within the ECHR are also available for ratification, by States at an international level within the International Covenant on Civil and Political Rights (ICCPR)[14] and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[15] Both of these Covenants are widely ratified,[16] giving credence to the argument that the rights contained within are of universal application and apply across cultures. The radical universalist position therefore suggests that culture has no relevance to the validity of moral rights or rules, which are valid across all cultures equally. [17] At the opposite end of the spectrum, the radical cultural relativist holds that culture is the only source of validity of a moral right or rule. [18]

Although most scholars do not take these absolute positions, both views have been expressed within academic legal scholarship and within the international community. [19] Donnelly, adopting a weak cultural relativist standpoint, suggests that certain human rights enjoy a cross-cultural consensus, such as the prohibition of torture and the requirement of procedural due process. [20] International custom purports to represent rules of international law which are supported by the majority of States, in that they are rules they believe themselves to be bound by (opinio juris) and the subsequent acts of States (state practice).

[21] A number of authors have suggested that human rights prohibitions against genocide, torture and slavery are rules of customary international law[22] and are hence binding upon all states, whether or not they have expressly agreed to them through the ratification of an international treaty. The contrary position of cultural relativism argues that for every culture, some moral judgments are valid, but no moral judgment is universally valid, or valid for all cultures.

[23] Thus, the view is suggested that every judgment is culturally relative, or is subject to a cultural values or norms. [24] The cultural relativist position has been raised since Western States have largely been the advocates of so-called 'universal' human rights norms, but that such norms, which originated from Western values, should not be imposed upon non-Western societies. [25] Relativists have regarded some basic human rights, such as the right to life and the freedom from torture, are absolute in the sense that even cultural traditions may not override them.

[26] Relativists have not always regarded other rights, such as the right to participate in free elections, the right to free trial, to freedom of expression, or the prohibition of discrimination as necessary values. [27] They argue that respect for human rights depends upon, or can be modified by, local cultural conditions. [28] One area where a cultural relativist might argue local cultural conditions apply is in the realm of discrimination on the ground of sex. Relativism and Discrimination

An example of this can be seen in regard to the numerous reservations to the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW), on the basis that there is a conflict between the Convention and Sharia law. Many Islamic States have entered reservations to its central provisions, Article 2 (the obligation to pursue a policy of eliminating discrimination against women) and Article 16 (to take measures to eliminate discrimination in marriage and family matters), on the basis that they conflict with Sharia law.

The problem with advocating such a position based upon cultural norms is that those cultural norms only appear to represent the interests of the male members of that society. These cultural norms, which advocate female subordination, are not naturally occurring phenomenon but are politically constructed and maintained by patriarchal interests, ideology and institutions and hence cannot be regarded as adequately challenging the universalist position.

Conclusion A balance between relativism and universalism must be achieved and is beneficial when this leads to the upholding of human rights norms. However, when it is used as an excuse to the subordination of one half of the population to the other, cultural relativist views struggle to effectively challenge a universalistic position with relation to human rights.