The writer is counsel to KSM Law, an associate professor at Valparaiso University Law School in Indiana and an adjunct professor at Osgoode Hall Law School of York University. He tweets @faisalkutty
Upon its adoption on December 10, 1948, former US First Lady Eleanor Roosevelt, chair of the commission on human rights, expressed her hope it would become “the Magna Carta of all mankind.” Ironically, as was the fate with the “great charter” of 1215 (which only applied to free white men), the declaration has not fully lived up to its name.
The declaration was challenged from its very inception. The commission’s first draft attracted 168 amendments from various countries. However, the final document was almost unchanged from the initial draft tabled. Forty-eight countries voted in favour, while eight — Poland, Byelorussia, Czechoslovakia, the Ukraine, Yugoslavia, South Africa, Saudi Arabia and the Soviet Union — abstained and expressed reservations.
The conflicting views on the declaration have become more pronounced recently as human rights take a more central role in international and domestic forums. The critics of the current standards range from cultural relativists and Islamists to proponents of Asian values. They contend the existing human rights regime is deeply influenced by the Western experience. The spotlight on the individual, the focus on rights divorced from duties, the emphasis on legalism to secure these rights and the greater priority given to civil and political rights are all hallmarks of the Western bias, they contend. In contrast, the Asian (including Buddhist, Taoist, Confucian, Hindu, etc.) and Islamic conceptions in theory emphasise community, duties to one another and society and some even place greater emphasis on economic, social and cultural rights.
The philosophical underpinnings defining human relationship with one another and society in many non-Western societies are at variance with our fixation with individualism or what some would call radical individualism. The focus on individual rights — in some cases to the detriment of the family and community — is not consistent with many non-Western outlooks on human rights.
Confucian scholar Tu Weiming writes: “Confucian humanism offers an account of the reasons for supporting basic human rights that does not depend on a liberal conception of persons.” Moreover, Weiming notes “Human rights are inseparable from human responsibilities.” However, this in no way implies that such views are totally devoid of consideration for the individual. The substructures of human rights in some non-Western conceptions attempt to establish equilibrium between individualism and collectivism in ways that are different from ours. Far from being a contradiction, as documented by collectivists theorists such as Harry Triandis, individualism and collectivism can coexist and in fact can thrive together.
The natural law origin of the declaration also conflicts with the religious view that rights are derived from divine authority. Brazil’s suggestion the declaration ought to have referred to a transcendent entity was rejected outright during the debate leading to the declaration’s adoption. One argument says the denial of divine authority is essential to make the philosophy underlying rights protection universal. Yet this raises the question, how can something be universal when it rejects the view of a significant component of the world’s population — not only Oriental religions but also adherents of Christianity and Judaism — who believe in some form of divine authority? Why should the assumption of secular elite be imposed on everyone?
Yet, claims of divine authority may lead to exclusivism and absolute truths. Moreover, even if we can agree on God, God’s plan and vision for humanity has always been interpreted and implemented by fallible men, and just men (in virtually all religious traditions).
The extensive list of fundamental human rights in the Declaration is subject to certain general limitations, set out in articles 29 and 30. Article 29 (2), for instance, provides for “limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” The different philosophies and views undoubtedly will produce equally valid interpretations of such restrictive articles and human rights standards in general.
A strong argument can be made that the current formulation of international human rights constitutes a cultural structure in which the Western society finds itself easily at home. This has led some Western human-rights scholars to arrogantly conclude that most non-Western societies lack not only the practice of human rights but also the very concept. This clearly overlooks the fact that we can only claim to be better than others because we use our own values and standards to measure them.
Dominance cannot be equated with the truth, though it is easy to get caught up in the old confusion between might and right. It is important to acknowledge and appreciate that other societies may have equally valid alternative conceptions of human rights. Tunisian Islamist leader Rachid Ghannouchi once told a reporter: “I think a universal concept of human rights must come from the philosophical vision of all peoples.”
The call for a more inclusive conception is laudable, particularly given that even proponents of the other views acknowledge that there are certain universal values. For instance, the former deputy prime minister of Malaysia, Anwar Ibrahim, a proponent of both Asian values and Islam, writes in his book, The Asian Renaissance, “To say that freedom is western... is to offend our own traditions as well as our forefathers, who gave their lives in the struggle against tyranny and injustice.”
Claims of universality do not ensure universal acceptance. Accommodating the various conceptions within the international framework may or may not be plausible. The difficulty of the task should not prevent us from grappling with this issue. At least from this exercise we may learn that there are indeed certain truly universal ideals and principles shared by us all.
Indeed, the belief that the current international human rights regime is Western is a major obstacle in the way of its acceptance as a universal vision. As suggested by many thinkers, the United Nations must initiate a project to rethink and reformulate the conception of human rights, taking into account the different philosophies that share this planet. At the same time, in the Islamic context, scholars must seriously grapple with practices, beliefs and ideas in fiqh (Islamic jurisprudence) that are antithetical to not only current human rights norms but the spiritual and ethical vision of the Holy Quran. Sadly, increasing Western derogations from and growing violations of human rights norms does not encourage the adoption of these norms by others.
The only way to ensure universal acceptance of and compliance with human rights is by removing the two main crutches used by violators — that human rights as we know it today is a Western construct and that they are selectively used and abused by the powerful.
Published in The Express Tribune, December 27th, 2016.
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