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The
Legacy of the Universal Declaration of Human Rights
By FAISAL KUTTY
Fifty-eight years after the universal
declaration of human rights was adopted by the United Nations
General Assembly, the debate continues as to whether the document
is truly universal.
Upon its adoption on Dec. 10,
1948, former U.S. 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, 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 by the commission.
Forty-eight countries voted in favour, while eight countries
-- 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 international human rights standards
range from cultural relativists and Islamists to proponents of
Asian values. They contend the existing international 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. In contrast, the Asian (including Buddhist,
Taoist, Confucian, Hindu, etc.) and Islamic conceptions would
emphasize community, duties to one another and society and some
even place greater emphasis on economic, social and cultural
rights.
The philosophical and ideological
underpinnings defining human relationship with each other 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."
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.
From the Confucian perspective,
for instance, Weiming notes: "Human rights are inseparable
from human responsibilities."
Although in the Confucian tradition,
duty-consciousness is more pronounced than rights-consciousness
-- to the extent that the Confucian tradition underscores self-cultivation,
family cohesiveness, economic well-being, social order, political
justice and cultural flourishing -- it is a valuable spring of
wisdom for an understanding of human rights broadly conceived."
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.
How can something be universal when it rejects the view of a
significant component of the world's population -- not only eastern
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?
The extensive list of fundamental
human rights is subject to certain general limitations, set out
in articles 29 and 30 of the declaration. 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 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. Exiled 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 jailed 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 in fact 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 derived exclusively
from the ideological framework of the west is a major obstacle
in its acceptance as a truly universal vision. As suggested by
a number of human rights scholars, 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.
The only way to ensure universal
acceptance of and compliance with international human rights
law is by removing the crutch used for so long by human rights
violators -- that human rights as we know it today is a western
construct.
Faisal Kutty is a Toronto lawyer, writer and doctoral
candidate at Osgoode Hall Law School of York University. His
articles are archived at www.faisalkutty.com
and he can be reached at faisal@ksmlaw.ca.
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