Islamic
Contribution to Enriching
the
Universal Declaration of Human Rights[1]
M.
Javad Zarif[2]
1. Introduction
The Seminar jointly organized by the
Office of the United Nations High Commissioner for Human Rights and the
Organization of the Islamic Conference on Islamic Perspectives on Enriching the
Universal Declaration of Human Rights is indeed a historic undertaking, which
takes place at a historic juncture.
The
seminar takes place on the fiftieth anniversary
of the adoption of the Universal Declaration of Human Rights. The fact that such an unprecedented seminar
has been organized must be attributed to the foresight of the United Nations
High Commissioner for Human Rights and her tolerance and respect for various
ideas and approaches. Her tolerance and respect for diversity will certainly
pay in further enhancing and enriching the Universal Declaration.
Another development that has
contributed to the holding of this seminar is the emergence of a more assertive
and constructive presence of the OIC in the international community, showing
the collective resolve of the members of this organization to participate
actively in the articulation and formation of the norms of conduct in
international affairs. This was evident
during the Eighth Summit of the OIC in Tehran, and in its Tehran Declaration,
which reaffirmed “the need to establish understanding and interaction among
various cultures, in line with the Islamic teachings of tolerance, justice and peace...”[3]
The seminar also follows the
historic approval of the initiative of
President Khatami of the Islamic Republic of Iran by the General Assembly. The
Assembly adopted a resolution --
co-sponsored by 60 states ranging from Muslim states to others from all
continents -- designating the year 2001 as the United Nations Year of Dialogue
among Civilizations.[4] The GA action is in itself
indicative of a frank recognition of the existence of different perspectives
and approaches to the multitude of issues facing the humankind. At the same
time, this resolution indicates that the international community and these
various approaches are ready to engage each other and not to isolate one
another. These two positive global developments provide a good impetus to participate
and contribute to this seminar as a new beginning for understanding, dialogue
and mutual enrichment.
It
is self-evident that the emergence of a global concern for the protection and
promotion of human rights following the adoption of the Charter of the United
Nations was a development of historic proportions in the international
community. Furthermore, the Universal Declaration in and of itself is also undeniably
a historic achievement of humanity in its entirety and the United Nations in
particular.
As
the United Nations High Commissioner for Human Rights has pointed out, the
Universal Declaration is a living document which needs to be constantly
revisited[5] in light of new circumstances and
in order to address new global challenges, realities and developments.
Another
point which deserves equally serious attention is that human rights in general and the Universal Declaration in
particular cannot be considered the monopoly or the private domain of any
single culture or legal tradition.
It
is however a fact of history that a large portion of what today constitute
humanity were not present and could not participate in the drafting of the
UDHR. It is also common knowledge that
UDHR was adopted by General Assembly following a rather lengthy process of
voting.
But,
these two facts cannot and do not lead to the conclusion that UDHR does not
contain universally recognized concepts
and principles nor do they imply that its content is unacceptable to the
Islamic World. In fact Muslims have been
taught by the Islamic tradition and by the Holy Qur’an to listen and absorb
wisdom and understanding regardless of its origin[6] and to follow logical and sound
propositions[7].
But, they can lead us to the conclusion that there is room for
enrichment; there is room to invite and allow further participation.
At
the same time, the decision to engage various cultures and legal traditions
will undoubtedly broaden the participatory base of the UDHR and, thus, its
legitimacy and global reception. It will enhance the universality of the
Universal Declaration. It will enrich
its contents through incorporating the wisdom of larger portions of
humanity. It will make the concepts in
the UDHR more transparent and their definition more widely accepted across
cultures, thus precluding culture-specific interpretations and definitions of
various universally recognized concepts in the UDHR. And it will explore new dimensions enshrined
in the existing principles of the UDHR, including what has been enshrined in
Article 29: the entire issue of responsibility and the enabling social
environment for the exercise of various rights.
3. Islam and
Human Rights
In
dealing with this complex issue, there is a tendency to compare Islamic
teachings and the Universal Declaration.
However, it is essential to remain cognizant of the fact that Islam is a
Divine prescription to deal with all aspects of human existence. Therefore, in
comparing Islamic view and the UDHR, care must be made that we are dealing in
two different levels of analysis and we should not confuse these two different
levels of analysis.
Islamic
approach to human beings and human rights is founded on a fundamental proposition
in Islamic doctrine about the relationship between salvation and liberty. Salvation and liberty are not mutually
exclusive in Islamic doctrine. They are indeed two re-enforcing requirements of
human existence and not contradicting tendencies. That is, salvation and liberty can co-exist,
can re-enforce one another. This stands
in sharp to contrast to the contention that human beings and human societies
must make a choice and need to expend one, to sacrifice one, in order to
achieve the other.
Thirdly,
human rights from the Islamic point of view stem from the very nature of human
beings. By that virtue they are universal in character. They belong to every one simply by virtue of
being human. Thus, they can not be subject to discrimination or exclusion of
any kind. At the same time, rights as
stemming from the very nature of human beings cannot be construed as artificial
constructs to address natural imbalances.
The
fourth fundamental concept is that human rights are endowed by the creator and because
of that their observance and protection constitute an obligation before God.
This gives rise to a new level of accountability; elevating accountability to
possible eternal damnation for violation. This can be viewed as constituting an
important enforcement mechanism in addition to the more temporal domestic and
international mechanisms for the protection and promotion of human rights as
valuable and necessary as they are.
The
Islamic approach to human rights is founded on preservation of dignity of human
beings and recognition of the basic rights of human beings particularly the
rights to life, liberty, equality,
security, honor, well-being, social security, participation in public life and
the right to salvation. There is also
emphasis on responsibility which is a balanced with these rights;
responsibility before God, towards one’s self, and towards society.
Another
concept in Islamic dealing with human rights is the fact that Islam in itself
is of universal character and therefore its prescription for human rights are
universal and by that token, human rights from an Islamic perspective are
universal. Furthermore, Islam provides for the totality of human beings,
and -- to use human rights terminology –
for the indivisibility of various generations of human rights.
And
finally rights and responsibilities do not start with one’s birth and do not
end with one’s death. That is in fact
expanding the temporal aspect of rights and responsibilities in addition to
providing transcendental values of rights and responsibilities.
It
is also important to recognize and differentiate the myth from the reality of
Islamic Shariah; a complex and sophisticated legal tradition with its own
special sources, methodology and procedures.
It is open to study and understanding by scholars of both inside and
outside Islamic world.
Another
important consideration in studying Islamic approach to human rights is to note
that within the Islamic jurisprudence there is an institutionalized mechanism
to respond to changing circumstances.
Any legal tradition, including the Universal Declaration of Human
Rights, in order to produce living documents must be able to respond to the
challenges emanating from different circumstances. And within the Islamic
jurisprudence, the possibility of responding to these challenges has been
addressed through the institution of Ijtihad which means attempting to
derive approaches and methodology based on basic original sources of Islamic
law and employing special methodology of Islamic jurisprudence.
The
significance of Ijtihad is not limited to its ability to deal with new
situations and challenges. It is the stress that Islam places on wisdom and
rationality as the source for deriving these common norms. This emphasis is coupled with an equal
emphasis on the promotion of the collective interests of the Islamic world as
well as those of humanity at large as a source of decision making in the realm
of Islamic jurisprudence.
Another
related and important characteristic of Islamic scholarship is tolerance for diversity, tolerance for
variation of scholarly views within the Islamic community, and within the
Islamic scholarly community; that is
recognition of the benefits of diversity even in religious orthodoxy.[8] This in and of itself is an asset in order to present innovative answers to the
challenges emanating from new conditions. This would also mean the rejection of
stagnation in theology, in doctrine or in jurisprudence. Stagnation does not
have any place in any Islamic conception of jurisprudence.
In dealing with this topic, it is
important to remain cognizant that care must be made in comparing between Islam
and UDHR, as two different phenomena, two different levels of analysis.
There is consensus in the Islamic
world that UDHR is an important human achievement. At the same time it must be approached --
particularly in the area of definition and interpretation and application to
growing new needs of the international community -- in a careful manner so as
to take cognizance of and maintain respect for cultural diversities and at the
same time empower various cultures and religions to participate in the further
enrichment and development of Human Rights Law.
There seems to be an apparent lack
of balance in the Universal Declaration with regard to a number of areas. The first imbalance relates to a historical
fact and we can not do anything about it; that is "participation".
There was no balance in the participation in the process of drafting. That
balance hopefully is being addressed by these commentaries and seminars. There
is also a lack of balance in reflection of various views, perspectives and
priorities.
There is a lack of balance also in
emphasis on different categories or generations of rights. There are almost twenty articles dealing with
civil and political rights, less than six articles dealing with economic, social
and cultural rights and only one article dealing with collective rights. There is a conspicuous absence of the right
to self-determination which is the right enshrined in the United Nations
Charter as the premise for promotion and protection of human rights. Respect for self-determination and equal
rights constitute the foundation of international cooperation for protection of
human rights in article 55 of the Charter.
Furthermore, the absence of the
right to development in the Universal Declaration is certainly an important
short-coming which has yet to be addressed through a legally binding instrument
with enforcement and monitoring mechanisms.
Moreover, there is an apparent lack
of balance between rights and responsibilities of individuals, groups and
societies. This lack of balance has been partially addressed in article 29 of
the UDHR but again balanced with the provisions of article 30 which needs to be
looked at rather carefully.
It
has been suggested that on the fiftieth anniversary of the Universal Declaration,
the international community might come to consider a Universal Declaration on
Human Responsibilities. It is imperative that this proposition and the work
that has been associated with it should not suffer from the same deficiencies
of the Universal Declaration. In other words, the suggestions by the
Interaction Council, the draft that has been prepared as the Universal
Declaration of Human Responsibilities, while incorporating many important and
useful ideas is again incorporating those ideas in the absence of the cultural
traditions that must today, on the eve of 21st century, participate in the formulation and
articulation of such a document.
Globalization
is a fact but it does not mean and can not mean cultural uniformity. It is
essential to truly accept this reality and recognize that diversity and
difference are not only undeniable facts of global life but assets which need
to be preserved, employed and used in order to enrich human existence. These two concepts lie at the foundation of
the proclamation by the United Nations General Assembly of the year 2001 as the
Year of Dialogue.
Furthermore,
the designation of the year 2001 stems from other important and relevant
assumptions. Most importantly, cultures
are not static, self-contained or rigid phenomena. They interact with each other. They had
interacted with each other during wars and in spite of political
rivalries. They have learned from each
other. They have enriched each other and
they will continue to do so. And certainly,
human rights represent one of the areas where these interactions among cultures
will lead to an enriching environment for all humanity to benefit.
In order for the environment created by the recognition
of the need for dialogue be indeed enriching, and constructive and is used with
optimal efficiency, certain criteria need to be observed for genuine dialogue
on Human rights.
The
first criteria would be the recognition of the inherent universality of human
rights concepts. As stated earlier,
human rights stem from the very nature of human beings, and as such they are
universal in character and scope.
The second interrelated criteria would be the imperative
of embracing diversity, accepting diversity, recognizing diversity, acting upon
diversity and in fact accepting the right to be different.
It would also require understanding various cultural
environments outside the stereotypes that have prevailed in many corners of the
international community. That enables us to build upon common areas of concern
and areas of common belief and acceptance; that
is finding and building upon common grounds.
It is essential that dialogue should be based on the
principle of mutual respect. The
principle of mutual respect would guarantee that articulation and introduction
of differing views coming from different cultures would not be considered or
construed as attempts to derogate from or erode the universality of the
Universal Declaration or justify possible violations of human rights.
It is absolutely imperative to make a clear distinction
between "principles" and "practices". The fact that legal
traditions --whatever they may be-- have been practiced in ways that do not
conform to those legal traditions is an unfortunate fact of life throughout
history and throughout geography and is not confined to one or the other
culture. Therefore, a scholarly debate
on enriching the Universal Declaration must not be described or assumed as a
way to erode the responsibility of states to respect and implement universal
human rights.
And the last element for the success of this dialogue
would be to reject political manipulation of human rights. Human rights can be manipulated as a
mechanism to advance one's value system; even to impose one's value
system. Furthermore, human rights can
and have unfortunately been abused to
advance unrelated economic or political interests and agenda. This has been a
very serious problem in the United Nations work on human rights, both at the
standard-setting stage as well as during the promotion and protection phase.
Dialogue in itself is a necessary and very effective
instrument for de-politicizing human rights enhancing the credibility and
relevance of the instruments and machinery
[1]This paper reflects the comments made by the author at
the concluding session of the Seminar on Islamic Perspectives on Enriching the
Universal Declaration of Human Rights, held in Geneva in October 1998.
[2]Dr. Zarif teaches Human Rights and International Law at
Tehran University, and has been Deputy Foreign Minister of the Islamic Republic
of Iran for Legal and International Affairs since 1992.
[3] Paragraph 15 of Tehran Declaration;
[4]General Assembly Resolution 53/ .
[5]Opening remarks by Mary Robinson, United Nations High
Commissioner for Human Rights at the Seminar.
[6] Prophetic Saying: “Seek knowledge even if it is in China
(far away)”.
[7] “Those who hear advice, and follow the best
thereof. Such are those Allah guides and
such are those who are men of understanding” Holy Qur’an, Zumar: 18.
[8] Prophetic Saying: “Difference of views among scholars of
my Ummah is a blessing.”