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The Legacy of the Universal Declaration of Human Rights

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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Faisal Kutty, is an associate professor of law and director of the International LL.M. Program at Valparaiso University Law School and an adjunct professor, Osgoode Hall Law School, York University. He is also a co-founder of KSM Law for which he serves as counsel. He blogs at the Huffington Post and his academic articles are archived at SSRN.

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