Rights declaration needs revision

By A. Havas Ugroseno and P.L.E. Priatna

JAKARTA (JP): The statement by Dr. Mahathir Mohamad that the Universal Declaration of Human Rights (UDHR) of 1948 needs to be revised has shocked many, including Indonesian experts on human rights and U.S. State Secretary Madeline Albright, while the EU ridicules the statement as being no more than a defense mechanism of Asian values against the universality of human rights.

However, Dr. Mahathir's opinion was echoed by a group of international statesmen who have drawn up the Universal Declaration of Human Responsibilities in an attempt to balance the UDHR (Jakarta Post, Sept. 3, 1997). Members of this prominent group include Lee Kuan Yew, Jimmy Carter and Helmut Schmidt.

The statement that the UDHR was a document adopted unanimously by 48 states in 1948 is indeed misleading. The fact of the matter is the draft UDHR was put before the 56 member states of the United Nations and voted on 1,400 times on practically every word and every clause. Eventually, the whole draft was adopted with 48 in favor and 8 abstentions. Had the majority of the members of the international community in that era been from developing countries, the result of the voting would have been different. Clearly, since its inception, there have been a number of substantial reservations against the UDHR.

The main drafters of the UDHR were not only the victors of WWII but also colonial powers. As these powers deliberated over the draft of UDHR during the period of 1945 to 1948, they were systematically pillaging the resources of their subjects across the world and violating many aspects of their subjects' human rights.

While the delegates of the allied forces sat righteously during the drafting of the UDHR in 1945, Surabaya was being shelled and rocketed from sea, land and air. No less horrifically, the Dutch were conducting their so-called police action in Indonesia and killing hundreds of thousands of Indonesians on a genocidal scale. It is ironic and incomprehensible to see such nets of bigotry, hypocrisy and double standards.

These are the cruel facts which mar the UDHR document. The UDHR does not deal at all with the right to self- determination. For countries like Indonesia, once subjected to over 300 years of colonialism, the right to self-determination is the most fundamental right of all, this right is the source of respect for all basic freedoms. Without the right to self- determination, the promotion and protection of all human rights simply cannot be guaranteed.

The inability of the UDHR to recognize the right to self- determination has made it a contradictory document of rights. The UDHR is proclaimed as a (not the) common standard of achievement for all peoples and all nations. It goes further by saying that to achieve this, every individual and organ of society shall strive to secure the universal and effective recognition and observance of its standards by both the peoples of the member states themselves (read: independent people of independent states and/or colonial powers) and the peoples of territories under their jurisdiction (read: dependent people or people under subjugation).

Clearly from a freedom point of view, the UDHR classifies human beings into those who are free and those who are not free, and yet the UDHR proudly and daringly stipulates in article 1 that all human beings are born free and equal in dignity and rights. It is not surprising that the Asia-Africa Conference in Bandung in 1955 did not give political support to the UDHR. The conference merely took note of the UDHR.

The UDHR also suffers from another fundamental weakness, namely a lack of broad-based international participation. Broad- based participation is one of the dimensions of democracy and any instrument lacking in democratic process will always be challenged and questioned. Daniel Bell in "The East Asian Challenge to Human Rights: Reflections on an East West Dialogue" (HR Quarterly, August 1996) states that the UDHR's standards promotion of human rights is not wholly appropriate in Asia.

As the UDHR was not formulated with input from Asia, it is not clear to Asians as to why the UDHR should become their norm on human rights. The establishment of human rights practices from traditional cultural sources would better guarantee long term commitment on human rights practices.

These are possible underlying factors that could have been behind the idea of naming the Declaration the "Universal Declaration of Human Rights", instead of the "Declaration of Universal Human Rights". The difference is crystal clear. The former suggests that it is the declaration or proclamation that is universal, not its content. It is not surprising to note that this nomenclature is probably the most sophisticated escape clause ever concocted to deny the right to self-determination, a right which is held by oppressed and subjugated people across the world to be the main universal human right.

The argument that the value of the UDHR is very much Western is recognized by Western thinkers. Geoffrey Best, a senior member of St. Antony's College, Oxford, argues that the main problem with the UDHR lies in the model of the human being used in forming the UDHR was Western, individualistic, secular, morally autonomous and materialistic.

Recently it has been argued that revision is not needed as it has been covered by two human rights covenants, i.e. the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR) as well as the Vienna Declaration 1993. However, the legislative history of ICCPR and ICESCR is complex and has much to do with Cold War mentality.

The main reason for the existence of these two documents, which were adopted in 1966 and brought into force in 1976, 38 years after the UDHR was adopted by vote, is the unwillingness of the West to recognize economic, social and cultural rights as human rights.

As the West faced more challenges from newly independent countries, they reluctantly accepted the idea but refused to juxtapose economic, social and cultural rights with civil and political rights in a single human rights instrument. The Vienna Declaration was not a revision of the UDHR. It was the result of a human rights conference proposed in the late 1970s by a human rights expert from Morroco, Madame Warzazi, out of concern of politicization by the Super Powers.

The Vienna conference took place after the Cold War, and if the premise is taken that it revises the UDHR, this fails to explain why the West always refers to the UDHR, instead of the Vienna declaration, when making lectures on human rights. The answer is obvious.

The problem is not Asian values versus universal values on human rights, but more the fact that the UDHR fails to recognize any other values than Western ones. It is this lack of representation of other values that makes the UDHR merely sanctimonious pronouncements and not the effective basis that was planned. Professor Stephen Young, former assistant dean of Harvard Law School maintains that the best way to promote the protection of human rights is to create procedures and institutions from traditional values. The task of human rights fighters is to understand the dynamics of other cultures so that progressive development can be suggested, introduced and supported.

As the West refers to its own creation, the UDHR, Asians and those of other developing countries always refer to a more inclusive and broad-based instrument, namely the Vienna Declaration and Program of Action (VDPA 1993) that explicitly recognizes the Asian concept on human rights as enshrined in the Bangkok Declaration of 1993, which states that "... the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind ..."

While the UDHR contains abstract and contradictory language, VDPA is clearly a balanced instrument which unequivocally declares that, "All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis."

Naturally VDPA also carries the principle of self- determination in its thoughts. It went even further by recognizing the right to development as "a universal and unalienable human right and an integral part of fundamental human rights".

After Vienna, progress has been made. Many recommendations from VDPA have become reality, including the establishment of the post of High Commissioner for Human Rights in 1994. But recently the spirit of consensus has been replaced by unilateral sanctions in contempt of the Charter of the United Nations. Links between human rights and trade have been established.

The West has attempted to link human rights with the World Trade Organization and the labor standards of International Labor Organization. There is talk that the West is now moving into the creation of human rights-based ISO standards.

Clearly, politicization is getting stronger and stronger. Sincere intent to promote and protect human rights is being overwhelmed as demonstrated by the anti-Indonesian bill drafted by Patrick Kennedy supported by the money and votes of American Portuguese. Bigotry, hypocrisy and double standards which were masterfully orchestrated during the 1940s have reemerged in the same repulsive manner.

It is up to developing countries to stand up and fight or to shy away. For Indonesia, such unwarranted ways of promoting human rights are simply unacceptable. Recent cancellation of the F16 deal was a clear message to the West. Conditional aid is not an accountable tool to promote and protect human rights.

Dr. Mahathir's opinion is indeed a chastisement of Western arrogance on human rights. The yardstick to revise the UDHR is the Vienna Declaration thanks to its broad-based participation and more representational values and conception.

Daniel Bell concludes that if the ultimate aim is a world order based on universal human rights, the West must recognize that human rights are in constant evolution and welcome the possibility of a positive contribution by Asia in this process.

The battle will be an uphill one as a universal declaration on human rights is nothing but a clash between Western civilization and the rest of the world.

A. Havas Ugroseno is a graduate of Harvard Law School and P.L.E. Priatna is a graduate of Monash University, Australia.

Window A: For countries like Indonesia, once subjected to over 300 years of colonialism, the right to self-determination is the most fundamental right of all, ...

Window B: Recent cancellation of the F16 deal was a clear message to the West. Conditional aid is not an accountable tool to promote and protect human rights.