Rights declaration needs revision

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.