CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM AND THE NEW THEORETICAL APPROACHES IN INTERNATIONAL LAW

CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM

 AND

THE NEW THEORETICAL APPROACHES IN INTERNATIONAL LAW[1]

– Jantje Tjiptabudy

Faculty  of Law Pattimura University

Email : jtjiptabudy@gmail.com

 

–          Dyah R.A. Daties

Faculty of Law Pattimura University

Email : datiesdyah@gmail.com

ABSTRACT :

           

            Organization of the Islamic Cooperation (OIC) on 5 August 1990 in Cairo has declared Cairo Declaration on Human Rights in Islam. This declaration expected can become guidance for the implementation of Islamic law on human rights based on Al Qur’an, Al Hadist, and Al Ra’yu or the teosentric Ijtihad, and that the safeguarding of those fundamental rights and freedom is an individual responsibility of every person and a collective responsibility of the entire Ummah. Using the new theoretical approaches in international law, this paper will discuss about the opportunity of the Cairo Declaration on Human Rights in Islam to enrich international law for human rights which in the recent are dominated by secularism and ethnocentrism.

Key words: Islam, human rights, new approaches.

INTRODUCTION :

            The rejection of West countries toward the human rights based on the Sharia Islamic principle, at first was becaused of their inability to understand the meaning of the unity between human’s deed called as hablun minAllah (the vertical relationship between human and God) and the human’s deed called as hablun minannas (the relationship between between human and human) in which these two bind every Muslim fundamentally. The blend between hablun minAllah and hablun minannas can not be found in the common law system, civil law system, socialism-legalis system, and in any other law systems, because those laws are secular (It separates the religion matter and the country matter). The religion which regulates the magical-spiritual life, metaphysical, will reduce the ability of human to develop his potency. The religious doctrines are sometimes used to be the alibi to correct or to fight or to attack other people who are assumed to be different from those doctrines. Thus, it is very imposible for human to reach the justice, security, orderliness, and law certainty if those deeds are still influenced by religion.            There are practices done by some Islamic countries which misused religion as the tool to gain its political mission, such as some domination of traditional cultures toward sharia in the woman’s rights; the implementation the sharia court verdict in Islamic countries for example the whip law in front of public, the death law by throwing stones to cause the accused’s death; the violence against minority in Islamic countries; the vandalism and the contamination of environtment which are done by intention in countries with Muslim as the majority such as Indonesia; the threat of non-teritorial terrorist (from Al Qaeda, the attack of 12 September 2001, and ISIS); and a Syrian toddler named Aylan Kurdi. This Syrian toddler is a picture of the little boy’s limp body, washed ashore on a beach in Turkey, symbolized the gut-punching tragedy of what’s happening in Syrian bloody civil war. Those facts strengthen the image that Islamic sharia does not give guarantee toward the confession and security towards the universal human’s rights.   

             Organization of the Islamic Cooperation (OIC) on 5 August 1990 in Cairo has declared Cairo Declaration on Human Rights in Islam. This declaration expected can become guidance for the implementation of Islamic law on human rights based on Al Qur’an, Al Hadist, and Al Ra’yu or the teosentric Ijtihad, and that the safeguarding of those fundamental rights and freedom is an individual responsibility of every person and a collective responsibility of the entire Ummah. In real life, there is ambiguous among those OIC countries. For example Indonesia, as a country with moeslam as the majority of its society, however it law system is not Islamic system law but Pancasila system law. The regulation law on human right in Indonesia is more to adopt the united nation universal declaration on human right and major UN human right instrument. The crash between the united nation universal declaration on human right and major UN human right and Islamic sharia that want to be implemented by moeslam in Indonesia causing Indonesia to get serious attention on violation in the religious freedom by UN[2]. The same thing also goes to Brunei Darussalam in which the UN is noted that the woman in Brunei Darussalam experience discrimination in the implementation of religion law, especially in the case of divorce, inheritance, children care and children nationality[3]. It also happens to some rich Islamic country in the Middle East. Mostly, they act “not to act” toward those violence against human right that happen in their area just because of politic and economic reason.

As a result, the question is raise : “ Can  Cairo Declaration on Human Rights in Islam be implemented as International law in the centre of world law system which are dominated by secularism and ethnocentrism?”

           

DISCUSSION  AND  ANALYSIS :

            Globalization is inspired by the theme of civilizing mission by the name of universalisme and human right. The domination of economic and politic from the process of development is focused on west that Eurocentric, linear in style to the global unity. If seen clearly, those things are the denial of the eksistance of human which are colourful and dynamic. Werner Menski in his book, Comparative Law in A Global Context, gives a critic to law expert who are narrow-minded, Eurocentric, and plural. As the result, the law science in the world will be left behind the reality that is shown by depth plurality.[4] The defensive act toward United Nations in Universal Declaration on Human Rights which is campaigned by West countries in the frame of homogenous globalization, in fact is not only come from the countries of OIC member but also come from Cina, Rusia and some Africa countries. Developing countries in Asia and Africa are worries about globalization ekspansion. They had seen this thing as the new imprealism which do its homogenous in the sector of economic and culture. USA become a famed champion which is to low the culture of other countries. These countries are always worried about their extinction. On the other sides, the spreading of globalization in long term can made an ordeness in social homogenous. The end of these processes is homogenous[5], so that human right that is assembled in United Nations’ Universal Declaration on Human Rights is reputed as “monsters” in some Africa countries. This asymmetry creates empty room and law can not work in the empty room. Not all places with globalization or modern West thought can be dominant. Recently, the discourse of human right is more reflecting the consept of universalism which is involving the intrinsic appreciation toward plurality and variety in the world in which is based on dynamic equity.

            From this condition, there is a complex prima facie motive to investigate other law systems included Islamic law. The existence of Cairo Declaration on Human Rights in Islam as the source of international law in human right sector until today still gets the challenge from the Western society.  It is seen clearly from the recommendation declared by International Civil Liberties Alliance (ICLA) to the Organisation for Security and Coorperation in Europe (OSCE). OSCE is an organisation created to follow up on the Helsinki Accords and ensure their full implementation in Europe and related countries. This is a noble purpose, but since organisations like this have an inherent risk to become narrow worlds of professionals, a watchful eye from the public may be useful to uphold the ideal. OSCE is one of those great, classical organisations that listeners to news know about quite well. Statements and recommendations from OSCE weigh in heavily in political decision-making and it is thus quite an influential organisation. Participants are 56 countries, which includes Europe, Central Asia and North America, as well as large and small NGO’s from the area. Dalam OSCE “Supplementary Human Dimension” meeting in Vienna, International Civil Liberties Alliance (ICLA) gave their recommendation as follow: In reference to the excellent discussion of the universality of human rights, ICLA wants to draw attention to a deficiency in this field that can easily and usefully be corrected. Before we can discuss effective national and international human rights, we need to define the terms unambiguously. As most here would know, we have two main definitions of human rights, the UN Universal Declaration on Human Rights and the European Human Rights Convention, both sound human rights instruments. However, a third and potentially dangerous alternative definition exists, sponsored by the Organization for Islamic Cooperation (OIC), namely the Cairo Declaration of Human Rights in Islam. This declaration, originally drafted by the Iranian theocratic regime, makes each and every right subject to Islamic law, also known as Sharia. This, in turn, negates the very notion of inalienable individual rights and several other essential values. The Cairo Declaration is recognized as a so-called “regional instrument” by the United Nations, but rarely, if ever, used or referred to. It is thus functionally redundant, yet its approval creates an unneeded and potentially dangerous ambiguity in the formal definition of the human rights. For Sharia is incompatible with democracy and fundamental human rights, as stated in 2003 by the European Court of Human Rights, and thus the Cairo Declaration is equally incompatible with any meaningful definition of human rights, as well as with several OSCE commitments. Thus, to avoid willful misinterpretations of what “human rights” refer to, it would be good for the protection of human rights defenders to have the Cairo Declaration explicitly repudiated by those OSCE participating states that also hold membership of the OIC. If they do not do so, they should provide a detailed justification for keeping this declaration on the books, and the intended use of it. ICLA thus recommends that: 

·         OSCE makes a statement that the Cairo Declaration has no relevance to its understanding of human rights.

·         OSCE participating states that are also members of OIC explicitly repudiate the Cairo Declaration as being of no relevance, now or in the future, for the interpretation of “human rights”.[6]

On that recommendation, the statement of ICLA that Cairo Declaration as being of no relevance, now or in the future for the interpretation of human rights, is only a repetation to what is called as “the close of ijtihad doors” by some Western Expert in the year of 950. Around that years, the development of diversification in yurisprudential of moeslam reached higher complexity and confusing diversity, the calling for unification, simplicity and Islamization. Because of that, there is a claim from Western expert that the ijtihad doors have been closed, it means that; the judges of Islam have stopped their thoughts along the middle period. The modernist people feel happy; Islam can not face the modern world, it will never be a part of global future.[7]    

            The idea about the closing of ijtihad doors gets rejection, not only from the moeslam scientist, but also from non moeslam scientist. The first point opposition rise when Hallaq stated that the global viem about the closing of ijtihad doors has no basic and not accurate, and the doors mention is still open both in theory and practice. Hallaq describe that ijtihad has as a religion obligation so that Moeslam as a whole will be collapse in anarchy and the sharia structure will be broken if there is no more ijtihad.[8] A new writer, who researchs matters of Palestinan mufti in the seventheen century, stated that opposite the western point of view which say that the Islamic law is left behind and stiff in the pasca-classic period, showing that actually, there is the important element in the form of openness and flexibility  (Gerber, 1998 : 167).  The law in this period did not freeze and become stiff, the mufti  whose works are analyze really understand ijtihad and above all its law covered many unsolved problem that created intellectual place for qadi and mufti  that it enabled and even force them to use the individual thoughts.  Gerber also rejects the understanding of taqlid, saying that interpretation of taqlid  of immitating is not only wrong but also factually wrong.[9]    

            Researchs of international contemporer law had given a space for law scientist to do a law comparison which is slowly but sure started to understand the fundamental relation between hablun minAllah and hablun minannas. International law can also be analysing through new approaches. One of the law expert who develop new approaches to international law ini is David Kennedy, a Global Law and Policy at Harvard Law School. Today, approaching the world anew demands more. If we step back for a moment, we could say that international law promises promises to play a series of quite distinct functions in international society. Many look to international law for the expression of universal values, most commonly in human rights canon. But we know now that people disagree about the most fundamental things, that values are not universal, and that even human rights can often be part of the problem as the solution.[10] One of the new approaches in the internatioan law is diging and analyzing back the history that become the background of the implementation of international law regulation of human right. The history mentioned here, is the holistic history about how the politic, economy, culture influence that law. Involving history in the process of implementing a law is not a new thing in Islam. However, the phenomenon today, shows that passion or spririt to study the history of sharia Islam drop drastically. Even if there is any passion for it, the analysing conducted partially, not holistically, only to be social justification toward individual assumption or certain group assumption.

            The other obstacles of the implementation of Cairo Declaration on Human Rights in Islam also come from the IOC countries member is that all references to human rights in the OIC documents stipulate that these principles should be applied in accordance with the member states’ constitutional and legal systems. There needs to be a way found to define these stipulations, and create “a yardstick that each individual member state can look at to measure the distance between the Islamic human rights model and its own laws and practices. Another important challenge was how to “deprive the extreme voices” in member states from claiming they represent Islam.[11] Actually, the problem of good faith of OIC member countries to apllicate the Cairo Declaration on Human Rights in Islam into their constitution and law system is not only faced by OIC.  The same dilemma is also faced by international organization such as UN due to the differience between the law system and government system of the member countries. Erga omnes obligation from countries member of international organization with the new approaches in international law can be conducted through the consept of acuntability. The aims of accountability are wider than these traditionally recognized as the objectives of states and international organizations. Accountabillity is in essences an instrument to secure control of public power. Accountabillity serves a variety of complomentary but sometimes also competing objectives. The aims of protection of the rule of law and compensation and satisfaction of victims there are traditionally linked with state responsibility remain potentially as aims of the broader concept of accountability. But thinking in terms of accountability may open new and broader dimensions, highlighting for instance the contribution of accountability to the protection of democratic values, both in the sense of involving citizens through democratic procedures, as well as involving them in public accountability processes.[12]