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 RA Daties

Faculty of Law Universitas Pattimura

E-mail : datiesdyah@gmail.com

ABSTRACT:

           

            Organization of the Islamic Cooperation (OIC) on 5 August 1990 in Cairo has declared the Cairo Declaration on Human Rights in Islam. This declaration is expected to become guidance for the implementation of Islamic law on human rights based on Al Qur'an, Al Hadist, and Al Ra'yu or theocentric Ijtihad, and that the safeguarding of those fundamental rights and freedoms 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 the opportunity of the Cairo Declaration on Human Rights in Islam to enrich international law for human rights which in recent times 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 because of their inability to understand the meaning of the unity between humans's destiny called as hablun min Allah (the vertical relationship between human and God) and the human's destiny called as hablun minannas (the relationship between human and human) in which these two bind every Muslim fundamentally. The blend between hablun min Allah and hablun minannas can not be found in the common law system, civil law system, socialism-legalist 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 potential. 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 impossible for humans to achieve the justice, security, orderliness, and legal certainty if those deeds are still influenced by religion. There are practices carried out by some Islamic countries which misused religion as a tool to gain its political mission, such as some domination of traditional cultures toward sharia in the woman's rights; the implementation of the sharia court verdict in Islamic countries for example the whip law in front of the public, the death law by throwing stones to cause the accused's death; the against violence minorities in Islamic countries; the vandalism and the contamination of environments which are carried out by intention in countries with Muslims as the majority such as Indonesia; the threat of non-territorial terrorists (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, symbolizing the gut-punching tragedy of what's happening in Syrian bloody civil war. Those facts strengthen the image that Islamic sharia does not provide guarantees 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 the Cairo Declaration on Human Rights in Islam. This declaration is expected to become guidance for the implementation of Islamic law on human rights based on Al Qur'an, Al Hadist, and Al Ra'yu or theocentric Ijtihad, and that the safeguarding of those fundamental rights and freedoms is an individual responsibility of every person and a collective responsibility of the entire Ummah. In real life, there is ambiguity among those OIC countries. For example Indonesia, as a country with Moeslam as the majority of its society, however its legal system is not Islamic system law but Pancasila system law. The regulation law on human rights in Indonesia is more to adopt the United Nation universal declaration on human rights and major UN human rights instrument. The crash between the United Nation Universal Declaration on Human Rights and Major UN Human Rights and Islamic Sharia that want to be implemented by Moeslam in Indonesia causing Indonesia to get serious attention on violations in the religious freedom by UN[2]. The same thing also goes to Brunei Darussalam in which the UN is noted that the women in Brunei Darussalam experience discrimination in the implementation of religious law, especially in the case of divorce, inheritance, children care and children nationality[3]. It also happens to some rich Islamic countries in the Middle East. Mostly, they act "not to act" toward those violence against human rights that occur in their area just because of political and economic reasons.

As a result, the question is raised: "Can the Cairo Declaration on Human Rights in Islam be implemented as international law in the center of the world law system which is dominated by secularism and ethnocentrism?"

           

DISCUSSION AND ANALYSIS:

            Globalization is inspired by the theme of civilizing mission by the name of universalism and human rights. The domination of economics and politics from the process of development is focused on west that is Eurocentric, linear in style to the global unity. If seen clearly, those things are the denial of the existence of human which are colorful and dynamic. Werner Menski in his book, Comparative Law in A Global Context, gives a critic to law experts 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 deep plurality.[4] The defensive act toward the United Nations in the Universal Declaration on Human Rights which is campaigned by Western countries in the frame of homogeneous globalization, in fact is not only coming from the countries of OIC members but also coming from China, Russia and some African countries. Developing countries in Asia and Africa are worried about globalization expansion. They had seen this thing as the new imperialism which is homogenous in the sectors of economics and culture. USA became a famous champion which is to lower the culture of other countries. These countries are always worried about their extinction. On the other hand, the spreading of globalization in the long term can create an order in social homogenous. The end of these processes is homogeneous[5], so that human rights that are assembled in the United Nations' Universal Declaration on Human Rights are reputed as “monsters” in some African countries. This asymmetry creates an empty room and the law cannot work in the empty room. Not all places with globalization or modern Western thought can be dominant. Recently, the discourse of human rights is more reflecting the concept 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 including Islamic law. The existence of the Cairo Declaration on Human Rights in Islam as the source of international law in the human rights 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 Organization for Security and Cooperation in Europe (OSCE). OSCE is an organization 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 organizations like this have an inherent risk to become narrow worlds of professionals, a watching eye from the public may be useful for upholding the ideal. OSCE is one of those great, classical organizations 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 include Europe, Central Asia and North America, as well as large and small NGO's from the area. In the 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 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” refers 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 repetition of 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 jurisprudential 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 cannot face the modern world, it will never be a part of the global future.[7]    

            The idea about the closing of ijtihad doors gets rejection, not only from the Moeslam scientists, but also from non-Moeslam scientists. The first point of opposition rose when Hallaq stated that the global viem about the closing of ijtihad doors has no basic and not accurate, and the doors mentioned are still open both in theory and practice. Hallaq describes that ijtihad has as a religious obligation so that Moeslam as a whole will be collapsed in anarchy and the sharia structure will be broken if there is no more ijtihad.[8] A new writer, who researches matters of Palestine mufti in the seventh century, stated that opposite the western point of view which says that the Islamic law is left behind and stiff in the post-classical 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 problems that created intellectual place for qadi and mufti  that it enabled and even forced them to use the individual thoughts. Gerber also rejects the understanding of imitation, saying that interpretation of imitation  of immitating is not only wrong but also factually wrong.[9]    

            Researchs of international contemporary law have given a space for legal scientists to do a law comparison which is slowly but surely starting to understand the fundamental relationship between hablun min Allah and hablun minannas. International law can also be analyzed through new approaches. One of the law experts who developed this new approach to international law is David Kennedy, a Global Law and Policy at Harvard Law School. Today, approaching the world a new demands more. If we step back for a moment, we could say that international law 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 international law is digging and analyzing back the history that becomes the background of the implementation of international law regulation of human rights. The history mentioned here, is the holistic history about how the politics, 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 spirit to study the history of Islamic sharia drops drastically. Even if there is any passion for it, the analysis is conducted partially, not holistically, only to be socially justified toward individual assumption or certain group assumption.

            The other obstacle of the implementation of the Cairo Declaration on Human Rights in Islam also comes from the IOC member countries is that all references to human rights in the OIC documents specify 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 is 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 apply the Cairo Declaration on Human Rights in Islam into their constitution and legal system is not only faced by OIC. The same dilemma is also faced by international organizations such as the UN due to the differences between the law system and government system of the member countries. Erga omnes obligations from countries member of international organizations with the new approaches in international law can be conducted through the concept of accountability. The aims of accountability are wider than these traditionally recognized as the objectives of states and international organizations. Accountability is in essence an instrument to secure control of public power. Accountability serves a variety of complementary but sometimes also competing objectives. The aims of protection of the rule of law and compensation and satisfaction of victims there are potentially traditionally linked with state responsibility remaining as aims of the broader concept of accountability. But thinking in terms of accountability may open new and broader dimensions, highlighting for example 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]