Human rights are more than just an enforceable piece of law. They represent an image of a utopian world, a place where our rights and liberties are not guaranteed by our geographical, cultural, or economic identity, but instead by our physical identity of being a human. The indispensable and fundamental nature of human rights cannot be overstated. Nonetheless, the body of human rights law has always attracted persuasive critiques. Every academic course, textbook, or lecture on human rights reserves a respectable space for its critique, starting from the conception of human rights to its implementation.
Human rights critique has developed as a rich and complex body of thought over the years. It includes philosophical and normative theories like realism, utilitarianism, and cultural relativism. Political ideologies like post colonialism, feminism and Marxism also assume a significant position in the human rights critique. These various theories have proven to be effective tools for criticising human rights documents and state laws which abrogate the human rights of citizens. For instance, in recent years, a number of European states have passed legislations which ban the wearing of a full faced veil (niqab or burqa) in public places. Such legislations primarily targeted Muslim women and therefore attracted widespread criticism. A major part of this criticism arose from the post-colonial, cultural relativist, and feminist human rights critiques.
However, these various theories and critiques of human rights law have been constrained to do what they do the best, i.e., being a mere tool of criticism. They are effectively used as reactionary measures to legislations and laws but are unable to influence law making in the first place. If you were to imagine a chronological timeline of any piece of law, starting from its conception and drafting, stretching to its implementation; human rights critique occupies a dominant position at the end of that line. It is time now for these critiques to also influence the starting of this line.
In this context, the Cairo Declaration on Human Rights in Islam (hereafter referred to as CDHRI) can be understood as an embodiment of the human rights critique. It can be taken as an example wherein the critiques of human rights law have actually influenced the drafting of a human rights document. The CDHRI was a declaration of the member states of the Organisation of the Islamic Conference (now known as the Organisation of Islamic Cooperation). It was adopted in Cairo, Egypt on 5 August 1990 by 45 member states, most of them being Muslim-majority countries. The CDHRI gives an Islamic perspective on human rights and aims to protect and affirm them under the guise of the Islamic Sharia law.
To understand how the CDHRI embodies human rights critiques, we need to recognize the historical context in which it was adopted. The CDHRI was drafted as a response to the Universal Declaration of Human Rights (UDHR) which was adopted by the United Nations in 1948. The UDHR is widely accepted and acclaimed to be a milestone in the global history of human rights. It was adopted in the aftermath of World War II and represented a promise of a world where equality and individual freedoms reigned supreme. Nonetheless, even this sacrosanct human rights document was not immune from human rights critiques. Firstly, the UDHR was primarily criticised for incorporating only western values and ignoring the interests of colonised/post colonised states. This criticism is essentially what we know as the post-colonial critique today. The post-colonial critique argues that since human rights originated post enlightenment in the Western world, they only represent the experiences and perspective of the West. It argues that human rights are irretrievably entrenched in colonial logic. In the case of the UDHR specifically, critics have argued that at the time of drafting, there were 58 member UN states. In this pool, Asian and African states were considerably underrepresented. Moreover, all the abstentions from voting for the UDHR came from non-western states. Secondly, the UDHR was criticised by saying that the rights in the declaration were not “universal” at all. This criticism is rooted in what we call the cultural relativism debate today. It argues that the norms and principles that the Western cultures might consider “universal” are not equally relevant and valuable to other cultures. This is evident in the case of the UDHR as well. Various nations had criticised the UDHR for placing a greater emphasis on Western values. Saudi Arabia had abstained from voting as the religious freedoms in the UDHR were in direct confrontation with Sharia law. The Soviet bloc of nations had abstained by saying that there was not enough emphasis on socio-economic rights.
Amidst all these critiques, member states of the Organisation of Islamic Conference re-examined the principles enshrined in the UDHR in the light of Sharia law and consequently drafted the CDHRI in 1990. The CDHRI directly addressed the post-colonial and cultural relativist critiques of the UDHR. Firstly, it was a document which was drafted by a group of non-western states and was not imposed on them by the “colonisers”. The conceptualisation and scripting of the CDHRI was free from any colonial or western influence. Interestingly, Article 11 of the CDHRI explicitly condemns colonisation and describes it as “one of the most evil forms of enslavement”. Secondly, the CDHRI does not claim to be a “universal” interpretation of human rights. In the preamble itself, there are multiple mentions of Sharia and the Islamic religion. Article 24 stipulates that all rights and freedoms are subject to Sharia and Article 25 affirms Sharia as the only source of reference for the explanation of all articles in the declaration. This makes the CDHRI a very unique piece of human rights law as it is unequivocally meant for a homogeneous cultural group. It recognises the fact that vast cultural differences exist between people which demand a differential understanding in their rights and freedoms as well. It dismisses the claim for a “universal” interpretation of human rights and focuses on a more relativist interpretation.
Unsurprisingly, the CDHRI was also criticised on multiple grounds, perhaps more than its Western counterpart, the UDHR. Critics argued that the CDHRI limits the rights enshrined in the UDHR. Religious freedom was non-existent as Sharia law prevents religious conversion of any kind. This is covered in Article 10 which places a prohibition on religious conversion and atheism. Right to free speech is also curbed in Article 22 which states that anything contrary to the Sharia cannot be freely expressed.
The key takeaway here is that the Cairo Declaration is an original piece of work in the field of human rights critique. It is not a reactionary measure to an existing law or an article in an academic journal. I call it an “embodiment” because it is a tangible piece of document, capable of being analysed, debated, and discussed. It is by no standard a perfect example of human rights law which effectively protects human rights. Nonetheless, it does serve as a brilliant model where the critiques of human rights impacted the drafting of a document, and not merely its criticism. By using the post-colonial and relativist critiques as a starting point, the Cairo Declaration was able to resolve some underlying issues with the UDHR. Similarly, other human rights documents can also be either drafted or amended by using various human rights critiques as a focal point. For instance, it would be interesting and worthwhile to see the shape of a human rights document which has originated through a Marxist or a feminist critique. Such a practise can greatly impact the accessibility and adaptability of human rights around the world and can help us to strengthen the existing human rights protection framework. The Cairo Declaration remains a standalone example where the critiques of human rights occupied a dominant position at the inception rather than the conclusion.
Aman Gupta is a student of law, currently pursuing his master's from Jindal Global Law School. His research interests include international trade law, human rights and international criminal law.
Image: Credits to Malcolm Evans