Summary

The concept of human rights in the true sense is relatively new and it entered the everyday terminology only after the Second World War and the establishment of the United Nations. Human rights are the highest level in the development of the human value system, they represent the sublimation of the human dimension of all previous teachings (religious, philosophical, legal) and the benchmark of the achieved development of humanity. They represent the most universal (in terms of the largest number of cultures, theories, and countries) value system that is much more than a simple set of values of component parts and development competitors. The human rights system does not offer ready-made answers and solutions that can be applied to every life situation. The concept should first of all be understood as a way of looking at things, a system of basic principles and standards that provide the most global framework in which human relations are located. It is a system of landmarks that exhaust the space of each individual and trace the paths of relationships with others. Human rights are inherent rights. This means that each person acquires these rights at birth. We are all born free and equal in dignity and enjoyment of human rights. Human rights belong to everyone regardless of: gender, race, skin color, language, religion, political or other opinion, national and social origin, property status, place of birth and other conditions. Some of the most important human rights are: The right to life, the right to freedom, the right to safety, the prohibition of torture, the right to a fair and just trial, the right to private and family life, freedom of expression, the right to marriage, the right to health care, the prohibition of discrimination , prohibition of abuse of rights and others.

In this paper, we will explain the intention of religious understanding of human rights. In the historical concept of human rights, we will refer to the religious teachings on human rights and their understanding of human rights and freedoms. First of all, we will discuss Islam’s position on human rights and how Islam defines them both theoretically and practically. Next, we will see what labor rights are and how they are implemented. Namely, workers’ rights are constantly being violated and threatened. There is no democracy, without social justice and economic equality. Labor rights are the foundation of all other civil rights, because 99% of people provide their basic existence with their work. Workers must fight for unity, better standards and greater rights. We will also consider the implications of politics on human rights. Likewise, at the end of this paper, we will see at what level the implementation of the law on human rights is, as well as its obstacles and recommendations.

Keywords: democracy, human rights, Islamic Sharia law, UN, charter, Freedom, media, constitution, labor rights.

Religious understanding of human rights

Human rights through the prism of Islamic teachings

While observing the teachings of Islam as devotion to Allah and servitude only to Him since the creation of the first man Adam (Adam), we can state that human rights were established by the creation of the first man. If we look at Islam as the last emerging and acceptable version of worshiping Allah, i.e. the Sharia that Muhammed, peace be upon him, came with, then we can come to the same conclusion. From the very beginning, human rights have been an integral part of the message and mission of Muhammed, peace be upon him. However, the study of human rights as a separate scientific discipline is relatively recent. Regulations on human rights are as old as humanity, that is, the regulations that came with the Prophet Muhammed, peace be upon him. Fiqh works elaborate the regulations that deal with human rights in detail. The modern science of human rights collects, unifies and forms it into a separate whole. That is why we say that the separate science of human rights is young, and that regulations already existed, but recorded in different areas specific to the classical period of Islam. With the arrival of Islam, first to the territory of Mecca and Medina, and then in the rest of the Arabian Peninsula and beyond, many customs that threatened human rights were abolished. Islam especially raised the right of women, gave them a special place and dignity, as they were given the right to inherit, and what is most important — women became protected by Islam. Islam helped to abolish slavery in such a way that Muslims were motivated by large rewards to free their slaves. After instruction, there is no greater blessing for man than freedom, to not be a slave to man, but to be obedient to God, to freely dispose of his body, but also his mind. Slave ownership was abolished by various legal apparatuses (such as sanctions for certain omissions) and incentives for freeing slaves. When it comes to the creation of the first Islamic state, the “Madinah Charter” is indispensable, which talks about human rights in a pluralistic context. In the Euro-Atlantic descriptions, theories and classifications of states, one cannot find considerations about the phenomenon and concept of the Medinan state. In order to eliminate this gap in the panorama of historical figures of the state in the science of statology, Esad Zgodić included the State of Medina as the first Islamic state to have its first written Constitution (Zgodić, 2014), which is actually the Charter of Medina, which made a great civilization leap when it comes to human rights and freedoms. Many statologists, epistemologists and historians note that this is actually the first written Constitution on human rights in the history of mankind. Precisely because of this, when it comes to human rights and freedoms, the Charter of Medina is indispensable, which established several important political principles that defined the political rights and obligations of the members of the newly established political community, Muslims and non-Muslims alike, and which determined the political structure of the emerging society. It is actually a simultaneously religious, social and political document that represented a model for the entire later constitutional development of Islam. It is also, as Zgodić claims, the oldest written Constitution that had legal force. It consists of 52 members, who regulated relations within the community made up of Muslims, Arab-polytheists and Jews, exclusively based on social justice, that the starting point in relations is peace, and that the principles of truth, justice, support for good, work for benefit people and preventing criminals from harming society. Then the Charter of Medina is the embodiment of justice and calls for justice, establishes freedom of religion, constructs relations between different religions, etc. In the farewell speech of Muhammed, peace be upon him, on the Hajj, the foundations of the speech were legal regulations related to human rights. Both the Qur’an and the Sunnah, as the main sources of Islamic legislation, abound in regulations that preserve and respect human dignity. Justice and freedom are the two greatest maxims of Islam. Treating all people, animals, nature and even oneself fairly maintains the balance of this world. To be free is to be a slave to God alone, not to follow your own passions or to obey unquestioningly those whom God has given a share of authority in this world.

When we talk about the Western perception of human rights, the main difference in relation to Islamic law is the sources from which information is drawn for the regulation of legal issues. Hence the concept of human rights and freedoms differs in Islamic and Western thought. Centuries of torture and violation of human rights, read in various inquisitions, colonial conquests, wars especially the First and Second World Wars, in which an enormous number of people died, finally resulted in more serious efforts to improve human rights relations. At the General Assembly of the United Nations on December 10, 1948, the Universal Declaration of Human Rights was adopted. We will see that after this the Muslims also declared their declarations based on their sources. Three contemporary Islamic declarations on human rights

The most famous human rights declarations adopted by Islamic intellectuals are:
• Universal Islamic Declaration on Human Rights, adopted in 1981 in London
The group of scholars who adopted the Universal Islamic Declaration of Human Rights was officially adopted at the UNESCO headquarters in Paris. The declaration consists of a preamble and about twenty different rights, such as: the right to life, freedom, justice, protection from torture, protection of property, social security, etc.
• Cairo Declaration on Human Rights, adopted on August 5, 1990 in Cairo
The countries that are members of the Organization of the Islamic Conference issued the Cairo Declaration on Human Rights, where they emphasized in the introduction: “Desiring to contribute to the efforts of mankind to affirm human rights, to protect man from exploitation and persecution, to confirm his freedom and right to a dignified life in accordance with Islamic Sharia”. The declaration consists of twenty-five articles, where in the last article it is clearly emphasized: “Islamic Sharia is the only source for the interpretation or clarification of any article of this declaration.”
XIX Islamic Conference of Ministers of Foreign Affairs (session on peace, interdependence and development) that was held in Cairo, Arab Republic of Egypt, from 31.07 to 5.08. In 1990, it adopted a relatively comprehensive legal act, known as the Cairo Declaration on Human Rights, which was repeatedly confirmed at subsequent gatherings of this organization. This declaration was issued with the aim of being a general guide to member states in the field of human rights.
In Article 1 of this document, it determines that all beings form one family whose members are connected by a sense of obedience to One God and one descent from Adam. It is also said that “all people are equal in terms of basic human dignity, basic obligations and responsibilities without any discrimination based on race, color, language, gender, religious belief, political affiliation, social status or the like.” True faith is a guarantee for the increase of that dignity along with the efforts for human perfection. All human beings are God’s subjects, and the one dearest to God among them is the one who is most useful to His other subjects, and no one has an advantage over another, except on the basis of piety and good deeds.
Articles 2 and 3 speak of life as a gift from God and that the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right against any infringement. The preservation of human life during the period determined by God is an obligation prescribed by the Sharia. In the case of the use of force in the event of an armed conflict, it is not permissible to kill non-combatants such as the elderly, women and children. Obligation to exchange prisoners of war and organize visits or reunification of families separated due to war circumstances.
Articles 4 and 5 talk about honor and family. Every human being has the right to inviolability and protection of his name and honor both during life and after death. the state and society will protect the remains and places where he was buried. The family is the foundation of society, and marriage is the basis on which the family is formed. Men and women have the right to marry and no restrictions arising from race, color or nationality can prevent them from exercising that right. Society and the state will remove all obstacles to marriage and will facilitate marriage procedures. They will ensure family protection and well-being.
Articles 6 and 7 talk about the right of both women and parents. A woman is equal to a man in human dignity; she has certain rights and duties. She has her own civil individuality and financial independence and the right to keep her own family name. The husband is responsible for the support and well-being of the family. From the moment of birth, every child has the right to parents, country and society, to ensure appropriate upbringing, education, material, hygienic and moral obligations. Both the fetus and the mother must be protected and enjoy special care. Both parents have certain rights in relation to their children, relatives also have certain rights in accordance with the principles of Sharia.
Articles 10 and 11 regulate the rights to religion and freedom. Any form of coercion or exploitation of poverty or ignorance of individuals in order to convert them to another religion or to atheism is prohibited. Human beings are born free and no one has the right to enslave, torture, oppress or exploit them, only obedience is owed to the Almighty God. Peoples suffering under the colonial yoke have full right to freedom and self-determination. All states and all peoples have the right to preserve their independent identity and exercise control over their social and natural sources of wealth.
Articles 15 and 18 regulate the right to property and privacy. Everyone will have the right to own property acquired in a legal way and to be the holder of the right of ownership without harming other persons or society in general. Expropriation is not permitted except when the public interest requires it and upon payment of immediate and fair compensation. Confiscation of private property is prohibited except when it is necessary and prescribed by law. Everyone will have the right to live in security for his person, religion, family, honor and property. Everyone will have the right to privacy in carrying out private affairs in their home, in their family, regarding their property and their relationships. ( Karić, 1996)

• The Arab Charter on Human Rights, adopted on September 15, 1994 in Cairo
The Council of the Arab League, which consists of twenty-two members of the Middle East and North Africa, adopted this charter in Cairo. It consists of a preamble and thirty-nine articles.
1.2. Definition of human rights
The linguistic definition of law, or in Arabic el-hakk, means something fixed and obligatory. As a relevant definition of law, we cite Mustafa Zerka’s definition: “Law is a specification by which the Legislator recognizes authority or obligation.”
If we decompose this definition into its elements, we can reach the following conclusions:
• A specification is a special connection that concerns a specific person.
• The lawgiver is the Almighty Allah, Who prescribed the law through the Qur’an and the Sunnah.
• Power and related concepts can be over another person or over a specific thing.
• The obligation can be material or immaterial in nature.
There are two basic elements of law, namely the owner of the right and the object of the right. In the case that another person is involved in the right (e.g. in a loan), then it is the third element. The owners of the rights are Allah, may God bless him and grant him peace, a physical and legal entity. Almighty Allah is the owner of religious rights, and natural persons (man) and legal entities (institutions and companies) are the owners of rights over a certain object. (Topoljak, 2018)

The definition and elements of rights, although mentioned in a general sense, depict human rights and obligations. And the words of Abu Alaa al-Mawdudi clarify the essence and characteristics of human rights, i.e. its basic source: “The rights recognized by the king or the legislative assembly can be abolished in the same way as they were enacted. The same is the case with the rights recognized by dictators to their subjects. They can grant them when they are satisfied or abolish them when they are displeased, and they can openly violate them whenever they like. But since human rights in Islam are guaranteed by Allah, the Exalted, this means that no legislature or government has the right or authority to adopt amendments to them. No one has the power to abolish and limit them. Basic human rights in Islam are not recognized only on paper and do not serve only for show, while at the same time they are abolished and violated in real life.” (Human rights in Islam, Abu Alaa el-Mavdudi, translated by Elvir Duranović)

1.3. Sources of Islamic law

The sources of Islamic law are divided into two main groups: primary and secondary sources. Primary sources include the Qur’an, the Sunnah (tradition) of Muhammad, peace be upon him, ijmāʼ (legal literature representing a consensus of opinion), and qiyās (rules of analogy developed through deductive reasoning). Secondary sources are a series of legal procedures for the development of Islamic law that appear in different orders of government, including istiḥsān (legal / public preference), maslahah mursalah (public interest), ”urf (custom), sharʼ man qablanā (shari’ahs of pre-Islamic religions), madhhab al-sahabī (opinions of the followers and companions of Muhammad, peace be upon him), sadd al-dharāʼiʼ (“blocking the means”, i.e. preventing the occurrence of something that is evil, although this also includes facilitating the occurrence of something good) and istishāb (continuing the application of the rules which has been accepted in the past, unless new evidence supports a change in its applicability). The defining factor that distinguishes Islamic law from most other legal systems is the fact that it includes rules of worship, belief and morality, as well as rules governing many other areas of life, such as family law, financial transactions, criminal law, governance and international relations in in times of peace and times of war. Based on the religious aspects of Islamic law, some people mistakenly conclude that all provisions of Islamic law are immutable. In reality, however, while it is true that the rules on worship, religion and morals are fixed and immutable, there are other provisions that can be changed as long as it is done to achieve the aim of the legislator. As described by Ibn Qayyim al-Jawziyyah, serving the public interest is the goal of every single government in Islam because “Sharia is based on divine command and the public good of people in this world and the next. It represents all justice, all compassion, all public good and all wisdom. If any rule changes justice into injustice or mercy into its opposite, and the public good into corruption or wisdom into folly, then it cannot be part of the Shariah, even if it invokes the interpretation of the Shariah because the Shariah is God’s justice among His creatures. (Subhī al-Sāliḥ , 1975.)
In Islam, in addition to other rights, the following rights are the most important, the most exalted and the most sacred:

Right to life
Equality of the human race
Sanctity and security of private life
The right to personal freedom
The right to personal property
The right to freedom of opinion
The right to offspring
The right to education
The system of human rights and freedoms in the political Islamic system has its ideological philosophy based on the Islamic doctrine, the aqeedah, from which Islamic law is derived, the Sharia, which regulates these rights and freedoms with its norms and regulations, and in such a way that at the same time ensures and protects both dimensions of human rights and interests: both individual and collective.

Labor rights

Within the European Union (EU), labor rights are treated as an integral part of human rights, and their protection is closely related to human rights protection mechanisms. Protection of labor rights and provision of minimum working conditions are part of the process of harmonizing their legislation (all countries aspirant for EU membership) with EU regulations and international standards. However, with changes in legislation, compliance with European and world standards contained in the EU regulation, as well as the regulation of the International Labor Organization (ILO) and the Council of Europe, a positive formal-legal step should be taken that offers relatively greater controls and greater protection of the recognized rights of workers . The main problem with what the state is facing is that in many cases the practice does not follow the changes and the transposition of international standards does not manifest itself in the actual protection of labor rights. Injuries and deaths at work, together with reports of violations of labor rights in various sectors, the absence of available protection mechanisms, and the lack of trade union and administrative control point to the need for a detailed and in-depth analysis of regulations and their application to raise the level of protection of workers’ rights. This situation imposed the need for a comprehensive analysis of: the package of laws that regulate labor rights in terms of the protection of these rights and the provision of minimum working conditions, the degree of compliance with EU regulations in this area, international standards of the ILO, ratified conventions and recommendations , and standards that was accepted by the Council of Europe, as well as the institutional coverage of the relevant area and the level of implementation of legal provisions. The purpose of the research would be twofold. On one hand, it is aimed at locating problems in the application of the law in practice and problems that arise due to weak and insufficient protection of labor rights through the prism of EU and international standards. On the other hand, research would be done in order to offer appropriate resulting solutions from EU and international standards that can be applied in the conditions of Bosnia and Herzegovina, both in legislation and in practice. The analysis is primarily intended for representatives of the civil sector, who can use it in the process of lobbying for legal and procedural changes, as well as for union activists and workers themselves in articulating their demands. Laws related to the protection of workers in Bosnia and Herzegovina should follow the ILO standards for labor protection in all areas. From the formal-legal aspect, the legislation of Bosnia and Herzegovina should be in accordance with the conventions of the ILO and the European Social Charter of the Council of Europe. For better protection and strengthening of regulations regarding protection in the workplace, especially in professions where injuries and deaths are in a higher percentage rate than other professions, a wider consideration is needed, not only on the conventions and recommendations of the ILO, but also on their appropriate application .

International regulation emphasizes the role that trade unions should play in protecting workers’ rights. However, in Bosnia and Herzegovina, trade union organizations are in a chaotic state, non-unified, politically biased, and left to ad hoc action, without adequate training of trade union representatives, without adequate legal support and with a very limited scope of action, especially in the prevention of violations of workers’ rights. This makes the system of protection of workers’ rights complex and multifaceted, and it is extremely difficult to use these mechanisms in practice. There are many excuses when it comes to the violation of workers’ rights, for example the most common excuse is: “it is not prescribed by law”, instead of looking for the best solutions within the existing law, they are looking for excuses for not solving the specific problem. Inspectors do not fully use the opportunities provided by law and the system for reporting violations of workers’ rights. They act reactively, not proactively. There is a lack of adequate institutional support for mechanisms to protect workers’ rights. Many workers are forced to work, if they need sick leave, they are afraid to take sick leave, because they are threatened with dismissal, they work on weekends and holidays, and the problem of fixed-term contracts, which employers take advantage of, in the sense that the same worker after several contract extensions, instead of getting a contract for an indefinite period, they send him to a sister company and again with a contract for a fixed period of one month, two or three, and thus the worker works for several years without a contract for an indefinite period, i.e. permanent employment.

The Labor Law, among other things, basically covers the following issues that make up its content, which in fact represents the subject of the study of workers’ rights:

The working relationship between workers and employers, which will be determined by concluding an employment contract, ie the rights and obligations arising from the contract during work;
Prohibition of direct and indirect discrimination of candidates when hiring workers;
Harassment based on gender as discrimination (mobbing );
An employment contract as the only legal basis for establishing an employment relationship, the rights and obligations of the parties when concluding an employment contract, its content and types of employment contracts;
Obligations of the employee in connection with the performance of work, obligations towards the employer;
Internship, volunteering and trial work;
Termination of the employment contract as well as the notice period;
Payment of work;
Working hours, breaks, holidays and absences;
Damage compensation, that is, the worker’s responsibility for the damage and the employer’s responsibility for the worker’s compensation;
Special protection for women, protection for persons with special needs and special protection for older workers.

Implication of politics in the implementation of human rights law

Political trends in recent years show a decline in trust in traditional forms of political action and in the conformity of that action with the real needs of people. One of the accompanying phenomena is the relativization of some fundamental legal and political postulates that were considered unquestionable until then, such as the human rights system. The influence of political structures on the implementation of human rights laws is immensely influential. It is not in the interest of certain political circles to implement legislative reforms. We have specific cases from the judgment of the European Court of Human Rights in Strasbourg, namely: Sejdić-Finci, Zornić, Pilav and Pudarić, which have not yet been implemented in domestic legislation for years. Many cases that should have received a court epilogue on human rights violations, involving political actors putting pressure on the plaintiff and judicial authorities, ended without success. Civil society and the media were supposed to support the disenfranchised in their struggle for their rights, but in many cases even they fell under the influence of political structures, moving away from the primary mission. It is the politics that creates laws, but is also responsible for their non-implementation. When it comes to workers’ rights, employers who run large corporations and companies play a big role in that chain of law creation. By financing the election campaigns of certain political subjects, in return, among other things, they expect the harmonization of labor laws in their favor, at the expense of workers’ rights. Thus, in the adoption of any legal act, large companies exert influence on the political powers that a certain law passes or does not pass. A lot could be written about this topic, but space and time limit us to be more concise. Precisely because of this, it is necessary to do an extensive scientific research work, which would include all factors that are exclusively related to this topic.

Conclusion

The analysis of different approaches to the question of human rights and Islam allows us to discover the relative advantages and disadvantages of each paradigm, and also shows that there are no simple answers to complex questions. In addition, the political importance of this issue requires that the question of the efficiency of different paradigms be included in its consideration. Islam advocates, propagates and commands respect for human rights, based on its fundamental sources of the Qur’an and the Sunnah. However, many Muslim rulers throughout history, and we have cases even today, violate human rights because of their indoctrination or superficial understanding of Sharia law, and most often because of their secondary interests. This is not a repercussion of Islam’s teaching on human rights, but is the responsibility of the ruler himself.

Human rights, democracy and the rule of law are the basic principles of the European Union. Respect for human rights is a prerequisite for countries wishing to join the European Union and a condition for countries concluding trade and other agreements with the EU. Bosnia and Herzegovina, as an aspirant to join the EU, must harmonize its laws on human rights with EU standards. If we look at the Constitution of Bosnia and Herzegovina, we will see that the law on human rights exists, but the question is how well these laws are enforced and implemented in practice. The Preamble of the Constitution of BiH states the determination to ensure full respect of international humanitarian law in BiH, and the determination to start from the Universal Declaration of Human Rights, international treaties on civil and political, economic, social and cultural rights, as well as the Declaration on the Rights of Persons belonging to national or ethnic, religious and linguistic minorities, and other human rights instruments. Article II of the Constitution of BiH proclaims that BiH and both entities ensure the highest level of internationally recognized human rights and fundamental freedoms. It is also stated that the rights and freedoms defined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols are directly applied in BiH and have priority over any other legislation. In the same article, it is proclaimed that all persons on the territory of BiH are guaranteed to enjoy human rights and fundamental freedoms without discrimination based on gender, race, skin color, language, religion, political and other affiliation, national or social origin, belonging to a national minority, property, birth or other status. Annex 6 of the Constitution of BiH refers to the Agreement on Human Rights, which ensures the highest level of internationally recognized human rights and fundamental freedoms to all persons on the territory of BiH, including the rights and freedoms ensured by the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, as and other international agreements that are specifically listed in the Appendix of this Annex. These rights and freedoms include: the right to life; the right not to be subjected to torture, inhuman or degrading treatment or punishment; the right of a person not to be held in slavery or servitude or to perform forced or compulsory labor; the right to freedom and security of person; the right to a fair trial in civil and criminal cases, and other rights related to criminal proceedings; right to private and family life, inviolability of home and correspondence; freedom of thought, conscience and religion; freedom of expression; freedom of peaceful assembly and freedom of association with others; the right to marry and establish a family; right to property; right to education; the right to freedom of movement and residence.

In a theoretical sense, the law on human rights exists, the main problem is in an ethno-nationally organized state like BiH, many laws are difficult to implement in practice, which would be the final goal of the law.

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Author: dr. sc. Muhamed Šemoski
Majlis of the Islamic Community of Sarajevo