Arab and Islamic Human Rights System

Author: Adamantia Rachovitsa

Required knowledge: sources of international law

Learning objectives: Understanding the basic substantive and institutional features of the Arab/Islamic human rights mosaic

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A. Introduction

The geographies of the "Middle East", "Arab region" or "Islamic world" are difficult to capture. Regional arrangements of states involving these geographies do not fall squarely into the orderly and familiar forms of regionalism. Take the example of the League of Arab states: a regional organisation of twenty-two states across two continents. The Organisation of Islamic Cooperation defies geographical distance, bringing together fifty-seven member states (with a population of over 1.8 billion) across four continents. In these instances, groupings of states are not driven solely by physical proximity but mostly by a 'regionalism of ideas' and various markers of common identity, such as Arab heritage and Islamic solidarity. Therefore, it does not come as a surprise that these regional arrangements are reflected in a diversity of treaties and instruments on human rights.

B. Islamic Schemes for Human Rights Protection

Two Islamic schemes concerning human rights protection, which haven taken the form of international declarations and are therefore non-binding, stand out. The first is the Cairo Declaration on Human Rights in Islam (CDHRI), adopted by the Organisation of Islamic Cooperation (OIC) in 1990. The CDHRI was the OIC's contribution to the 1993 World Conference on Human Rights. In line with the OIC's religious nature, the CDHRI contains consistent references to Islam and Sharia. The second scheme is the 1981 Universal Islamic Declaration of Human Rights (UIDHR), which preceded and influenced the CDHRI. The UIDHR was prepared by representatives from Egypt, Pakistan, Saudi Arabia and other countries under the auspices of the Islamic Council of Europe, which is a private, London-based organisation affiliated with the Muslim World League, an international NGO headquartered in Saudi Arabia that tends to support the views of conservative Muslims.

Many of the rights and freedoms contained in both the CDHRI and the UIDHR fall short of universal standards, as encapsulated in the "international bill of rights", as well as from an Islamic perspective. Two notable examples concern the scope of rights of women and freedom of religion. Moreover, the right to hold public office can only be exercised in accordance with Sharia. The application of corporal punishment is also allowed, as per Sharia standards.

A defining feature of both the CDHRI and the UIDHR is that they subject the exercise of human rights to Islamic law. The CDHRI states that 'all the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia' (Article 24). The UIDHR lacks such an explicit clause but clarifies that any reference to law, to which human rights are subordinated throughout the text, denotes Sharia.

Advanced: legal challenges of unconditionally subjecting the exercise of human rights to Islamic law

Unconditionally subjecting the enjoyment of internationally protected rights to Islamic law is as problematic as subjecting them to domestic law, since this renders the scope of rights and freedoms uncertain. This uncertainty is further amplified by concerns regarding Islamic law and, in particular, its foreseeability, predictability and accessibility. The content of Islamic law is frequently elusive due to the lack of codification and the different schools of Islamic thought. There is to systematisation of the case law and, in fact, judgments in the Middle East or Arab region are not published.

A notable, possibly positive characteristic of the CDHRI and the UIDHR is that they set out a series of individuals' duties towards society as well as duties of the community towards the individual. Such duties express Arab and Islamic ideals of social justice, communal aid and a community-oriented approach to human rights, and they may be seen as inspiration for invigorating certain aspects of international human rights law.

Overall, the rationale of these Islamic human rights documents is not clear. Both the CDHRI and the UIDHR were intended to develop an indigenous Islamic response to the Universal Declaration on Human Rights. it is unclear, however, whether the drafters of these documents aimed to put forward an alternative or a complementary scheme to the "international bill of rights".

C. The Protection of Human Rights in the League of Arab States

The League of Arab States (LAS), based in Cairo, has twenty-two member states. Non-interference in domestic affairs is a key policy of the LAS, which is historically linked to pan-Arab nationalism forged during and in the aftermath of the independence of many Arab states. In contract to the OIC, the LAS is primarily a non-religious organisation.

I.

The Arab Independent Committee on Human Rights is a body of the LAS, established in 1998. The Committee meets twice per year in Cairo and consists of one political representative from each member states. The Committee is responsible for:

• establishing rules of cooperation among member states in the field of human rights
• formulating an Arab position on human rights issues at the regional and international levels
• drafting human rights treaties and assessing the compatibility of agreements with human rights principles
• promoting the implementation of human rights and
• promoting cooperation in human rights education.

Despite its broad mandate on paper, the Committee is limited to considering issues referred to it by specific bodies of the LAS or member states. It has neither a mechanism to consider the human rights situation in member states nor any special procedures (e.g., country or thematic special rapporteurs, experts or workings groups).

The Committee many grant certain civil society organisations observer status, but its has set certain restrictive criteria. Civil society organisations must be registered in an Arab country and in many states the criteria for registering an association are very restrictive. For this reason, few organisations enjoy observer status before the Committee. Those that do find it challenging to engage in a meaningful way. They have limited and untimely access to documentation, limited access to sessions and deliberations and are not allowed to make statements on agenda items.

II. The Revised Arab Charter on Human Rights

The Revised Arab Charter on Human Rights (Charter) was adopted in 2004 and entered into force in 2008. This was the LAS's second attempt to conclude a general human rights treaty. The first version of the Charter received widespread criticism and never entered into force. The Casablanca Declaration of the Arab Human Rights Movement, issued in 1999 by human rights groups across the Arab world, strongly criticised the law and policy of Arab states. It urges Arab governments to fully recognise women's rights, prohibit the imposition of capital punishment for crimes committed by minors and protect human rights defenders. The Revised Arab Charter shows considerable sights of progress but there is significant room for improvement. As of January 2021, sixteen LAS member states have ratified it.

The Charter affirms the universality and indivisibility of human rights (Article 1) and contains a clause safeguarding the more favourable level of protection for the individual (Article 43). The text of the treaty ensures peoples' right to self-determination (Article 2) and safeguards key civil and political rights (Articles 5-33) and many economic, social and cultural rights (Articles 34-42). There are a few novel provisions too, such as the right to a decent life for person with mental or physical disability (Article 40).

Nonetheless, the Charter presents certain shortcomings. First, it omits important human rights. It does not prohibit cruel, inhuman or degrading punishment (Article 8(1)). This is troubling, since many states in the region retain corporal forms of punishment that may be in violation of the Convention Against Torture. Some rights are protected only with regard to state parties' own citizens, such as the right to association and peaceful assembly (Article 24(6)) and most economic and social rights. Second, the death penalty may be imposed on minors, if stipulated in a state party's domestic law (Article 7(1)). Third, women's rights are not sufficiently protected in accordance with international standards.

Example for for women's rights: The principle of equality is subject to the framework of the Islamic Sharia (Article 3(3)) and rights relating to marriage and divorce are regulated by domestic law without additional safeguards (Article 33(1)).

A defining characteristic of the Charter is the absolute deference to domestic law introduced by the so-called claw-back clauses.

Advanced: legal problems posed by claw-back clauses

For example, Article 30(1) reads: 'Everyone has the right to freedom of thought, conscience and religion and no restrictions may be imposed on the exercise of such freedoms except as provided by law' (emphasis added). Although all human rights instruments refer back to domestic law, the role of the latter is to provide safeguards, such as the existence and quality of domestic legislation, to ensure that any restrictions on a given rights are lawful and proportional. Therefore, the claw-back clauses cannot cause internationally formulated rights to be subjected to potentially very restrictive national laws.

III. Monitoring the Revised Arab Charter

1. The Arab Human Rights Committee

The Arab Human Rights Committee, created in 2009, is the treaty body entrusted with supervising the implementation of the Revised Arab Charter (Articles 45-48). The Committee consists of seven independent human rights experts who serve in a personal capacity.

The Committee is responsible for monitoring states' human rights performance and reviewing state reports. The Committee cannot receive individual complaints. States parties are required to submit a report on their compliance with the Charter within one year of ratification, and thereafter every three years. The Committee reviews these reports and issued conclusions and recommendations. Civil society organisations are able to submit reports and attend meetings. Although the Committee does not require them to have observer status in order to take part in the reporting procedure, they must have NGO status in their country of origin. Since many state parties have rigid requirements under their domestic law for registering an NGO, many organisations are prevented from accessing the reporting procedure. In practice, the reporting system suffers from huge delays, since states are often late in submitting their national reports. Judging from the Committee's website, no reporting seems to have taken place since 2016.

2. The Arab Court of Human Rights

In 2014, the LAS concluded the Statute of the Arab Court of Human Rights. The Court's jurisdiction extends over disputes resulting from the interpretation and application of the Charter, or any other Arab convention in the field of human rights involving a member state (Article 16). Upon request of the LAS Assembly, the Court may also issue an advisory opinion regarding any legal issues related to the Charter or to any other Arab convention on human rights (Article 21).

The personal jurisdiction of the Court is severely limited, depriving individuals of the right to access it directly (Article 19). Only state parties may bring applications before the Court. State parties may accept, pursuant to a separate declaration, that a civil society organisation has standing to bring cases on behalf of individuals. As of yet, no state have ratified the Statute and the Court's future does not look very optimistic.

D. The GCC Declaration on Human Rights

In 2014, the member states of the Cooperation Council for the Arab States of the Gulf (also known as Gulf Cooperation Council or GCC), namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates, adopted the GCC Human Rights Declaration. The Declaration embodies an expression of the subregional level of human rights protection. Interestingly, this expression comes from states that are dominant actors in the Arab region and associated with the conservative streams of Islamic thought. The text consists of fortyseven provisions concerning civil and political rights and social, economic and cultural rights. The GCC Declaration overemphasises the role of domestic law when limiting human rights and subjects the exercise of human rights to Islamic law.

Further Readings

• M-M O Mohamedou, 'Arab Agency and the UN Project: The League of Arab States between Universality and Regionalism' (2016) 37 Third World Quarterly 1226
• S Farrar, 'The Organisation of Islamic Cooperation: Forever on the Periphery of Public International Law?' (2014) 12 Chinese Journal of International Law 787

Summary of main points

• Arab and Islamic human rights arrangements reflect various markers of common identity by way of defying the physical geography of regionalism.
• The two main Islamic schemes concerning human rights protection, the Cairo Declaration on Human Rights in Islam and the Universal Islamic Declaration of Human Rights, fall short of universal standards, especially on account of the restrictive scope of rights of women and freedom of religion as well as the application of corporal punishment.
• The Revised Arab Charter on Human Rights may align in many respects with universal human rights standards but still presents certain shortcomings, including the non-prohibition of cruel, inhuman or degrading punishment, the possibility of imposing the death penalty on minors, the insufficient protection of women’s rights and the absolute deference to domestic law.
• The reviewing of state reports by the Arab Human Rights Committee, entrusted with supervising the implementation of the Revised Arab Charter, suffers from huge delays.