Arab and Islamic Human Rights System
Author: Adamantia Rachovitsa
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Learning objectives: to understand the basic substantive and institutional features of the Arab/Islamic human rights mosaic
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A. Introduction Edit
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. One should also note that a number of States belonging in these regional arranements are also members to the African Union and parties to the African Charter on Human and Peoples' Rights. 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.
The sub-chapter starts with discussing two early Islamic human rights documents which, although non-binding, seem to have set the tone for the Arab/Islamic human rights system. The discussion then focuses on the institutional and substantive aspects of protecting human rights in the League of Arab States, including the Arab Independent Committee on Human Rights and the Revised Arab Charter on Human rights. Finally, some insights are highlighted from the more recent Gulf Cooperation Council Declaration on Human Rights.
B. Early Islamic Human Rights Documents Edit
Two Islamic documents concerning human rights protection, which haven taken the form of international declarations and are therefore non-binding, stand out. The first document is the 1981 Universal Islamic Declaration of Human Rights. It 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. The second instrument, influenced by the Universal Islamic Declaration of Human Rights, is the Cairo Declaration on Human Rights in Islam, adopted by the Organisation of Islamic Cooperation in 1990. The Cairo Declaration on Human Rights in Islam was the contribution of the Organisation of Islamic Cooperation to the 1993 World Conference on Human Rights. In line with the Organisation of Islamic Cooperation's religious nature, the Cairo Declaration on Human Rights in Islam contains consistent references to Islamic law (also know as Sharia).
Many of the rights and freedoms contained in both the Cairo Declaration on Human Rights in Islam and the Universal Islamic Declaration of Human Rights fall short of universal standards, as encapsulated in the international bill of rights, as well as from an Islamic perspective. This is because, in many instances, the language and scope of rights provided in these documents do not measure up to Islamic standards of human rights. Two notable examples of how the rights and freedoms contained in these two documents fall short of universal human rights standards concern the scope of rights of women (e.g. women's right to work, polygamy, right to inheritance, equality of rights in marriage) and freedom of religion. Moreover, the right to hold public office can only be exercised in accordance with Islamic law. The application of corporal punishment is also allowed, as per Islamic law's standards.
A defining feature of both the Cairo Declaration on Human Rights in Islam and the Universal Islamic Declaration of Human Rights is that they subject the exercise of human rights to Islamic law. The Cairo Declaration on Human Rights in Islam states that 'all the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia' (article 24). The Universal Islamic Declaration of Human Rights lacks such an explicit clause but clarifies that any reference to law, to which human rights are subordinated throughout the text, denotes Sharia.
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 no systematisation of the case law and, in fact, judgments in the Middle East or Arab region are not published. Moreover, since the protective scope of the rights is subjected to Islamic law, there is no clarification of what this means with respect to different interpretations of Islamic law in case of differences in jurisprudential views and across schools of thought.
An additional notable characteristic of the Cairo Declaration on Human Rights in Islam and the Universal Islamic Declaration of Human Rights is that they set out a series of individual duties towards society as well as duties of the community towards the individual. Such duties express Arab and Islamic ideals of social justice, and a community-oriented approach to human rights. These ideals and approaches have contributed to the apparatus of positive human rights law and may also advance novel perspectives for conceptualising aspects of human rights law as well as alternative systems for protecting human dignity.
Example for Duties: According to article 7(c) of the Cairo Declaration on Human Rights in Islam, children have a duty of care toward their parents and kin have the same duty toward their relatives. According to the Universal Islamic Declaration of Human Rights, each human right carries a corresponding duty (explanatory note (2)). The Universal Islamic Declaration of Human Rights sets out additional duties: the obligation to participate in the conduct of public affairs (article XI); the obligation to treat workers justly (articles XI and XVII); the duty to defend everyone’s rights (article IV); the duty to pursue knowledge and truth (article XII(b)); and the duty to protest against oppression (article XII(c)).
Overall, the rationale for creating the Islamic human rights documents is not clear. Both the Cairo Declaration on Human Rights in Islam and the Universal Islamic Declaration of Human Rights were intended to develop an Islamic response to the Universal Declaration on Human Rights. However, it is unclear what this means: did the drafters of these documents aimed to put forward an alternative vision to the international bill of rights by way of undermining? Or did the drafters aimed at promoting a complementary outlook instead? Different views can be equally supported. Many also argue that the underlying rationale of these Islamic human rights documents as well as the specific encapsulation of rights therein are intended more as rhetorical devices serving political interests, ideologies and (perceived) hegemonic politics and repressive policies of certain autocratic regimes.
C. The Protection of Human Rights in the League of Arab States Edit
The League of Arab States, based in Cairo, has twenty-two member States. Non-interference in domestic affairs is a key policy of the League of Arab States, which is historically linked to decolonisation and pan-Arab nationalism forged during and in the aftermath of the independence of many Arab States. In contrast to the Organisation of Islamic Cooperation, the League of Arab States is primarily a non-religious organisation.
I. Arab Independent Committee on Human Rights Edit
The Arab Independent Committee on Human Rights (Committee) is a body of the League of Arab States, established in 1998. The Committee meets twice per year in Cairo and consists of one political representative from each member State. According to its mandate, 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 League of Arab States 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 may grant certain civil society organisations observer status, but it 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 enjoy observer status 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 Edit
The Revised Arab Charter on Human Rights (Charter) was adopted in 2004 and entered into force in 2008. As of January 2021, sixteen out of twenty-two member States to the League of Arab States' have ratified the Charter. The latter is the League's second attempt to conclude a general human rights treaty. The first version of the Charter received widespread criticism by scholars and civil society alike and never entered into force. For example, the Casablanca Declaration of the Arab Human Rights Movement, issued in 1999 by human rights groups across the Arab world, urged 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.
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 persons with mental or physical disability (article 40).
Nonetheless, the Charter presents certain shortcomings. First, it omits important human rights. For instance, it does not prohibit cruel, inhuman or degrading punishment but only treatment (see 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, as is the case with the African Charter on Human and Peoples' Rights discussed earlier.
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 Edit
1. The Arab Human Rights Committee Edit
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 can submit reports and attend meetings. Although the Committee does not require them to have observer status 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 Edit
In 2014, the League of Arab States 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). Moreover, upon request of the League of Arab States' 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. According to 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 States have ratified the Statute and the Court's future does not look very optimistic.
D. The GCC Declaration on Human Rights Edit
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 forty-seven provisions concerning civil and political rights and social, economic and cultural rights. Some of these rights are novel, including article 39 which sets out a joint responsibility for the State and the community with regard to addressing the consequences of disasters and emergencies; or article 4 which criminalises human organs' trade but also frames it as a violation of human rights.
With that being said, it needs to be noted that the GCC Human Rights Declaration overemphasises the role of domestic law when limiting human rights and subjects the exercise of human rights to Islamic law. For example, article 9 reads: 'Everyone has the right to freedom of opinion and expression, and exercising such freedom is guaranteed insofar as it accords with Islamic Sharia law, public order and the regulations (laws) regulating this area' (emphases added).
Further Readings Edit
- 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
- A A An-Na'im, 'Human Rights in the Arab World: A Regional Perspective' (2001) 23 Human Rights Quarterly 701.
- Arab and Islamic human rights arrangements reflect various markers of common identity by way of defying the physical geography of regionalism.
- The two early Islamic documents 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, and the insufficient protection of women’s rights.
- All human rights documents and treaties examined earlier share the feature of subjecting the effective exercise of human rights to domestic law (e.g., Revised Arab Charter on Human Rights, GCC Human Rights Declaration) and/or Islamic Law (e.g., Cairo Declaration on Human Rights in Islam, Universal Islamic Declaration of Human Rights, GCC Human Rights Declaration).
- The ineffective functioning of international bodies (including the restricted mandate of the Committee and the non-functioning Court) supervising the implementation of the Revised Arab Charter casts a long shadow over the progressive development of human rights standards in the Arab/Islamic human rights system.
- The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
- A Anghie, 'Identifying Regions in the History of International Law', in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press, 2012) 1058.
- For example, Egypt, Libya or Morocco.
- For example, Egypt, Libya or Morocco.
- M D Evans, 'The Future(s) of Regional Courts on Human Rights', in A Cassesse (ed) Realizing Utopia: The Future of International Law (Oxford University Press, 2012) 261, 271.
- Cf how the notions of diversity and coherence play out in the regional development of the Asian system of human rights; see, Adamantia Rachovitsa, § 21.2.3 in this textbook.
- Cairo Declaration on Human Rights in Islam, adopted 5 August 1990 by he Conference of Foreign Ministers of the Organisation of the Islamic Conference, Resolution 49/19-P.
- For the basic sources of Islamic law also known as Sharia, see C G Weermantry, Islamic Jurisprudence – An International Perspective (Macmillan, 1998) 30-58; M A Baderin, International Human Rights and Islamic Law (Oxford University Press, 2005) 33-48.
- The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.
- M A Baderin, 'The Human Rights Agenda of the OIC: Between Pessimism and Optimism', in M J Petersen and T Kayaoglu (eds) The Organization of Islamic Cooperation and Human Rights (University of Pennsylvania Press, 2019) 40, 51-52.
- On the rights of women under Islamic law and human rights law, see M A Baderin, International Human Rights and Islamic Law (Oxford University Press, 2005) 133-155.
- Explanatory note 1(b).
- For discussion on the notion of the duties of the individual under human rights law, see Max Milas, § 21.1 in this textbook and, more specifically, the Advanced Knowledge textbox on duties of individuals (written by Adamantia Rachovitsa). For the role of duties of individuals in the African Charter on Human and Peoples' Rights see see Adamantia Rachovitsa, § 21.2.2 in this textbook.
- C G Weermantry, Islamic Jurisprudence – An International Perspective (Macmillan, 1998) 125-127; H P Glenn, Legal Traditions of the World (Oxford University Press, 2014) 224. For an analysis of individual duties in the Islamic legal tradition and the potential of applying the concept of duties to international human rights law, so as to render justiciable third-generation solidarity rights, see J Morgan-Foster, 'Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement' (2005) 8 Yale Human Rights & Development Law Journal 67.
- International Law Association, Committee on Islamic Law and International Law, Islamic Law and the Rule of Law in Light of the Right to Freedom of Expression, Final Report, 7 November 2018, para 80.
- See, M J Petersen and T Kayaoglu, 'Introduction', in M J Petersen and T Kayaoglu (eds), The Organization of Islamic Cooperation and Human Rights (University of Pennsylvania Press, 2019) 1; M A Baderin, 'The Human Rights Agenda of the OIC: Between Pessimism and Optimism', in ibid, 40, 42, 52.
- Ibid; S Farrar, 'The Organisation of Islamic Cooperation: Forever on the Periphery of Public International Law?' (2014) 12 Chinese Journal of International Law 787, 802-805; A E Mayer, Islam and Human Rights (Westview Press, 2007) 192-197.
- For discussion on the Third World approaches in international law (TWAIL), see Shubhangi Agarwalla, Sué González Hauck, Thamil Venthan Ananthavinayagan, § 4.2 in this textbook. For critique on human rights and discussion of human rights as a colonial construction see Thamil Venthan Ananthavinayagan and Jens Theilen, § 21.3 in this textbook.
- Internal Regulations of the Arab Permanent Committee on Human Rights, adopted by Resolution 6826, Regular Session 1285 of the Council of Ministers of Foreign Affairs, September 2007. See also, M Rishmawi, The League of Arab States: Human Rights Standards and Mechanisms – Towards further Civil Society Engagement: A Manual for Practitioners (Open Society Foundations - Arab Regional Office, 2015) 27-31.
- Revised Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) reprinted in 18 Human Rights Law Journal 151.
- These are: Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Lebanon, Mauritania, Palestine, Qatar, Saudi Arabia, Sudan, Syria, United Arab Emirates and Yemen. Comoros, Djibouti, Oman, Morocco, Somalia and Tunisia have not yet ratified the Charter.
- Casablanca Declaration of the Arab Human Rights Movement, adopted by the first International Conference of the Arab Human Rights Movement (23-25 April 1999).
- M Rishmawi, 'The Revised Arab Charter in Human Rights: A Step Forward?' (2005) 5 Human Rights Law Review 361.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
- For discussion see M Rishmawi, 'The Revised Arab Charter in Human Rights: A Step Forward?' (2005) 5 Human Rights Law Review 361.
- On the role of the clawback clauses in the African Charter on Human and Peoples' Rights see Adamantia Rachovitsa, § 21.2.2 in this textbook. On the relationship between domestic and international law see Raffaela Kunz, § 5.2 in this textbook.
- See, M Rishmawi, The League of Arab States: Human Rights Standards and Mechanisms – Towards further Civil Society Engagement: A Manual for Practitioners (Open Society Foundations - Arab Regional Office, 2015) 40-47.
- Council of the LAS Resolution no 7790 EA (142) C 3. Unofficial translation in English. For discussion, see, A Almutawa, 'The Arab Court of Human Rights and the Enforcement of the Arab Charter on Human Rights' (2021) 21 Human Rights Law Review 506.
- Human Rights Declaration for the Member States of the Cooperation Council for the Arab States of the Gulf, adopted by the High Council, Thirty-fifth session, Doha, 9 December 2014.