Public International Law/Human Rights Law/Human Rights Protection/Arab and Islamic Human Rights System





Author: Adamantia Rachovitsa "Required knowledge: sources of international law; individuals; recurring themes in human rights doctrine" "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 22 States across two continents. The Organisation of Islamic Cooperation defies geographical distance, bringing together 57 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 arrangements 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
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 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.

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.

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.

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. 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
The League of Arab States, based in Cairo, has 22 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
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
 * 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.

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
The Revised Arab Charter on Human Rights (Charter) was adopted in 2004 and entered into force in 2008. As of January 2021, 16 out of 22 member States to the League of Arab States' have ratified the Charter. 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.

Fourth, the Charter contains so-called claw-back clauses, as is the case with the African Charter on Human and Peoples' Rights.

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 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. In practice, the reporting suffers from huge delays, since States are often late in submitting their national reports.

2. The Arab Court of Human Rights
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.

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 47 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; and article 4 which criminalises human organs' trade but also frames it as a violation of human rights.

With that being said, 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.

E. Conclusion
The development of the Arab/Islamic system on human rights gives rise to a polymorphous regionalism, wherein human rights documents and treaties capture different geographies and reflect various interests and priorities. The potential for certain novel provisions, as provided in the Arab/Islamic human rights instruments to support, in certain instances, different conceptualisations of human rights law remains largely unexplored in human rights law and practice. The restrictive scope of many of the human rights provided in the early Islamic human rights documents and the Revised Arab Charter on Human Rights and the subjection of the exercise of human rights to domestic law and/or Islamic Law deviate from universal human rights standards. The ineffective functioning of international bodies casts a long shadow over the progressive development of human rights standards in the Arab/Islamic human rights system.

Further Readings

 * A A An-Na'im, 'Human Rights in the Arab World: A Regional Perspective' (2001) 23 Human Rights Quarterly 701.
 * S Farrar, 'The Organisation of Islamic Cooperation: Forever on the Periphery of Public International Law?' (2014) 12 Chinese Journal of International Law 787
 * 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