34 Arab Regional Mechanism: Human Rights

Dr. Y R S Murthy

1. INTRODUCTION

The universality of human rights has always been a matter of international debate. While it is popularly conceived that core human rights (as generally understood) all over the world have been documented in the Universal Declaration of Human Rights  (‘UDHR’), which was adopted by the United Nations (‘UN’) General Assembly in 1948, it is significant to note that even at the time of its adoption, eight members of the UN, including the Kingdom of Saudi Arabia, abstained from voting in favour of the UDHR. Specifically, the Saudi Arabian abstention was known to have occurred on account of differing views with respect to the equal rights to marriage and the right of everyone to choose their religion. On a general level, however, the criticism revolved on the point that the UDHR had failed to take into account the cultural and religious context of non-Western nations. Given such divergence in views of some nations, the Arab region features significantly in the universality debate.

The religion, history and culture of the Arab nations has a strong influence on the approach and understanding of human rights in the Arab region, which naturally gives the region a distinguishable standing in the larger realm of human rights jurisprudence. Two significant regional human rights documents which are commonly cited as reflecting the Arab conception of human rights are the Cairo Declaration on Human Rights in Islam (‘Cairo Declaration’) and the Arab Charter on Human Rights (‘Arab Charter’). This module discusses the history and contexts of the two documents and the nature of human rights guaranteed under them, with more focus on the Arab Charter.

2. LEARNING OUTCOMES

Part III of this module discusses the Cairo Declaration and the human rights recognized under it. It goes on to discuss the broad criticisms raised against the Cairo Declaration. Part IV of the module analyses the Arab Charter, which is a more recently drafted document in the Arab regional human rights regime and binding on nations which have ratified it.

By the end of this module, the reader should have attained a general understanding of:

•  The history, content and key criticisms of the Cairo Declaration;
•  The history, content, and key criticisms of the Arab Charter; and
•  The way human rights are perceived under the Arab regional human rights regime.

3. CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM

The Cairo Declaration on Human Rights in Islam was adopted in Cairo on 5 August 5 1990, by the Organization of Islamic Conference (‘OIC’) at the Nineteenth Islamic Conference of the Foreign Ministers of OIC’s member States. Members of OIC had maintained that the UDHR was based on “a secular understanding of the Judeo-Christian tradition” which could not be implemented without violating Islamic law. Consequently, OIC member States drafted the Cairo Declaration with the aim of expounding an Islamic perspective on human rights. The Cairo Declaration was presented by the Foreign Minister of Saudi Arabia at the 1993 World Conference on Human Rights as an embodiment of the consensus of all Muslims on rights issues. Upon its publication in December 1997 by the Office of the United Nations High Commissioner for Human Rights (‘OHCHR’), the Cairo Declaration gained international legitimacy as a regional human rights instrument.

Provisions of the Cairo Declaration

The Cairo Declaration contains 25 articles which cover various aspects of both civil and political rights, as well as economic, social and cultural rights. There are no divisions or sub-headings categorizing the articles based on the nature of rights discussed and recognized under each article.

Principally, the Cairo Declaration is intended to serve as a general guidance for all its member States in the field of human rights and, in its preamble, refers “the efforts of mankind to assert human rights, to protect man from exploitation and persecution, and to affirm his freedom and right to a dignified life in accordance with the Islamic Shari’ah”.

Additionally, article 24 specifies that all rights and freedoms set out thereunder are subject to the Islamic Shari’ah. Further, article 25 of the document states that Islamic Shari’ah is the only source of reference for the explanation or clarification of any of the articles of the Cairo Declaration. This is also illustrated by repeated reference to Shari’ah across the instrument’s text, key aspects of which are summarized below.

Equality is the first and foremost right discussed in the Cairo Declaration under article 1, which recognizes the equality of all humans in terms of basic human dignity and obligations and responsibilities without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations. This is followed by the right to life recognized under article 2, which holds the State responsible for safeguarding this right, except for Shari’ah-prescribed reasons. Article 3 discusses conduct in case of an armed conflict and article 4 deals with the dignity of everyone during and after life.

Familial rights and equality between men and women are set out in articles 5 and 6 of the Cairo Declaration, with the latter also recognizing varying responsibilities of a man and woman within a marriage. Article 7 recognizes the rights of a child upon being born and corresponding obligations of its parents, society and state to such child. Moreover, the child’s right to an education that is compliant with the principles of the Shari’ah is also recognized here, and further discussed under article 9.

Article 8 recognizes the right to legal capacity of each person, article 10 prohibits any inducement with the aim of converting any Muslim to another religion and article 11 prohibits all forms of colonialism. Although freedom of movement and seeking asylum because of fear of persecution is guaranteed to every person under article 12, this is subject to the framework of Shari’ah. Accordingly, the Cairo Declaration prohibits countries from granting asylum under article 12 if this is motivated by an act which Shari’ah regards as a crime.

Articles 13, 14, 15, and 16 set out economic rights such as the right to work; right to legitimate gains without monopolization, deceit or harm to others; the right to own property; and the right to scientific, literary, artistic or technical production so long as such production is not contrary to the principles of Shari’ah. Under article 15, expropriation is not considered permissible except for the requirements of public interest and upon payment of immediate and fair compensation. Further, confiscation and seizure of property is prohibited except for a necessity dictated by law. The right to live in a clean environment is recognized under article 17, and article 18 recognizes everyone’s right to live in security for himself, his religion, his dependents, his honour and his property. The right to privacy of a person in relation to his private affairs is also recognized under article 18, which considers the private residence of a person inviolable in all cases.

Article 19 of the document discusses equality before the law and prohibits any crime and punishment except as provided for under the Shari’ah. Article 20 prohibits the arrest, wrongful restriction of freedom, exile or punishing of a person without a legitimate reason. This article also prohibits physical or psychological torture or to any form of humiliation, cruelty or indignity. Article 21 prohibits taking hostages of any form. Article 22 discusses the right of a person to express his opinion freely in a manner that is not contrary to the principles of the Shari’ah. Further, exploitation of any position of authority is prohibited and everyone’s right to participate, directly or indirectly in the administration of his country’s public affairs is recognized under article 23. The last two articles of the Cairo Declaration, articles 24 and 25, recognize the ultimate subservience of human rights to the Islamic Shari’ah, as has been discussed above.

In view of the position given to the Islamic Shari’ah in context of human rights, the Cairo Declaration has been subject to severe criticisms in UN fora and by eminent jurists. Largely, the criticism is centred around the fact that the text appears to ensure the inviolability of the Shari’ah more than ensuring the protection of core human rights (as enumerated in the Cairo Declaration). Another criticism is the sense of ambiguity created in the Cairo Declaration by subjecting all rights to ‘Islamic Shari’ah’, without defining or elucidating upon what the term constitutes (a matter which is already the subject of countless debates). This adds to the criticism by essentially permitting disregard of human rights by Islamic States based on their perception of Shari’ah. A third critique relates to the way the Cairo Declaration presupposes the traditional understanding of gender relations and the predominant role of the man in a family.

Despite varying opinions on the actual implication of the document’s text and the fact that it is intended to serve as guidance (and is not binding), the Cairo Declaration will remain significant in the debate, given its adoption by the OIS, an organization which today consists of 57 member States. Therefore, it can be said to reflect some level of political consensus at the regional level.

4. ARAB CHARTER ON HUMAN RIGHTS

The Arab Charter on Human Rights was adopted by the Arab League in 1994, one year after the presentation of the Cairo Declaration at the International Conference in Vienna. However, because of criticisms received on the first version of the Arab Charter (for failing to be in consonance with universal human rights standards), a revision of the Arab Charter was sought with the aim of ‘modernizing’ it to reflect internationally consistent human rights standards.

The second version of the Arab Charter was drafted by a Committee of Experts which comprised of two women and three men from Algeria, Egypt, Qatar, Saudi Arabia and Tunisia (all of whom were drawn from the UN human rights treaty bodies). The Committee of Experts also took into account submissions of international as well as regional non-governmental organizations while redrafting the Arab Charter. In 2004, the revised version was submitted to the Council of the Arab League for its consideration, which draft was finally adopted without amendment at the Summit of Heads of Member States of the Arab League in May 2004. The Arab Charter came into force in 2008, upon its ratification by seven States.

Provisions of the Arab Charter

The Arab Charter consists of a preamble followed by 53 articles. As with the Cairo Declaration, provisions of the Arab Charter are not divided into parts or sections, despite the existence of both substantive and procedural provisions. The document includes civil and political, and economic, social and cultural rights, together with specific provisions relating to women, children, migrants and the disabled. Key provisions of the Arab Charter guaranteeing such rights are discussed below.

The preamble of the Arab Charter rejects all forms of racism and Zionism, which it considers to be a violation of human rights and a threat to international peace and security, recognizing the close link that exists between human rights and international peace and security. Further, the preamble reaffirms the principles of the UN Charter, the UDHR, the International Covenant on Civil and Political Rights (‘ICCPR’), the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), and gives regard to the Cairo Declaration. Unlike the Cairo Declaration, however, there is no direct reference to Islamic Shariáh in the preamble.

Article 1 of the Arab Charter discusses its aims. Essentially, the article highlights the significance of human rights in Arab States and acknowledges the encapsulation of these rights in international human rights documents. Further, it recognizes that all human rights are universal, indivisible, interdependent and interrelated. The rights of all peoples to self-determination is recognized under article 2. This article also recognizes the need to eliminate all forms of racism and Zionism. Article 3 requires the States to ensure equality without distinction on grounds of race, colour, sex, language, religious belief, opinion, thought, national or social origin, wealth, birth or physical or mental disability. Paragraph 3 of article 3 specifies that men and women are equal in respect of human dignity, rights and obligations within the framework of the positive discrimination established in favour of women by the Islamic Shari’ah, by other divine laws and by applicable laws and legal instruments.

Article 4 sets out exceptional situations of emergency which threaten the life of the nation and the existence of which is officially proclaimed when these rights may be derogated from. Paragraph 2, however, recognizes that some human rights are non-derogable, these being the arbitrary deprivation of the right to life (article 5); right against physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment (article 8); prohibition on subjection to medical or scientific experimentation or to the use of a person’s organs without his free consent and full awareness of the consequences (article 9); prohibition on slavery, trafficking, forced labour, trafficking of human beings for the purposes of prostitution or sexual exploitation, and on the exploitation of children in an armed conflict (article 10); right to a fair trial (article 13) and the right to petition a court upon deprivation of liberty (article 14(6)); considering an action a crime or imposition of penalty for such action in the absence of a law declaring such action a crime (article 15); prohibition on imprisonment on account of failure to pay a contractual debt (article 18); prohibition on trial for the same offence twice (article 19); prohibition on wrongful treatment of persons who have been deprived of liberty (article 20); right of every person to be recognized before the law (article 22); prohibition on arbitrary or unlawful prevention of a person from leaving a country or expulsion from the person’s country (article 27); right to seek asylum to escape persecution (article 28); right to nationality of a person (article 29); and right to freedom of thought, conscience and religion and non-imposition of restrictions on the exercise of such freedoms except as provided for by law (article 30).

Other substantive rights guaranteed under the Arab Charter also include equality before the law and before the courts and tribunals (articles 11 and 12). Further, the right to liberty and security of a person and freedom from arbitrary arrest is set out in article 14. This article also sets out procedural safeguards in case of deprivation of liberty. Article 16 elucidates upon the procedural rights and safeguards which should be provided in case a person is charged with a criminal offence. Article 21 prohibits unlawful or arbitrary interference with a person’s privacy, family, home or correspondence, as well as any unlawful attacks on his honour or his reputation. The right to pursue political activity, freedom of association and peaceful assembly is set out in article 24; however, these rights may be subject to restrictions prescribed by law and those which are necessary in a democratic society in the interests of national security or public safety, public health or morals or the protection of the rights and freedoms of others. Article 25 recognizes the right of persons belong to minority groups to enjoy their own culture, use their own language and practice their own religion; it is specified that the exercise of such rights will be governed by law. Two additional articles of significance are article 30 which guarantees freedom of thought and religion (as also mentioned above) and article 33 which provides for the right to information and the freedom of opinion and expression. Both these sets of rights are subject to such limitations as are required to ensure respect for the rights or reputation of others or the protection of national security, public order and public health or morals.

Articles 34 to 42 recognize various economic, social and cultural rights of persons living in the member States, including the right to work, the right to the highest attainable standard of health, right to social security, right to take part in cultural life, right to education and the right to development.

In addition to substantive rights, several provisions of the Arab Charter set out obligations for ensuring protection of substantive rights. Article 44 of the Arab Charter requires member States to adopt measures to give effect to the rights of the Arab Charter in conformity with their constitutional procedures and with the provisions of the Arab Charter.

Articles 45, 46 and 47 mandate the setting up of an Arab Human Rights Committee, which is to consist of seven highly-experienced members, each elected by secret ballot by the member States of the Arab Charter. The mandate of the Arab Human Rights Committee is to examine reports submitted by member States (every three years) and submit annual reports with recommendations and comments to improve compliance by member States of the Arab Charter. According to the Rules of Procedure of the Arab Human Rights Committee (adopted in November 2014), the Committee also has the authority to interpret the Arab Charter to ensure the optimal implementation of its provisions. This is not explicitly stated in the Arab Charter itself. Further, the Arab Human Rights Committee can also request information from Arab League bodies and Arab institutions.

Under articles 50, 51 and 52, member States to the Arab Charter may adopt additional protocols or amendments to the main text. Lastly, article 53 permits member States ratifying the Arab Charter to make reservations to specific articles, so long as such reservation does not conflict with the aims and fundamental purposes of the Arab Charter itself.

Criticisms of the Arab Charter

Whilst the Arab Charter was noted to be a significant advancement from the Cairo Declaration, several substantive criticisms have been raised against its provisions.

Foremost is the critique that the Arab Charter appears to equate Zionism with racism while referring to the two together in the preamble as well as the text of the instrument. This proposition was specifically rejected by the UN General Assembly in its Resolution 46/8620 in 1991. Therefore, reference to Zionism in the Arab Charter has been particularly condemned by jurists.

Secondly, the Arab Charter permits and recognizes capital punishment for children, that is, persons below the age of 18 years.21 Article 7 prohibits capital punishment unless this is otherwise stipulated in the laws in force in the country at the time of the commission of the crime. Scholars maintain the view that this contradicts provisions of the Convention on the Rights of the Child (specifically, articles 37(a)) and the ICCPR (article 6(5)) which contain an absolute prohibition, without any form of deference to domestic laws. Both are instruments to which most (if not all) members of the Arab League are party, and none of these countries have made reservations against the said articles.

With respect to article 8, which prohibits torture, it has been observed that the Arab Charter does not define what constitutes the term ‘torture’ and, by not doing so, it fails to include several important principles related to torture which have otherwise been recognized by the Human Rights Committee (which is constituted under the ICCPR) and the Committee against  Torture (formed under the UN Convention Against Torture), as well as the Special Rapporteur on Torture.

Another critique is that the Arab Charter still maintains a conservative stance in terms of women’s rights. This can be seen in article 33(1), which requires member States to regulate rights and duties of men and women to enter marriage, during it, and upon its dissolution, thereby disregarding the fact that some Arab countries do not guarantee equality between men and women. This is also inconsistent with the corresponding provision under the ICCPR (article 23) which seeks to ensure equality between spouses with respect to their rights and responsibilities within a marriage.

Lastly, the Arab Charter also lacks an enforcement mechanism. Although there is an Arab Human Rights Committee set up to monitor State reports and issue recommendations, there is no mechanism for petitions from a State party or an individual to this Committee for violations of the Charter. As part of efforts to fill this lacuna, attempts have been made since 2013 to establish a regional court on human rights, which is intended to operate within the framework of the Arab Charter. In September 2014, the Statute of the Arab Court of Human Rights was approved by the Ministerial Council of the League of Arab States. However, it is yet to be ratified by any State.

5. CONCLUSION

The Cairo Declaration on Human Rights in Islam and the Arab Charter on Human Rights are government based documents. Another instrument which reflects the Islamist understanding of human rights is the Universal Islamic Declaration of Human Rights, although this is the product of a non-governmental organization, the Islamic Council.

The Cairo Declaration is widely seen to represent the interests of conservative Muslims The Arab Charter, although a significant advancement, fails to align its provisions with international human rights standards. Therefore, these are almost always placed at the centre of universal human rights scheme analysis. While member States claim that the human rights documented under the Cairo Declaration and the Arab Charter complement the regime under UDHR, jurists critiquing these documents believe that the documents form an alternative understanding of human rights and not a complementary one,  thereby undermining the very rights intended to be guaranteed.

Reference

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