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

## Table of Contents

Back to home page
Part I - History, Theory, and Methods
* § 1 History of International Law
** § 1.1 Founding Myths
** § 1.2 Nineteenth Century
** § 1.3 Decolonization
* § 2 Nature and Purpose of International Law
** § 2.1 International Law and Violence
** § 2.2 Consent
** § 2.3 Enforcement
* § 3 Methodology
** § 3.1 Case Analysis
** § 3.2 Interdisciplinarity
* § 4 Approaches to International Law
** § 4.1 Positivism
** § 4.2 TWAIL
** § 4.3 Feminism & Queer Theory
** § 4.4 Marxism
* § 5 Interaction
** § 5.1 Interaction within International Law
** § 5.2 International Law and Domestic Law
Part II - General International Law
* § 6 Sources of International Law
** § 6.1 Treaty Law
** § 6.2 Customary Law
** § 6.3 General Principles
** § 6.4 Other Sources
* § 7 Subjects and Actors in International Law
** § 7.1 States
** § 7.2 Indigenous Peoples
** § 7.3 International Organizations
** § 7.4 Individuals
** § 7.5 Women in International Law
** § 7.6 Non-governmental Organization
** § 7.7 Corporations
** § 7.8 Animals
** § 7.9 Cities
* § 8 Jurisdiction
* § 9 State Responsibility
* § 10 Diplomatic Relations
* § 11 Immunities
* § 12 Peaceful Settlement of Disputes
** § 12.1 Evidence
* § 13 Use of Force
Part III - Specialized Fields
* § 14 Law of Armed Conflict
* § 15 Law of the Sea
* § 16 International Environmental Law
* § 17 International Climate Change Law
* § 18 International Migration Law
* § 19 International Law in Cyberspace
* § 20 Space Law
* § 21 Human Rights Law
** § 21.1 Recurring Themes in Human Rights Doctrine
** § 21.2 Institutional Human Rights Protection
*** § 21.2.1 United Nations Human Rights System
*** § 21.2.2 African Human Rights System
*** § 21.2.3 European Human Rights System
*** § 21.2.4 Inter-American Human Rights System
*** § 21.2.5 Arab and Islamic Human Rights System
*** § 21.2.6 Asian Human Rights System
** § 21.3 Critique of Human Rights
* § 22 International Criminal Law
** § 22.1 International Crimes
** § 22.2 International Criminal Courts and Tribunals
** § 22.3 Domestic Prosecution of International Crimes
* § 23 International Economic Law
** § 23.1 Investment Law
** § 23.2 Trade Law
** § 23.3 Monetary Law

## Footnotes

* ↑ The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
* ↑ Antony Anghie, 'Identifying Regions in the History of International Law', in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012) 1058.
* ↑ For example, Egypt, Libya or Morocco.
* ↑ For example, Egypt, Libya or Morocco. On the African system, see Rachovitsa, § 21.3, in this textbook.
* ↑ Malcolm D Evans, 'The Future(s) of Regional Courts on Human Rights', in Antonio Cassesse (ed) Realizing Utopia: The Future of International Law (OUP 2012) 261, 271.
* ↑ On how the notions of diversity and coherence play out in the regional development of the Asian system of human rights; see, Rachovitsa, § 21.7 in this textbook.
* ↑ On NGOs, see Chi, § 7.6, 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 Christopher G Weermantry, Islamic Jurisprudence – An International Perspective (Macmillan 1998) 30-58; Mashood A Baderin, International Human Rights and Islamic Law (OUP 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.
* ↑ Mashood A Baderin, 'The Human Rights Agenda of the OIC: Between Pessimism and Optimism', in Marie J Petersen and Turan 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 Mashood A Baderin, International Human Rights and Islamic Law (OUP 2005) 133-155.
* ↑ Explanatory note 1(b).
* ↑ For discussion on the notion of the duties of the individual, see Rachovitsa, § 21.3 in this textbook.
* ↑ Christopher G Weermantry, Islamic Jurisprudence – An International Perspective (Macmillan, 1998) 125-127; Patrick Glenn, Legal Traditions of the World (OUP 2014) 224.
* ↑ 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.
* ↑ 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 Hauck, § 1, 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.
* ↑ Ibid.
* ↑ 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, Libya, Palestine, Qatar, Saudi Arabia, Sudan, Syria, United Arab Emirates and Yemen. Comoros, Djibouti, Oman, Morocco, Somalia and Tunisia have not yet ratified the Charter.
* ↑ 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.
* ↑ On the role of the claw-back clauses in the African Charter on Human and Peoples' Rights see Rachovitsa, § 21.3, in this textbook. On the relationship between domestic and international law see Kunz, § 5, in this textbook.
* ↑ Council of the LAS Resolution no 7790 EA (142) C 3. Unofficial translation in English. For discussion, see, Ahmed 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.