The revised Arab Charter on Human Rights: A step forward?

Human Rights Law Review

Volumn 5, Issue 2, 2005, Pages 361-376

  Rishmawi, Mervat ^a  

^a AMNESTY INTERNATIONAL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 30844437296     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngi021     Document Type: Review

References (65)

1. The full text of the revised Arab Charter on Human Rights is included as part of the final report of the Summit of the League of Arab States of 22-23 May 2004, and is available in the official Arabic text on the website of the League of Arab States at: http://www.arableagueonline.org/ arableague/index.jsp. An English translation of the Charter prepared by the Office of the High Commissioner for Human Rights is reproduced at 12 IHRR 893 (2005).
2. Member States of the Arab League are: Algeria, Bahrain, the Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates and Yemen.
3. For example, the Cairo Institute for Human Rights stated that the original 1994 Charter stems from a logic that considers the Arab person at a lower level than other people. See Statement by the Cairo Institute for Human Rights, 'The Cairo Institute Calls on the Arab League to Adopt the Draft Charter Prepared by the United Nations', 5 January 2004 (Arabic). Amnesty International also made comments on the 1994 Charter at different stages of the drafting. See 'Comments of Amnesty International on the Draft Arab Charter on Human Rights', December 1993. Amnesty International raised concerns in relation to various provisions including: General limitations and derogations; right to life; prohibition of torture and ill-treatment; right to liberty and security of person; freedom of movement; freedom of thought, conscience and religion; freedom of expression; freedom of association; and, the right to a fair trial; in addition to observations about the implementation of the Charter. The International Commission of Jurists (ICJ) stated that the 1994 Charter 'is marred by fundamental deficiencies: It contains important omissions, guarantees rights only superficially, offers expanded possibilities for restrictions and derogations to the rights guaranteed, and above all contains no real mechanism to monitor respect of these rights. See 'The Process of "Modernising" the Arab Charter on Human Rights: A Disquieting Regression: Position Paper of the International Commission of Jurists', 20 December 2003. For a detailed statement of the ICJ position on the 1994 Charter, see International Commission of Jurists, 'Arab Charter on Human Rights Must Meet International Standards', 20 June 2003.
4. See Resolutions of the Council of Ministers of the Arab League 6184, March 2002 and 6243, September 2002, only available in Arabic at: http://www.arableagueonline.org/arableague/index.jsp.
5. NGO Written Statement, Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements, 26 February 2004, E/ CN.4/2004/NGO/64. See also UNCHR Res. 2005/73, Regional arrangements for the promotion and protection of human rights, 20 April 2005, E/CN.4/RES/ 2005/73.
6. Article 19 of the Charter of the Arab League allows for amendment of the Charter, especially in order to establish an Arab Court or Tribunal. There was a decision by the League in 1996 agreeing, in principle, to establish an Arab Court of Justice, but this is yet to come to fruition.
7. Decision 6302/119 (Part II) of the Council of the Arab League, 24 March 2003. See Report of the Arab Group of Experts who are Members of United Nations Human Rights Bodies to Review the Draft Modernization of the Arab Charter on Human Rights, December 2003, at para. 2.
8. See OHCHR, Arab Region: Quarterly Report of Field Office, 22 September 2004.
9. Interest in the Charter among NGOs was reflected through different activities. Some international, regional and even national NGOs were aware of the process and were extremely interested in following it up and finding ways of influencing it. They organised meetings and conferences aiming at arriving at a common position. One such conference, entitled 'Towards an Effective Regional Protection of Human Rights: Which Arab Charter on Human Rights?', included participants from 36 local NGOs and 11 international NGOs and inter-governmental organisations, as well as 15 legal, academic and media experts. In addition, seven governmental and parliamentarian members, representatives from the Arab League and the OHCHR also attended. See 'Towards an Effective Regional Protection of Human Rights, Which Arab Charter on Human Rights?', June 2003, available at: http://www.cihrs.com/ focus/alkethaq/final-report.htm. There were also direct submissions by NGOs to the Committee of Experts (they did not actively lobby governments to influence voting). For example, submissions were made by the Cairo Institute for Human Rights on behalf of 34 national and regional NGOs, and input at various stages of the drafting process was given by Amnesty International and the International Commission of Jurists.
10. Resolution of the Council of Ministers of the Arab League 6405, 4 March 2004.
11. As will be discussed later, some of the rights included in the human rights law canon that were omitted from the Charter include: The absolute prohibition on the execution of children under 18; prohibition of advocacy for hatred or war; and, restrictions on the freedom of conscience, religion and belief.
12. Information obtained by the author from the Human Rights Directorate of the League. The seventh State that has signed the Arab Charter is not known by the author.
13. In one of its submissions, Amnesty International stated that the organisation believes that 'the new Charter reflects developments in international human rights law and standards, including the development of jurisprudence.' See Amnesty International, 'Middle East and North Africa Region: Re-drafting the Arab Charter on Human Rights: Building for a Better Future', AI Index MDE 01/002/2004, 11 March 2004, available at: http://web.amnesty.org/library/index/ENGMDE010022004.
14. 999 UNTS 171.
15. General Comment No. 29: States of Emergency (Article 4), 31 August 2001, CCPR/C/21/Rev.1/Add.11
16. 9 IHRR 303 (2002), at para. 13.
17. GA Res. 54/4, 10 December 1999, A/RES/54/4.
18. 999 UNTS 171.
19. GA Res. 57/199, 18 December 2002, A/RES/5/199.
20. GA Res. 54/263, 25 May 2000, A/RES/54/263.
21. For the purposes of this article Palestine is considered a State. See the Declaration of the Palestine National Council, (1988) 27 International Legal Materials 1670.
22. The Preamble rejects 'all forms of racism and Zionism, which constitute a violation of human rights and a threat to international peace and security'. On the Charter and Zionism, see text infra accompanying n. 37.
23. GA Res. 217A(III), 10 December 1948, A/810 at 71.
24. With the exception of the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW), 1249 UNTS 13, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, 11 IHRR 269 (2004).
25. GA Res. 53/144, 9 December 1998, A/RES/53/144.
26. SC Res. 1325, 31 October 2000, S/RES/1325 (2000). This is becoming a milestone resolution in relation to ensuring protection and promotion of the rights of women in conflict and post-conflict situations.
27. This question is evidenced in the reservations by Arab countries to various human rights treaties. See, for example, Amnesty International, 'Reservations to the Convention on the Elimination of All Forms of Discrimination against Women: Weakening the Protection of Women from Violence in the Middle East and North Africa Region', AI Index IOP 51/ 009/2004, 3 November 2004.
28. 993 UNTS 3.
29. A/CONF.157/PC/62/Add.18 (1993) [English translation].
30. Article 2(d) of the Cairo Declaration states that 'safety from bodily harm is a guaranteed right. It is the duty of the State to safeguard it, and it is prohibited to breach it without a Shari'ah-prescribed reason.'
31. Saudi Arabia and Mauritania have entered a general reservation to CEDAW without specifying provisions, while the Comoros, Djibouti, United Arab Emirates and Yemen have not entered reservations to any of the rights-related provisions of the treaty.
32. For a thorough analysis of reservations entered to CEDAW by Middle East countries see Amnesty International, supra n. 26.
33. This is with the exception of Palestine which is unable to ratify international instruments.
34. 1465 UNTS 85.
35. The following Arab States have ratified CAT without substantive reservation: Algeria, Bahrain, Egypt, Lebanon, Morocco, Qatar, Syria, Tunisia, United Arab Emirates and Yemen.
36. The following are party to the ICCPR and ICESCR without reservation: Egypt, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia and Yemen.
37. For a thorough analysis of freedoms and good governance in Arab States, see 'The Arab Human Development Report 2004: Towards Freedom in the Arab World', United Nations Development Program, 2005.
38. 10 November 1975, A/RES/3379 (XXX).
39. GA Res. 46/86, 16 December 1991, A/RES/46/86 states 'The General Assembly decides to revoke the determination contained in its resolution 3379 (XXX) of 10 November 1975.'
40. Amnesty International, supra n. 13.
41. International Commission of Jurists, supra n. 3.
42. 1577 UNTS 3.
43. Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, 2nd edn (Oxford: Oxford University Press, 2004) at 167.
44. See also, para. 7(f), UNCHR Res. 20 April 2005, E/CN.4/RES/2005/59, which states that: 'the notion of "most serious crimes" [should] not go beyond intentional crimes with lethal or extremely grave consequences ... [or be] imposed for non-violent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults nor as a mandatory sentence.' For a review of the death penalty in the region, which extends in some jurisdictions beyond these limits, see Amnesty International Annual Report 2005, available at: http://web.amnesty.org/report2005/index-eng.
45. Para 6, Human Rights Committee, General Comment No. 6: The Right to Life (Article 6), 30 April 1982, A/37/40, Annex V at 93
46. 1-2 IHRR 4 (1982).
47. Ibid.
48. Except for Palestine and Somalia.
49. Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Somalia, Sudan, Syria, Tunisia and Yemen.
50. See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 22 December 2004, E/CN.4/2005/7
51. and Amnesty International Report, 'STOP CHILD EXECUTIONS! Ending the Death Penalty for Child Offenders', AI Index ACT 50/015/2004, 15 September 2004.
52. As to pregnant women, Article 7(b) provides: 'The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration.'
53. Article 1, CAT defines torture as: ... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
54. See Article 15, CAT. The Human Rights Committee has also said that 'the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.' See para. 12, Human Rights Committee, General Comment No. 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, 10 March 1992, A/47/40 (1992), Annex VI at 193
55. 1-2 IHRR 26 (1993).
56. See Article 3, CAT and Article 7, ICCPR, as to which see Joseph, Schultz and Castan, supra n. 42 at 230.
57. See CEDAW General Recommendation No. 19, Violence Against Women, 19 January 1992, A/47/38
58. 1-1 IHRR 25 (1993).
59. For example, an analysis of laws discriminating against women in the Gulf region, see Amnesty International, 'Gulf Cooperation Council (GCC) Countries: Women Deserve Dignity and Respect', AI Index MDE 04/004/2005, 11 May 2005.
60. CEDAW General Recommendation No. 5, Temporary Special Measures, 4 March 1988, A/43/38
61. 1-1 IHRR 16 (1993).
62. Para. 6, Human Rights Committee, General Comment No. 12: The Right to Self-Determination of Peoples (Article 1), 13 March 1984, A/39/40 (1984) Annex VI at 142
63. 1-2 IHRR 10 (1993).
64. See para. 8, Human Rights Committee, General Comment. No. 24: Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations Under Article 41 of the Covenant, 4 November 1994, CCPR/C/ 21/Rev.1/Add.6
65. 2 IHRR 10 (1994).