Upon entering into force, is there a chance for the Arab Charter of Human Rights (ACHR) to be activated?
The deliberations in the consultative meeting held in Cairo on December 29th, 2007, in cooperation with the UN High Commission of Human Rights, Amnesty International, and Cairo Institute for Human Rights Studies (CIHRS) in order to discuss the methods of activating the Arab Charter of Human Rights (ACHR) were based on the well known juristic rule that “what can not be fully attained should not be completely discarded”.
The meeting was attended by a number of experts from the League of Arab States, as well as Arab experts representing the Arab states that have ratified the charter and from Egypt, the host country of this meeting.
The meeting was particularly important as the Arab Charter of Human Rights adopted by the League of Arab States in the Arab Summit held in Tunisia May 2004 is likely to enter into force soon after six Arab countries have so far ratified it, namely Jordan, Bahrain, Algeria, Palestine, Syria, and Libya. Therefore, despite all substantial criticism made about its issuance, this instrument is likely to become a reality upon the ratification of a seventh state. The opportunities of activating and developing such reality must be studied in order to cope, one way or another, with the developments seen in other regional and international human rights mechanisms.
The modest hopes for the Arab Charter of Human Rights activation are based on a few considerations, the foremost of which are the following:
1. The final instrument adopted in the Tunisia 2004 summit was quite advanced, if compared to the 1994 Arab Charter of Human Rights. Some viewed this as an indication of change, at least, in the Arab regimes’ official discourse in terms of human rights standards and principles.
2. In the recent stages, the Arab Charter of Human Rights update process has witnessed a will on the part of the League of Arab States, in an unprecedented step, to accept the proposal of the Higher Commissioner on Human Rights to incorporate a team of independent Arab experts in the instrument update before its adoption. Though only partially the contributions of this team were taken into consideration. This was reflected in some aspects of the final instrument, especially the stipulation under Article 43 which prohibits the interpretation of Arab Charter of Human Rights in a manner jeopardizing the safeguards set forth in regional and international human rights instruments, especially with respect to women, children and minorities. Several experts thought that the adoption of this article will allow the Arab Human Rights Committee, which is assigned to monitor the commitment of the Arab States Parties to the charter, to comment and interpret the Arab Charter of Human Rights provisions in terms of the international human rights standards, avoiding many aspects of deficiency and ambiguity found in some Arab Charter of Human Rights provisions.
Within this context, the interventions reflected that some considered the consent of the Arab Charter of Human Rights drafting committee to several observations and proposals made by the Arab experts at that time an encouraging factor for the Arab experts and human rights organization representatives to pursue their efforts well into the current stage. This is to assist the experts on the Arab Human Rights Committee, to be formed after the Arab Charter of Human Rights enforcement, and thus develops the committee’s work and strengthens the available – though modest – mechanisms for monitoring and assessing governmental performance.
3. The Arab Charter of Human Rights comprises some flagrant defects, especially in terms of lacking the minimal mechanisms regionally and internationally recognized in the field of Human rights. Many provisions also have clear deficiencies. Notwithstanding all this, there is still a window of opportunity to amend Arab Charter of Human Rights in the future, in accordance with Articles 51 and 52. Some shortcomings can also be redressed in the future under the provisions of Article 52, which entitles the States Parties to propose additional optional annexes to the Arab Charter of Human Rights. Therefore, the doors are not utterly closed in the face of introducing specific mechanisms through such protocols.
In the meantime, quite a good number of interventions have pointed out to the fact that legitimate hopes for activating the Arab Charter of Human Rights contradict with the following realities:
1. The final version of Arab Charter of Human Rights is still contradictory to the international human rights standards and is still lagging behind similar regional and international instruments, despite the lapse of several decades on the issuance of these instruments. Although it is acknowledged that the Arab Charter of Human Rights includes several human rights safeguards, many of them are of no value, for it has given the local legislation the upper hand compared to other provisions, especially as regards the right to movement, the freedom of thinking, belief, and religion, the rights of workers coming from abroad as well as the right to strike. In fact, it goes as far as permitting the death sentence to minors under the age of 18 years, given that the local legislation permits it. Further, Arab Charter of Human Rights manipulates women’s rights and lacks deterring safeguards incriminating torture. It also lacks clear and sufficient safeguards for the freedom of founding parties and trade unions.
The Arab Charter of Human Rights has set forth a number of commitments upon governments that can be deemed as frail, compared to other commitments imposed upon governments under other regional and international, or even under their own national constitutions. This probably partially explains the reluctance of several governments to finalize the ratification procedures and accede to the Arab Charter of Human Rights.
2. The success of Arab human rights experts in affecting – even if partially – the final drafting of the Arab Charter of Human Rights was hinging at the time on the growing internal and external pressures for democracy and human rights, which obliged the Arab regimes to listen to some reformist voices. Nonetheless, the opportunities of having similar effect now are, by far, diminishing, taking into consideration the significant withdrawal of international pressures and the tendency of major states to favor strategic and security interest with oppressive regimes over the support of democracy and human rights issues. This, in turn, coincided with an attack in many Arab countries on the permitted margin of freedoms. It is indeed indicative how the two thirds of Arab governments that agreed unanimously on the Arab Charter of Human Rights during the Tunisia Summit are now reluctant to finalize the ratification procedures. This reflects the absence of the political will on the part of Arab regimes to minimally activate the Arab Charter of Human Rights. It is also indicative, in this context, how many Arab governments are currently active in the United Nations with the aim of exercising pressures to prevent the development of international mechanisms to protect human rights.
3. The opportunities of activating the Arab Charter of Human Rights are, by far, hinging upon the nature of the Arab human rights committee, given that the Arab Charter of Human Rights assigns the members of this committee to set the rules for its work, and the methods and regularity of its meetings and that the committee is to interpret the provisions of the Arab Charter of Human Rights. In some interventions, it was reflected that there were concerns about the trends that may emerge from the committee’s first structure, taking into consideration that only the ratifying countries are entitled to form this committee from among its citizens and that generally these ratifying countries are not the most open ones in terms of human rights standards. Even worse, some of them, such as Libya and Syria, are among the most hostile to those standards. In some interventions, there was a call for activating the efforts for encouraging the ratification of the Arab countries in order to avoid the hegemony of the governments that are most hostile to human rights over the committee’s work.
4. Talking about activating the Arab Charter of Human Rights necessitates giving way to civil society organizations inside the League of Arab States and to adopt the tradition common at the UN and other regional organizations. Among these traditions are: giving civil society organizations either the status of an observer or the consultative membership; or adopting those organizations’ reports as sources of information; and enabling them to discuss government reports. These traditions are contradictory to the League of Arab States’ code of procedure which requires a legal license and a recommendation of state government to grant the status of an observer to any organization from that state. These rules ban in advance the civil society organizations that suffer prosecution and denial of legitimacy in a large number of Arab countries.
In the context of these analyses, the participants’ deliberations expressed realistic, pragmatic and modest expectations. Some ideas and broad lines of action for the short, medium and long terms were voiced. In the interventions, the importance of developing these ideas was stressed through future meetings to be held in more than one Arab country.
The key ideas expressed in the meeting were as follows:
I- On the short term:
The participants found that the most urgent tasks in the current stage are those concerned with the criteria according to which the experts on the Arab Human Rights Committee are elected. These criteria were introduced by the Arab Charter of Human Rights. Another urgent task is to set the rules and guidelines assisting the committee members in setting the rules of the committee’s work, elaborate its mandates, and open the door for the participation of the civil society organizations, especially as regards the only mechanisms permitted under the Arab Charter of Human Rights for governmental performance assessment, namely, considering government reports.
Within this context, the participants called for the following:
1. As regards the rules of Arab Human Rights Committee experts election, the participants stressed the following:
• The importance of complete transparency and disclosure on the part of Party States during the elections procedures, thus enabling the civil society organizations to express their views concerning the governments’ nominations, as well as encouraging the states to accept the role assumed by the civil society in the nomination of experts as recommended by the civil society organizations.
• Observing that the criteria of the experts’ nomination should not only encompass experience, efficiency, neutrality and integrity, but also the expertise in the field of comparative legal systems.
• Observing gender-based representation consideration in the nomination and election criteria.
• Advocating the right of any Party State to nominate experts from another Party State to the Arab Charter of Human Rights.
2. As regards the Arab Human Rights Committee code of procedure, the participants provided many suggestions to help the committee in this task, and in drafting a code of procedure guide. Most important among these suggestions were:
• Adopting the principle of the expert’s (committee member) abstention from any discussion that is related to his/her country.
• The issues unspoken by the Arab Charter of Human Rights, or those vaguely tackled give the committee a wide room to activate its role through the code of procedure it sets for itself. These rules should include the committee’s right to issue general commentaries, and to inform the public opinion of its recommendations and the outcomes of discussing government reports after ad hoc sessions, without waiting to incorporate such recommendations and discussion outcomes in its annual report.
• The committee code of procedure should include rules granting it the right to request the information it needs either from other bodies of the League of Arab States or any other agencies, including civil society organizations or national human rights institutions working within the framework of the Paris Principles.
• The committee should have the right to access information independently, in case a Party State fails to submit its report on the set dates.
• The committee code of procedure should form a follow-up committee of the committee members, to follow-up the implementation of the Arab Human rights committee recommendations upon discussing governmental reports, including information requests to government, additional clarifications, and reminding governments of their commitments to submit the reports required on the previously set dates.
• The committee code of procedure should acknowledge its right to set guidelines to be adhered to by the governments in preparing their primary and international reports. These guidelines should include the governments’ commitment to publish to the best of their ability the government report, the discussion outcomes and the final observations made by the committee experts.
• The code of procedure should emphasize the right of the committee experts to provide explanations and interpretations of the Arab Charter of Human Rights provisions.
• The committee should set transparent and disclosed standards and rules as regards the appointment of committee assisting staff, in order to ensure that professional efficiency and legal experience become the basis of appointment.
3. As regards the potentials of activating the role of civil society organizations through the mechanisms enabled by the Arab Charter of Human Rights, the participants stressed the fact that although the Charter does not include a role to be assumed by NGOs, it must be advocated that the Arab Human Rights Committee code of procedure should include rules that allow NGOs to provide commentaries or reports parallel to governmental reports. In some interventions, it was noted that the constraints on granting these organizations the status of an observer do not prevent the Arab Human Rights Committee from adopting the traditions found in the UN, allowing the participation of civil society organization in UN treaty bodies, even if not granted the consultative status in the ECOSOC. This includes discussing governmental reports, preparing shadow reports and even participating in drafting the final remarks for these bodies on the reports submitted by governments.
Within this context, the participants suggested that the League of Arab States would take the initiative through the Arab Standing Committee on Human Rights to organize a series of seminars to be attended by NGO representatives as well as Arab experts who are members of UN treaty bodies to discuss the short-term issues, especially those related to the work method at the Arab Human Rights Committee and the relation with NGOs. The participants also called on the League of Arab States’ bodies to reconsider the constraints on giving the civil society organizations the status of an observer in the League of Arab States.
II. On the Medium and Long Terms
The participants were of the view that it is difficult in the short term to look forward to developing or introducing protection mechanisms that are not mentioned in the Arab Charter of Human Rights. In the deliberations, it was noted that it is unlikely in the short term that the Arab government would, for instance, accept adding a protocol that grants the Arab Human Rights Committee the right to consider complaints, taking into consideration that the majority of Arab countries have not acceded to other similar protocols adopted by the UN. Therefore, the hope remains to introduce such mechanism on the medium or long term. Some participants believed that the ideas pertaining to introducing new systems, like special rapporteurs to study some issues or conditions in a given country, or introducing the post of an Assistant Secretary-General for Human Rights at the League of Arab States, may be considered on the medium term. Many participants saw that constructive talks with government about any ideas of amending the Arab Charter of Human Rights may not be possible except in the long term.
At the end of the consultative meeting deliberations, the participants stressed the fact that developing the human rights system at the League of Arab States required:
• Reviewing many of the current Arab conventions to ensure their compatibility with human rights standards. The participants further emphasized the necessity of such review particularly for the Arab Convention on the Suppression of Terrorism.
• Referring any draft conventions to be adopted at the League of Arab States to the Arab Standing Committee on Human Rights for study.
• Opening the closed doors at the League of Arab States for the civil society organizations, without restricting the access to the organizations whose respective government approve of granting them the status of an observer.
The participants called on the meeting organizers to hold large-scale meetings in a number of countries to develop activity programs and action plans to realize the hopes and support the goals for the activation of Arab Charter of Human Rights on the short, medium and long terms.
-The report reflects the meeting discussions, and the opinions expressed herein are not necessarily those of all participants and their respective organizations.
-The Arab Charter of Human Rights has already entered into force as the United Arab Emirates finalized the ratification procedures at the time the present report was prepared.
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