Which Arab Charter on Human Rights

After being lately updated by the permanent committee for Human Rights, the Arab charter on human rights project has been the core of a symposium organized by the Cairo Institute for Human Rights Studies in the premises of IBN ROSHD Saloon: under the title “Will the Arab System respond to the Reform claims? Which Arab Charter on human rights?” Mr. Bahy-el-Din Hassan mentioned at its beginning that the Arab Charter on Human rights was issued by the Arab League in September 1994 after long discussions in the Arab League premises for about 20 years. He said that although nine years had elapsed after being issued, it was still not authenticated by a single Arab country and so it had not been carried out. He also said that since the issuing of the charter, it was not satisfactory to the public opinion but it was criticized bitterly by Human Rights organizations whether Arabic or international. He added that in April 1999, and within the framework of the conference organized by the Cairo Institute for Human Rights Studies in Casablanca, about 40 Arab organizations for human rights invited the Arab League to re-consider the Charter as it contradicted the minimum criteria of respecting human rights and called for a new agreement to be set actually guaranteeing human rights.
Bahy el-Din added that the call adopted by the Arab League in the year before which concentrated on the Arab Charter on human rights was not clear enough about the direction of updating. He also asked if it was related to time or modernization or dissatisfaction with the original Charter.
He also said that since the Arab League opened discussions about updating, non-governmental organizations in the Arab world held consultations, discussions and conferences. The first conference was held in Amman, the second in Sana, the third in Cairo, the fourth in Geneva and the last in Beirut. It was organized by the Cairo Institute for Human Rights Studies. 36 Arab organizations, 11 international organizations and a number of experts including government experts and Arab Parliamentarians took part in it. The conference ended in the Beirut ‘declaration’ for regional protection of human rights. It referred that the essence of the declaration was the rejection of what the participants felt that the attitude in the Arab League was making some improvements, in form only. Many of the participants also felt that was linked with a process of make-up to the face more than a real awareness of developing human rights. Mr. Bahey el-Din made it clear that in spite of distributing the Beirut declaration among the members of the permanent committee and allowing the chairman of the Moroccan organization for Human Rights to present the declaration in detail in the meetings of the committee last June, the updating did not reflect any of what the Beirut declaration included in the form of what was called “the modified declaration for human rights” in October 2003 referring to what was described as an important development in this context shown in the direction of the secretariat general of the Arab League to Office of the High Commissioner for Human Rights for advice about the ‘updated’ declaration. A positive response was made in spite of the shortness of the period as the office was requested to give its opinion within a period up to December.
Mr. Farag Fineesh, coordinator of the program of the Arab Region in the ‘Supreme commissioner’s office for Human Rights began his talk referring to the big role of the non-governmental Arab organizations in evoking the topic of the Arabic declaration of human rights. He, then, mentioned the circumstances of the Arab area referring to what was included in the humanistic development reports about the basic obstacles of economic, political, cultural and social development in the Arab region. He said that three factors caused them: First empowering woman and giving her the opportunity to participate in all fields, second, the issue of “freedom for all” and third, reaching knowledge. He emphasized the importance of releasing freedoms and respecting human rights and democracy so that the Arab region could develop in all fields.
Fineesh made it clear that the project of the “High commissioner” which included basic modifications in the updated project of the Arab Charter on human rights resulted from the ideas expressed by the Beirut declaration. One of its recommendations invited the Arab League to ask for technical counseling from the “High commissioner” in updating the declaration. He also said that the “High commissioner” suggested that the Arab League Chairman join some Arab experts in the organizations and the international committees for human rights to consider what was reached by the permanent committee of the League regarding revising the process of updating and in particular, the suitability of the new project to the international criteria for human rights. According to the acceptance of the League, the “High commissioner” chose experts who satisfied the cognitive, geographical and gender levels (men and women) saying that such a team began work to see the suitability of the declaration with the international criteria of human rights and presenting the remarks or the new forms of what was not suitable, in the declaration, for such criteria.
Fineesh emphasized that the work of the experts was only technical and consultative and the Arab committee for human rights could take what it wanted and leave what it did not.
Fineesh said that according to the remarks of experts, the 1994 declaration and the updated one were not well-balanced in their forms and incoherent in some of their items. In certain cases they had some phrases which could not be explained. This might lead to different contrasting interpretations according to the interpreter’s wish. He gave examples from what was in the proposed declaration ‘according to the legislation’. Before that it was ‘according to law’ in a number of articles thinking that the purpose of adding the word ‘legislation’ to the law was for the interpretation to go with Islamic Legislation (Shari’aa).
He added that what was new and unexplained in the declaration the phrase “man and woman are equal in human dignity, rights, and duties, under the positive discrimination which was stipulated by Islamic Shari’aa and other heavenly Legislations”. Fineesh described the phrase as a new addition that could not be explained by a common form among the nations or citizens asking about the positive discrimination which was stipulated by Islamic Legislation in that respect.
Fineesh referred to another remark in the proposed declaration which was its selectivity to some articles included in the international charters. But Fineesh saw that there were some positive aspects in the proposed declaration in regard to all content. He mentioned some rights which were not included in the 1994 declaration such as the independence of the Jurisdiction Authority and the elaborated expression of determining the proposed follow up potentialities for the execution of such a declaration. In that respect he referred to the fact that some articles specified the tools of execution included two articles only in the 1994 declaration whereas in the updating there are seven articles interpreting how to elect (select) the members of the committee and their tasks. He also showed that still the tools of execution fall short of practicality.
Fineesh said that the common stand of several observers and organizations (non-governmental) was that 1994 declaration lacked some rights and freedoms and it contained some articles that contradicted with some international recognized criteria, the same as in the proposed updated project alluding that in spite of the specific additions, there was withdrawal of some principles found in 1994 declaration, one of which was giving up prevention of capital punishment in political crimes. He said that in about 7-10 articles in the updated declaration the phrase ‘if the Legislation and law did not state otherwise’ He commented saying, ‘Why, then, the declaration if the law or legislation was enough to guarantee the rights?’
He said that the general impression of the new declaration was an attempt on the part of the permanent Arabic committee to find a phrasing approved by all. He stressed the idea that the achievement of that goal was accomplished at the expense of the proper understanding of the material in focus. He also said that the new declaration was built on the basis of the common interest but not on the basis of the principle. It did not take into consideration that there were principles in the field of human rights that should be intact such as the principle of non-discrimination which is not a plaything.
Fineesh said that the experts who revised the declaration were in a bad situation as they were asked to play acrobatics. He then came to ask how the declaration could be in accordance with the international laws and accepted by the Arab governments or non-governmental organizations or the governments as well; how it could be well-balanced between universality (globalization) and Arab particularity and ‘what are the Arab particularities?’ He alluded that it would be useful to talk about particularity if it had benefits and put in the declaration to be an addition to the universal thought and international gains in the field of human rights.
Fineesh ended up emphasizing that the reform of Arab system as a whole (at large) required taking very brave and bold measures specially in that time and that the Arab declaration was a step for the Arab League and the Arab countries to create “a change” of their own instead of receiving change from outside the patriotic Arab will.
Then, Dr. Hassan Nafaa, professor and chairman of political sciences Dept. in the Faculty of Economy and Political Sciences, Cairo University, began his speech by saying that the cause of Reform in the Arab League was bigger and more general and important than the topic of human rights. He emphasized that he had previously made a comparative study between the Arab League Charter and the United Nations’ Charter. He did not find in the Arab League charter a single word about human rights whereas the U.N.’s charter talked about human rights tens of times. He said that the Arab League might be excused for that failing as the Arab League’s charter came a few months before the U.N.’s charter. Meanwhile, he said that that might reveal that when the Arab world thought of establishing a regional organization, the idea of human rights had never crossed its mind.
Nafaa said that the Arab League cared, at a later stage, for the cause of human rights. That was because the United Nations financed, demanded and urged for that. He also said that the United Nations asked in 1968 the regional organizations to celebrate the 20th anniversary for the Universal Declaration of Human Rights. Therefore, The Arab League was timidly forced to participate and started to talk about the human rights of the Palestinians and their lives in the occupied territory. That was a means to show that the Arab Nations cared for human rights and that the only rights which were usurped in the region were the Palestinian rights and that there was another foreign part which usurped such rights. He said that nobody had talked about the serious violations of human rights that were practiced daily by the Arab regimes which were, in most cases, illegal and unlawful, not elected and dictatorial.
Nafaa added that as pressure against Arabs and Arab regimes increased for so many reasons, talk began about the particularity of the Arab World, Arab Culture and that it was not essential for the concepts and universal heritage of human rights to be the same. Claims to reconsider the Arab heritage and Arab particularity appeared.
Nafaa mentioned that the universal (global) heritage of human rights was not liberal and Western only and that there were several basic waves of human rights, the first of which is the liberal wave which was contributed to by the different revolutions whether in England, France or America. Then, came the wave of Socialism which threw light on the economic and social dimensions of the causes of human rights. Again, there came the revolutions of the third world which considered the dimension specific to the rights of the peoples and the dominance over the resources … etc. New movements such as the movement of the greens who advocated the right of a clean environment and a peaceful life … etc; it was the wave of the fourth generation for the human rights. All these waves emphasized that the whole world contributed to the heritage of human rights.
Nafaa stated that some people talked about the Arabic culture as if it were hostile, by nature, to human rights. This is far away from Arabic and Islamic culture. He referred that there were some aspects in the liberal heritage which did not cope with the Arabic and Islamic culture such as the subjects of inheritance and homosexuality. He added that Arabic cultures had to have its say in such causes. It should distinguish itself and determine the scope of liberty in it warning not to use particularity as a justification or a cover to reduce the other rights of man such as the right to speak freely, to express your opinion freely, form political parties, syndicates, non-governmental organizations and the different legal rights and not to discriminate … etc. because that was a universal heritage and that the proper understanding of Arabic and Islamic culture revealed a lot more than the traditional liberal culture in that respect.
He concluded that we should adopt the Universal heritage with regard to maintaining and respect of human dignity and basic rights. As for practicing freedom in the fields which he spoke about, there was, indeed, particularity of customs, traditions and religions of peoples which should be respected. The attempt of some non-governmental organizations in Western countries to impose such a thing as a universal human tradition should be rejected and should be resisted strongly. Meanwhile, he emphasized the fact that the Arab World should not busy their heads in sand and defend the reasons and motives which they presented the Arab and Islamic particularity in that respect, which in no way reduced the causes of liberty and liberalism.
He said also that when the Arab World investigated a new charter on human right, it could present something new in which it adopted all human heritage associated with freedoms and dignified it and showed its particularity in the causes previously mentioned.
Regarding the tools of protecting human rights at the regional level, Nafaa said that that was a big problem for which there was no solution at all. He added that there were two patterns or models in the law and international organization: the first was the pattern of committees adopted in the framework of the United Nations, the committee of human rights and other committees coming out of international agreement and treaties. He referred to the fact that the work of such committees was rather limited and that the committees practised abstract pressure over the governments and that the farthest they could go in the Arab World was to form a committee selected from the governments’ representatives to be given the right to receive the nations’ complaints without being able to discuss such complaints considering that to be an impossibility that needed a revolution!
Nafaa added that the second pattern which was used in the European Community. It is represented in the European Court of human rights. It received not only the complaints of nations but also the complaints of citizens and those living there. It could judge in cases where individual citizens were opponents of the government. He referred to the fact that European countries (nations) were basically democratic nations. That meant that the existence of democratic systems would enable the issuance of international charters and treaties of human rights and the tools of implementation and respect.
Nafaa said that he was not optimistic of what was happening in the Arab World. His reasons for that were that in spite of the limitation of 1994 declaration, no single Arab country authenticated it. He expected that it would be similar to the modified charter. Thus, they would go through a vicious circle of discussing the text only. They would end up with a text that would not be satisfactory. The Arab Countries would not sign it because there were no tools of implementation at the regional level.
Nafaa expressed his view that there would be no real progress of human rights in the Arab world unless the tools for respect of human rights were stated right in the charter preferring that there would be an Arab court of justice for human rights. He ended by questioning the possibility in the light of the Arab situation as such of respecting human rights emphasizing that that would not be accomplished unless there was real democracy with legality and respect of human rights.
Better Alternatives:
Dr. Mohamed El-Sayed Said, vice director of the centre for strategic and political studies in Al-Ahram, began by reminding the audience of his commitment to the idea of the regional approach of the legal protection of human rights and in particular, the Arab situation. He referred that such an introduction had some functions such as dynamism which led to an emphasis on globalization. He said that there were some areas of cultural particularity which could add new meanings of universal (global) heritage. He said that such functions and other functions were insignificant in the case of the Arab system in particular.
Said said that the regional approach was always a bad idea and it was worse in the Arab situation as the Arab League was the biggest regional congregation of dictatorial autocratic systems. He added that several experts thought that the permanent Arab failure was due to some reasons such as absence of rational speeches, organizational weakness of the Arab state and its dictatorial nature. He went on to ask if the Arab League owned a will otherwise.
He believed that there were seven projects to improve the Arab League and that the Saudi paper did not exceed two pages based on one expression and that was ‘participation’ whereas the Yemeni was the most detailed. The human rights topics were mentioned more that once whereas it was only once mentioned in the Egyptian project.
Dr. Said said that the seven projects had something in common and that was an emphasis on the modification of voting system as well as reference to security causes. He again referred to the system of the Arab produced tons of agreements in all fields with the execution of none, not even economic agreements or treaties.
He said that a project such as the establishment of an Arab Court of Justice went through a queen stage that was unimaginable except in absurd stories (novels) expressing his view that the invitation to prepare a new declaration for human rights could be achieved after settling all big debates and the settlement of the Arab mind on a set of basic principles, which had not happened so far.
He emphasized that that did not mean that we should leave out the cause of the charter but it meant following different paths to the Arab League. He mentioned first the modification of the Arab project of the Court of Justice as its draft is serious. It contained no articles stating the sight of the citizen to resort to that court to get a sentence against a nation or articles stating that the general reference of the court would be to the international agreements as many of the Arab states might wish to get a daily negotiating approach more than its wish to get into integrated obliging charter like the Arab Charter on Human Rights.
Said added that concentration on an Arab Charter could be made up for through a concentration on an agreement for establishing an Arab committee for human rights the task of which would be receiving complaints and negotiating with member Arab nations about what complaints it had received to reach a solution to a number of them in addition to exerting efforts to make Arab tools for human rights by reference to international charters.
Again Dr. Said said that the third path could be stopping trying to set a charter and sufficing with a general decision stating the application by the Arab League of the international criteria and the best of Arab constitutional criteria stressing that that was not a big progress but it gave the chance to remove disgrace of setting a charter which would be a shame of all measures as the Arab present situation has nothing to do with human rights discourse.
Dr. Laila El Marzouki the chairman of the Experts’ committee who visited the League said in her comment that for building up a strong regional system there should be in each nation a strong organizational system. She referred to the Latin American and African systems. Although the African committee had no authorities but it adopted big causes, a thing most missing in the Arab World. She stressed that the situation in the Arab World is full of frustration not creativity in the shadow of occupation, and daily insults. But she considered asking the help of Arab experts for making or modifying the charter would be a chance as they owned scientific honesty.
Dr. Leila thought that the regional approach for protection would be of no use if it escaped international charters but it would be otherwise if it aimed at supporting those charters as in the case of the European Community. She said that improving the Arab situation might seem impossible and needed a coup d’etat but efforts must be exerted to improve it.
Ambassador Ahmed Tewfik Khalil, the expert in human rights, said that the point of departure in improving the rights of man centered on the devotion of the meaning of ‘Right’. He said that a big part of responsibility on the shoulder of non-governmental organizations in defining the causes and concepts of human rights was not imported from abroad. He said that there was a real desire of those members sharing the Arab League committee in doing and introducing something useful.
Bahy el-Din Hassan emphasized the issue of human rights in the Arab World was a political problem more than a cultural one. And the Arab Charter issue was raised by Arab states and the Arab League. He also said that the non-governmental organizations had to have a say in the subject.