Religion, Human Rights and International Law (Studies in Religion, Secular Beliefs and Human Rights)

Religion, Human Rights and International Law

Studies in Religion, Secular Beliefs and Human Rights VOLUME 

Religion, Human Rights and International Law A Critical Examination of Islamic State Practices

Edited by

Javaid Rehman and Susan C. Breau

LEIDEN • BOSTON 

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper ISSN - ISBN      Copyright  by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center,  Rosewood Drive, Suite , Danvers, MA , USA. Fees are subject to change. printed in the netherlands

CONTENTS Notes on the Contributors Part One

introduction

Introductory Reflections professor javaid rehman and dr susan c. breau 

Freedom of Religion in International Law professor kevin boyle



Women’s Human Rights and Religion: How do they Co-Exist? professor christine chinkin

Part Two 

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 



reflections on religion, human rights and international law

The Twain Doth Meet! A Preliminary Exploration of the Theory and Practice of as-Siyar and International Law in the Contemporary World professor shaheen sardar ali





Religion as a Source of International Law professor ilias bantekas



Human Rights and Cultural Relativism: The False Dichotomy dr susan c. breau



Some Arguments on the Universality of Human Rights in Islam audrey guichon







vi

Contents

Part Three 







Religion within the Refugee Context: Squaring the Circle? professor rebecca wallace



The Advent of Proportional Human Rights and the Dignity Inherent in Individuals qua Human Beings professor ben chigara



The Religiosity of Jus Cogens: A Moral Case for Compliance? fiona de londras



Why the Hindu Caste System Presents a New Challenge for Human Rights dr david keane



Part Four 





religions, values and constitutionalism within international human rights law

islam, state practices and contemporary international law

The Role of Islam in Human Rights and Development in Muslim States professor mashood baderin



Human Rights, Natural Justice and Pakistan’s Shariat Courts dr martin lau



Women, Islamisation and Human Rights in Pakistan: Developing Strategies of Resistance dr siobhán mullally



 Nation-Building in an Islamic State: Minority Rights and Self-Determination in the Islamic Republic of Pakistan professor javaid rehman



Contents Part Five 

islam, minorities rights and the implications of /

Multiculturalism and Extremism: International Law Perspectives dr alexandra xanthaki

 Prayers, Planners and Pluralism: Protecting the Rights of Minority Religious Groups alice diver and john thompson 



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



‘Are you a Protestant or a Catholic Muslim?’ The Path of Muslim Integration into Northern Ireland victoria montgomery



Religion, Minority Rights and Muslims of the United Kingdom professor javaid rehman



Index



NOTES ON THE CONTRIBUTORS shaheen sardar ali, BA, LLB, MA, LLM, Ph.D. is a Professor of Law, University of Warwick, United Kingdom and University of Oslo, Norway. She was formerly Professor of Law, University of Peshawar, Pakistan. Her teaching and research interests include International Law of Human Rights, Women’s Human Rights, Children’s Rights, Public International Law, Islamic Law and Jurisprudence, Gender and the Law, Constitutional Theory and Alternate Dispute Resolution. Some of her most recent publications include two monographs, Gender and Human Rights in Islam and International Law: Equal Before Allah, Unequal Before Man? (The Hague, Kluwer Law International, ) and Indigenous Peoples and Ethnic Minorities of Pakistan (Richmond, NIAS/Curzon Press, ) (co-authored). She regularly acts as a consultant for a range of international bodies, is member of the British Council Task Force on Gender and Development and has served on the National Commission of Inquiry on Women as well as the Prime Minister’s Consultative Committee on Women in Pakistan. Professor Ali has served as Minister for Health, Population Welfare and Women’s Development in the Government of the North West Frontier Province (Pakistan) and Chair of the National Commission on the Status of Women of Pakistan. She is one of the founder members and Co-ordinator of the South Asian Research network on Gender, Law and Governance (SARN). She is currently Director of the Law in Development Programme at the University of Warwick. mashood baderin, LLB (Hons), BL, LLM, Ph.D., is a Professor of Law at the Brunel Law School, Brunel University, London. He was formerly a Reader in International Human Rights Law at the University of the West of England, Bristol, UK and has also taught at the University of Nottingham, University of Southampton and at the School of Oriental and African Studies in University of London. He is a qualified and experienced Barrister and Solicitor of the Supreme Court of Nigeria. He is a recognised expert in International Human Rights and Islamic Law and researches on International Law, International Human Rights and Islamic Law with particular interest in the interaction between International Law, International Human Rights Law and Islamic Law in Muslim States. He

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is consulted by government departments and institutions on issues in his research area and has presented many papers at national and international conferences, workshops and seminars. He is the author of International Human Rights and Islamic Law (Oxford: Oxford University Press, , ) and has published articles in leading international academic journals such as Netherlands Quarterly of Human Rights, Netherlands International Law Review, International Journal of Human Rights, American Journal of Islamic Social Sciences, Human Rights Law Review and European Human Rights Law Review. He is a founding co-editor of the Muslim World Journal of Human Rights. ilias bantekas, LLB (Athens), LLM (Liverpool), Ph.D. (Liverpool), Dip Theology (Cantab) is Professor of International Law and Head of Law at Brunel University. From – he was a Reader and Director of Westminster University’s International Law Unit. During this time he has held/holds visiting academic appointments at Cleveland State UniversityMarshall College of Law, Harvard Law School, Miami Law School, Trier Law School, Yeditepe Law School (Turkey) and elsewhere. He has acted as a Senior Legal Advisor to the Hellenic government on matters of international law and EU Criminal Law and has advised law firms and NGOs in the fields of international law and international commercial arbitration. He has numerous publications, among others, in the American Journal of International Law, International and Comparative Law Quarterly and his principal book publications include: Principles of Direct and Superior Responsibility in International Humanitarian Law (Manchester UP, ), International Criminal Law (Routledge, rd edition, ), International and European Financial Criminal Law (Butterworths, ), Oil and Gas Law in Kazakhstan: National and International Perspectives (Kluwer, ). kevin boyle, LLB (Queens University Belfast) Dip Crim (Cambridge), Barrister, is a Professor of Law, Department of Law, Essex University and Director of the University’s Human Rights Centre. In – he was Senior Adviser to the UN High Commissioner on Human Rights, Mary Robinson. He was also the first Director of the Human Rights Centre at the National University of Ireland, Galway and founding Director of Article . He is a practising barrister and has taken numerous cases on human rights issues to the European Court of Human Rights in Strasbourg. Professor Boyle has long been involved in human rights aspects of the peace process in Northern Ireland. He has published widely on human rights issues, focusing

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on freedom of expression and religion and non-discrimination. His major books include (with T. Hadden) Northern Ireland: The Choice (); (coed.) Freedom of Religion and Belief: A World Report (), (co-ed.) Human Rights and Democracy: The Role of the Supreme Constitutional Court of Egypt (); (ed.) A Voice for Human Rights, Mary Robinson (). He is a member of the editorial board of the Netherlands Quarterly on Human Rights, the European Human Rights Law Review, Pennsylvania Studies in Human Rights and Religion and Human Rights. susan c. breau, BA, MA, LLB (Queen’s University Canada), LLM, Ph.D. (LSE) is a Reader in Law at the University of Surrey. She was formerly Dorset Fellow in Public International Law at the British Institute of International and Comparative Law, London. She was awarded her doctorate in International Law in  from the London School of Economics and Political Science. The topic of her research was to examine the doctrine of humanitarian intervention in customary international law and under the United Nations Charter. She is a barrister and a solicitor in Ontario Canada where she practised law commencing in . She moved to the United Kingdom to study for her LLM at the London School of Economics in  and remained to complete her doctorate under the supervision of Professor Christopher Greenwood CMG QC. In , she was appointed to a Lectureship at the School of Law, Queen’s University, Belfast Northern Ireland where she became course convenor in Public International Law and the LLM Human Rights Law, Course Co-ordinator. She is currently a visiting Adjunct Associate Professor at the Royal Military College of Canada. She is the author of Humanitarian Intervention: The United Nations and Collective Responsibility (), co-editor of Testing the Boundaries of International Humanitarian Law () and co-author of State Practice Regarding State Immunities (). ben chigara, BA (Keele); LLM (Hull); Ph.D. (Nottingham); Professor of International Law, Brunel Law School, Brunel University, West London, United Kingdom. Previous appointments include Warwick University; Leeds University; and Oxford Brookes University. Author of Land Reform Policy: The Challenge of Human Rights Law; Ashgate, ; Amnesty in International Law: The Legality Under International Law of National Amnesty Laws, Longman, ; Legitimacy Deficit in Custom: A Deconstructionist Critique, Ashgate, ; ‘Pinochet and the Administration of International Criminal Justice’, in Woodhouse, D. ed. The Pinochet Case: A Legal and

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Constitutional Analysis, (Hart, Oxford, ); and numerous refereed articles in Law Journals, including the Human Rights Quarterly; Nordic Journal of International Law; Australian International Law Journal; Common Law World Review; Oregon Review of International Law; Mediterranean Journal of Human Rights; Loyola of Los Angeles International and Comparative Law Review; University of Miami International and Comparative Law Review; and African Journal of International and Comparative Law. christine chinkin is a Professor of International Law at the London School of Economics and Political Science, London and an Overseas Affiliated Faculty Member, University of Michigan, School of Law. She has degrees from the University of London, Yale Law School and a doctorate from the University of Sydney. She is also a barrister in the UK. She has previously taught at a number of institutions in Australia, Asia, North America and Europe. Professor Chinkin’s primary teaching and research interests are in public international law, human rights and dispute resolution. She is the author of Third Parties in International Law (), Halsbury’s Laws of Australia, Foreign Relations Law (nd edition, ) and co-author of Dispute Resolution in Australia (nd edition, ) and of The Boundaries of International Law; A Feminist Analysis (). The last was awarded the American Society of International Law’s Certificate of Merit for a work of ‘outstanding scholarship’. She is also author of numerous articles on these issues. She has been a consultant to a number of international organizations on issues of international law and dispute resolution, for example the UNIDROIT, the Asian Development Bank, the Commonwealth Secretariat, Amnesty International, the British Council, and INTERIGHTS, UN Division for the Advancement of Women; UN Office High Commissioner Human Rights. alice diver, LLB, LLM (Dist) (QUB) Solicitor, is a Lecturer in Land Law and Equity & Trusts at the School of Law, University of Ulster (Magee) Northern Ireland. She previously spent five years working in private practice. Her research interests include Indigenous Rights, and Domestic Enforcement of Human Rights Principles in relation to Property Law and Family Law. She recently published an article in the Indigenous Law Bulletin (NSW) entitled ‘A Just War: Protecting Indigenous Cultural Property Rights’ (). fiona de londras, BCL, LLM (NUI) is currently researching a Ph.D. thesis on Habeas Corpus in a Post / World under the supervision of Dr

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Siobhán Mullally. Her thesis uses habeas corpus as the context in which to explore the capacity of international human rights law to act as an effective limitation on domestic counter-terrorism law-making. She has been awarded the National University of Ireland Travelling Studentship and the University College Cork President’s Research Scholarship in respect of this research. Fiona has been a Visiting Scholar at the Feminism and Legal Theory Project, Emory University (Autumn ) and Visiting Fellow at the British Institute of International and Comparative Law (Spring ). She teaches the law of real property in the Professional Law School, Griffith College Dublin. audrey guichon graduated with an LLB in international law and an LLM from the Irish Centre for Human Rights, National University of Ireland before working Amnesty International in London and South Asia Human rights documentation Centre in New Delhi. She was the project officer for the NEWR project at the University of Birmingham before moving to Northern Ireland working at INCORE, University of Ulster and UN University. She now works at The Junction, a community relations and peace building voluntary organisation in Derry/Londonderry. Audrey’s latest publication is: Guichon A., et al. (eds.) Women’s Social Rights and Entitlements (Basingstoke, Palgrave, ). dr david keane, BCL (Law and French) (University College Cork), LLM, Ph.D. (National University of Ireland, Galway), is a Lecturer in law, Brunel Law School, Brunel University, West London. His current research interests lie in racial discrimination, and in caste/descent-based discrimination in particular. He has published recently in the areas of descent-based discrimination; ethnicity and international human rights law; the protection of cultural property in wartime; and environmental refugees. He is also involved in the protection of migrant workers’ rights in the United Arab Emirates, in association with the NGO Mafiwasta. dr martin lau, MA (SOAS), Ph.D. (University of London) is Reader in Law, School of Oriental and African Studies, University of London. Dr Lau is an expert in South Asian and Islamic Law and has written extensively on these subjects. Dr Matin Lau, was the director of the Centre of Islamic and Middle Eastern Law (–) SOAS, University of London. He is also a practicing Barrister with Essex Court Chambers, where he advises inter alia on Islamic Laws, and South Asian Law in the form of expert opinions on commercial laws, human rights law and environmental law

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with regard to proceedings before the High Court of England and Wales, the County Court, Magistrates Courts, the Immigration Appeals Tribunal and the International Chamber of Commerce and the US Courts. victoria montgomery, BA, MA (Queen’s University Belfast) is a parttime teaching assistant and Ph.D. student in the School of Politics at Queen’s University. She is also the administrator for the Centre for Advancement of Women in Politics, at Queen’s University. Her current research focuses on Muslim identities and belonging in Ireland, considering both the local and global contexts as well as topical issues such as multicultural citizenship, the public inclusion of minorities and the impact of prejudice on Muslim identities and belonging. Her other research interests include: minority rights, the politics of recognition, radical Islamism and the politics of Algeria. dr siobhán mullally, LLM, Ph.D. is a Senior Lecturer, Faculty of Law, U.C.C., Cork, Ireland. Siobhán Mullally is a graduate of the European University Institute, Florence (Ph.D.), the London School of Economics (LLM) and University College Cork BCL. She has taught at U.C.C. since  and previously lectured at the University of Hull, UK and at the University of Peshawar, Pakistan. She has held visiting appointments at Cornell Law School, Harvard Law School, Sydney Law School and at the National University of India Law School, Bangalore. Siobhan has worked as an adviser and consultant to UN bodies and to international NGOs in East Timor, Kosovo, Afghanistan and Pakistan. She is the coordinator of a British Council funded link programme between the Human Rights Centre, University of Peshawar, Pakistan, Law School, Brunel University and the Law Faculty, University College Cork. She is the author of Reclaiming Universalism: Gender, Culture and Human Rights (Oxford, Hart Publishing, ) Recent publications include: ‘Debating Reproductive Rights in Ireland’ Human Rights Quarterly (); ‘As Nearly as May Be: Debating Women’s Human Rights in Pakistan’ () : Social and Legal Studies; ‘Revisiting the Shah Bano case: Feminism and Multicultural Dilemmas in India’ Oxford Journal of Legal Studies (). javaid rehman is a Professor of Law and Director of Research, Brunel Law School, Brunel University, London. His specialist research interests include Islamic Law, minority rights and international terrorism. As a practising lawyer he acts as consultant on terrorism-related and minority rights cases.

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He is a member of the International Law Association (ILA) Committee on International Law and Islamic Law and is a member of the UK branch of the ILA. His books include Islamic State Practices, International Law and the Threat from Terrorism (); International Human Rights Law (); Issues in International and European Law (); (co-authored) Indigenous Peoples and Ethnic Minorities of Pakistan () and Weaknesses in the Protection of Minority Rights (). john thompson, BA (Mod) LLB, MA, Barrister, is currently a part-time lecturer, and Ph.D. student at the University of Ulster (TJI) in Northern Ireland. He has managed a number of local Community Development Projects since . His current research focuses on Northern Ireland’s Planning Laws, Government accountability and the role of Human Rights principles in transitional democracies such as Northern Ireland. rebecca m.m. wallace, MA, LLB, Ph.D., is a Professor of International Human Rights Law at the Robert Gordon University, Aberdeen, Scotland. She was Head of the School of Law at Napier University in Edinburgh for six years having previously been on the staff of the Universities of Strathclyde and Hull. She was the Ariel Swallows Professor in Human Rights at the University of Saskatchewan in Canada in and has also been a Visiting Scholar, the School of Advanced International Studies, John Hopkins University, Washington DC. She has written extensively and her publications include, International Law, A Student Text and International Human Rights, Text and Materials, as well numerous articles on primarily refugee/immigration law and corporate social responsibility. She is a member of Lincoln’s Inn and a non-practising member of the English Bar as well as a part-time Immigration Judge. dr alexandra xanthaki (Ptychion Athens; LLM QUB; Ph.D. Keele; Barrister Athens) is a Senior Lecturer at Brunel Law School, where she teaches human rights and minority rights. Alexandra has widely published on minority and indigenous rights and has repeatedly acted as a consultant of the United Nations assisting the UN Special Rapporteur on Indigenous Issues. In , she co-authored with Nazila Ghanea an edited collection on Minorities, Peoples and Self-Determination, while her monograph on Indigenous Rights and the United Nations Standards will be published by Cambridge University Press in early . Alexandra is particularly interested in how the concept of multiculturalism is reflected in current

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standards of international human rights law. She has acted as an expert in projects funded by the European Commission and several governments and has taken part in Human Rights summer courses in the UK, Ireland, Italy and Greece. Before she joined Brunel, Alexandra taught law in University of Keele and University of Liverpool. She is the book reviews editor of the journal Religion and Human Rights.

part one

Introduction

Introductory Reflections Javaid Rehman and Susan Breau I am in the right and you are in the wrong. When you are the stronger you ought to tolerate me; for it is your duty to tolerate truth. But when I am the stronger I shall persecute you; for it is my duty to persecute error.

Freedom of religion is a subject, which has throughout human history been a source of profound disagreements and conflict. One of the most tragic examples which is embedded in the human psyche is the Holocaust leading to the death of six million Jews during the second world war. Intolerance based around differing religious, philosophical and ideological positions on human existence and behaviour is unfortunately not simply a matter of historical disposition. In the modern era, religious – based intolerance continues to provide lacerative and tormenting concerns to the possibility of congenial human relationships. As the present study examines, religions have been relied upon to perpetuate discrimination and inequalities, and to victimise minorities to the point of forcible assimilation and genocide; religious minorities and women as vulnerable elements of the society have been particular targets of harassment and oppression. Such intolerance,

 T.B. Macaulay, Cultural and Historical Essays (London, ), .  See K. Boyle, ‘Freedom of Religion in International Law’ chapter , below; P.M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, Cambridge, ); B.G. Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection (Martinus Nijhoff Publishers, The Hague, ); E. Benito, Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (United Nations, New York, ); B. Dickson, ‘The United Nations and Freedom of Religion’ ()  ICLQ ; R.S. Clark, ‘The United Nations and Religious Freedom’ ()  NYUJILP, ; D.J. Sullivan, ‘Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination’ ()  American Journal of International Law ; J. Rehman, ‘Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities’ ()  International Journal on Minority and Group Rights, .  See the Chapters by Rebecca Wallace ‘Religion within Refugee Context: Squaring the Circle’ chapter  below and Christine Chinkin ‘Women’s Human Rights and Religion: How do they Co-Exist?’ chapter  below. Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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repression and hatred is not the prerogative of any single religion or belief but can be found in strained interpretations of all theistic, non-theistic and atheistic ideologies and philosophies. In acknowledging this reality, the present study provides both an overview of the complexities inherent in the freedom of religion within international law and an analysis of the cultural-religious relativist debate in contemporary human rights law. The study also examines religious discrimination within the context of the wider discrimination based on xenophobia, bigotry, cultural chauvinism and intolerance in modern State practices. As many of the chapters examine, Islamic State practices have been disturbing; for example Pakistan – with its persisting Hudood ordinances and Blasphemy laws – undermines human rights of women and minority communities. In the backdrop of the events of  September , a considerable focus of this volume is upon the Muslim world, either through the emergent State practices and existing constitutional structures within Muslim majority States or through Islamic diasporic communities resident in Europe and North-America. i. islam and human rights law Amidst the historic struggles of religions and the ‘clash of civilizations’ Islam and Islamic law (the Sharia) have a distinctly contested position. There has been considerable debate on the perceived incompatibility of Islam, international law and human rights. Critics of Islam have pointed to a lack of constitutionalism, abuse of power, political manipulation and violations of fundamental human rights in many Islamic States. They argue that unlike other religions, Islam is based upon an ideology, which

 S.P. Huntington, The Clash of Civilizations and the Remaking of World Order (Simon & Schuster, London, ). Tony Blair, has recently engaged with British Muslims communities in what he has described as ‘A Clash about Civilization’ Speech,  March  (London) http://www.number-.gov.uk/output/Page.asp ( November ).  A.A. An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse University Press, Syracuse NY, ); F.M. Denny, An Introduction to Islam (Macmillan Pub. Co, New York, ); A.E. Mayer, Islam and Human Rights: Tradition and Politics (Westview Press, Boulder Col., ); C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (Macmillan Press, London, ); M.A. Baderin, International Human Rights and Islamic Law (Oxford University Press, Oxford, ); S.S. Ali, Gender and Human Rights in Islam and International Law: Equal Before Allah, Unequal Before Man? (Kluwer Law International, The Hague, ).

Introductory Reflections



advocates violence and destruction. Islam has been equated with wars of aggression, fanaticism, intolerance and violence. Doubts are expressed as to whether the Sharia is capable of accommodating global economic policies and dealing effectively with the challenges of modernisation. Islamic civilization has been castigated as backward, insular, stagnant, repulsive and unable to deal with the demands of modern civilized societies. Conor Cruise O’Brien in reinforcing these prejudices makes the point that Muslim society looks profoundly repulsive . . . It looks repulsive because it is repulsive . . . A westerner who claims to admire Muslim society, while still adhering to western values, is either a hypocrite or an ignoramus, or a bit of both . . . Arab and Muslim society is sick, and has been sick for a long time.

This bigotry and cultural chauvinism is increasingly becoming part of the social and political discourses; ‘Islamophobia’ – the fear and hatred of Islam – forms an integral element of the State and governmental practices in many parts of the world. The former Italian Prime Minister in postulating the cultural, chauvinistic viewpoint made the observation that ‘[w]e must be aware of the superiority of our civilization, a system that has guaranteed well-being, respect for human rights – and in contrast with Islamic

 ‘Many horrific acts have been, and continue to be carried out in the name of Islam, just as they have been in the name of Christianity. But unlike Islam, Christianity does not justify all forms of violence. Islam does’. P. Sookhdeo, ‘A Religion that sanctions violence’ Daily Telegraph  September, .  J.L. Esposito, The Islamic Threat: Myth or Reality? (Oxford University Press, Oxford, , p. ; A. Cassese, Terrorism, Politics and Law: The Achille Lauro Affair (Polity Press, Oxford, ) at p.; for a critical assessment see, J. Rehman, Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order (Hart publishing, Oxford, ).  C.C. O’Brien, ‘Sick Man of the World’ The Times (London, United Kingdom,  May ).  E.g. note the recent attacks by the Leader of the House of Commons Jack Straw MP on Muslim women wearing the veil. These attacks and views have been echoed by several governmental ministers including, Prime Minister Tony Blair, see BBC News, ‘Blair’s concerns over face veils’ http://news.bbc.co.uk//hi/uk_politics/.stm . Calls by Ministers for the dismissal of teaching assistant Aishah Azmi, suspended for refusing to remove her veil in front of male colleagues, may have breached the ministerial code of conduct as it would prejudice an ongoing case. Massoud Shadjareh, Chair, Islamic Human Rights Commission (Personal communication, on file,  November ).

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countries – respect for religious and political rights. Islamic civilization is stuck where it was fourteen hundred years ago’. While Islam and the Sharia has attracted considerable debate and controversy, the events of  September  have brought Muslim States and Islamic communities under global spotlight. Opponents of Islam latched on to this tragedy as a definitive and conclusive proof that this is ‘a religion of sword [that] glorifies military virtues’; Islam is an aggressive and unforgiving faith that encourages recourse to violence and terrorism. Further, terrorist actions, such as the bombings in Bali (), Madrid (), London () and Bombay () have provided vital ammunition to many individuals to criticise the dictates of an ‘evil ideology’ pervading within Islam and Islamic communities. Muslim communities in the United States and Europe are increasingly targeted and harassed. There is substantial concern at the growth of radicalism amongst the Muslim youth in Europe and particularly the United Kingdom and yet there is precious little effort made to remedy the underlying causes of alienation and discrimination. Nor have the policy-makers in the United States and the United Kingdom had the moment to reflect upon the duplicity and deceit underlying west’s relationship with Muslim States. This duplicity is evident in the United States and United Kingdom foreign policy: One of the apparently central plank of the United States foreign policy agenda is democratisation and introducing values of human rights in the Arab and Islamic world. Yet, the worst violators of human rights in the middle-east continue to be the closest allies and friends of the United States. Not-

 Italian Prime Minister, Silvio Berlusconi, comments made in Berlin,  September . These comments have been cited extensively: see A Palmer, ‘Is the West Really Best’ Sunday Telegraph (London, United Kingdom,  September ) ; A. Osburn, ‘On the Brink of War: Reaction – Scorn Poured on Berlusconi Views – European and Muslim Leaders Express Disgust’ The Guardian Newspaper (London, United Kingdom,  September ) at ; BBC News ‘EU deplores “Dangerous” Islam Jibe’ .  See Huntington, above n. , at p. .  M. White, A. Travis and D. Campbell, ‘Blair: Uproot this Ideology of Evil’ The Guardian ( July ) http://www.guardian.co.uk/attackonlondon/story/,,,. html .  Note the criticisms of violations of human rights conducted in the US middleeastern allies such as Saudi Arabia and Kuwait. See the Amnesty International’s Reports for  on Saudi Arabia ( September ); and Amnesty International’s Report for  on Kuwait .

Introductory Reflections

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withstanding substantial rebuke from the United States Supreme Court, international non-governmental agencies and the United Nations Special Rapporteur on Torture, as well the UN Special Rapporteurs on the Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, the Independence of Judges and Lawyers, and Freedom of Religion or Belief, and the Chairperson of the Working Group on Arbitrary Detention, Guantánamo Bay persists as a symbol of west’s disregard for fundamental human values. In the words of the former Law Lord, Lord Steyn, the detention centre represents a ‘monstrous failure of justice’. The so-called ‘war on terrorism’ – which is deployed inter alia to provide legitimacy for retaining detention centres such as Guantánamo Bay and Abu Ghraib – has a duplicitous and selfish-agenda. It has allowed dictatorial and autocratic regimes to torture political opponents with impunity and to consistently violate human rights. At the same time, as Christine Chinkin mentions, the issue of promotion of women’s human rights (which was presented as a factor in justifying the initial coalition attacks on Afghanistan in ) is ‘discounted where the war on terror demands alliances with regimes that routinely violate women’s rights’.

 See Rasul v Bush  S. Ct  () No. –. Argued April ,  – Decided June , . Judgment available at http://caselaw.lp.findlaw.com/scripts/getcase. pl?court=US&vol=&invol=– ; Hamdi v Rumsfield  S.Ct  () No. –. Argued April ,  – Decided June , . Judgment available at http://www.jenner.com/files/tbl_sNewsDocumentOrder/FileUpload//–_decision_hamdi.pdf .  For a detailed critique see P. Thomas ‘September th and Good Governance’ ()  NILQ .  See United Nations, Situation of Detainees at Guantánamo Bay E/CN.// ( February ) http://news.bbc.co.uk//shared/bsp/hi/pdfs/___un_guantanamo. pdf .  United Nations, United Nations Human Rights Experts Request Urgent Closure of Guantánamo Detention Centre, Press Release http://www.unhchr.ch/huricane/huricane.nsf/view/DFEBDCEDB?opendocument .  J. Steyn, ‘In the Dock of Guantánamo Bay’ th FA Mann Lecture, The Times ( November ). Lord Steyn makes the accurate prediction that ‘[t]he type of Justice meted out at Guantánamo Bay is likely to make martyrs of the prisoners in the moderate world with whom the west must work to ensure world peace and stability’ J. Steyn, ‘Guantanamo Bay: The Legal Black Hole’ ()  ICLQ  at .  See the Chapter by Christine Chinkin, ‘Women’s Human Rights and Religion: How do they Co-Exist?’ chapter  below.

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The present volume is aimed neither as an apology on behalf of Muslims for the murderous actions committed by /, / or other terrorists in the name of Islam, nor is it meant to be an attempt to attract a vote of sympathy from western audiences for the growth in ‘Islamophobia’. The overall objectives of this study are firstly to articulate the difficulties inherent in the universally recognised right of freedom of religion and secondly to critically analyse the failings within Islamic State practices and the violation of rights of women and ethnic and religious minorities. Thirdly and finally, the study locates itself in the current debate on multiculturalism and cultural and religious relativism and in so doing raises substantial questions about the approach of the western States (in particular the United Kingdom) for undermining the rights of Muslim minorities. ii. religion, human rights and international law The first substantive area of analysis in this study is the relationship between religion, human rights and international law and the problems arising from a universally recognised right of freedom of religion. Kevin Boyle provides an excellent beginning to the discussion by an introduction to the international legal background on the freedom of religion. His chapter fulfils the promise to serve as a reference point for the discussion of practice on freedom of religion elsewhere in the volume, specifically Islamic state practices. The initial problem with the content of freedom of religion is that of the historical and political context in which these human rights standards were negotiated. Whilst originally established during the coldwar period, they now operate in the wholly different environment of the opening decade of the twenty-first Century. Notwithstanding the different historical roots of the standards, Boyle argues that it is imperative that the universal standards on human rights, sustained despite the cold-war are not jettisoned in the crisis generated by the ‘global war on terror’. International law signifies the commitment of all states to defend freedom of religion as the right of the individual to hold and to practice a faith. The critical point that Boyle makes in his chapter is that human rights law, as a part of the corpus of international law does not place itself at some higher level above religion or non-religious beliefs. Rather, he argues that the purpose

 See Kevin Boyle, ‘Freedom of Religion in International Law’ chapter  below.

Introductory Reflections

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of the right to freedom of religion is to accommodate the plurality of such beliefs in the world while drawing its inspiration from the principles of justice and ethics shared by all religions and humanist beliefs. To advance religious freedom and to end religious persecution in this first decade of the twenty-first century, an understanding of that freedom that is inclusive of all religions is urgently needed. The international norms of freedom of conscience, freedom of thought and freedom of religion will remain lifeless until they are invoked as a framework for much needed sustained dialogue and action by the world’s religions. A major struggle within international human rights law is to reconcile the tensions emanating from claims made in the name of religion with assertions of equality rights for women. In examining this controversial subject, Christine Chinkin, argues that claims for women’s equality (including women’s equal right to freedom of religion) and empowerment are set against the requirements of religion. Chinkin notes that the human rights framework does not set out any hierarchy nor any mechanism for resolution of conflicting claims, leaving it open for protagonists and decision-makers to determine their own priorities. Chinkin argues that ensuring women’s compliance with what are claimed to be religious demands are often placed at the core of a community’s identity as part of ensuring social coherence, especially if the community is under stress, for example through conflict, occupation, or what is perceived as external attack on its values. However, it is important to address the argument that women’s equality may be subordinate to the blend of these religious, cultural and political demands. Chinkin uses Pakistan as an example of how there must be an attempt to reconcile these competing forces. She gives examples of how civil society can assist in the struggle for women’s equality without abandoning religious or cultural values and how the human rights enforcement mechanisms can engage in constructive dialogue with States on their religious practices. She concludes that ‘it is crucial not to accept extremist positions from any perspective but rather attempts must be made to work with women within their own communities to promote their equality within the framework of their own religious values’.

 See Christine Chinkin, ‘Women’s Human Rights and Religion: How do they CoExist?’ chapter  below.  Ibid.

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In part II of the study, the subject of commonalities and similarities between International law and as-Siyar (Islamic International Law) is further explored by Shaheen Sardar Ali. Ali takes the position that notwithstanding the parallel normative origins, and ideological differences of the two systems, there are significant points of concurrence between the two regulatory frameworks. Ali pursues her argument by collating a remarkable array of commonalities in the developmental and contemporary processes of as-Siyar and modern International Law. She argues that in the field of human rights law, the two systems have portrayed and continue to reflect tensions over slavery and women’s rights and minority rights. Despite an avowed allegiance to an ‘international, extra-territorial and universal’ tradition, both as-Siyar and modern international law have deployed expansionist and exploitative strategies. Hegemonic and ideological expansionism, a historic trade-mark of as-Siyar, is visible in the contemporary approaches – adopted by United States foreign policy; ‘democracy’ and ‘human rights’ are concepts which have now replaced the pre-modern as-Siyar notion of Jihad, whereby the rights of religious communities are being undermined. The debate over the similarities or differentiation between International law and Islamic legal norms leads to a more fundamental question: Should religious texts or customs or traditions be considered a source [or even a method from which to extract law] of international law alongside treaties, customary international law and general principles? This question is examined by Ilias Bantekas in his chapter, entitled Religion as a Source of International Law. The argument leads to one of the major controversies within human rights law: the debate relates to the accommodation of cultural diversity while at the same time ensuring universal human rights of equality and non-discrimination. Susan Breau, in her chapter, argues that there is a false

 See Shaheen Sardar Ali, ‘The Twain Doth Meet! A Preliminary Exploration of the Theory and Practice of as-Siyar and International Law in the Contemporary world’ chapter  below.  On this also see A.A. An-Na’im ‘Upholding International Legality Against Islamic and American Jihad’ in K. Booth and T. Dunne (eds.) Worlds in Collision: Terror and the Future of Global Order (Palgrave, London, ), –.  See the Chapter by Ilias Bantekas ‘Religion as a Source of International Law’ chapter  below.

Introductory Reflections

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dichotomy between human rights and cultural relativism. This topic is particularly relevant in the debate between Islam and human rights. Her thesis is that the Universal Declaration of Human Rights can be applicable to all human beings as human rights and culture can actually complement and strengthen each other. Cultural relativism can stand for the principle that we should not judge the behaviour of others using the standards of our own culture, and that each culture should be analyzed on its own terms. In fact the two concepts can be harmonized as human rights not only encompass respect for the individual but an understanding of the society in which that individual lives. This has been argued to be the cultural pluralist position as opposed to the relativist stance. iii. values of constitutionalism and linkages with human rights law A second important theme in this study is fundamental values underpinning human rights law particularly the new ideas of constitutionalism and the linkage these form with religions. One way through the controversy between religion and rights is to view the fundamental values that underpin both. Ben Chigara in his chapter discusses the issue of the inherent digity of human beings in human rights philosophy. The institutionalization of international human rights starting immediately after the second world war has revolutionized perceptions about life by privileging above all else the sanctity of the dignity that is inherent in all human beings. This process has committed States to practices that recognize, respect and promote the human dignity irrevocably possessed by every human being. This idea of the sanctity of human dignity is also a core belief in the world’s religions. Indeed, Chigara argues that a state’s primary purpose is to secure and serve individuals in order for men and women freely to actualize their life potential which surely includes religious or non-religious beliefs and

 Susan Breau, ‘Human Rights and Cultural Relativism: The False Dichotomy’ chapter  below.  See Ben Chigara, ‘The Advent of Proportional Human Rights and the Dignity Inherent in Individuals qua Human Beings’ chapter  below.

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practices. Fiona de Londras also supports this idea that human dignity, the bedrock of human rights, is the secularised version of sanctity. One of the primary ways in which the importance of human rights is emphasised is in the contested term of jus cogens which signifies peremptory norms of international law. Fiona de Londras approaches this controversial issue of jus cogens in terms of its religiosity. In the current security versus rights debate the notion of rights that are jus cogens has become even more important. De Londras asserts that jus cogens is essentially religious embodying, as it does, the basic protections that represent a consensus between different religions about the basics of human dignity. Jus cogens rights attract a higher level of enforceability because they reside within the moral consensus and therefore have the capacity to be accepted by all as a force for good. On this understanding of jus cogens the concept does have religion. Indeed de Londras argues that all human rights are religious in this way – they are designed to ensure that we can all attain a basic level of personal security and participation required for the chance to prosper and to grow. Her chapter supports the position taken throughout this collection that both religion and rights matter. Rebecca Wallace examines the specific content of the right to religious expression within the context of refugee claims and the  Refugee Convention. She argues that religion as a ground for refugee status embraces both elements of the right, belief and participation: affording protection to those who are at risk because they are known adherents of a particular religion as well as to those who are at risk for living by their convictions. In her extensive examination of the case law she reveals that freedom of religion, expression and conscience is a basic-core right which is recognised in international law and which informs the  Refugee Convention.

 Ibid.  F. de Londras, ‘The Religiosity of Jus Cogens: A Moral Case for Compliance?’ chapter  below.  Article , Vienna Convention on the Law of Treaties (). Article  provides as follows: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. () U.K.T.S.  Cmnd. ;  U.N.T.S. ; () I.L.M. .  Rebecca Wallace, ‘Religion within the Refugee Context: Squaring the Circle?’ chapter  below.

Introductory Reflections

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The role of Islam and its human rights credentials (while forming a particularly contentious debate) receive a comprehensive analysis in the present volume. At the same time it has to be recognised that difficulties and tensions emanate through the engagement of all religious norms with human rights values. All Theistic, non-theistic and atheistic philosophies can be tainted with insensitivity towards human rights values. As the present study illustrates, hostility, discrimination and hatred can be derived from such deities as the caste-based Hinduism. Parallels can be drawn between discrimination based on religion and the caste-based discrimination. David Keane’s paper in the present volume eloquently describes that forms of religious discrimination can be deployed alongside racial and descent based discrimination. In highlighting the social and economic inequities through the perpetuation of caste-based discrimination, Keane makes the pertinent point that ‘caste system uniquely, has religious support in the sacred texts of the Hindus, resulting in large scale caste-based discrimination causing widespread poverty and degradation’. iv. the sharia, modern islamic state practices and international human rights law The Islamic human rights paradigm and the practices that emerge from Islamic States paint a diverse and at times bewildering and contradictory picture. These contradictions are highlighted by the myriad interpretations given to concepts of sovereignty, democracy and the rule of law. As Guichon argues in her chapter, under the classical interpretations of the Sharia, the Sovereignty as well as the authorisation of rights to individuals remains a prerogative of Allah. Under this formula ‘Islamic human rights are envisaged through their relation to God, to what God guarantees His followers depending on their actions. Human rights will be guaranteed to an individual only if he is capable and ready to lead a good Muslim life’. Such an approach potentially signals a considerable point of departure between

 David Keane, ‘Why the Hindu Caste System Presents a New Challenge for Human Rights’ chapter  below.  Ibid.  Audrey Guichon, ‘Some Arguments on the Universality of Human Rights in Islam’. See chapter , below.  Ibid.

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the Sharia and the universal human rights model. The contentious nature of Sharia’s interpretation of individual rights and its arguable incompatibilities with modern paradigms of human rights law nevertheless have to take into account the historic inequities within which Islamic societies have operated. In the imperialistic and colonial struggles, Islamic communities found themselves overpowered and dominated by others, who were more strategic, manipulative and powerful. Not only were indigenous Islamic laws disturbed or displaced by the misfortunes of colonialism, the Sharia as a legal system was not allowed a natural growth. The post-colonial order that emerged in the aftermath of the second world war, oblivious to the needs and demands of the Islamic world was fashioned, in the vision of the imperialist political elite. New States – many of them with Muslim majority populations – were carved-out in a design hitherto established by the European powers, containing a recipe for future ethnic and racial conflicts and human rights violations. In the urgency to build nation-States and to repress ethnic, cultural and religious identities, Islam and the Sharia were frequently used to repress pluralism and the rule of law. Amidst the divisions of the cold war and the antithetical visions of the west and Communist Europe, Muslim States had limited influence in asserting a distinct Islamic human rights perspective on international affairs. The early post second world war international human rights instruments therefore were not sensitive towards the specific needs and concerns of the Islamic world. Nor was the relevance of Islam and its application in the socio-legal environment of Muslim States provided a due acknowledgement within the framework of human rights law. The backlash against the dominant western models of human rights provides a partial explanation for the resurgence of Islam and the Sharia in many States. Islamic States and the communities living within those States assert a form of social ordering based upon the precepts of the Sharia. Such Sharia-ordained social order-

 See, for example the discussion on the concept of uti possidetis and its implication on the modern State structures; M.N. Shaw, International Law (Cambridge, Cambridge University Press, ), –.  J. Rehman, The Weaknesses in the International Protection of Minority Rights (The Hague, Kluwer Law International, ), –.  S.S. Ali and J. Rehman, Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives (London, Routledge-Curzon Press, ); J. Rehman, ‘Minority Rights and the Constitutional Dilemmas of Pakistan’ ()  Netherlands Quarterly of Human Rights, –.

Introductory Reflections

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ing, is possible indeed desirable within Muslim States, if taking Baderin’s point, the enhancement of human welfare is regarded as the lowest common denominator of international human rights law and Islamic law. Mashood Baderin advances this position of harmony and rapprochement through an examination of the sources of the Sharia as well as modern human rights law. Through an examination of the significant human rights of freedom of opinion and expression, the right to public and political participation, the right to a fair trial and due process of law, women’s rights and the right to education and to work, Baderin builds the argument for the possibility of harmonising Islam and human rights as parallel forms of social ordering in Muslim States. Whilst, in principle, highly attractive, the practice of harmonisation of the Sharia with human rights law has proved problematic in modern Islamic State practices. One problematic area relates to the rights of women in Islamic States. As Siobhán Mullally exemplifies in her chapter, measures taken in the name of Islam and the application of Sharia have impeded gender equality and denied women’s rights. The case of Pakistan, as considered by Siobhán Mullally provides an unfortunate picture of the application of the Sharia. The Islamisation process within Pakistan led to the adoption of draconian and discriminatory legislation such as the Hudood Ordinances. The Hudood Ordinances, including the Zina Ordinances were passed by General Zia-ul-Haq during his campaign to Islamise Pakistan’s Criminal Justice System. Mullally presents a comprehensive examination of the tensions persisting within Pakistan’s higher courts when dealing with women’s constitutional rights. Her concluding observations present a realistic statement of existing difficulties for securing women’s human rights: She notes [t]he increasing politicised nature of Islam in Pakistan has subordinated women’s human rights to political expediency and to cultural claims. The “othering” of feminist discourse, combined with increasing polarization between “Islam” and “the West”, creates significant obstacles for both global and local feminist struggles. Pakistan’s geo-political

 See Mashood Baderin, ‘The Role of Islam in Human Rights and Development in Muslim States’. See chapter  below.  Siobhán Mullally, ‘Women, Islamisation and Human Rights in Pakistan: Developing Strategies of Resistance’ see chapter  below.

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Javaid Rehman and Susan Breau positioning within the “war on terror” serves only to reinforce such obstacles.

Notwithstanding the demise of the dictatorial regime of General Zia and Pakistan’s  accession to the Convention on the Elimination of All Forms of Discrimination against Women (), the Hudood laws continue to violate women’s rights in Pakistan. Rebecca Wallace in her chapter examines practices emergent from Islamic countries such as Iran and Pakistan where repressive laws and their enforcement has forced religious minorities to escape persecution and to make asylum claims in the United Kingdom. Ordinance XX and the Blasphemy laws of Pakistan – passed by the military government of General Zia-ul-Haq and condemned by international bodies including the (former) Sub-Commission on the Prevention of Discrimination and Protection of Minorities – have provided a steady source of asylum applications from Ahmadi communities of Pakistan. Martin Lau, in his chapter, considers the role of the judiciary in Pakistan and the creation of a judicial machinery to enforce Islam or to strike-down laws on the basis of their repugnancy to the Sharia. He notes that the creation of the Federal Shariat Court as a Court of Appeal against convictions under the Hudood Laws as well as the establishment of a judicial body to determine the compatibility of laws with provisions of Sharia was an unprecedented measure. As Lau examines, the Federal Shariat Court has dealt with fundamental rights in Islam, such as the right to equality and the right to fair hearing. The jurisprudence of the Court remains highly disappointing in so far as gender equality or protection of the rights of religious minorities is concerned. Javaid Rehman’s chapter targets another aspect of Islamistation process in Pakistan – the politicisation of Islam and the involvement of the Sharia in the nation-building project. Rehman explores the consequences of establishing a State whose raison d’etre was to protect the Muslim population of the Indian Sub-Continent. However, partition of India along religious

 Ibid. Conclusion.  See Rebecca Wallace ‘Religion within Refugee Context: Squaring the Circle?’ chapter  below.  Martin Lau, ‘Human Rights, Natural Justice and Pakistan’s Shariat Courts’. See chapter  below.  Javaid Rehman, ‘Nation-building in an Islamic State: Minority Rights and SelfDetermination in the Islamic Republic of Pakistan’. See chapter  below.

Introductory Reflections



lines not only resulted in the creation of an anomalous Pakistan, but the emphasis on ‘nation-building’ meant a failure to respect ethnic, cultural, and linguistic identities. Large-scale discriminatory and exclusionary tactics on the part of the military and the dominant West-Pakistan elite resulted in alienation, civil disobedience and finally the secession of East Pakistan in December . The truncated Pakistan continues to reflect an unfortunate picture; in an effort towards nation-building through forced assimilation, the values and aspirations of religious and ethnic communities are being undermined. v. islam, minority rights and the implications of / One highly unfortunate consequence of  September  has been the growth of ‘Islamophobia’. The terrorist attacks in the United States were condemned by the whole of the international community, including Muslims living in every part of the globe. Despite that, there has been a backlash with Muslim communities being increasingly targeted, harassed and intimidated. In the aftermath of /, the concern for the physical safety of Muslim communities became so substantial that in its fifty-ninth session the UN Human Rights Commission requested the Special Rapporteur on the Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance to examine the situation confronting the Muslims and Arab peoples all over the world regarding physical assaults and other forms of attacks against their places of worship, cultural places, businesses and properties. The consequences of ‘Islamophobia’ for Muslim minorities in the United States and the United Kingdom are particularly deplorable. Muslims in the United Kingdom continue to face social exclusion and intimidation with the State institutions unable or unwilling to redress the  Ibid.  Note Comments made by the Special Rapporteur of the Commission on Human Rights on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (E/CN.//), paras. –, available at .  See Commission on Human Rights, Sixtieth Session, Annotations of Provisional Agenda E/CN.//I/Add. para .  See J. Rehman ‘Islamophobia after /: International Terrorism, Sharia and Muslim Minorities of Europe – The Case of the United Kingdom’ (/)  European Yearbook of Minority Issues .

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historic injustices faced by the beleaguered Muslim minority communities. Furthermore, since the tragedy of  July , an increasingly vocal campaign has been launched calling for an end to the multiculturalism project in Britain. In contrast, Xanthaki argues that multiculturalism contributes to the easing of the tensions among different cultural groups in the society. Multiculturalism recognises, she argues, the existence of multiple loyalties that form concentric circles around the individual. The protection of such loyalties, the respect of the contribution of these cultural frameworks to the evolution of the society and the interaction of these different groups allows the members of such groups to develop and prosper within the state, and hence limits the probability of tension within the state. Part of such multicultural policies also involves rectifying the historic disadvantages faced by minority groups through affirmative action policies. The application of such policies remains problematic in the context of the United Kingdom. Xanthaki makes the point that ‘[I]n Britain, Muslims are still to be considered as equal partners in the evolution of the society. Expecting minorities to accept the “British way of life”, a phrase often heard by officials and the public, really translates to excluding them from taking part in the shaping of this society, excluding them from taking active part and even changing and bringing new values to the British culture’. In adopting the primary themes from Xanthaki’s chapter, Javaid Rehman provides a critical examination of the position of Muslim minorities within the United Kingdom. Muslim communities have substantial claims of social exclusion, discrimination, and denials of a right to identity; with growing anguish towards the United Kingdom’s foreign policy and the State’s increasingly draconian legislation overtly targeting Muslims, the prognosis for the future is bleak. The gloom and criticisms of the stance and positioning of Muslim minorities appears to have obscured a proper consideration of the historic failings of the British State. In an increasingly strained and tense political environment, Rehman’s chapter analyses the issues confronted by contemporary British Muslim communities. His chapter aims to map out appropriate responses to the current threat from

 See Alexandra Xanthaki, ‘Multiculturalism and Extremism: International Law Perspectives’ see chapter  below.  Ibid.  See Javaid Rehman, ‘Religion, Minority Rights and Muslims of the United Kingdom’. See chapter  below.

Introductory Reflections

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Islamic extremism. The chapter also analyses the concerns encountered by the Muslim minorities both historically as well as post  July . The growth of ‘Islampohobia’ has not been confined to regions of the United Kingdom with visible and noticeable Asian minority communities. Discrimination and harassment is also becoming evident in Northern Ireland, a province of the United Kingdom with a minimal Muslim presence. In the backdrop of the troubled political and constitutional history of Northern Ireland, the issues of identities and loyalties remain contentious for the Muslim minorities. The traditional sectarian divide prevalent within the social fabric, as argued by Montgomery means, that ‘Britishness and Irishness in [Northern Ireland] are not the same as Britishness in the rest of the UK or Irishness in the Republic of Ireland. They are oppositional identities that have been forged in relation to one-another so that notions of Britishness and Irishness in NI have remained locked into the disputed status of the province. They are ethnic identities that are closely bound up with religion: a British identity held primarily by Protestants, and an Irish identity held primarily by Catholics. Therefore, the fact that they are underpinned by religious affiliation makes it difficult for Muslims to identify fully with either’. Amidst the complex structures of a continuing segregated society, Montgomery examines the disadvantages and discrimination faced by Muslim minorities. The extremely limited visibility of Muslims in public life including political life and policing is an unfortunate feature, as are specific inadequacies of the State to address such concerns as the satisfactory provision of halal food, access to female doctors for Muslim women and greater provisions for prayer facilities. The failings of the State in making adequate provisions for Mosques and prayer-facilities in Northern Ireland forms a central part of the critique presented by Diver and Thompson. In critically examining the controversial subject of public worship, the authors highlight the reluctance of the western governments towards tolerating the practice of minority religious faiths. During colonial periods, colonial religions and cultural values were imposed upon indigenous tribal faiths and practices; in the contemporary

 Ibid.  Victoria Montgomery, ‘“Are you a Protestant or a Catholic Muslim?” The Path of Muslim integration into Northern Ireland’ See chapter  below.  Alice Diver and John Thompson, ‘Prayers, Planners and Pluralism: Protecting the Rights of Minority Religious Groups’ see chapter  below.

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post / environment ‘Islamophobia’ is witnessed through opposition to establishing Islamic religious and social institutions. Diver and Thompson highlight the tensions within key provisions of the Universal Declaration on Human Rights () and European Convention on Human Rights (). It is argued that these provisions have allowed States parties to curtail public expression of faith and freedom under the ‘margin of appreciation’ doctrine. Diver and Thompson demonstrate with clarity that the issue of sacred space has been seized upon by domestic policy-makers to exhibit and establish prejudices against religious minorities. In the prevailing tensions as a consequence of the events of / and /, there is likely to be increasing opposition to establish a secured environment for religious expression and freedoms. vi. background to the book This volume has emerged from two conferences that were held on  March  and  February . The first conference, which was jointly sponsored by the British Institute of International and Comparative Law (BIICL) (London) and the Transitional Justice Institute (TJI) (University of Ulster, Northern Ireland), was held at the British Institute, Russell Square, London. The speakers for the conference were: Dr. Susan C. Breau (then Dorset Fellow in Public International Law), British Institute of International and Comparative (London); Professor Kevin Boyle (Director Human Rights Centre Essex); Professor Shaheen Sardar-Ali (Law School, University of Warwick, UK); Professor Javaid Rehman (then Transitional Justice Institute and Law School, University of Ulster, UK); Dr. Matin Lau (Law Department, School of Oriental and African Studies, University of London); Professor Anne-Christine Habbard (Professor of Moral and Political Philosophy, University of Lille, France); Mr Kamran Arif (Advocate, Human Rights Commission of Pakistan, Pakistan); Dr. Siobhán Mullally (Faculty of Law, University College Cork, Ireland); Dr. Nazila Ghanea (then Institute of Commonwealth Studies, University of London, United Kingdom). A majority of the papers from the conference form part of the present study. We are thankful to the speakers and participants for making the event hugely successful. We are also extremely grateful to both the TJI and the BIICL for their support and financial assistance. The primary focus of the  March  conference was upon the State Practices of Islamic States. It was felt that the consideration of issues con-

Introductory Reflections

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fronting Islamic communities was of great significance in the contemporary legal and political environment. Many delegates at the London conference therefore took the position that in addition to the  March conference an additional conference should be held in an Islamic State where the audiences would principally be from an Islamic background. Such a conference would allow a rare opportunity for the peoples from the Muslim world to debate and critically engage with academics and others from outside their socio-religious traditions about issues most pertinent to them. In the light of such strong support, a further conference was organised in Peshawar, Pakistan on  January . The choice of Peshawar as a city for hosting a conference on ‘Religion and Human Rights Law’ provided significant challenges. During the resistance to Soviet Invasion, Peshawar had witnessed a record number of refugee influx from Afghanistan. Peshawar was and (indeed) remains a Taliban stronghold and the Pakhtuns continue to retain rigid views on women’s rights and rights of minorities – the conference produced challenging and yet highly stimulating debates on these subjects. The speakers at this conference included, Professor Dr. Haroon Rashid (Vice Chancellor, University of Peshawar); Mr Khalilur Rehaman (Governor, North West Frontier Province, Pakistan); Professor Ahmad Ali Khan (Dean, Law Faculty Peshawar University); Mr Qazi Jamil (former, President, Supreme Court Bar Pakistan); Mr Kamran Arif (Advocate, Human Rights Commission of Pakistan, Pakistan); Professor Christine Chinkin (Professor of International Law, London School of Economics, London); Afrasiab Khan Khattak (former chairperson Human Rights Commission of Pakistan); Dr Susan Breau (then, British Institute of International and Comparative Law, London); Dr Mashood Baderin (then, School of Law, University of the West of England, Bristol, UK); Professor Ben Chigara (Director, Centre for Public and International Law, Brunel University); Fiona de Londras (Faculty of Law, University College Cork, Ireland); Javaid Rehman (Professor of International Human Rights Law, Brunel University). As editors of this book we are enormously grateful to all the speakers and participants of the conference – a significant number of the papers presented at the conference are included in this volume. The Peshawar conference was very generously funded by Martinus Nijhoff Publishers, the British Council and Peshawar University. We are also thankful to the British Academy, London, for awarding an overseas conference funding travel grant to Professor Javaid Rehman for the Peshawar Conference. The editors of this study remain grateful to Lindy Melman (Martinus Nijhoff Publishers), and Dean Ahmad Ali Khan

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for supporting the event. We are also extremely grateful to our colleague, Mr Aibek Ahmedov who is currently a Doctoral Candidate at the School of Law, Brunel University for his excellent research assistance in completing this book. The editors remain in a huge debt to our colleague and friend Kamran Arif, Advocate: without his contributions and enormous efforts it would not have been possible to have the two very successful conferences and to produce a volume of this nature. We would finally thank those of our colleagues who, although not being part of the London and Peshawar conferences, have nevertheless supported us by contributing to this study. They are: Professor Ilias Bantekas (Brunel Law School, Brunel University, London) Alice Diver and John Thompson (School of Law, Ulster University, United Kingdom); Audrey Guichon (The Junction, Derry/Londonderry, Northern Ireland, United Kingdom); Dr David Keane (Brunel Law School, Brunel University, London); Victoria Montgomery (Department of Politics, Queens University Belfast, Northern Ireland, United Kingdom); Professor Rebecca M.M. Wallace (Professor of International Law, Robert Gordon University, United Kingdom) and Dr Alexandra Xanthaki (Brunel Law School, Brunel University, London). Javaid Rehman Susan Breau London

chapter one

Freedom of Religion in International Law Kevin Boyle* i. introduction The purpose of this chapter is to provide an introduction to the international legal background on the protection of freedom of religion. This will serve as a reference point for the discussion of practice on freedom of religion elsewhere in the volume, specifically Islamic state practice. The evaluation of practice requires some theory against which it maybe judged. By theory in this context is meant the normative understandings and commitments of states as expressed in the international law on human rights in general and the guarantees on freedom of religion in particular. These norms comprise a body of underlying values, principles, standards and rules that have been built up over time in the international agreements and practice of states. The chapter will offer brief accounts only of some of these norms. But before so doing there are some necessary general observations needed as a prelude. a. History and Geo Political Context The legal standards on freedom of religion were negotiated and adopted by states during the decades of the Cold War as were most international human rights standards. These standards now operate, to the degree that they do, in the wholly different context of the opening decade of the st Century. The era of the Cold War was one where the idea of universal rights, but in particular ‘freedom rights’ including freedom of thought, freedom of religion and belief, and freedom of information and expression, were at the very centre of the ideological competition between the Soviet

* Professor of Law, Director Human Rights Centre, University of Essex. I would like to thank Rev. Canon John Nurser and Dr Niaz A. Shah for advice and comments on drafts of this chapter.  P.G. Gordon Lauren, The Evolution of International Human Rights, Visions Seen (University of Pennsylvania Press, Philadelphia, ). Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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Union and the Western democracies. Rival positions as to the nature of freedom were the nub of that competition and they emerged explicitly during the efforts within the United Nations to define both freedom of religion and freedom of expression. Under the often avowedly atheistic ideology of communism as practiced in the Soviet Union and its satellite Eastern European countries, the idea that the state had a duty to defend and promote freedom of thought or freedom of expression as an individual entitlement was simply rejected. Religions were tolerated as existing reality and kept under strict state control until it was hoped they might, over time, fade away. The era of nuclear standoff between East and West meant that freedom of thought and expression experienced considerable restriction also in western countries, beginning with the invocation of national security and McCarthyism in s America. In international negotiation over human rights standards one impact of the Cold War was that the freedom of religion of the individual came to be considered alongside its opposite: the freedom to adopt materialistic as opposed to spiritual values and beliefs. The Soviet Union was to the end unhappy that a strict balance between the recognition of freedom of religion and the rival freedom for atheistic belief and ideology had not been reflected in the international standards adopted. It might well have been better for the protection of freedom of religion if this freedom had been codified as a separate norm and not linked to the wider issues of freedom of thought. But that is now an idle thought. A second consequence of the dominant ideological divide was that the conflicting ideas of freedom, the individualist position of the West and the more collectivist oriented conception of the East were both absorbed into the language of the major human rights documents, beginning with the Universal Declaration of Human Rights. While the ideology of Communism is gone, even in the most populous country in the world, China,

 On the ‘East’, ‘West’ clash on freedom of information see E.J. Daes, ‘Freedom of Information and the Press: The Experiment that Failed’, in A. Eide and S. Skolgy (eds.), Human Rights and the Media (Norwegian Institute of Human Rights Publications, Oslo, ), p. .  T. Földesi, ‘The Main Problems of Religious Freedom in Eastern Europe’ in J. Witte and J.D. Van der Vyver, Religious Human Rights in Global Perspective, Religious Perspectives (Martinus Nijhoff, The Hague, ), p. .  A. Fried (ed.), Mc McCarthyism: the Great American Red Scare: A Documentary History (OUP, New York, ).

Freedom of Religion in International Law  the universal as opposed to Western, Asian or other conceptions of human rights remains one which is both individual and communal. Rights in their exercise are explicitly linked to both responsibilities and to the interests of the community. The recognition of freedom of religion in the international standards reflects this understanding of individual and communal dimensions of the freedom. A further reflection on this Cold War era that has passed away might be to remind ourselves that the present global context with its myriad crises of poverty, environmental degradation, and international terrorism is not unique. The modern law of human rights was set down in the wake of the Second World War that left over sixty million dead. It was constructed in the shadow of the Holocaust, the sudden and seemingly permanent division of Europe and the constant threat of nuclear destruction of all human civilisation. In the present continuing world security crisis precipitated by the terrorist attacks on the United States on  September , the world is again polarised and insecure. Islam is being invoked by fanatical and violent networks such as al-Qaeda, boosted by new communication technologies, to exploit the anger of millions of the world’s Muslims over long neglected political and economic injustices especially in the Middle East. Extreme or fundamentalist ideas sourced to Islam are being promoted within the Muslim populations of European democracies leading to serious tensions between the majority populations and their mostly recent Muslim immigrants. The Western response in the ‘global war on terror’ which has been projected in the United States at least as a never ending confrontation with radical Islam, puts at risk the very values that it seeks to defend. It is imperative that the universal standards on human rights, sustained

 The coupling of the individual and collective is caught well in article  and article  of the Universal Declaration: Article . All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one and other in a spirit of brotherhood. Article .. Everyone has duties to the community in which alone the free and full development of his personality is possible. See J. Morsink, The Universal Declaration of Human Rights Origins Drafting, and Intent (University of Pennsylvania Press, Pennsylvania, ), pp. –.  For the most powerful recent study of global crises see A More Secure World: Our Shared Responsibility, The Report of the High Level Panel on Threats, Challenges and Change,  December , UN DOC A// ().

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despite the Cold War are not jettisoned in this new crisis. The religions of the world and especially the three faiths that have their origins in the Middle East, Judaism, Christianity and Islam, could play an indispensable role in defending the major civilisational advance of the twentieth century, the aspiration for universal and equal human rights. One way that these religions could contribute is by unequivocally affirming the right of the individual everywhere to religious freedom and by working together with other religions to promote the ideal of complete religious freedom in the world. b. The Interdependence of Rights and Freedoms In the ‘short’ decade of the s following the end of the Cold War and before ‘/’ there was one important achievement of international co-operation on universal human rights. That was the consensus which emerged over the legitimacy of the different categories of rights. From the adoption of the Universal Declaration in , the categorisation of rights had been a source of ideological dispute. The West had presented itself as the champion of civil and political freedoms and the East in turn projected itself as the defender of economic and social rights. We begin the st century with an acceptance that both sets of rights are vital constituents of the international law of human rights. All categories of rights are interdependent and of equal importance. It is the duty of states and of the international community to uphold all of them. The consensus achieved over the subject of human rights goes further. It is recognised that the promise of universal and equal enjoyment of rights will remain a hollow until the stark contrast in life chances between the developing majority and minority developed world is ended. The achievement of self determination of the peoples of the global South was the most important international human rights advance of the last half century. The most important ambition for the early decades of this century is the achievement of economic and social development for the peoples of these now independent countries. Development is now understood to be part and parcel of the struggle for universal respect for all rights. Of special importance for the advancement of development and human rights is the

 Declaration and Programme of Action, World Conference on Human Rights, Vienna, – September , UN DOC A /CONF//.

Freedom of Religion in International Law  emerging norm in international law on the requirement of democracy as the only legitimate system of collective rule in which equal human rights can be enjoyed and human needs fulfilled. In examining the practice of states in securing religious freedom to their citizens, that freedom should not be seen in isolation. Its enjoyment and its guarantee cannot be isolated from respect for other freedoms such as freedom of speech and information or freedom of association. Freedom of religion depends hugely on these other freedoms. It cannot be isolated either from ‘freedom from want’, from economic and social development and such rights as education and health. Freedom of religion is to be sure a discrete right that has specific and unique dimensions. But in the continuing efforts to ensure that it is understood, accepted and universally respected in practice a wider framework of thought and action is required. That framework should bring together the freedom’s relationship with other human rights and should link it to efforts to achieve the Millennium Development Goals and democratic societies. c. International Law and the Diversity of Faith Commitments A further general reflection concerns the logic of a universal norm on religious freedom. In international law such a norm cannot rest its legitimacy on the internal truths, revelations or beliefs of any one system of faith. It is a paradox perhaps that the system of ethical and moral standards of international law which historically largely rests on religious influences must operate without explicit reference or recourse to such religious foundations. The sheer diversity of faith commitments by the peoples of the world and the diversity of fundamental beliefs that are avowedly nonreligious necessitate a position of neutrality or impartiality as between beliefs. International law and specifically the corpus of human rights law that address states has as its point of departure the concept of the freedom of  T. Frank, ‘The Emerging Right to Democratic Governance’ ()  AJIL ; G.H. Fox, ‘The Right to Political Participation in International Law’ () Yale Int’L.J. .  For an affirmation of the centrality of freedom of association for the exercise of religious freedom see Case of Hasan and Chaush v. Bulgaria, Application no. /, judgment of the European Court of Human Rights,  October .  For the United Nations Millennium Development Goals see, www.un.org/millenniumgoals/.  M.W. Janis and C. Evans (eds.), Religion and International Law (Brill, The Hague, ).

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the individual to believe, not the merits or truth of what he or she believes. International law defends in positive terms the freedom of religion because it is the right of the individual to hold and to practice a faith as that individual and other like believers see it. In so doing human rights law is not placing itself at some higher level or plane above religion or non-religious beliefs. Rather it is accommodating to the plurality of such beliefs in the world while drawing its inspiration from the principles of justice and ethics shared by all religions and humanist beliefs. To advance religious freedom and to end religious persecution an understanding of that freedom that is inclusive of all religions is urgently needed. The international norms of freedom of conscience, freedom of thought and freedom of religion will remain lifeless until they are invoked as a framework for much needed sustained dialogue and action by the world’s religions. As the theologian Hans Kűng has famously declared, ‘there will be no peace in this world without peace among the world religions.’ The religions can help to make states accountable for failure to implement international legal standards on religious freedom. The answer to the religious intolerance that scars the world is the securing of religious freedom for all. There is no alternative road to peace and justice in an irreversibly interdependent world. d. The Principle of Equality and Non-Discrimination It is a central concept of international human rights law that human rights are for all. Everyone everywhere is entitled to equal human dignity and rights as it is expressed in the Universal Declaration of Human Rights. The principles of equality and non-discrimination are inherent in the conception of human rights as universal entitlements. The United Nations Charter requires states to recognise and to promote both equality of treatment and the enjoyment of human rights. The history of the last half century could be summarised as the working out of for all societies of the implications of the principle of equal treatment for all human beings. The struggle for equality has seen its most profound manifestation in the achievement of the rights of peoples to self determination. It has also led to the transformation of societies through the pressure for ethnic or racial as well as gender equality. The principle however has yet to play such a transformative role

 H. Kűng, Christianity and the World Religions: Paths of Dialogue with Islam, Hinduism and Buddhism (Collins, Glasgow, ), at p. .

Freedom of Religion in International Law  in the struggle over the elimination of religious discrimination. But it has the potential to do so. The international approach to ensuring religious freedom has advanced on twin tracks. First there has been the codification of the positive elements or concrete requirements of that freedom. Second, and in parallel there have been efforts to confront discrimination and to eliminate practices that deny the right to equal treatment to individuals and communities because of their religious beliefs. While there remain areas of uncertainty as to the positive norms defining the scope of religious freedom in international law, the inadmissibility of religiously motivated or justified discrimination is a fundamental norm of customary international law. Yet systematic discrimination and persecution on the ground of difference in fundamental beliefs persists. e. Religion and State It might be assumed that the principle of equality of treatment and nondiscrimination should be reflected in the separation of religion from the state. But whatever about future understandings of the equal guarantees of religious freedom, international law does not require such constitutional arrangements of the state. Historically there has been an enormous range of types of association between predominant faiths and political power in all regions of the world involving many different religions. Formal and complete separation as for example in France, the United States, Turkey or India, policed by constitutional rules remains exceptional. The range of relationships between secular power and religions including in Islamic countries is diverse and in constant adaptation. International law requires only that any variant of relationship between the state and religion should not result in disadvantage or exclusion of those who are not of the established official or recognised religions. In particular the situation of religious minorities attracts the protections of international law including the over riding principle of non-discrimination. The Human Rights Committee (discussed below) which functions under the International Covenant on Civil and Political Rights has added that the same principle applies when the state adopts an official secular ideology. There is no opportunity to

 General Comment No. . [ICCPR Article ] Human Rights Committee, CCPR/ C/Rev./Add. adopted on  July .  Ibid., para. .

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develop the topic further except to note that in a world of global movement of people and of communications the compatibility of state identified or sanctioned religion where citizens are increasingly pluralistic in their adherence to religious and non religious beliefs has become a pressing issue. The position of international law discussed above, as neutral and impartial between different faiths and beliefs while upholding the freedom of belief of all, offers an increasingly influential model for the accommodation of religious pluralism in national states. f. Combating Ignorance through Education The elimination of prejudice towards others whether motivated by their ethnic or racial difference, their colour, language, nationality, sex or beliefs requires the use of law. But it also requires enlightenment and education. The formation in the individual of prejudice and its maturing into hate violence and discrimination is not always or even usually today the fruits of state policies, it flows from religious believers themselves. The more intense or committed peoples are to their own beliefs the greater their ignorance is of the faiths of others, usually minorities, in their midst. Thus the countering of ignorance through education and dialogue has been long recognised as vital for an effective strategy to eliminate all forms of discrimination. But the resources committed to education and to the promotion of mutual understanding and accommodation are often derisory. Global initiatives such as the Dialogue among Civilisations, launched at the suggestion of former President Khatami of Iran in , languish. Important beginnings such as the Madrid Declaration on School Education have not been

 D. Little, ‘Studying “Religious Human Rights” Methodological Foundations’ in J. Witte and J.D. van der Vyver (eds.), Religious Human Rights in Global Perspective, Legal Perspectives (Martinus Nijhoff, The Hague, ), pp. –; P. Weller ‘ “Human Rights” Religion and the Secular: Variant Configurations of Religion(s) State(s) and Society(ies)’ () Religion and Human Rights, pp. –.  P. Weller ‘The Dimensions and Dynamics of Religious Discrimination: Findings and Analysis for the UK’, in N. Ghanea (ed.), The Challenge of Religious Discrimination at the Dawn of the New Millennium (Martinus Nijhoff, Leiden/Boston ), pp. –.  See D. Diène, ‘Eliminating Racism in a Changing World: Arguments for a New Strategy’, in Dimensions of Racism (United Nations, New York and Geneva, ), pp. –.  In response to the Iranian proposal the United Nations voted to make  the United Nations Year for Dialogue among Civilisations, GA Res. /  November  and GA Res. /, Agenda for Dialogue among Civilisations,  November . See H. Küng, G. Picco, K.A. Aboulmagd et al., Crossing the Divide: Dialogue among Civiliza-

Freedom of Religion in International Law  effectively pursued. The comprehensive action plan to counter racism and intolerance adopted at the United Nations World Conference against Racism in Durban South Africa in  equally appears to have run into the sand. While civil society initiatives to promote tolerance abound, by their nature theses are small scale and often invisible to the larger world. The absence of concerted effort to counter prejudice and ignorance especially over religion or belief represents a stark failure in international co-operation. The absence of such efforts contrasts ominously with the exponential growth of religious and ethnic hatred fomented on the Internet. ii. the international standards on freedom of religion The human rights norms on freedom of religion to be examined here are for the most part those proclaimed in the International Bill of Human Rights, the greatest achievement of the United Nations in its standard setting activities of the twentieth century. The International Bill of Human Rights is the formal title give to the Universal Declaration of Human Rights , along with two International Covenants; the International Covenant on Economic Social and Cultural Rights and the International Covenant on

tions (The School of Diplomacy and International Relations, Seton Hall University, South Orange N.J., ).  Final Document of the International Consultative Conference on School Education in Relation to Freedom of Religion or Belief, Tolerance and Non-Discrimination, Madrid – November , UN Doc.E/CN. /.  World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration and Programme of Action (United Nations Department of Public Information, New York, DP//). See also the Official Report of the World Conference, A /CONF./. For reports on official efforts to follow up the Durban World Conference, see www.ohchr.org and especially reports of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action.  See for example; the Southern Poverty Law Centre site, www.tolerance.org; and Third Millennium Foundation, www.seedsoftolerance.org/.  The consistent work of the Council of Europe on human rights and inter-cultural education is an exception. See for example its ‘All Different – All Equal’ Network, http:// alldifferent-allequal.info/. The work of the OSCE and its Office of Democracy and Human Rights (ODIHR) on religious freedom and tolerance building should also be noted. See the new ODIHR initiative, Tolerance and Non-Discrimination Information System, http://tnd. odihr.pl.  B. Sorensen, ‘Racism the media and the Internet’ in Dimensions of Racism, above n. , at pp. –. On combating hate-crime on the Internet see: www.osce.org/item/ .html.

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Civil and Political Rights and its Optional Protocols. These international treaties were agreed by the General Assembly of the United Nations in  and came into force in . They have now been ratified by the large majority of states. In  the United Nations after protracted debate agreed a further instrument that specifically addressed religion and belief, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. This important text was directed at the second track of the international human rights approach mentioned above, namely to eliminate practices of religious discrimination that run counter to the fundamental norms of equality and human dignity. Regional agreements on human rights came to be established at different times over the last half century all inspired by the achievements at the global level. At national level the Universal Declaration extensively influenced the human rights provisions of most national constitutions adopted in the world since . Most of these national constitutions include guarantees of equality and non discrimination as well as individual freedoms including freedom of religion, and most echo the language of the Universal Declaration. The effort to enhance religious freedom through the adoption of new standards is a continuing process. On the regional level one can point for example to the work of the Organisation for Security and Co-Operation in Europe (OSCE), a Cold War diplomatic forum which has grown into an important pan – European body working for peace democracy and human rights. A further important regional initiative was the adoption

 Universal Declaration of Human Rights General Assembly resolution  A() OF  December ; International Covenant on Economic Social and Cultural Rights  UNTS  (ICESCR); International Covenant on Civil and Political Rights,  UNTS  (ICCPR).  On  September   states had ratified the IESCR and  the ICCPR, www. ohchr.org/english/countries/ratification/.htm. (accessed  October ).  General Assembly resolution / of  November , A/RES//.  These are the European Convention on Human Rights  (entered into force  September ), the American Convention on Human Rights  (entered in force  July ) and the African Charter on Human and Peoples’ Rights  (entered into force  October ). The regional instruments and their guarantees of religious freedom will not be discussed in any detail in this chapter.  See especially the Vienna Concluding Document  January , Principles  and  (on religious freedom), ILM  . T. Gunn, ‘The Organisation for Security and Co-Operation in Europe and the Rights of Religion or Belief ’ in P.G. Danchin and E. Cole (eds.), Protecting the Human Rights of Religious Minorities in Europe (Columbia University Press, New York, ), pp. –. For the work of the OSCE, see www.osce.org.

Freedom of Religion in International Law  of the revised Arab League Charter on Human Rights in . At United Nations level the Declarations on the Rights of Minorities, and the Declaration on the Rights of Indigenous Peoples,  are further standard setting developments that include important advances in the protection of freedom of religion. Article  Universal Declaration of Human Rights ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’.

a. Overview The Universal Declaration was never intended as a statement of binding commitments by governments but was rather to serve as an affirmation of the ideal of universal human rights and to provide an agreed exposition of the scope and content of what had been left undefined in the United Nations Charter. The Declaration in its own words proclaims, ‘common standard of achievement for all peoples and all nations’. The substance of its article on freedom of thought conscience and religion was made part of the International Covenant of Civil and Political Rights numbered also as article . That article is discussed below. Perhaps the first thing to say about the Declaration’s enshrining of religious freedom is the obvious one: that a half century and more after its adoption it is very far from being a common standard as regards religious

 See M. Rishmawi, ‘The Revised Arab Charter on Human Rights: A Step Forward?’ ()  Human Rights Law Review, pp. –.  GA Res. / of  December  ILM  () .  The UN Human rights Council adopted the Declaration on  June . It awaits a further vote at the General Assembly. These texts however for reasons of space cannot be examined in detail here. On the potential of the minorities article of the International Covenant on Civil and Political Rights for the protection of religious minorities – article : see G. Gilbert, ‘Religious Minorities and their Rights: A Problem of Approach’ ()  International Journal on Minority and Group Rights –, N. Lerner, ‘Religious Human Rights Under the United Nations’ in Witte and Van der Vyver, above n. , at pp. –.  J. Morsink, The Universal Declaration of Human Rights: Origins Drafting and Intent (University of Pennsylvania Press, Pennsylvania ).

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freedom for many millions of people in the world. As emphasised earlier all the rights and freedoms in the Declaration are to be read alongside the principle of equality of treatment that requires the repudiation of all supposed justifications of discrimination including on the ground of religious belief. But religious discrimination and persecution persists in the world involving many and different religions and believers. b. Freedom of Thought and Conscience The freedom identified in the Universal Declaration is a single freedom, freedom of thought. One dimension or expression of this genus of freedom of thought for the individual and for communities is that of religious belief. But religious belief necessarily includes consequential practical and spiritual action. For this reason the only expression of ‘freedom of thought’ which is articulated in the Article is that of religion. The reference to the individual conscience in article  and  of the Declaration invokes a Christian-derived belief in the existence and primacy of the individual’s moral being. The reference to conscience also invokes the historical struggles of early Christianity to establish itself within the Roman imperial cult of Caesar; and then in early modern Europe to achieve freedom from allegiance to a state-‘establishment’ of religion imposed by force, whether Catholic or Protestant. Yet the rights of conscience are wider than religion. In its more modern connotation, freedom not to believe or commit to any religious dogma came to include the right to refuse to submit to a non-religious ideology, as for example that of the communist regimes being installed throughout much of Eastern and Central Europe at the time the text was being drafted.

 K. Boyle and J. Sheen, Freedom of Religion or Belief a World Report (Routledge, London and New York, ). For more current information see International Religious Freedom Report  Bureau of Democracy, Human Rights and Labor, State Department, United States Government Washington DC .  B. Tierney, ‘Religious Rights: An Historical Perspective’, in Witte and Van der Vyver, above n. , at pp. –.  See generally, K. Blei, Freedom of Religion and Belief: Europe’s Story (Van Gorcum, Assen, ).

Freedom of Religion in International Law  c. Influence of Religions In the drawing up of the United Nations Charter and the Universal Declaration the major religions and philosophies of the world, while not formally represented, had their influence through the representatives of the States who negotiated it and in the lobbying of religious groups. Certainly the three mono-theistic world religions, Judaism, Christianity and Islam had voice and effect on the wording of article . New research on the role of religious organisations in the adoption of universal rights as a central purpose of the new United Nations organisation has brought out the contribution of Christian churches (in particular American Protestant ecumenists) to the human rights movement in its formative stages. That contribution included significant influence on the recognition of religious freedom and the language of article  of the Declaration. There were efforts including from some Latin American states and from the Vatican to have an explicit reference to God in the Declaration. But that was hardly a possibility given religious diversity in the world and the anti-religious position of the Soviet states. Instead the focus turned to ensuring that the Declaration gave a substantive content to its recognition of religious freedom. The representative of the ecumenical Churches Commission on International Affairs (at that time the only religious NGO formally accredited to the UN) was O. Frederick Nolde, a Lutheran academic. He and others worked in the background at the drafting stages of the Declaration, arguing for a formulation that would secure religious freedom in a specifically secular context, whereby freedom for both religious and non religious belief would be defended equally. He included in his argument strong affirmations of connected freedoms such as freedom of information or expression and freedom of association, which he judged essential if religious liberty was to be fully exercised. Article  was to reflect this position in speaking of  American Jewish leaders active were Jacob Blaustein and Joseph Proskauer who had been among the Ngo members of the US Delegation to the San Francisco Conference which agreed the UN Charter. On Islamic states involvement see J. Kelsey, ‘Saudi Arabia Pakistan and the Universal Declaration of Human Rights’ in D. Little, J. Kelsey and A.A. Sachedina (eds.), Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (University of South Carolina Press, Columbia, ), at p. .  J.S. Nurser, For All Peoples and All Nations: The Ecumenical Churches and Human Rights (Georgetown University Press, Washington, ).  See above n. , pp. –.

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the right to manifest religion or belief ‘either alone or in community with others and in public or private’ and to express that freedom ‘in teaching, practice, worship and observance’. d. Freedom to Change Religious Beliefs For Nolde and many others the crucial test of recognition of the individual conscience was that the individual might be free without community or religious sanction to change beliefs. That element of the freedom was included in the agreed draft article . But it has remained deeply problematic since, particularly for Muslims. When the freedom ‘to change his religion or belief’ is added to the freedom of religious expression, the article appeared to endorse a conception of religious freedom that protected the freedom both of the individual to convert to another religion and for the right of persons of that other religion to seek by argument and example to convert the individual to their faith. What was implied as a core dimension of this freedom therefore was the space for competition between religions for new adherents. What was implied also was the acceptance by religions that the individual had freedom to abandon a religion of birth for no or alternative beliefs. Such a model of religious liberty was in fact a challenge to many religions. The idea of freedom of conscience and the right of the individual to challenge received religious teaching or to choose religious or non religious convictions was long denied in Christianity. especially in its Orthodox and Catholic traditions Indeed it was not until  and the Declaration on Religious Freedom of Vatican , that the Roman Catholic Church accepted this implication of the right to freedom of conscience. Protestant Christians could see in this model of religious liberty, opportunity to pursue the injunction of their religion to evangelise while accepting reciprocal freedom for other faiths or for humanistic beliefs. The position of Muslim countries towards religious freedom, countries which had experienced an era of colonial occupation and continued Western economic dominance, needs to be understood in that context as well as by reference to Islam itself. Islam means the submission of the individual will to the will of God and in the dominant understanding the freedom    

See above n. , pp. –. Above n. , at p. . Ibid., p. . Above note , pp. –.

Freedom of Religion in International Law  to change religion is inadmissible. While it is a fundamental principle in Islam that there can be no compulsion in matters of religion, Muslims cannot reject Islam for other beliefs whether religious or non-religious. Such an action is the crime of apostasy and is contrary to Islamic law. Although it is often considered a crime punishable death in many countries in practice there is often no such provision in state law. On the other hand Islam is a religion that welcomes new believers and enjoins its followers to convert others. The implications of this contradiction for Islamic doctrine and international law are discussed further below. But it should be noted here that having argued strongly against the recognition of the right to change religion during the drafting sessions on Article  the representative of Saudi Arabia, Ambassador Baroody, abstained in the General Assembly vote that adopted the Universal Declaration on  December . His ground was the inclusion of the freedom to change religion. However his position did not go unchallenged by other majority Muslim countries involved in the negotiations who voted for the Declaration led by the Pakistan ambassador, Zafar Ullah Khan. Reflecting on the drafting of the Universal Declaration and subsequent efforts to agree international standards on religious freedom it can be seen

 For an alternative argument based on contextual understanding of the Koran see: N.A. Shah, Women, the Koran and International Human Rights Law: The Experience of Pakistan (Martinus Nijhoff, Leiden, ).  It is in fact a religious duty on Muslims to invite others to their religion: Ye are the best of peoples, evolved for mankind, enjoining what is right, forbidding what is wrong, and believing in Allah (:). Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong (:). (They are) those who [Muslims], if We establish them in the land, establish regular prayer and give regular charity, enjoin the right and forbid wrong (:). Y. Ali, The Meaning of the Holy Qur’an (Amana Corporation, Maryland, ). (I am grateful to Dr Shah for these Koranic sources).  For a study of the differences between Islamic states over the draft Article , see J. Kelsey, ‘Saudi Arabia, Pakistan and the Universal Declaration of Human Rights’ in Little, Kelsey and Sacendina (eds.), above n. , p. . See also, J. Rehman, Islamic State Practices, International Law and the Threat from Terrorism, A Critique of the ‘Clash of Civilisations’ in the New World Order (Hart Publications, Oxford and Portland Oregon, ), pp. –.

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that there were both maximalist and minimalist positions. The maximalist position was endorsed by western Christian pressures principally from Protestant churches. A strong component of this conception was the right to evangelise others in all countries. Islamic countries focussed on combating intolerance particularly towards Islam and the protection of religious minorities, for which indeed Islam had a proud record, while holding to a clear territorial conception of religion. The tensions between these different conceptions of religious freedom continue to be experienced not only between Western Christianity and Islam, but in the relationship between the Eastern Orthodox faith and other religions. For different reasons the idea of freedom of thought or individual moral autonomy and conscience was anathema to the atheist and totalitarian ideology that was imposed on their populations for most of the twentieth century by the former socialist states. It remains anathema today in the state that rules over one fifth of humanity – China, as does its corollary, the autonomy of religious organisations. The Universal Declaration by its nature could not specify in greater particulars the substance of freedom of religon as a freedom in international law. That came with the drafting of the International Covenants to which we now turn. Article  International Covenant on Civil and Political Rights . Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. . No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

 The translation of the rights and freedoms proclaimed in the Universal Declaration into treaty commitments which states would be bound to uphold was a lengthy process and has been written about extensively. See M.J. Bossuyt Guide to the ‘Travaux Preparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff, Dodrecht, ). For the most detailed study of the evolution of the language of Article  see M.D. Evans, Religious Liberty and International Law in Europe (Cambridge University Press, Cambridge, ). See also L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, New York, ).

Freedom of Religion in International Law  . Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. . The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.

This article is in four parts. Taken together these provisions contain the core international law commitments on the protection of freedom of religion made by those states, now the majority in the world, which have ratified this International Covenant. Article  is to be read in conjunction with the provisions of this Covenant on equality including gender equality and the Covenant’s article on the protection of minority rights. It needs also to be read in conjunction with article  which sets out in detail the obligations on each state that is bound by the Covenant to “respect and to ensure” this right to all individuals subject to its jurisdiction. e. Paragraph  The Elements of Freedom of Religion The first paragraph mirrors closely but not exactly the language of the Universal Declaration. It confirms the individual and collective components of the freedom and repeats the language which gives substance to the right to live by ones beliefs, alone or with others, – through worship, observance, practice and teaching. The singular difference in this paragraph from article  of the Declaration is the sentence on the sensitive issue of changing religion or belief. The formulation – freedom to have or to adopt a religion or belief was a compromise due to the resistance of Islamic countries (led again by Saudi Arabia) to the explicit recognition in law of the right of the individual to change religion. The formulation finally agreed identifies two components, the right to have and the right to adopt religious beliefs of the individual’s choice. Evans has commented that the language can be read as endorsing the right to change religion, but that it is also ‘open to the interpretation that it allows an individual to continue in a faith, to



See in particular, articles , and  on equality and article  on minority rights.

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adopt a faith but not abandon a faith already held’. It is important to note therefore that in the only available authoritative interpretation of article , that given by the Human Rights Committee which supervises the implementation by states of their obligations under the International Covenant, the language is declared to include the freedom to change religion or belief. In its General Comment  the Committee states that: the freedom to “have or to adopt” a religion or belief necessarily entails the freedom to choose a religion or belief including inter alia, the right to replace one’s current religion or belief with another or to adopt atheistic views as well as the right to retain ones’ religion or belief.

Nevertheless the position remains uniformly that Islamic states have not formally accepted such an understanding of their obligations under the Covenant. Islamic practice stands outside the international consensus on this core feature of the right to religious freedom. The Human Rights Committee in its General Comment confirmed a further aspect of the freedom which conflicts with Islamic teaching and practice. This concerns the meaning of ‘religion or belief ’. For the Committee article , . . . protects theistic, non-theistic and atheistic beliefs as well as the right not to profess any religion or belief. . . . The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons including the fact that they may be the subject of hostility by a predominant religious community.

The Islamic tradition for tolerance of ‘people of the book ’has been properly acknowledged contrasting as it did with the historical intolerance in Christianity to both Muslims and Jews. However the requirements of the international standards is that freedom in equality be extended in law to all beliefs including religions that are not based on the Scriptures as well

 M.D. Evans, above n. , at p. .  General Comment on Article  adopted by the Human Rights Committee under Article  ICCPR, CRP. /Rev.  July , para. .  Rehman, above n. , p. ; Boyle and Sheen, above n. , pp. –. A.A. AnNa’im, ‘Islamic Foundations of Human Rights’ in Witte and Van der Vyver, above n. , at pp. –.  General Comment, para. .  Rehman, above n. , pp. –; K. Blei, Freedom of Religion and Belief: Europe’s Story (Van Gorcum, Assen, ), pp. –.

Freedom of Religion in International Law  as beliefs that are non- religious in nature constitutes a major challenge. That challenge is subject to no obvious solution. f. Paragraph  Coercion and Proselytism The second paragraph of the article also reflects concern over the issue of change and choice of religion. The clause which prohibits coercion in respect of religion echoes the injunction of the Koran: ‘let there be no compulsion in religion’. In substance it seeks to outlaw coercive efforts to convert persons to a different religion, or to recant their beliefs as it equally outlaws compelling believers to undertake religious commitments. The paragraph is the closest international standards approach the issue of proselytism, which is the activity of seeking to persuade others to change beliefs. Forced conversion is clearly wrong but there is not an explicit endorsement by any means of the right to persuade others to seek to convert non-believers. This sensitive issue is one of the most serious affecting inter-religious relations in different regions and countries especially when combined with the idea of territoriality and religious commitment. g. Paragraph  Manifestation and Restrictions The third paragraph introduces the basis for the limitation of the rights to manifest religion. Article  is in the scheme of this Covenant an absolute right. Once a state has become bound by the treaty it may not ever suspend the right as certain other rights can be in a ‘time of public

 ‘:’: see, N.A. Shah ()  ‘Freedom of Religion: Koranic and Human Rights Perspectives’, Asia Pacific Journal on Human Rights and the Law pp. –.  On the right to evangelise see Kokkinakis v. Greece judgment of the European Court of Human Rights  May ,  EHRR . For a critique of this decision see, M. Evans, above n. , pp. –.  A. Owens, ‘Protecting Freedom of and from Religion: Questioning the Law’s Ability to Protect against Unethical Conversions in Sri Lanka’ ()  Religion and Human Rights pp. –.  For a detailed legal analysis of this paragraph see M. Novak and T. Vospernik, ‘Permissible Restrictions on Freedom of Religion’, Seminar on Freedom of Religion or Belief in the OSCE Region: Challenges to Law and Practice (Ministry of Foreign Affairs, the Netherlands, The Hague, ).

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emergency threatening the life of the nation’. Further the core of the right, the freedom of conscience and freedom to hold religious beliefs may never be limited. But the manifestation of the freedom can be subject to limitation under certain conditions as set out in this paragraph. In its General Comment the Human Rights Committee first sought to give specific content to the ‘broad range of activities’ encompassed by the right to manifest religion in worship, observance, practice and teaching. It is worth citing in full. ‘The freedom to manifest religion or belief may be exercised “either individually or in community with others and in public or private”. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications’. It is these religious activities which in principle may be subject to limitation by a state on grounds of ‘public safety, order, health, or morals or the fundamental rights and freedoms of others’. Restriction to be legitimate requires that it is ‘prescribed by law’. That principle incorporates the

 Article  of this Covenant.  ‘Article  distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article .. In accordance with articles . and , no one can be compelled to reveal his thoughts or adherence to a religion or belief ’. General Comment para. .  General Comment para. .

Freedom of Religion in International Law  values and standards of the rule of law into the assessment of the legitimacy or fairness of any limitation. Any purported regulation addressed to religions or the application of a regulation related for example to registration of religions must be based on pre-existing law that is sufficiently clear and accessible to those to whom it is applied. It means further that a governmental decision affecting religious freedom or belief should either be undertaken by a judicially independent agency or be capable of being challenged before an independent court. A restriction must be necessary also for the public purpose claimed. In the context of the Covenant this is equally a question of values. The limitation must be one that can be justified in terms of the values of a democratic society and be proportionate to the goal sought to be achieved. The Human Rights Committee has noted that freedom from coercion to have or adopt a religion or belief or the liberty of parents and guardians to ensure religious and moral education cannot be restricted. Permissible restrictions should be narrowly drawn and should only be for the purposes permitted. Thus Article  may not be restricted on grounds of national security. Where restriction is justified by reference to the protection of morals then the concept of morals should not be drawn exclusively from a single tradition. Restrictions must not be imposed for discriminatory purposes or in a discriminatory manner. States should approach the interpretation of permissible limitations from the position of the need to protect the rights under the Covenant as a whole and in particular the right to equality and non-discrimination. National Security, Terrorism and the Protection of Freedom of Religion or Belief Article  is a right from which as already noted there can be no derogation in time of public emergency and it cannot be formally limited by reference to national security considerations because that ground of restriction is explicitly excluded by the article as a ground of limitation. However the absence of the ground of national security should not be read to mean that concern with security is an illegitimate consideration in the guarantee of Article  freedoms. The grounds or limitation include public safety (in the French version ‘sécurité’ not ‘sureté’), public order, and the fundamental frights and freedoms of others.

 General Comment para. .

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When article  of the Covenant concerning incitement to hatred is considered for example, there is scope for restriction on religious preaching as being necessary for security including the security of others. The conviction in Britain in  of the Jamaican born Muslim cleric, Sheik Abdullah – El Faisal, for soliciting murder and incitement to racial hatred through his preaching and in recordings offered to the public, is one example. In another British case, in  the Muslim cleric Abu Hamza al-Masri was sentenced to seven years in prison after being found guilty on terrorism charges, including soliciting murder and inciting racial hatred. Such cases aside the dilemma is that invocation of claims of security related to freedom of religion as justified counter- terrorism measures can be easily abused. There have been strong and important statements of policy and advice from international and European regional bodies on implementing necessary counter-terrorism measures without departing from international human rights obligations and the rule of law. Equally however there has been much evidence of the ignoring of human rights standards and the rule of law by states in responding to terrorist acts or threats. In the current context security where invoked, does not only mean ‘national security’. After the  September attacks and their aftermath (including the duty on states imposed by Security Council to counter terrorism in Security Council Resolution ), the concept embraces in practice a fusion of national and international security. In this new environment the security duties of the state, and state responsibility for vigilance over threats especially from terrorist acts, have resulted in a heightened vulnerability of all guarantees of human rights and freedoms. The vulnerability of the complex of rights and freedoms that constitute freedom of religion and belief including freedom from discrimination is as serious if not more serious, because States and the international community appear to be less committed to these freedoms.

 Article . ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’  W. Benedek, ‘Human Security and the Prevention of Terrorism’ in W. Benedick and A. Yotopoulous-Marangopolous (eds.), Anti-Terrorism Measures and Human Rights (Martinus Nijhoff, Leiden/Boston, ), pp. –.  United Nations Security Council Res.  () of  September .

Freedom of Religion in International Law  h. Paragraph  Education and Religious Convictions This paragraph safeguarding the right of parents (or legal guardian) to ensure that the child’s moral and religious education is conformity with their convictions is repeated in the parallel Covenant on Economic Social and Cultural Rights, which sets out the right to education. Its inclusion in article  of the Civil and Political Covenant was due to pressure from Greece concerned that the obligation would not be applicable where states did not ratify the Covenant on Economic Social and Cultural Covenant. The substance of this obligation is also included in the  Declaration which falls to be next discussed. iii. the united nation declaration on the elimination of all forms of intolerance or discrimination based on religion or belief  After protracted negotiations over many years, this celebrated Declaration was adopted by the General Assembly of the United Nations at its th session on  November  without a vote. The absence of a vote in UN practice suggests unanimity and even unreserved support for a measure. However the truth was that the language of the Declaration represented a compromise between the different groups of states. It has proved nevertheless an important tool in both confronting violation of religious freedom and in encouraging dialogue between different religions. The Declaration is not legally binding on states. But it has acquired an authority not least because it has been invoked consistently by religious and human rights

 M. Evans, above n. , pp. –.  For a contemporary account of the adoption of the Declaration see H.A. Jack, ‘How the UN Religious Declaration was Unanimously Adopted’, WCRP Report, World Conference on Religion and Peace, New York,  January . For academic critique see; D.J. Sullivan, ‘Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance’ ()  AJIL  (); N. Ghanea, ‘The  Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief ’ in N. Ghanea (ed.), The Challenge of Religious Discrimination at the Dawn of the New Millennium (Martinus Nijhoff, Leiden/Boston, ), pp. –; M.D. Evans, Religious Liberty and International Law in Europe (Cambridge University Press, Cambridge, ), pp. –.

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organisations, many of whom had been active in lobbying for its adoption. Its salience and influence was also advanced when it became the terms of reference of the Special Rapporteur on Freedom of Religion and Belief, the United Nations independent expert who monitors issues of religious intolerance in the world. a. The Declaration and other Anti-Discrimination Instruments The  Declaration combines both a concern with addressing religious intolerance and the manifestation of such intolerance in practises of discrimination. The model for the Declaration was the anti-discrimination instruments which had been drafted to address discrimination based on race and sex. In both of these cases the United Nations had first agreed a short Declaration that expressed a repudiation of such discrimination and outlined the normative requirements for achieving racial and gender equality. These Declarations were followed by Conventions intended to create legal obligations on states to secure equality of treatment. These Conventions established in common form elected Committees (or ‘treaty bodies’) as the main mechanisms to monitor the implementation by states of their new obligations. b. A Convention on Religious Freedom The  Declaration was not followed by a convention however. The Declaration had taken over two decades to agree and to adopt. There was insufficient commitment among states to transform it into a legally binding  Jack, above n. .  On the Special Rapporteur see C. Evans, ‘The Special Rapporteur on Freedom of Religion or Belief ’ in Ghanea (ed.), above n.  at p. .  United Nations Declaration on the Elimination of All Forms of Racial Discrimination, GA Res.  (XV)  November ; Declaration on the Elimination of Discrimination against Women, GA Res.  (XX),  November .  International Convention on the Elimination of All Forms of Racial Discrimination  entered into force  January ; Convention on the Elimination of All Forms of Discrimination against Women , entered into force  September .  On the Racial Discrimination Convention see, K. Boyle and A. Baldacinni ‘A Critical Evaluation of International Human Rights Approaches to Racism’ in S. Fredman (ed.), Discrimination and Human Rights: The Case of Racism (OUP, Oxford, ), pp. –. On the Women’s Convention see A. Byrnes, ‘The “Other” Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women’ ()  Yale J of Int’l L. pp. –.

Freedom of Religion in International Law  instrument as had occurred in respect of the other grounds of discrimination. A draft of a convention had been prepared in the former Commission on Human Rights from the s, but in the light of the complexities and difficulties experienced in achieving agreement on the Declaration, no initiative has been taken since to renew work on a convention on the elimination of discrimination on grounds of religion or belief. The difficulties and complexities were the same that had accompanied the drafting of all the standards on freedom of religion: reconciling the different ideological and religious positions of Muslim countries, the Soviet Union and the Western states. Today’s international polarised political climate is, if any thing a less promising time than the , to propose new legal obligations on states over religious discrimination. Work to advance the cause of religious freedom must operate with existing international legal commitments that are binding on States. This means principally the provisions of article  of the Covenant and equivalent regional norms where states have ratified these. The  Declaration provides an additional and accessible source of advocacy and a basis for dialogue both between religions and with states. It is particularly valuable as a normative source in conjunction with the Human Rights Committee’s General Comment on article  of the Covenant that has been earlier discussed. c. The Scope of Freedom of Religion in the Declaration The Declaration’s statement of the scope of the right ‘to freedom of thought conscience and religion’ diluted further the language adopted in the Universal Declaration of Human Rights. In particular the clause ‘this right includes the freedom to change his religion or belief ’ was absent as was the more muted clause on the same issue in article  of the International Covenant (‘to have or to adopt’ a religion of his choice). This had been necessary to ensure the vote of Moslem countries now functioning within the Organisation of the Islamic Conference (OIC) whose members would not countenance the explicit recognition of the right to change religion of

 Under  

For a discussion of a possible convention see N. Lerner, ‘Religious Human Rights the United Nations’ in Witte and Van der Vyver, above n. , at pp. –. Evans, above n. , pp. –; Jack, above n. . See above n. .

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birth. The compromise that was accepted by the Western states is set out in the Declaration’s article : Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration and the International Covenants on Human Rights.

By preserving the definitions on religious freedom in these instruments, diplomacy thereby found a means of securing the passage of the Declaration. But only by disguising the gulf between the negotiating states. Indeed in explanation of vote after the Declaration was adopted, Mr Habib A. AlQaysi, the representative of Iraq, speaking on behalf of the OIC expressed ‘. . . their reservations in connection with any provision or wording in the Declaration which might be contrary to Islamic Law (Shari ‘a) or to any legislation or act based on Islamic Law’. The Soviet concern, as discussed earlier, had been to ensure that atheism was granted moral equivalence to theistic belief. The inclusion of the clause ‘whatever’ in the first definitional paragraph (‘This right shall include freedom to have a religion or whatever belief of his choice’), secured its reluctant acceptance of the Declaration. But equally discouraging comments as made by the Islamic states about the impact of the Declaration on Soviet practice were voiced following its adoption. While such historical background is important to record it does not control the practical potential of the Declaration for all time. It has already been noted that the Human Rights Committee in its General Comment, adopted a decade after the Declaration, has given a robust interpretation of the scope of the right to religious freedom (including freedom to change religion) and to the obligation of states which have ratified the Covenants to secure that freedom without discrimination. d. Non-Discrimination Provisions of the Declaration The  Declaration’s most significant provisions concern discrimination on matters of religion. These provisions operate as clarification of the exist-

 On this organisation see Rehman, above n. , pp. –.  Cited by Jack above n. , p. .  Ibid., pp. –.

Freedom of Religion in International Law  ing international law norms on the inadmissibility of any such discrimination. Article  of the Declaration provides: No one shall be subject to discrimination, by any State institution group of persons or person on the grounds of religion or belief.

The prohibition on religious discrimination therefore extends beyond state action to include the actions or policies of religious or other non- state institutions as well as individuals. States are required to take positive action to prevent and to eliminate any such discrimination as it affects ‘the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life. Such measures include the passing or repealing of laws as well as the pursuit of policies to combat religious intolerance. Article  of the Declaration, following the precedent of the earlier instruments on racial and sex discrimination, sets out an non exhaustive listing of the major concrete components of religious freedom that are to be recognised and guaranteed by the state. The state should ensure that these aspects of religious freedom are provided for in national legislation. The elements specified include the freedom of worship and the right to establish and maintain places for worship as well as to institute charitable and humanitarian institutions. They extend to having access to the materials needed for the rites and customs of a religion or belief as well the rights to teach, to solicit donations and to train elect or designate appropriate leaders. Religions must also have the right to observe days of rest and celebrate religious holidays as well as to ‘establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels’.

 See in this regard the language of article  of the Declaration: ‘Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations’.  Article  of the Declaration.

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e. The Child, Family Life and Moral and Religious Education Article  repeats and adds to the provisions of the International Covenants on moral and religious education, the duty on the state to recognise the right of parents or legal guardians to organise life within the family in accordance with their religion or belief, ‘and bearing in mind the moral education in which they believe the child should be brought up’. There is little doubt that this provision was aimed at some of the former Socialist states where freedom to transmit religious or moral beliefs within the home that contradicted state ideology was denied and where parents were subjected to pressure and persecution. The primacy of the family and the home in matters of thought, religion and belief remains vital to defend recalling in particular the case of China. Article  also confirms parental rights to ensure that children are educated in accordance with the parents’ wishes. It declares that the child has the right not to be compelled to receive teaching on religion or belief against the wishes of parents subject to the over riding principle of the best interests of the child. As Ghanea points out this article presages the similar provisions to be found in the later Convention on the Rights of the Child. iv. conclusion This chapter has introduced the principal international standards on the right to religious freedom developed through the United Nations. The account has sought to bring out the nature of the disagreements over the right that dogged the process of defining some elements of the freedom. It has also hopefully conveyed the greater level of agreement on the inadmissibility of religious discrimination. The chapter has not addressed issues of implementation of freedom of religion focussing instead on the analysis of the international norms themselves. These aspects are considered in other chapters. However it has been made clear that there are legal obligations on states to secure this freedom to all within their jurisdictions. While there remain major areas of doubt as to the full requirements of this freedom, such doubts do not explain the widespread denial of religious freedom including, but by no means exclusively, in Islamic states. The persistence of religious discrimination and persecution reflects the failure of

 Ghanea, above n. , pp. –.

Freedom of Religion in International Law  states and the international community to live by international standards once agreed. The scale of violation of religious freedom is a challenge to all who work to achieve universal respect for human rights and fundamental freedoms. But it has been suggested that the challenge extends especially to religions themselves.

chapter two

Women’s Human Rights and Religion: How do they Co-Exist? Christine Chinkin* ‘Freedom’, she replied.

i. introduction This chapter addresses women’s human rights and the tensions caused by the co-existence of assertions of women’s equality and claims made in the name of religion. This complex and contested issue has many facets only a few of which are addressed here. The chapter first sets out the right to freedom of religion under international law and considers some of its contested areas, especially in the context of women’s human rights. It then examines how international law attempts to deal with these contradictions and finally some ways in which they might in practice be reconciled. Since the chapter was first presented at a Conference on Religion and Human Rights Law held in Peshawar, Pakistan it uses examples from that country, thereby putting the focus upon the relationship between Islam and women’s human rights. However this is not an issue that is exclusive to Islam but one that exists with many religions, including Christianity,

* Professor of International Law, London School of Economics, London.  This was the response of a woman living within the Tribal area of the North West Frontier Province of Pakistan to the question of what she understood by women’s human rights. I thank the organizers of the Conference for the opportunity to visit this area and especially Kamran Arif, Vice Chair of the Human Rights Commission of Pakistan for his intellectual generosity and hospitality.  This chapter is an updated version of C. Chinkin, ‘Cultural Relativism and International Law’, in C. Howland (ed.), Religious Fundamentalisms and the Human Rights of Women (Palgrave Macmillan, New York, ) . I acknowledge my debt to Dr Anat Scolnicov for all I learnt through many conversations with her on the subject of the right to freedom of religion under international law.  S. Marks and A. Clapham, Human Rights Lexicon (Oxford University Press, Oxford, ) . Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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Judaism, Hinduism and indigenous religions, especially where extremist forms of religions are extolled. ii. freedom of religion under international law The right to freedom of religion is a core right that was entrenched in international law before many other human rights, for example through inclusion within the inter-war minority treaties and as the second of President Roosevelt’s four freedoms. It was included in the Universal Declaration of Human Rights, , article : Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This article has been largely replicated in the International Covenant on Civil and Political Rights (ICCPR), article  and in the regional human rights treaties: the European Convention on Human Rights (ECHR), article , the American Convention on Human Rights (ACHR), article , and the African Charter of Peoples’ and Human Rights (ACPHR), article . These articles provide both positive and negative state obligations with respect to freedom of religion. The negative obligation requires states not to interfere with an individual’s development of their religious belief. The state must also positively protect the right to manifest such belief through, for example ensuring the security of places of worship. Differing views over the extent of such state obligations and, more broadly, the relationship between the state and religion have contributed to the failure to agree a specific treaty on freedom of religion: like other Declarations of the United Nations General Assembly, the Declaration on the Elimination of All Forms

 Howland (ed.), above n. .  The four freedoms were freedom of speech and expression; freedom of every person to worship God in his own way; freedom from want; and freedom from fear; The Four Freedoms, speech to the US th Congress,  January .  The most significant change in the ICCPR is the omission of the explicit freedom to change religion that was controversially included in the UDHR; see S. Waltz, ‘Universal Human Rights: the Contribution of Muslim States’ ()  Human Rights Quarterly , at p. .

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of Intolerance and Discrimination based on Religion or Belief, has nonbinding ‘soft law’ status, but unlike other Declarations has not become the springboard for the negotiation of a legally binding treaty. The right to freedom of religion is an individual right but like other individual rights it is enjoyed in conjunction with others through worship, ceremony and ritual. It thus has the potential to bring into opposition the individual right and the group right to organise the communal aspects of religious membership and observance. It should also be noted that unlike some other individual rights the right to manifest one’s religion is not absolute but is subject to limitations set out within the ICCPR, ECHR and ACHR, including those that are prescribed by law or are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. This last must include the human rights of women. Unlike other political and civil rights (such as freedom of movement, association or assembly) the right to freedom of religion is at the core of a person’s individual and group identity. Discrimination on the basis of such core identity is prohibited in all the major human rights instruments following from the UDHR, article : Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Another prohibited ground of discrimination is sex. The co-existence of the right to freedom of religion and the prohibition of discrimination on

 GA Res. /,  November .  E.g. the Declaration on the Elimination of Discrimination against Women, GA Res. (XXII),  November  was followed by the Convention on the Elimination of All Forms of Discrimination Against Women, GA Res. /,  December ; the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res.  (XXX),  December  was followed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. /,  December .  In this sense the right to freedom of religion is closer to those rights that are subject to similar limitations (for example in the ICCPR, freedom of movement, right to hold opinions, peaceful assembly, association) than to absolute rights (for example in the ICCPR, right to life, prohibition of torture, non-discrimination).  There is no limitation with respect to national security interests as there is for other limited rights.

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the basis of religion with that on the basis of sex has led to contestation and struggle, whereby claims for women’s equality (including women’s equal right to freedom of religion) and empowerment are set against the requirements of religion. The human rights framework does not set out any hierarchy nor any mechanism for resolution of conflicting claims leaving it open for protagonists and decision-makers to determine their own priorities. iii. women’s human rights and freedom of religion Ensuring women’s compliance with what are claimed to be religious demands are often placed at the core of a community’s identity as part of ensuring social coherence, especially if the community is under stress, for example through conflict, occupation, or what is perceived as external attack on its values. This is especially potent for states that suffered European colonial domination and which post decolonisation have sought to exercise their sovereign right to organise legal and social aff airs in accordance with their dominant religion. This in turn fuels the claim that, far from being universal, human rights are a western construct imposed through a contemporary form of imperialism that rejects the particularities of other religions, cultures and traditions. The installation of regimes centred on religious doctrine, especially when achieved through revolution or other non-democratic means, in turn promotes hostility and suspicion from other states. Other tensions are caused in states where there are significant minorities of a different religious persuasion from that of the majority population. The minority might have come about through immigration (as in many countries in the global north) or be indigenous to the area

 These go right back to the drafting of the UN Charter; Waltz, above n. , , at p. .  These areas of contestation have intensified with the growing understanding of women’s human rights as going beyond liberal concepts of formal equality to requirements of substantive equality; see H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, Manchester, ) chapter .  E.g. the hostility between the US and the Islamic Republic of Iran dating from the Islamic revolution of  and the seizure of American hostages in Tehran that year.  Terms such as the ‘west’ or the ‘north’ are problematic and misleading. Western cultures are themselves diverse and the ‘global north’ for many purposes includes Australia and New Zealand from the geographic south. Nevertheless they are a label and thus are used throughout.

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(for example the Muslim community within India, minority populations within Pakistan). In this instance the state may have to determine how to guarantee the rights of minorities and accommodation of difference, while complying with human rights standards. The state must also recognise the potential for multiple discriminations and how sex and religion (or other categories such as race, or ethnicity) intersect and add to economic, social and cultural oppression within the framework of the legal and social normative systems of the majority. For example, minority women within the UK may experience discrimination both as women and as members of the minority and from both the state and from members of their own community. Suspicion and targeting of immigrant communities and of religious minorities have been fuelled by the spread of global terrorism and the war on terror that have added further layers to denials of women’s human rights. Changes in the geo-political environment in the s have fed the distrust of immigrant communities in many host states and have contributed to conflict between states, promoting new forms of global insecurity. These have heightened the commission of atrocities against women and denial of their rights. ‘The growth of Islamist movements worldwide and the rise of new nationalisms after the fall of the Soviet Union unleashed new atrocities aimed at women’. These atrocities may come from within women’s own communities as with the Taliban rule in Afghanistan, or from outside such as Serbian targeting of Muslim women in Bosnia and Kosovo, and the sexual attacks on Muslim women in Gujarat. Extremist Islamic groups have been at forefront of terrorist atrocities committed in western cities (New York, Washington, London, Madrid) and in states with large Muslim populations such as Indonesia, Kenya, Morocco

 The Concluding Comments of the UN Committee on the Rights of the Child to Pakistan’s report state: ‘Furthermore, the Committee is concerned at the disparities in the enjoyment of rights and the social discrimination experienced by children belonging to the most vulnerable groups, including children with disabilities, children belonging to a religious or other minority group and children living in rural areas.’ CRC, Concluding observations, Pakistan, UN Doc. CRC/C//Add.,  October , para. .  F. Banda and C. Chinkin, Gender, Minorities and Indigenous Peoples (Minority Rights Group, London, ).  J. Afary, ‘The Human Rights of Middle Eastern and Muslim Women: A Project for the st Century’ ()  Human Rights Quarterly .

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and India, killing women and men indiscriminately. The spread and increased intensity of global terrorism and the war on terror have also had gender-specific consequences for women. Generalisations are misleading and dangerous but some trends can be identified. From a UK standpoint, women’s human rights abroad have been instrumentalised, for example by President Bush to further justify the  military attack on Afghanistan, but also discounted where the war on terror demands alliances with regimes that routinely violate women’s human rights. Meanwhile at home Muslim women may face hostility as members of the community associated with terrorist attacks. The expressed objective of post-conflict democratisation in places such as Afghanistan and Iraq has included demands for women’s emancipation that may be at odds with local elites who seek to form new governments and who command widespread electoral support, especially from within religious communities. Local hostility to the military conflict and foreign intervention carries into the changed regime which may be seen as a ‘puppet’ of the US that seeks to introduce western policies with respect to women. Insurgency and counter insurgency efforts create a spiral of violence that denies the human rights of the civilian population. Women who have sought to enjoy their democratic freedoms through participation in government bodies have been targeted and killed by those who reject women’s advancement, especially when it is seen as imposed as a consequence of war. Women’s priorities and needs in reconstruction may vary according to their pre-conflict status, for example the very different positions of women in Taliban-ruled Afghanistan and the secularised Iraq of Saddam Hussein. Too often western administrators come into a society with stereotyped assumptions about the role of women and fail to consult with local women so that the latter’s own formulations of their needs are not incorporated into policy and decision-making. While there is no doubt that the position of many women in both Afghanistan and Iraq has improved as a consequence of military intervention, this is not universally true. Violent backlash and insurgency have created further restrictions on women’s human rights, inhibiting their access to employment, education and healthcare

 C. MacKinnon, ‘Women’s September th: Rethinking the International Law of Conflict’, in C. MacKinnon, Are Women Human? And Other International Dialogues (Harvard University Press, Cambridge, ) .

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institutions. Conflict has also impacted upon women’s situation within their own families and communities in complex and differentiated ways that cannot be explored here. Religious and cultural traditions that are inimical to women’s human rights may be entrenched by external challenge or the new circumstances thrown up by foreign intervention. The post- September  identification of extremist Islamic movements with both terrorism and denials of women’s human rights have entwined issues that require separate consideration. Instead they are considered in an environment of high emotion, moral outrage and instrumentalism that are not conducive to constructive and objective appraisal of the issues and formulation of appropriate responses. Just as the association of Islamic beliefs and terrorist activities is abhorred and rejected by many Muslims, so too is the opposition between religious normative ordering and state ordering based upon a commitment to women’s human rights generated through many means, many of which have nothing to do with religion. In particular there is a fusion of religion and culture in arguments that women’s status is determined by community norms. A community ‘provides the contours for the enjoyment of social space’ but may also be the arena where women experience restrictions on their behaviour and are subject to violence because of what is perceived to be deviant behaviour from religious or cultural norms. In some societies the concept of community has effectively been given a double meaning: when seeking a community’s views on an issue or making community policy it refers to its male members but when locating a community’s honour or determining the glue that holds a community together it is the position of women that is seen as paramount. In similar vein Shaheen Sardar Ali has noted about Pakistan that: It appears almost contradictory and paradoxical that on the one hand, women are seen as central to any discourse on Islamic identity of Pakistan while, on the other, the debate is marked by the absence of women from most discussions in public policy and planning, and

 For detailed consideration of the position of women in post-Saddam Hussein Iraq see UNIFEM, Iraq at http://www.womenwarpeace.org/iraq/iraq.htm; and in post-Taliban Iraq the resources provided at http://www.law-lib.utoronto.ca/diana/afghanwomen.htm.  Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN. //,  February , para. .

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Christine Chinkin participation of women in virtually any area of what constitutes the “public sphere” of life.

The consequence is that women are denied various freedoms that men take for granted, for example those relating to dress, to access to public spaces, and in the context of personal laws. Culture is a broader concept than religion but while culture is theoretically evolving and subject to change, the basis of religious doctrine in sacred texts imposes restraints on the outer limits of change and reform. But the resistance to change does not derive just from religious texts but from considerations of power in gender relations. As Juliet Sheen has expressed it: Religion is essentially political and relational. In power relations, questions of boundaries, group identity, cohesiveness, and continuity are felt to be crucial, and male-dominated religious institutions have used their power to subordinate women to these ends. . . . Because religious institutions have epitomized the structural and ideological suppression of women, those structures are slow to change to accommodate religious needs and aspirations of their constituents, much depending on the politico-religious approach of their leaders.

The reality is that both religion and culture are asserted to justify the subordination of women for a whole range of reasons, including the retention of economic, political, and social power by elites within patriarchal structures. This subordination manifests itself in women’s low economic status, discriminatory laws that justify exclusion from owning or accessing property and restrictive personal laws. The last are especially potent through the claims made by religions to control women’s bodies, their sexuality and reproduction through many devices. Thus, ‘[c]ontrolling women’s sexuality fits neatly into the religious fundamentalist promotion of the patriarchal family and the ‘proper’ role of women as being in the home.’

 S. Sardar Ali, ‘Law, Islam and the Women’s Movement in Pakistan’, in S. Rai (ed.), International Perspectives on Gender and Democratization (Macmillan, New York, ) , at p. .  J. Sheen, ‘Burdens on the Right of Women to Assert their Freedom of Religion or Belief ’, in T. Lindholm et al. (eds.), Facilitating Freedom of Religion or Belief: A Deskbook (Dordrecht, Netherlands, ) , at p. .  Above note , ‘Introduction’, xiii.

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Claims made in the name of religion or culture may lead to violation of both civil and political and economic and social rights placing the right to freedom of religion at the interface between the two categories of rights. For example assertions that religion demands that women cannot move outside unless accompanied by a male relative impacts upon their freedom of movement, participatory rights, freedom of association, rights to paid work and choice of place and type of work, and access to non-discriminatory education. These restrictions may lead to feelings of isolation, depression and undermine the right to health and even to life. Discrimination and exclusion from public life contributes to women’s poverty, itself fuelling recourse to begging, prostitution and vulnerability to violence and trafficking. The indivisibility and interdependence of all human rights emphasises that the consequences of claims made in the name of the right to freedom of religion cannot be discussed in a vacuum divorced from other rights. The complex blend of religion, culture and political power means that arguments that women’s equality is subordinate to religious requirements must be unpacked. Searching questions should be asked such as: who is making the particular argument, for what reason, in what context and with what objectives? Are claims based on religion being used as a justification for maintaining existing power structures? Are women’s voices heard when such claims are determined? Or is it the voices of male elites, whether religious or political leaders, that predominate? Does a majority community essentialise minority communities by taking account of the views only of its male members thereby silencing other voices, including those of women? But these and other questions are difficult to address openly and honestly, not least because of the politicisation of religion both within a community and outside it. Religion and religious imperatives are both used and manipulated by all sides in debates and activities around women’s status. This creates a double bind for women: on the one hand many in the global north have been afraid of being perceived as racially or culturally biased and as seeking to impose their own values onto other cultures and religions and have thus not spoken out strongly against abuse of religion and extremism to oppress and even threaten the lives of women. Before  September  there was no strong and coordinated protest by political  Chinkin, ‘Cultural Relativism and International Law’, in Howland (ed.), above n.  at p. .

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elites against the Taliban’s extremist policies with respect to women and there were even attempts to work within their demands. The UN General Assembly itself compromised its commitment to non-discrimination by seeking accommodation with the Taliban and showing itself willing to set aside tackling systemic discrimination. Women facing gross violations of their human rights did not receive the international support that is promised by the prohibition of discrimination within human rights treaties. On the other hand women who wish to challenge such arguments within their own communities can be presented as being overly influenced by alien values, as betraying their own background and as being disruptive to their community. These charges are especially potent where a community perceives itself as under threat. At the same time it appears that those within religious cultures (of all persuasions) perceive themselves as under attack from secularism in ways that necessitate robust defence of positions asserted to be based upon religion. iv. pakistan’s international legal obligations How does international law deal with these many contradictions and can they be reconciled? This section considers Pakistan’s obligations under international law. Pakistan is not a party to the ICCPR but the right to non-discrimination (on the basis of religion and of sex) is widely accepted as customary international law and as such is binding on Pakistan as a member of the UN. In addition, Pakistan is a party to the Convention on the Elimination of All Forms of Discrimination against Women (‘Women’s Convention’). Article  requires that ‘States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.’

 The first Special Rapporteur on violence against women has given a graphic account of the violations of human rights committed against women by the Taliban. She stressed that these were not Islamic but ‘the Taliban’s version of Islam.’ Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, Mission to Pakistan and Afghanistan, E/CN. ///Add.,  March .  G. Verdirame, ‘Testing the Effectiveness of International Norms: UN Humanitarian Assistance and Sexual Apartheid in Afghanistan’ ()  Human Rights Quarterly .  The UN Charter, Articles  () and  prohibit discrimination on the basis of sex.  Pakistan acceded to CEDAW on  March .

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Article  imposes a positive duty upon states to transform customs, attitudes, and practices that discriminate against women. In other substantive articles the Women’s Convention provides for women’s equality with men in access to civil and political, economic, social and cultural rights, recognising that the former are meaningless without taking account of the economic, social and cultural environment in which they operate. It identifies areas where discrimination against women is most marked and where women most need guarantees of rights. The Women’s Convention also attempts to overcome the public/private dichotomy observed in international law by asserting women’s equal rights to participate in public decision-making bodies at all levels and explicitly affirming women’s right to equality within the ‘private’ arena of the family. However Pakistan has weakened its commitment to the Convention by entering a global Declaration that purports to resolve any conflict between its laws and the Convention. The Declaration asserts that: The accession by [the] Government of the Islamic Republic of Pakistan to the [said Convention] is subject to the provisions of the Constitution of the Islamic Republic of Pakistan.

From an international law perspective there are a number of problems with this Declaration. First, is its status as a legal instrument. The Declaration is not labelled as a reservation and since Pakistan has also made a reservation to the Convention it must be assumed that the difference is significant. Second, the Declaration does not explain how Pakistan understands its Constitution to effect its commitment to the Convention. The open-ended,

 Reservations and declarations to CEDAW and states’ objections are set out at http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm.  On reservations to the Women’s Convention see C. Chinkin, ‘Reservations and Objections to the Convention on the Elimination of All Forms of Discrimination against Women’, in J. Gardner (ed.), Human Rights as General Norms and a State’s Right to Opt Out (British Institute of International and Comparative Law, London, )  and the references cited there.  Pakistan has made a reservation to CEDAW, Article () (the jurisdiction of the ICJ).  The Vienna Convention on the Law of Treaties, , Article (d) defines a reservation as ‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’. The Vienna Convention does not define a Declaration.

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indeterminate and imprecise nature of the Declaration undermines its effectiveness as displacing Convention obligations. Moreover it is in direct conflict with the principle of international law that a party to a treaty ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ Third, the assumption underlying the Declaration is that the national Constitution is based upon the requirements of Islam (‘Constitution of the Islamic Republic of Pakistan’). However it should be noted that there is no consistency between those Islamic states that are parties to the Women’s Convention with respect to the Convention’s requirements and its compatibility with Islam. Some states with a strong commitment to Islam and large Muslim populations have made wide ranging reservations to the Women’s Convention, for example Bangladesh; others have made no relevant reservations, for example Indonesia and Afghanistan. Some states, for example Morocco, Tunisia and South Africa have undertaken significant legal reforms, including of personal status laws that provide for greater equality for women while not lessening their religious commitment. The inconsistency between states purportedly acting within the same religious framework creates a lack of clarity about precisely what claims are being made. On the one hand this promotes uncertainty as to the extent of the obligations accepted under the Convention and on the other leads to some scepticism as to whether religion is the sole, or even the dominant concern, of the reserving states. There have been differing responses to such reservations and declarations. Although a state may only make a reservation that is compatible with the object and purpose of the treaty, the majority of states ignore reservations made by other states and do not make formal objections to them. The Committee on the Elimination of Discrimination against Women (CEDAW) uses the state reporting process as an opportunity to encourage states to reduce, or remove their reservations. However since Pakistan has

 Vienna Convention on the Law of Treaties, , Article .  Afghanistan acceded to CEDAW on  March .  For a survey see J. Afary, ‘The Human Rights of Middle Eastern and Muslim Women: A Project for the st Century’ ()  Human Rights Quarterly .  These divisions go back to the drafting of the UDHR and the  Covenants when different views and priorities were expressed by delegations from various states with large Muslim populations; S. Waltz, above n. , , at p. .  Vienna Convention on the Law of Treaties, , Article (c).

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not yet reported to CEDAW there has been no exchange between it and Pakistan about the scope and intention of the latter’s Declaration, or more generally about the protection of women’s rights in Pakistan. A few states have made a formal response to Pakistan’s Declaration, apparently treating it as a reservation. Denmark has made the point noted above that ‘it is a general principle of international law that internal law may not be invoked as justification for failure to perform treaty obligations.’ Sweden has made the same point, adding that as part of becoming a party to a treaty states indicate that they ‘are prepared to undertake any legislative changes necessary to comply with their obligations under the treaties.’ Portugal reminded Pakistan that a Declaration that fails to specify ‘the provisions of the Convention to which it applies and the extent of the derogation therefrom, contributes to undermining the basis of international law.’ In no instance did the objecting state preclude the entry into force between itself and Pakistan and these statements have little practical impact. The World Conference on Human Rights held in Vienna,  urged states to withdraw reservations that are contrary to the object and purpose of the Convention or which are otherwise incompatible with international treaty law. The Fourth World Conference on Women in Beijing also criticised broad reservations and required states to review regularly reservations with a view to withdrawing them. Pakistan could insist that its Declaration

 Under the Women’s Convention, Article  states are required to report on the ‘legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the . . . Convention’ within a year after its entry into force for the state concerned. Pakistan should therefore have reported by March .  However in its Concluding Comments to Pakistan, the Committee on the Rights of the Child has stated: ‘While acknowledging the actions taken to address discrimination against girls in education, the Committee is concerned at the persistence of discriminatory social attitudes and discrimination against minority children and against girls, early and forced marriages, low school enrolment and high dropout rates, honour killings, mutilation and violence.’ CRC, Concluding observations, Pakistan, UN Doc. CRC/C//Add.,  October , para. . In para.  it recommended that Pakistan ‘Assess the scope, nature and causes of violence against children, in particular sexual violence against girls, with a view to adopting a comprehensive strategy and effective measures and policies and to changing attitudes’.  The Vienna Convention on the Law of Treaties, Article  allows states parties to object to reservations made by other states parties.  Vienna Convention on the Law of Treaties, , Article .

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is not a reservation and that such statements are not applicable to it. When Pakistan submits its initial report to CEDAW it is unlikely that the Committee will accept this formalistic approach and will question Pakistan on the Declaration’s meaning and the necessity for it. Although the international law and practice with respect to reservations and declarations remains equivocal, other bodies have addressed explicitly the relationship between religious and cultural practices and women’s human rights. For example, the World Conference on Human Rights asked: all Governments to take all appropriate measures in compliance with their international obligations and with due regard to their respective legal systems to counter intolerance and related violence based on religion or belief, including practices of discrimination against women and including the desecration of religious sites, recognizing that every individual has the right to freedom of thought, conscience, expression and religion. The Conference also invites all States to put into practice the provisions of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

Other human rights bodies have also attempted to clarify the relationship between a state’s obligations to uphold equality on the basis of sex and the right to religious freedom. The Human Rights Committee has adopted a General Comment on Equality between women and men. As it addresses the issue in some considerable detail it is worth citing at some length: States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardize, or may jeopardize, compliance with article , and

 In its General Comment  the Human Rights Committee (the ICCPR monitoring body) stated that ‘If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation.’ UN Doc. CCPR/C//Rev./Add. (). Crucial is the intention of the state, which Pakistan has not made clear.  Vienna Declaration and Programme of Action, A/CONF./,  July , para. .

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indicate what measures they have taken or intend to take to overcome such factors. States parties must take measures to ensure that freedom of thought, conscience and religion, and the freedom to adopt the religion or belief of one’s choice – including the freedom to change religion or belief and to express one’s religion or belief – will be guaranteed and protected in law and in practice for both men and women, on the same terms and without discrimination. These freedoms, protected by article , must not be subject to restrictions other than those authorized by the Covenant and must not be constrained by, inter alia, rules requiring permission from third parties, or by interference from fathers, husbands, brothers or others. Article  may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion; States parties should therefore provide information on the status of women as regards their freedom of thought, conscience and religion, and indicate what steps they have taken or intend to take both to eliminate and prevent infringements of these freedoms in respect of women and to protect their right not to be discriminated against.

Although Pakistan is not a party to the ICCPR, the General Comment is based on the ICCPR, article  whereby States parties undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the Covenant. By explaining the international legal implications of non-discrimination, the Human Rights Committee is amplifying the objectives of the Women’s Convention, to which Pakistan is a party, and accordingly its approach is relevant to Pakistan. v. limits on freedom of religion It must be emphasised that some rights are absolute and cannot be met by arguments based upon religion or culture. In the context of women’s human rights the clearest example is the absolute right of all women to be free from gender-based physical, mental and sexual violence. The General

 The preamble to the Women’s Convention notes the obligation ‘to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights’ in the UDHR, ICCPR and ICESCR.

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Assembly Declaration on the Elimination of Violence against Women, , article  asserts that ‘States should accordingly condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.’ The state should ‘exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons’, for example family members, armed gangs, militia, private justice systems outside state control. Failure to do this makes the state responsible for the commission of an internationally wrongful act. The state must ensure that its legal system protects women from violence and does not allow defences based upon religion or culture. Forms of violence against women in Pakistan are vindicated by strict Islamic codes and by tradition. For example the high level of rape and other sexual violence has been exposed by the national independent Human Rights Commission. The legal regulation of rape is through the Hudood Ordinances that criminalize all sexual relations outside of marriage and impose severe penalties. Procedural requirements make it especially difficult for a woman to ensure conviction of the accused rapist, which may result in her own prosecution under these laws. Attempts in  by the government to reform the rape laws by bringing them within the secular criminal code and which would evidence the government’s ‘due diligence’ to protect women from violence have been stalled, apparently in accordance with the demands of Islamic groups. Another example based on tradition rather than religion is crimes committed in the name of so-called honour. These crimes are not confined

 The European Court of Human Rights has held that to expel a husband and wife to Iran where she faced lashings after conviction for fornication by an Islamic Tribunal for marrying without the wife’s father’s permission, contrary to Shiite Sharia law, even though they subsequently remarried in accordance with that law, entailed a risk of ‘inhuman’ treatment contrary to the ECHR, Article ; D v. Turkey, App. No. /, Judgment of  June .  It has been reported that a woman is raped every two hours and gang-raped every eight hours in Pakistan. Barbara Plett, ‘How Pakistan’s rape reform ran aground’, BBC News Islamabad,  September , available at http://news.bbc.co.uk//hi/south_asia/. stm. The Hudood Ordinances were introduced in  by General Zia-ul-Haq.  Ibid.  S. Hossain and L. Welchman (eds.), Honour: Crimes, Paradigms and Violence against Women (Zed Press, London, ).

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to any one geographic area and are committed within peoples adhering to different religions. They are characterised by family members (both male and female) acting as judge, jury and executioner against women who have transgressed against the family’s honour, or are suspected of having done so. The consequence in Pakistan is that: Women in Pakistan live in fear. They face death by shooting, burning or killing with axes if they are deemed to have brought shame on the family. They are killed for supposed ‘illicit’ relationships, for marrying men of their choice, for divorcing abusive husbands. They are even murdered by their kin if they are raped as they are thereby deemed to have brought shame on their family. The truth of the suspicion does not matter – merely the allegation is enough to bring dishonour on the family and therefore justifies the slaying.

Families constitute themselves as a parallel legal system and if themselves convicted of offences against their women victims seek exoneration by the state courts. The case of Siddique v. State shows a welcome resistance to the acceptance of such arguments. The case concerned a father who had been convicted of murder of his daughter, her husband and baby because she had married against his will. The High Court of Pakistan rejected his appeal for commutation of sentence or acquittal based on a claim that he had been forgiven by the husband’s legal heirs. The judge used strong language in rejecting behaviour that is ‘symptomatic of a culture’ and stressed that ‘there is nothing religious . . . nor honourable’ about such killings. He continued that it is: Male chauvinism and gender bias at its worst. Such prejudices are not country, region or people specific and predate Islam. . . . However

 The Human Rights Commission of Pakistan reported that in  more than  women had been killed for alleged breaches of ‘honour’; Amnesty International, Annual Report, , Pakistan.  Amnesty International, Pakistan: Honour killings of Girls and Women, AI Index: ASA //,  September .  Many are not. Few cases are reported to the police as murder cases and when they are reported the police do not always investigate, perceiving such offences as private; N. Kakakhel, ‘Honour Killings: Islamic and Human Rights Perspectives’ ()  NILQ , at p. .

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Christine Chinkin notwithstanding the injunctions of the Quran and the penal law against such killings, they continue unabated.

Such strong judicial language is welcome and shows that where there is access to state courts, judicial openness and understanding of the issues such practices can be resisted. Another area of contestation can arise when women seek to decide how they will celebrate and manifest their own religious beliefs. Exercise of this right may confront the demands of their own community, or of the state. The second situation arises especially within immigrant communities where women from the minority population seek to assert their religious practices, for example in the wearing of religious dress, in public institutions, when it is prohibited – or not provided for – by the state government. In countries such as the UK issues of male dress codes typically involve claims by minority groups for exemption from the dress requirements of the dominant community (for example Sikhs seeking to wear turbans in the police force or Jews the yarmulke in the armed forces) in order for men to access social and economic advantage without having to disclaim their own religious identity. In contrast, the issue with women’s dress code is whether governments can prohibit the wearing of certain forms of dress claimed to be required by religious belief without violating their human rights obligations. In Europe the repeated manifestation of this clash has become whether Muslim women have the right to wear some form of Islamic dress, in the workplace, in educational establishments, or when carrying out the duties of public office, or whether the state is in violation of its human rights obligations in prohibiting them from so doing. This issue has provoked hot debate and much litigation involving both minority women (for example in France, Switzerland, the UK) and majority women within a secular state (Turkey). The requirements of the ECHR, to which all European states are parties, set the framework for the arguments. Without going into the details of the jurisprudence this section discusses some of the many viewpoints expressed. At stake are minority women’s right to manifest their religious belief, their access to public places, hence education and work, and in a general sense their right to full citizenship within  Siddique v. State ()  Commonwealth Human Rights Law Digest .  In other situations states are also asked to uphold women’s human rights against their own communities, for example by providing safeguards against forced marriage and abductions.

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society. Also at stake are contestations over women’s individual autonomy, collective regulation and, where applicable, control of minority groups through ‘their’ women and claims by the government that it is saving or protecting women from their own community. There are no consistent answers. States’ approaches reflect a complex interaction of diverse factors: the historical relation between the church and the state; attitudes towards secularisation or religion; attitudes towards immigration, assimilation and multiculturism; concepts of citizenship and national identity. In some European countries the right of Muslim girls to wear the hijab in public places, including educational institutions, is upheld. In others it has been prohibited for a range of reasons. For example the then French Premier justified a  assimilationist law banning such dress by saying: Because such religious symbols acquire political significance, and the Islamic veil in particular harms our concept of the emancipation of women, we cannot accept them in the classroom. It is evidently not a matter of stigmatization, but of having clear republican rules.

Another justification for prohibiting women’s right to choose their dress is that in the post- September  environment banning minority women’s distinctive clothing protects them against majority hostility towards Muslims. This has the effect of placing minority men who demand that ‘their’ women wear distinctive clothing in the position of exposing those women to the fear of harm from the majority, of being replaced as the ‘protector’ of those women by the government, or themselves committing violence against women for the latter’s failure to adhere to the dress requirements. It could also be argued that the assertion of ‘protection’ by the state reinforces stereotypes of Muslim women as oppressed and lacking in agency and pejorative stereotypes of Muslim men as overbearing and oppressive. It also obscures the failure of the state to protect those same women in other contexts. It also constructs all ‘Muslims’ as belonging to one homogenous

 This section draws on F. Banda and C. Chinkin, Gender, Minorities and Indigenous Peoples (Minority Rights Group, London, ).  S. Knights, ‘Religious Symbols in the School: Freedom of Religion, Minorities and Education’ ()  EHRLR .  K. Livingstone, and J.-P. Raffarin, ‘You’ve Made a Big Mistake’, The Guardian,  March .

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category and not as people who may, like the majority group, have different ideas about dress and the way they wish to manifest their religion. Consistent with its previous jurisprudence in Sahin v. Turkey the Grand Chamber of the European Court of Human Rights upheld the ban on adult women wearing an Islamic headscarf in Turkish universities. The European human rights institutions have agreed that ‘in a democratic society, the relevant member state is entitled to ban adult women from wearing the Islamic headscarf on the basis that such bans have been prescribed by law, have a legitimate aim, that is protecting the rights and freedoms of others, and are necessary in a democratic society.’ Guided by the Strasbourg Court the UK House of Lords has also upheld the right of a state school to prohibit a student from wearing a jilbab (described in the Court as ‘a long coat-like garment’) although the school allowed the wearing of other garments ‘specifically designed to ensure that it satisfied the requirement of modest dress for Muslim girls.’ However Lord Bingham stressed that the decision did not ‘and could not . . . rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country.’ He considered that such a decision ‘would be a most inappropriate question for the House in its judicial capacity’. Further the school authorities had given the matter of dress requirements careful thought taking into account the local context. It would be ‘irresponsible’ for a court to interfere with these essential processes designed to promote harmony within the community and the school. In the midst this struggle are Muslim women who are denied by many participants to the debate agency and control over their own lives. The veil is seen by women who freely choose to wear it, not as a symbol of

 E.g., Karaduman v. Turkey, App. No. /,  May . Dahlab v. Switzerland App. No. /,  February .  App. No. /,  November . CEDAW dismissed as inadmissible a communication under the Optional Protocol to the Women’s Convention from Ms. Rahime Kayhan that she had been dismissed from the Turkish civil service for wearing a headscarf to work on the grounds of failure to exhaust domestic remedies; Communication No. /, UN Doc. CEDAW/C//D//,  January .  J. Marshall, ‘Freedom of Expression and Gender Equality before the European Court of Human Rights’ ()  Modern Law Review .  R (on the application of Begum) (by her litigation friend, Rahman) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants) [] 2 WLR .  Per Lord Bingham, para. .  Ibid., at para. .

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oppression ‘hard to square with gender equality’, but rather as a tool of identity, freedom, empowerment and emancipation. On the one hand they are accused by some within their own community of being subverted by the dominant group when they assert their wish not to wear religious dress and on the other hand of false consciousness with respect to their freedom, or of complying with male wishes, if they assert their wish to do so. The impact on other women is also raised, that allowing one woman to wear religious dress may discomfort or pressure others who do not wish to do so. This also reinforces a stereotype ‘Muslim’ identity that an individual may not want, either at all or in its entirety, thereby narrowing her options, space and ability to enjoy her multiple identities. It is a subversion of individual rights that is typically not made for men who seek to wear their distinctive dress within the workplace. In Begum it was also suggested that the girl could choose to attend a school where she could wear her chosen attire. This solution presents another dilemma in that if girls are removed from state to private, religious schools they leave an environment where they can experience diversity of culture, ethnicity and religion. Requirements of religious dress are resisted because for many people outside the religion they are symbolic of women’s oppression. In the words of the European Court of Human Rights it ‘appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination’. But the reverse is also true and women may use religious arguments to challenge their oppression on other grounds. As Andrew Clapham and Susan Marks have put it: When school girls demonstrate on the streets of Paris asserting the right to wear the hijab as an aspect of the right to religious freedom, they may be shouting about religious rights. But they are also shouting about racism, nationalism, the second class status of French Muslims, the containment of Islam, and the ‘war on terror’, with all its multifarious effects.

 Above n.  at p. .  ‘But her right was not in my opinion infringed because there was nothing to stop her from going to a school where her religion did not require a jilbab or where she was allowed to wear one.’ R (on the application of Begum), per Lord Hoffmann at para. .  Dahlab v. Switzerland, .  Above n. , at p. .

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Asma Jehangir, Chairperson of the Human Rights Commission of Pakistan, has said that a major change in Pakistan has been the shift from language suggesting that women need to be protected from abuse to the language of rights. This is an important step towards protection of women’s human rights that is formalised by the state’s adherence to international human rights treaties, including the Women’s Convention. A next step is the regular enforcement of those standards within national courts and administrative bodies. This is a formalist approach towards human rights compliance that is based upon states’ acceptance of the purposes and principles of the UN Charter through their membership of the Organisation. Alongside the benefits of membership within the international community are obligations. Gender equality is not an imposed law but one that has been articulated and accepted by states through binding international treaties. These obligations should be taken seriously and conflicting practices must be changed in order to ensure compliance. A good illustration of the formalist approach is that of the European Court of Human Rights in Refah Partisi v. Turkey. The Turkish Constitutional Court dissolved the Refah Partisi party on the grounds that it was a ‘centre of activities contrary to the principle of secularism’, pointing out that party leaders and members ‘were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia’. In determining that the dissolution did not breach the Convention, the Court stated that: . . . sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. . . . It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. . . . In

 Women’s Human Rights in Pakistan – What has changed and how? An interview with Asma Jehangir, Eman Ahmed, WHRnet, September , available at http://www. whrnet.org/docs/interview-asma-.html.

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the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.

The formalistic approach suggests the use of laws and legal advocacy as a ‘catalyst for social change’. This requires women to be willing to challenge existing laws and traditions through public commitment and commencing proceedings. This in turn suggests some of the disadvantages to the formalistic approach. Women who oppose social norms are often met with violence or threats of violence and may become effectively excluded from their own communities. Asma Jehangir extolled the role of strong civil society movements in assisting in the formal defence of rights and noted the weaknesses of such movements in Pakistan in working for the enhancement of women’s rights. Women’s NGOs and human rights NGOs can form alliances against those that would uphold strict religious laws and provide group support for individual claimants. They can also help to overcome the economic and other obstacles that often impede women’s access to justice. It is also essential that women’s human rights activists and defenders are protected by government. Moreover, using law and legal advocacy to assert their rights is detached from the realities of women’s lived lives within the community. Numerous women share a spiritual and social commitment to their religion and community that they do not wish to disrupt by open challenge. Women are nurtured by their community and find within it ‘social support and

 Refah Partisi (Prosperity Party) v. Turkey, App. Nos. /, /, / and /, [] ECHR  ( July ), para. .  In the Siddique v. State case the High Court of Pakistan considered that the extent to which the law should be transformative was a relevant factor in considering the cultural defences put forward to the killings.  The high rates of gender-based violence against women in Pakistan referred to above shows the level of risk such women incur.  Asma Jehangir also referred to the fact that different women and groups pursue different strategies for change. This has the advantage of allowing people to choose the approach with which they feel most comfortable but has the downside that any one strategy may not mobilize sufficient adherents to make a critical mass for change.  For a history of the women’s movement in Pakistan and differing views about its successes and failings see S. Sardar Ali, ‘Law, Islam and the Women’s Movement in Pakistan’, in S. Rai (ed.), International Perspectives on Gender and Democratization (Basingstoke, Macmillan, ) .

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solidarity, especially when they are seeking redress from the State.’ It is also necessary to keep distinct religion as a source of doctrine and the often important role of religious institutions in providing social welfare and support. In the words of one commentator: The majority of Muslim women who are attached to their religion will not be liberated through the use of a secular approach imposed from the outside by international bodies or from above by undemocratic governments. The only way to resolve the conflicts of these women and remove their fear of pursuing rich and fruitful lives is to build a solid Muslim feminist jurisprudential basis which clearly shows that Islam not only does not deprive them of their rights, but in fact demands these rights for them.

Scholars and activists are undertaking the work to build a Muslim feminist jurisprudence. This requires separating sacred texts from political and social constructs arising from them. Textual interpretations are offered to show that the world’s major religions recognise the importance of human rights and that oppressive behaviours are a result of human practices that distort the religious requirements. More explicitly scholars have sought to show that there is less disparity between Islam and the Women’s Convention than is often stipulated, especially by those who wish to retain the current power structures. Asking searching questions – and addressing them honestly – has been recommended as a methodology for ascertaining where the contradictions are not so great. Appropriate questions might be: how important is the particular issue for the practice (or belief ) of  Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN. //,  February , para. .  A. Al-Hibri, ‘Islam, Law and Custom: Redefining Muslim Women’s Rights’ ()  Am. U. JIL and P .  E.g., A. Mashhour ‘Islamic Law and Gender Equality: Could There be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt’ ()  Human Rights Quarterly () ; U. Khaliq ()  ‘Beyond the Veil; an Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’a’, Buffalo Journal of International Law ; J. Connors, ‘The Women’s Convention in the Muslim World’, in J. Gardner (ed.), Human Rights as General Norms and a State’s Right to Opt Out (British Institute of International and Comparative Law, London, ) .  R. Coomaraswamy, ‘Different but Free: Cultural Relativism and Women’s Rights as Human Rights’, in C. Howland, , – summarises the methodologies. Donna Sullivan has proposed a ‘balancing approach’ that avoids one regime ‘trumping’ the other; D. Sullivan,

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religion? How important is it for women’s enjoyment of their rights? How does one implicate the other? Are international human rights standards compromised? Such work is global and interpretations developed in one community can be shared with others, a practice greatly facilitated by electronic communications and search engines. The CEDAW has encouraged states (and thus also civil society groups) to do this. In its response to Sri Lanka’s third and fourth periodic reports the Committee expressed its concern at discriminatory legislation allowing for Muslim personal laws. It recommended that: in its efforts to eliminate discriminatory legislation, the State party take into account, where appropriate, suggestions and recommendations from bodies such as the Muslim personal law reforms committee set up by the Ministry of Muslim Religious and Cultural Affairs. The Committee also encourages the State party to obtain information on comparative jurisprudence, including that which interprets Islamic law in line with the Convention.

In similar vein the Committee informed Singapore that while it recognised the need for sensitivity towards religious and cultural values, it wished to clarify ‘that articles  [state obligations] and  [equality in the family] are the very essence of obligations under the Convention.’ Accordingly it recommended ‘that the State party study reforms in other countries with similar legal traditions with a view to reviewing and reforming personal laws so that they conform with the Convention, and withdrawing these reservations.’ The Committee itself can facilitate this process through the constructive dialogue it has with states as part of the reporting process and could draw upon appropriate works and examples in its Concluding Comments and General Recommendations. However it also has to be recognized that constructive dialogue rests upon the willingness of all sides to engage. This

‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution’ ()  NYUJIL and P .  Concluding Observations of the Committee on the Elimination of Discrimination against Women, Sri Lanka, UN Doc. A// (Part I),  May , paras. –.  Concluding Observations of the Committee on the Elimination of Discrimination Against Women, Singapore, UN Doc. A//,  July , para. .

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is not always the case and attempts to do so may be resisted and painted as an attack on the religion. This has occurred to CEDAW itself when its recommendation to allow a study of the compatibility of CEDAW with Islam to be carried out thorough ECOSOC was rejected by Islamic states. This has the effect of shutting down serious investigation and discussion and locking sides into non-negotiable positions. The same is true of the question-asking strategy: effective progress depends on who is asking the questions and balancing the responses. In the contemporary environment of extremism and violence strategies requiring mutual attempts at understanding and accommodating conflicting viewpoints face huge obstacles. No single approach is going to lead to removing the tensions in the relationship between women’s human rights and religion. But these different approaches do offer some ways through the polarised position that sees them as mutually exclusive. It is crucial not to accept extremist positions from any perspective but rather attempts must be made to work with women within their own communities to promote their equality within the framework of their own religious values. The reality that women within religious communities through the world have sought this accommodation makes it essential that they are supported in their goal.

 I. Gunning, ‘Arrogant Perception, World-Traveling and Multicultural Feminism: the Case of Female Genital Surgeries’ (–)  Colombia Human Rights Law Review ; N. Yuval-Davis, ‘Women, Ethnicity and Empowerment’, in A. Oakley and J. Mitchell (eds.), Who’s Afraid of Feminism? Seeing through the Backlash (The New Press, New York, ) .

part two

Reflections on Religion, Human Rights and International Law

chapter three

The Twain Doth Meet! A Preliminary Exploration of the Theory and Practice of as-Siyar and International Law in the Contemporary World Shaheen Sardar Ali* i. introduction This exploratory paper attempts to engage in a comparative analysis of principles of as-Siyar (Islamic international law) and contemporary international human rights law emanating from the UN. It advances the argument that despite parallel normative origins (the first drawing upon religion as its base; the second avowedly secular yet ‘inspired’ by Protestant Christian values), there exist strong similarities between the two regulatory frameworks. Both regimes, while maintaining a number of clearly divergent norms, share significant common ground for engaging in a discourse towards convergence. In an increasingly polarised and fragmented world, building on commonalities between as-Siyar and international law may lead to a better understanding of the regimes. ii. comparative perspectives on as-siyar and international law: some preliminary questions for engagement a. Methodological Issues: A brief Overview At the outset, it is important to raise the methodological question of whether an exploratory comparative analysis of concepts and scholarship based on sources from the th century (as-Siyar) and contemporary international human rights law forms a valid intellectual inquiry. In other

* Professor of Law, University of Warwick and Professor II, University of Oslo, Norway. Formerly, Professor of Law, University of Peshawar, Pakistan.  With roots in ‘Post-Westphalian’ notions of Nation-state/International law in general and ‘Post-’ in particular. Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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words, what are the rules of engagement for a discourse that draws upon different knowledge systems i.e., classical Islamic jurisprudence and contemporary ‘western’ research methodology? Sources employed for analysing as-Siyar are usul ul fiqh and writings of fuqaha, which in turn, are based on the Quran and Hadith, Ijma, Qiyas and juristic techniques including ijtihad, istihsan, talfiq and takhayyur. This methodology and technique is vastly different to the one adopted in western discourse. Is it possible to construct an academically valid and coherent discourse straddling two disparate knowledge systems?

 The Quran is the primary source of Islamic law since it is, in the view of Muslims the very word of God. The Quran consists of revelations made by God to the Prophet Muhammad over a period of approximately  years. The Quran consists of  chapters or sura (plural suras), of greatly varying length and diverse subject matter. The chapters are further divided into verses or ayat (plural ayaat).  The second source of Islamic law is the Sunna or traditions of the Prophet Muhammad. The Sunna consists of compilation of the Prophet Muhammad’s actions, sayings and opinions during his lifetime. The general belief of Muslims is that the Quran and Sunna form the two primary sources of Islamic law. Sunna, however, does not rank as high as the Quran but is considered an important source in the interpretation of Quranic verses. The memorisation and transmission of the Sunna in a literary form is characterised as hadith. The term hadith with a meaning ‘occurring, taking place’ represents the ‘report’ of Prophet Muhammad’s Sunna.  A. Rahim, The Principles of Muhammadan Jurisprudence (Mansoor Book House, Lahore, ) defines at p.  The third source of Islamic law is ijma, or agreement of jurists among the followers of the Prophet Muhammad in a particular age on a question of law. F. Hassan, ‘The Sources of Islamic Law’ ()  Proceedings of the American Society of International Law at p.  contends that although third in the hierarchy of sources of law, ijma forms the major portion of Islamic jurisprudence. Ijma, as a source of law, is supported by the Quran and Sunna.  The fourth source of Islamic law is qiyas, translated as analogical deduction. Analogy can only be employed if no guidance is available on the point under discussion in any of the other three sources of law.  Rahim defines it thus: ‘As a term of jurisprudence it means the application by a lawyer of all his faculties to the consideration of the authorities of the law (that is, the Quran, the Hadith and ijma) with a view to find out what in all probability the law is (that is, in a matter which is not covered by the express words of such texts and has not been determined by ijma)’ The more conservative body of Islamic scholars deny this as an independent source and believe that the ‘doors of ijtihad are closed’, meaning therefore that the age of independent legal reasoning in Islamic jurisprudence is over. But many modern day scholars of Islamic law argue that the doors of ijtihad are always open. Mohammad Iqbal, the famous Muslim philosopher-poet actively advocated ijtihad. See his famous exposition on the subject, M. Iqbal, Reconstruction of Religious Thought in Islam (Sh. Muhammad Ashraf, Lahore, ). Also see, Hassan, above n. , at p. .

as-Siyar and International Law in the Contemporary World  Khalid El-Fadl raises a more fundamental question in this regard. He is of the view that Muslim scholars who have thus far attempted to engage in this comparative discourse suffer from a major disadvantage due to the fact that they have a secular educational background and training whether in Muslim countries or Europe/US. Although there is a serious attempt on the part of these scholars at understanding the complexities of the Islamic legal tradition, the reality is that ‘Epistemologically, these lawyers were far more anchored in the Western intellectual tradition than in its Islamic counterpart, and as a result, their claim to authenticity was tentative at best . . . in contrast to speculative theological works of classical Islam, contemporary Islamist approaches remained superficial’. What is the bearing of this statement on the present writer, attempting to engage in a cross-system analysis, a Muslim student of Islamic law and international human rights law yet read and researched both subjects in a ‘western’ style university in Pakistan? Where do I locate myself in this discourse; am I an insider or outsider or both and do I have the appropriate skills to analyse a hypothesis built across two different knowledge systems? Participants of the discourse of human rights in the Islamic tradition (as a component of as-Siyar) usually pursue three main lines of arguments. There are those (largely) Muslim scholars who engage in the dialogue as apologists for the Islamic tradition, and are unwilling to take on board the diversity within that legal tradition and will only use in their arguments, traditional, conservative opinions. Then there are writers who, though conceding some reference to human rights in Islam, argue that there is no worthwhile discourse to engage in. Such writers primarily use as examples the literal, traditional, simplistic approach of Muslim writers on the subject citing legal documents of countries such as Saudi Arabia and the Sudan which are not representative of the true spirit of Islam, being, in this writer’s opinion, unrepresentative authoritarian regimes. The category of scholars

 K. Abou El-Fadl, ‘The Human Rights Commitment to Modern Islam’ in J. Runzo, N.M. Martin and A. Sharma (eds.), Human Rights and Responsibilities in the World Religions. (Oneworld Publications, Oxford, ), pp. – at  and accompanying footnotes.  Writers such as A.A. Maududi, the founder of the right wing political party in Pakistan, the Jama’at-i-Islami.  See the writings of A.E. Mayer, Islam and Human Right. Traditions and Politics (Westview Press, Boulder Co., ); J. Donnelly, The Concept of Human Rights (Croom Helm, London, ) et al.

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who write in a true comparative spirit willing to explore the diversity of Islamic jurisprudence and attempting to comprehend the concept of human rights in the Islamic tradition is a very small minority when compared to the total number of Islamic jurists. Muslim fuqaha of the classical period restricted themselves to an interpretative analysis of a text (the Quran and Hadith as primary religious text in the Islamic legal tradition), without questioning the text itself, or without attempting to create general principles for future application. This approach continues to the present times and teaching and learning Islamic law and jurisprudence in a Muslim jurisdiction is significantly different to the experience in a non-Muslim one. As a result of this inflexible attitude, the process of law making in Muslim jurisdictions is particularly fraught with tension since Islamic law (as a legal system) is equated with Islam (the religion) and hence immutable, untouchable and beyond critique and question. Muslim scholars argue that a law based upon the Quranic text is divine since its source is divine. Others take the view that as soon human intervention enters the domain of law making, it no longer remains divine and/or immutable. Law making is a human effort at interpreting and understanding the divine text and must be distinguished from it and subsequent generations of Muslim communities ought not to be held hostage to these time bound articulations. Examples of the outcome of this position abound but include most prominently, those interpretations impacting on women’s rights. Verse . of the Quran provides an example where

 F. Rahman, Islam and Modernity (Chicago University Press, Chicago, ); F. Rahman, ‘Status of Women in the Quran’ in G. Nishat (ed.), Women and Revolution in Iran (Westview Press, Boulder, Co., ), pp. –; N. Coulson, A History of Islamic Law (Edinburgh University Press, Edinburgh, ); J. Schacht, An Introduction to Islamic Law (Clarendon Press, Oxford, ); A.A. An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (New York, Syracuse University Press, ); K.A. El-Fadl, T. Ramadan, T. Moudood are some of the writers on the subject.  For example in the area of Hadd laws supposedly derived from the Quran. See S.S. Ali, ‘Interpretative Strategies for Women’s Human Rights in a Plural legal Framework: Exploring Judicial and State Responses to Hudood laws in Pakistan’ in A. Hellum, S.S. Ali, J. Stewart & A. Tsanga (eds.), Paths are Made By Walking. Human Rights, Intersecting Plural Legalities and Gendered Realities (Weaver Books, Harare, ) forthcoming; A. Quraishi, ‘Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective’ ()  Michigan Journal of International Law pp. –; H.R. Kusha, The Sacred Law of Islam. A Case Study of Women’s Treatment in the Islamic Republic of Iran’s Criminal Justice System (Ashgate, Aldershot, ); A. Jehangir and H. Jilani, The Hudood Ordinances: A Divine Sanction (Rohtas Books, Lahore, ).

as-Siyar and International Law in the Contemporary World  pronouncements of arguably restricted application, are used as justification for creating gender hierarchies within the Islamic tradition. A number of Muslim jurisdictions including Pakistan have legislated on the basis of this verse, thus legally reducing the status of women. The verse states that the testimony of a woman is worth half that of a man in financial transactions reduced to writing: And get two witnesses, Out of your own men, And if there are not two men, Then a man and two women, Such as ye choose, For witnesses, So that if one of them errs, The other can remind her.

Fazlur Rahman, commenting on this verse is of the opinion that the Quran is not stating any general law of the evidentiary value of male and female statements as the law. If the Quran did really regard a woman’s evidence as half that of a man’s, why should it not allow the evidence of four females to be equivalent to that of two males and why should it say that only one of the males may be replaced by two females? The intention of the Quran apparently was that since it is a question of financial transaction and since women usually do not deal with such matters or with business affairs in general, it would be better to have two women rather than one – if one had to have women – and that, if possible at all, one must have at least one male.

Fazlur Rahman then goes on to state that one can simply not deduce from verse : a general law to the effect that under all circumstances and for all purposes, a woman’s evidence is inferior to a man’s. He is convinced that this verse does not have the slightest intention of proving any rational deficiency in women vis-à-vis men. As an example, Fazlur Rahman cites the example of classical Islamic law regarding women with knowledge of

 Section  of the Qanoon-i-Shahadat Order, .  The Quran, verse :.  Rahman, at p. .

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gynaecology as the most competent witnesses in cases involving gynaecological issues. Finally, he also puts forward the suggestion that even if a law could be formulated on the basis of such a generalisation, then may we not change the law when social circumstances so change that women are not only educated equally with men but are also conversant with business and financial transactions? In contrast to the above discussion regarding translating religious text into statutory law in some Muslim jurisdictions, contemporary ‘western’ scholarship, is based on reason and argumentation; mounting challenges to existing theory, ideology or philosophy is integral to sound scholarship and an acceptable way forward. International human rights law pointedly avoids using religious formulations and terminology and presents itself in a secular tone and tenor. How does one approach these seemingly conflictual and contradictory knowledge systems with a view to generating a common understanding and resolution of issues? b. Debate Among Equals: Cross-Fertilisation of Ideas Between Islamic and Western Normative Frameworks of Law In order to create a mutually beneficial discourse, it is also relevant to raise the question of the extent to which ‘western’ scholarship has engaged with Muslim scholarship. Barring a few exceptions, knowledge of Muslim theorists, jurists and philosophers is rare in the ‘western’ world and in the few cases where there has been an engagement with Islamic legal tradition, the treatment of its subject matter has been through the eyes of a post enlightenment western liberal tradition as well as an Orientialist standpoint. For example, Hadith as a source of law has been of interest to western scholars of Islamic law for over  years. Siddiqui states that ‘While some have accepted the traditional canons of hadith criticism developed by Muslim scholars themselves, others have offered alternative accounts of the subject.’ The treatment of Ignaz Goldziher, Alfred Guillame, Joseph Schacht and others regarding Hadith literature is based upon discrediting it as valid as a source of Islamic law and jurisprudence by questioning its

 

Ibid. Ibid.

as-Siyar and International Law in the Contemporary World  very foundation. For a meaningful discourse, a comparative perspective of as-siyar and western international (human rights) law has to be a dialogue and debate among equals an environment that is conspicuous by its absence. As Edward Said remarks: ‘The essence of this tradition is to subject Islamic law to European intellectual judgement, by seizing the ‘superior location’ made available by European power’. A final point regarding preliminary pre-requisites of consensus building relates to terminology in English (and other European languages) that have no exact translation in Arabic and other languages spoken by Muslim communities. Two concepts highlight my point: The terms gender and secularism are examples that has led to creating a conceptual (as well as socio-political and ideological) gap between the ‘western’ and non-western world in general and Muslim communities and jurisdictions in particular. For purposes of the present chapter, secularism presents a telling example. It is usually translated as un-Islamic or in opposition to religion (Islam) rather than non-religious and neutral (in terms of not being ascribed to a particular religion). The affect therefore on a discourse or proposition where laws, rights and obligations are presented within a framework of secularism, invites protests from Muslim communities who immediately translate secular as un Islamic. Is there something amiss with secularity? Is secular being now also perceived as akin to and as a ‘new’ form of colonialism? This stance is evident from the number of reservations by Muslim State Parties to human rights instruments emanating from the UN and in the resistance to acknowledging them as universal norms. Samuel P. Huntington in his much publicised and controversial article ‘The Clash of Civilisations’ links the international debate over whether human rights are western, and thus unsuitable for non-western cultures, to a clash of civilisations: western and Islamic. He argues that differences in culture and religion create differences over policy issues such as human rights so that the promotion of human rights by the west merely provokes civilisational clashes. (The premise here is that human rights is an alien construct for Islamic cultures

 M.Z. Siddiqi, Hadith Literature: Its Origin, Development and Special Features (The Islamic Texts Society, Cambridge, ) at p. . For a concise summary of the viewpoints of these authors see Appendix II in Siddiqi Ibid., pp. –.  E. Said, Orientalism (Penguin, Harmandsworth, ).  S.P. Huntington, ‘The Clash of Civilisations’ ()  Foreign Affairs, –.  Ibid., at p. .

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and that there is no room for any common ground of discussion). While disagreeing with most of the views put forward by Huntington, it has to be conceded that these views appear to have been prompted by arguments made by some Muslim scholars and representatives of governments of a number of Muslim countries, who believe that the human rights norms as enunciated by the West are built on an unstated premise i.e., secularism. Therefore, it is argued, human rights appear independent of the authority of any specific religion and find legal validity by human acceptance of these principles/norms/laws. By contrast, Islamic law is of divine origin, is immutable and unchangeable and has a completely different normative base. Furthermore, ‘universal human rights’ in keeping with their Western liberal roots are individual based whereas in Islam (as in other religious traditions), rights are duty based and interdependent on duties one owes to God and the community. Thus, despite commonalities between human rights in Islam and those stated in the international human rights instruments, some basic points of divergence exist and present difficulties of acceptance and implementation in Muslim countries even where comparable rights and privileges exist within the Islamic tradition. For instance, the position of the Islamic Republic of Iran in relation to its legal obligations under international law is a case in point. It continuously

 For instance the writings of A.A. Maududi, Human Rights in Islam (Islamic Foundation, Leicester, ); Syed Qutb. S. Tabendah, A Commentary on the Universal Declaration on Human Rights (Goulding, Guildford, ).  Governments of the Islamic Republic of Iran, Saudi Arabia, Iraq, Bangladesh, Egypt and Pakistan, to name a few.  Thus duties, within Islamic tradition are divided into two broad categories, ‘Huqooq Allah’ or duty owed to God and ‘Huqooq al Ibaad’ or duty towards humanity and are indissolubly linked with duties.  For instance, respect for human dignity protected in the Quran in verse : ‘Surely we have accorded dignity to the sons of Adam’ or as stated in the farewell address of the Prophet: ‘Your persons, properties and honour are declared sacred like the sanctity attaching to this day, this month and this spot. Let them not be violated’ and comparable human rights in the preamble of the UDHR as well as its articles , , , etc. Also see the ICCPR and ICESCR for similar provisions.  A number of Islamic and ‘western’ writers tend to over-generalize the discussion and overlook contributions of writers who include notions of justice, equality and Godgiven rights and duties.  T. Meron, ‘Iran’s Challenge to the International Law of Human Rights’ ()  Human Rights Internet Reporter , at p. .

as-Siyar and International Law in the Contemporary World  refuses to comply with international human rights Instruments such as the UDHR, the ICCPR, and the ICESCR for the following reasons: Divergence does not emerge from the context, it rises from the very initial phase. Islamic law is founded on the very original concept that divinity reigns supreme and divine law is pre-eminent to human law. The Declaration is genuinely secular in its theme and essence and as such, differs from Islamic law in its origin. There may be similarities or even complete compatibility on some provisions, in particular those that meet the conditions of jus cogens, but the original perceptions remain widely apart.

Likewise, Gender and feminism are seen as synonyms for a westernizing project of state and communities and international human rights law by increasingly using gender instead of women and men is considered thus unacceptable in Muslim jurisdictions. From my conversations with varied groups of people in Muslim jurisdictions, they are unable to relate to the term gender because there is no exact word available in their language; hence the resultant inhibition in conceptualising the term. Flowing from this perception, is another question seeking clarity. Is there a conceptual problem with the liberal democratic framework of ‘western’ jurisdictions supposedly derived from a secular base? This of course leads one to pose the question: From whence does secularity derive its origins? Is it a religious-free soil or is it not a fact that what passes today as secular and liberal, is in fact built on a bedrock of solid, Christian norms? An essential pre-requisite for evolving a methodology for consensus ought to clarify such major conceptual misunderstandings. iii. as-siyar and international human rights law: its nature, scope and purpose: a brief overview As-Siyar or Islamic International law encompasses public and private international law including a well-defined catalogue of rights of minorities, rights to the environment, humanitarian law, laws of armed conflict, diplomacy and human rights. It predates contemporary international law by many centuries, and has a wider remit than its comparateur. There



Ibid., at p. .

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continues a substantial debate over the acceptance of international law as a distinct field of law, and its relationship with domestic laws. As-siyar is in this sense substantially different from its western counterpart. First, as-siyar has been recognised as an integral part of Islamic law and Islamic jurisprudence. Secondly, as-siyar grew into a fully functional body of the Sharia several centuries in advance of any similar developments in the western world. Majid Khadduri explains it thus: ‘[t]he siyar, if taken to mean the Islamic law of nations, is but a chapter in the Islamic corpus juris, binding upon all who believed in Islam as well as upon those who sought to protect their interests in accordance with Islamic justice’.

 See M.N. Shaw, International Law (Cambridge: Cambridge University Press) , –; D. Feldman, ‘Monism, Dualism and Constitutional Legitimacy’ ()  Australian YIL   See K. Bennoune, ‘As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence’ ()  Michigan Journal of International Law  at p. . For sources of as-Siyar, see H. Kruse, The Foundations of Islamic International Law () cited in Ibid., Bennoune; S.G. Vasey-Fitzgerald, ‘Nature and Sources of the Sharia’ in M. Khadduri and H.J. Liebesny (eds.), Law in the Middle East (The Middle East Institute Washington, D.C., ) at ; A. Rahim, Muhammadan Jurisprudence (Mansoor Book House, Lahore, ); J. Schacht, Origins of Muhammadan Jurisprudence (Oxford University Press, Oxford, ); Schacht, above n. ; Coulson, above n. ; A.A.A. Fyzee, Outlines of Muhammadan Law (Oxford University Press, Delhi, ).  Principles of Islamic law. I would like to make the point here that I believe Sharia to be based on sources of Islamic law, including the Quran and Hadith but a human endeavour, guided and inspired by the religious text in Islam. Most writers on Islamic law equate Sharia with the Divine Will, a position from which I consciously distance myself.  One of the reasons for early development of as-siyar since the eighth century AD. may well have been the conviction in Muslim theology that the Islamic nation was one entity, the Ummah, and so laws to cover various nationalities in this communitas islamica, were necessary. The various schools of Islamic juristic thought thus set about to deduce rules of international law from the sources of Islamic law. The Hanafi school of juristic thought was particularly active and two of Abu Hanifa’s (founder of the Hanafi school of thought), followers came to be known as ‘fathers’ of the Islamic law of nations. Abu Yusuf authored the Kitab al Kharaj and al-Radd Ala Siyar al-Awai, and al-Shaybani wrote his famous alSiyar al-Kabir (translated by Majid Khadduri as The Islamic Law of Nations (Baltimore, John Hopkins Press) . These works date back to the second and third century of hijra, the Islamic calendar (th and th century of the Christian calendar). For a discussion of the history of the codification of Islamic international law see, M. Hamidullah, Muslim Conduct of State: Being a Treaties on Siyar, that is Islamic Notion of Public International Law, Consisting of the Laws of Peace, War and Neutrality, Together with precedents from Orthodox Practices and Precedent by a Historical and General Introduction (Sh. Muhammad Ashraf, Lahore, ), –.  M. Khadduri, The Islamic Law of Nations: Shaybanis Siyar (John Hopkins Press, Baltimore, ) at .

as-Siyar and International Law in the Contemporary World  Hamidullah defines it as ‘[t]hat part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure State observes in its dealings with other de facto or de jure States’. The sources of assiyar are the same as those of Islamic law. There is a general consensus among writers on the subject that Islamic law is derived from four main sources and a number of subsidiary sources: the Quran, the Sunna, Ijma and Qiyas and ijtihad. Hamidullah, however has a more extended list of sources. These include: . . . . .

. . . . .

The Quran The Sunna or traditions of the Prophet Muhammad The Practices of the early Caliphs The Practice of other Muslim rulers not repudiated by the jurisconsults Opinions of celebrated Muslim jurists: (a) consensus of opinion (ijma) (b) individual opinions (Qiyas) Arbitral Awards Treaties, Pacts and other Conventions Official instructions to commanders, admirals, ambassadors and other State officials Internal legislation for conduct regarding foreigners and foreign relations Customs and usage.

a. Understanding the Scope and Content of Islamic International Law There are a range of misconceptions regarding the meaning, content and scope of as-Siyar. The first of these relate to a belief that the totality of Islamic law, as expressed in the two primary sources (Quran and Sunna) represent the ultimate expression of the Divine Will and that no further refinement is permissible or indeed possible in the two established sources. Other Islamic jurists however disagree and emphasise the need for continual

 An-Na’im, above n. ; ‘[t]here is often a traditional misconception about Islamic law being wholly divine and immutable’ M.A. Baderin, International Human Rights and Islamic Law (Oxford, Oxford University Press, ) .  G.M. Badr, ‘A Survey of Islamic International Law’ ()  Proceedings of the American Society of International Law .

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review and development of Islamic law. According to one leading scholar Gamal Badr, a definition of as-siyar should not lose sight of the historical framework of Islam. Studies based on a single source in the classical literature or on sources pertaining to a single period are bound to be descriptive of Islam as it was at a certain point in time, not of the living and developing Islamic view of international law and relations. Badr believes that the Islamic law of nations is not part of the dogma of Islam but is the product of a continuing process of juridical speculation by authoritative jurists over the ages. The Islamic law of nations is part of the corpus of Islamic law just as the original jus gentium was a branch of municipal Roman law. Islamic law is a religious law only in the sense that its basic ethical grounds and some of its general principles are to be found in the Quran and the pronouncements of the Prophet Muhammad. Beyond that, the corpus of Islamic law as it developed over the ages is “manmade” in the sense that it resulted from the efforts of the jurists of the various schools of law. If civil law can be described as a legislator’s law as to its source and common law as a judge’s law, then Islamic law is a jurist’s law. There is very little that is rigid and immutable in Islamic law.

This view is reinforced by Farooq Hassan’s discussion on Islamic international law. He argues that [t]hough the basis of every norm of Islamic law is by theory derived directly or indirectly from God’s wishes for His peoples, in arriving at what a particular norm is for a given society, the mind of the jurist is patently visible. Therefore, the mechanics of Islamic jurisprudence, functionally speaking, are similar to the contemporary working of the law of a country possessing a common law system or a civil system of law. The character of the rules of Islamic law is therefore not spiritual but clearly secular, in the sense that such rules are made for the utilitarian purposes of a society by jurists through the use of the same techniques as employed in other legal systems; however, there is a priori, a fundamental assumption that the rules so made are ultimately based on the Quran or the sunna. The human element

 

Ibid. Ibid.

as-Siyar and International Law in the Contemporary World  in Islamic law is, therefore, as pronounced as it is in any other major legal system of the world.

For purposes of our present discussion, it is important to note that apart from the Quran and Sunna compiled as Hadith (which were inspired by God but compiled by human beings after the death of the Prophet Muhammad), all the other sources of Islamic law are clearly devised by human knowledge and endeavour. This inference however does not appear to be as obvious as it should have been – leading a majority of Muslim scholars to argue that Islamic law is divine law and hence unchangeable thus precluding alternative legal reasoning, compatible with present day requirements of coexistence in a world espousing diverse ideologies. iv. as-siyar and international human rights law past and present: some contemporary realities The contours of contemporary as-Siyar as well as its sources have undergone an enormous modification both structural as well as ideological. It no longer draws inspiration from a pristine Shari’a based on the primary and secondary sources of Islamic law but is subject increasingly to siyasa (state power) Shari’a. In other words, Muslim states have acquired unto themselves the power to make laws (qanun) based their understanding of the norms of Shari’a. Muslim state practice in the domestic and international arena has thus undergone major reconstruction. The presumption of universality of as-Siyar encompassing the Muslim Ummah becomes questionable in the face of siyasa Shari’a and individual Muslim states promulgate overriding laws of entry and exit for persons within their jurisdiction. State practice of Muslim jurisdictions has moulded as-Siyar to become more open to contemporary realities of co-existence in an increasingly globalised world including engagement with human rights law. Formation of the Organisation of Islamic Conference (OIC) discussed below is an example of present day as-Siyar. Likewise, ratification of the Convention on the Rights of the Child,  (hereafter CRC) and the Convention on the Elimination of All Forms of Discrimination against Women,  (hereafter CEDAW or

 Hassan, above n.  at p. .  O. Arabi, Studies in Modern Islamic Law and Jurisprudence (Kluwer Law International, The Hague, ) .

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Women’s Convention) accompanied by reservations in the name of Islam depict yet a further dimension of the Islamic international law regime vis-à-vis its western counterpart. The third example discussed below relates to alternative human rights instruments presented from ‘Islamic’ forums, official (as in OIC) and unofficial (as in groups of Islamic scholars). Muslims today account for approximately one billion of the world population, spread across continents, regions and countries of which  are members of the Organisation of Islamic Conference (OIC). Not all OIC member states are termed ‘Muslim’ jurisdictions, either because Islam is not the state religion, or because less than % of the population profess the Muslim faith. A cursory glance at the membership of the OIC reflects a rich range and diversity of countries brought together on the basis of the Islamic religion. Simultaneously, these countries are independent sovereign states with their own constitutions, legislative bodies as well as adjudicating forums that vary from each other to a greater or smaller extent. Some commonalities however exist despite the variation. All Muslim jurisdictions subscribe to the Islamic law of personal status and jealously guard this area as the ‘last bastion’ of an Islamic identity. Marriage, divorce, inheritance  The OIC is an international organisation with headquarters in Jeddah, the Kingdom of Saudi Arabia. It was founded in September , when heads of States and Governments of Islamic countries assembled in Rabat, Kingdom of Morocco, to deplore the act of arson in the Holy Al-Aqsa Mosque and to declare their firm resolve to close ranks and to consult together, with a view to promoting close co-operation among themselves in the economic, political, cultural and spiritual fields. The number of member countries went up from the  founders to the present . These include, Afghanistan, Albania, Algeria, Azerbaijan, Bahrain, Bangladesh, Benin, Brunei, Burkina Faso, Cameroon, Chad, Comoros, Djibouti, Egypt, Gabon, Gambia, Guinea, Guinea-Bissau, Guyana, Indonesia, Iran, Iraq, Libyan Arab Jamahiriya, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Malaysia, Maldives, Mali, Mauritania, Morocco, Mozambique, Niger, Nigeria, Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Surinam, Syria, Tajikistan, Togo, Tunisia, Turkey, Turkmenistan, Uganda, United Arab Emirates, Uzbekistan, Yemen and Cote d’Ivoire. Source: OIC web-site, http://www.oic-oci.org accessed on th November .  Barring Palestine.  Variations range from the mode and ideology of state. An Islamic state may be a monarchy, a democracy (parliamentary or presidential and so on); the constitution may declare Islam as a state religion or the country may term itself a republic. Colonial influences do colour the nature of the state. Thus Francophone Islamic states have a different legal system to Anglophone ones. Ethnic and racial differences also bear upon the state and its institutions as well as the formula of power sharing.  Turkey is seen as an exception in that it is an avowedly secular state, polygamy is banned and marriage is a civil ceremony under the law. Yet the lived experiences of people are different to this ‘official’ approach. A the other end of the spectrum lie countries such

as-Siyar and International Law in the Contemporary World  and succession, custody and guardianship of children are governed by principles of Islamic law, in some cases without resort to formal legislation. Simultaneously, Muslim jurisdictions subscribe to legal pluralism where principles of Islamic law coexist in a rather uneasy relationship with customary norms and what may be termed as ‘secular’ regulatory frameworks. Female genital mutilation, depriving women from inheritance, forcing girls into marriage against their will, boy preference, prohibiting female children from acquiring education, are customary practices that are antithetical to the injunctions of Islam. Yet most countries calling themselves Muslim jurisdictions, do acquiesce to some or all of these and other practises in the name of custom, culture and tradition depriving girl children and women of their childhood and development rights. A further common factor of Muslim countries is their common colonial and post-colonial experiences that impact on the degree to which legal pluralism is embedded in their socio-legal culture and institutional practice. Finally, Muslim countries have an uneven relationship with western democratic modes of governance and international conventions on human rights adopted at the UN and evidenced by the initial reluctance to become state parties and subsequently to qualify their accession with reservations in the name of Islam. In light of the above background, we now interpret the attitude of Muslim states to international human rights instruments. Are reservations to these conventions indicative of a normative conflict defying engagement on the basis that Islamic law reigns supreme, or are there any core human rights values common to both sets of legal traditions? Are ratifications to human rights treaties by Muslim states reflective as Saudi Arabia and Iran that may be singled out for strict adherence to Islamic tenets in public and private affairs. Yet, the reality is that the governments of these countries have modern day attributes of governance.  Bahrain, Sultanate of Oman, the State of Qatar and the Kingdom of Saudi Arabia, are an example of unlegislated personal status norms derived from Islamic law. A few examples of Muslim Personal Status laws in Islamic countries include: The Muslim Personal Law Act  (Sudan), The Family Law Act  (Iran), The Code of Personal Status  (Iraq) which has now been modified, Jordanian Law of Personal Status  (Jordan), The Syrian Law of Personal Status , the Muslim Family Laws Ordinance  (Pakistan).  Other than Saudi Arabia and Afghanistan that were never formally colonised.  The majority of accessions by Muslim States to human rights instruments such as CRC and CEDAW have come about in the decade of the s and these too with sweeping reservations entered in the name of the Islamic tradition.  For a detailed analysis of this question see, S.S. Ali and J. Rehman ‘Freedom of Religion versus Equality in International Human Rights law: Conflicting Norms or Hierarchical

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of a contemporary as-Siyar that recognises the international legal order in general and international law of human rights in particular. Moinuddin in his well-argued book advances the opinion that, ‘. . . by agreeing to conduct their relations with other states on the basis of equality and reciprocity, Islamic States have abandoned a fundamental, theological, and legal doctrine.’ In addition to the Quran and Sunna, Muslim jurists have employed several sources to construct the classical edifice of the siyar, or Islamic international law. These include treaties and agreements made by Muslim rulers with non-Muslims, official instructions of the Caliphs given to commanders in the field and other State officials, writings of eminent Muslim jurists embodying legal opinion on matters of siyar, arbitral awards, internal legislation of Muslim States regulating matters of siyar and unilateral declarations of a Muslim State with regard to siyar, and custom and usage. It has been contended that the sources of siyar, if interpreted in modern terms, conform generally to the same categories as defined by modern jurists and specified in article () of the Statute of the International Court of Justice (ICJ). Current State practice of Muslim States also lends credence to the emerging universality of principles of international law including human rights norms. It may be argued that a well-established trend among Muslim

Human Rights? (A case study of Pakistan)’ ()  Nordic Journal for Human Rights, pp. –.  H. Moinuddin, The Charter of the Islamic Conference and Legal Framework of Economic Co-operation Among Its Member States (Clarendon Press, Oxford, ).  Ibid., at p. .  See Khadduri, above n. , at p. .  Hamidullah, above n. , at pp.  and ; Khadduri, above n.  at pp. –.  Ibid., at pp. , –.  Ibid., at pp. , –.  Ibid., at pp. –.  Ibid., p. .  Ibid., –.  Moinuddin, above n. , at p. . Article () of the Statute of the ICJ declares that the function of the Court is to decide disputes submitted to it in accordance with international law by applying: ‘(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting parties; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilised nations; (d) subject to the provisions of article , judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’.

as-Siyar and International Law in the Contemporary World  States today is the full acceptance of and participation in the UN system in order to contribute to the development of universally acceptable principles of international law. Muslim States have, since the inception of the UN, actively collaborated in drafting human rights instruments, including the UDHR, ICESCR, ICCPR, the CRC and CEDAW, and ratified these important treaties. Whilst the International Bill of Rights (comprised of the UDHR, ICESCR and ICCPR) provides the foundation upon which the international system for the protection and promotion of human rights has been developed equally for men and women, CEDAW focuses on the discrimination aspect of the implementation of universal rights and highlights the concept of equality of rights for women. It was adopted to reinforce provisions of existing human rights instruments to combat the continuing discrimination against women. In fact, CEDAW represents the culmination of efforts to develop the international norm of non-discrimination on the basis of sex and has been ratified by many Muslim States. This treaty is seen as a major breakthrough in international human rights since it recognises the need to go beyond legal documents to address factors which will help eradicate de facto inequality between men and women. Finally, there is the CRC, the ‘children’s treaty’ focusing on the survival,

 Adopted on  December , GA Res. A (III), UN Doc. A/, . For an interesting discussion on the subject see generally J. Kelsay, ‘Saudi Arabia, Pakistan, and the Universal Declaration of Human Rights’ in D. Little, J. Kelsay, and A.A. Sachedina (eds.), Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (University of South Carolina Press, Columbia, ), pp. –.  GA Res.  (XXI), UN GAOR st Sess., Supp. No. , at  UN Doc. A/ (), reprinted in  UNTS  and  International Legal Materials  (). The ICESCR entered into force on  January .  GA Res.  (XXI), UN GAOR, st Sess., Supp. No.  at , UN Doc. A/ (), reprinted in  UNTS  and  International Legal Materials  (). The ICCPR entered into force on  March .  Adopted by the UN General Assembly Resolution / of  November . Entered into force on  September . Reprinted in  ILM  ().  GA Res. /,  GAOR Supp. (No. .) at , UN Doc. A// (); entered into force on  September . For a detailed analysis of the drafting process of CEDAW see, L.A. Rehof, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Martinus Nijhoff, Dordrecht, ); J. Connors, ‘The Women’s Convention in the Muslim World’ in M. Yamani (ed.), Feminism and Islam. Legal and Literary Perspectives (Ithaca Press, Reading, ), pp. –.  S.S. Ali, Gender and Human Rights in Islam and International Law Equal Before Allah, Unequal Before Man? (Kluwer Law International, The Hague, ), p. .

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protection, participation and development of all children, irrespective of their sex, origin, race, and status of their parents and all Muslim states are parties to it. In assessing the approach of Muslim states to the CRC, CEDAW and other human rights instruments, it is also important to recall that the principle of pacta sunt servanda is entrenched, as a religiously sanctioned norm in the Quran – the primary source of Islamic law and the cornerstone of as-Siyar. Hence, if a Muslim State has given its consent to human rights treaties, it incurs the strict legal obligation to honour it both in international law as well as ensure enforcement at home. In the case of CRC, does the near universal acclamation denote universality of norms represented in its substantive provisions? Some of the contentious issues debated during the drafting process and evident from a study of the travaux preparatoires, reflects divergence in opinion among representatives of various States Parties. Indeed, it is those very issues, translated as ‘difficult’ provisions that emerged as reservations in the post-CRC period and remain contested terrain. In the early stages of the drafting process, the ‘north’ was over-represented leading to the fear that the treaty would be a ‘heavily Northern-oriented text’ but this was attenuated by active participation from a number of countries from the South including many Muslim jurisdictions. Treaty formulations entail protracted debate and controversy and the CRC was no exception. What is relevant for purposes of our discussion is the fact that those controversial provisions became the subject of reservations and impinge on the universality of child rights norms espoused in the CRC. The first issue in question was definition of the minimum age of the child. (whether childhood started at conception or at birth) The existing formulation of article  was a compromise to get over this difficulty. The second problem area was the extent and scope of Article  regarding freedom of religion. Initially modelled on Article  of the ICCPR which included ‘the freedom to have or to adopt a religion . . . of his choice’, this article was reworded to address the strong objections articulated by rep-

 Except Somalia.  J. Schacht, ‘Islamic Law in Contemporary States’ ()  American Journal of Comparative Law – at p. .  Cited in H.J. Steiner and P. Alston, International Human Rights in Context: Law, Politics and Morals: Text and Materials (Clarendon Press, Oxford, ) at p. .

as-Siyar and International Law in the Contemporary World  resentatives of Muslim jurisdictions. They pointed out that in the Islamic tradition, a child who is born to Muslim parents, does not have the right to change his/her religion. Another area where Muslim States Parties raised objections was the institution of adoption as conceptualised in the ‘Western’ legal tradition. The final example of controversial issues was the age at which children should be permitted to take part in armed conflict. All these contentious areas find a place in reservations of Muslim states to the CRC. a. Reservations of OIC Member States to the CRC and CEDAW: An Analytical Overview An overview of OIC States Parties to the CRC shows an interesting pattern of positions adopted towards the substantive provisions of this treaty. Not all member states have entered reservations and of those that have, not all cite conflicting norms with Islamic law and Sharia as reasons for reserving. This reflects the multiplicity of norms informing the Islamic legal tradition and lack of a unified interpretation of what constitutes ‘Islamic’. Afghanistan, Algeria, Brunei Darussalam, Djibouti, Egypt, Iran, Iraq, Jordan, Kuwait, Mauritania, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Syrian Arab Republic, and the United Arab Emirates have entered reservations in the name of Islam. Of these countries, Egypt and Pakistan withdrew their reservations on  July  and  July  respectively. Bangladesh, Indonesia, Malaysia, Mali, Tunisia and Turkey have not mentioned Islamic principles as the cause of their reservations but state constitutional and national laws, traditional values and custom as the motivation behind entering reservations. A third category of states have ratified the CRC without entering any reservations. These include Albania, Azerbaijan, Bahrain, Benin, Burkina Faso, Cameroon, Chad, Comoros, Gabon, Gambia, Guinea, Guinea-Bissau, Guyana, Kazakhstan, Kyrgyz Republic, Lebanon, Libyan Arab Jamahiriya, Mozambique, Niger, Nigeria, Senegal, Sierra Leone, Sudan, Suriname, Tajikistan, Togo, Turkmenistan, Uganda, Uzbekistan, Yemen and Cote d’Ivoire.

 Egypt had reserved Articles  and  (relating to adoption) in the name of Sharia.  Pakistan had indicated in its reservation that it would interpret the provisions of the CRC in light of principles of Islamic law and values.

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Shaheen Sardar Ali

Are these reservations indicative of a wider ideological conflict between child rights as enunciated in the Islamic tradition and those articulated in the CRC and, if so, are these differences irreconcilable? Further, and more importantly, how does one account for weak commitment of many Muslim jurisdictions in areas of rights and entitlements where no incompatibility exists between the CRC and Islamic law particularly in the areas of health, education, clean drinking water, and so on? Finally, what motivated Egypt and Pakistan to withdraw reservations entered in the name of Islam? Reservations formulated by Muslim States Parties to CEDAW bear strong evidence of the disparate positions adopted by these jurisdictions on the subject. In the years immediately following the coming into force of CEDAW, very few Muslim states were parties to the Convention. This situation has improved considerably and presently forty-one Muslim jurisdictions have ratified the Women’s Convention. Of these countries, the signature and ratification of Algeria, Bangladesh, Egypt, Iraq, Jordan, Kuwait, Libyan Arab Jamahiriya, Malaysia, Maldives, Morocco, Pakistan, Tunisia and Turkey are subject to substantial reservations. Afghanistan, Albania, Azerbaijan, Benin, Bosnia & Herzegovina, Burkina Faso, Cameroon, Chad, Comoros, Gabon, Gambia, Guinea, Guinea Bissau, Mali, Mozambique, Nigeria, Senegal, Sierra Leone, Surinam, Tajikistan, Togo, Turkmenistan, Uganda and Uzbekistan have become party to the Women’s Convention without entering any reservations while the reservations of Indonesia and Yemen are confined to Article () relating to the settlement of disputes which may arise concerning the application or interpretation of the Women’s Convention. States that have used adherence to Islam as justification for entering reservations to the Women’s Convention include Bangladesh, Egypt, Iraq, Kuwait, Libya, Malaysia, Maldives and Morocco. Tunisia and Pakistan have not expressly cited Islam as reason for reserving their position, but the religious argument may well be inferred from the text of what appears a general reservation. Reservations entered by Muslim states to CRC and CEDAW indicate highlight their individualised positions despite being members of the OIC and espousing their Islamic identity. It is significant

 S.S. Ali and S. Mullally, ‘Women’s Rights and Human Rights in Muslim Countries: A Case Study’ in H. Hinds, A. Phoenix and J. Stacey (eds.), Working Out: New Directions for Women’s Studies (Falmer Press, London, ), pp. – at p.  cite  Muslim states who had ratifies the convention in .

as-Siyar and International Law in the Contemporary World  that the attitude of Muslim states to these conventions defies synthesis and hence it is questionable what contribution if any, these disparate positions make towards the contours of a contemporary as-Siyar. Equally confusing is the objections and comments of Western states to these reservations who appear to make formalistic statements of dissatisfaction but go no further. At an expert group consultation in New York on  January , it was stated that comparing reservations entered against substantive provisions of the CRC and the Women’s Convention, it is evident that the Women’s Convention is the more heavily reserved treaty of the two. What is interesting for our discussion here that articles reserved in the Women’s Convention by Muslim States have been conceded and accepted within the framework of the CRC, most importantly, the equality and non-discrimination norm underlying every substantive provision of the CRC. Does it stand to reason that while Muslim States do not appear to have any problem in accepting equal rights for male and female children up to the age of eighteen, once beyond childhood, discrimination creeps in? The CRC clearly demand equal rights of children of both sexes to resources including education, health, recreation, and inheritance rights which Muslim States apparently do not question. This is evident from the substantial number of Muslim States who have ratified the CRC without any reservations. Why are these same concepts rejected when formulated in the Women’s Convention? In conclusion, it may be argued that reservations entered by Muslim States are motivated by a wide range of factors including political, socioeconomic as well as religious considerations. The situation is further complicated where no uniform position vis-à-vis Islamic law is adopted by Muslim States since each jurisdiction presents its own specific blend of an ‘operative’ and ‘cultural’ Islam, distinct from other Muslim jurisdictions. This is also reflected in the group of newly independent Central Asian Republics and some other Muslim States that have ratified the Women’s Convention without any reservations. Most importantly, a definitive view

 S.S. Ali, ‘Some Issues Arising from Reservations to Multilateral Treaties (with particular reference to human rights treaties affecting women and children)’ Paper presented at the IWRAW Consultation in New York, January .  These include, Afghanistan, Azerbaijan, Benin, Chad, Gabon, Gambia, Kyrgyzstan, Lebanon, Mozambique, Senegal, Sierra Leone, Tajikistan, Turkmenistan, Uganda, Uzbekistan.

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Shaheen Sardar Ali

on what indeed constitutes a ‘valid’ reservation in the name of Islam and which has ‘other’ underlying reasons is difficult to extrapolate as no single school of Muslim juristic thought or jurisdiction is authorised to represent the entire Muslim world. b. ‘Alternative’ Islamic Human rights instruments as Manifestation of ‘newly formed’ as-Siyar As mentioned in an earlier section of this paper, Muslim state practice displays an ‘inclusionary’ approach towards international human rights discourse and, as part of this policy presents from time to time, alternative ‘Islamic’ human rights documents. Since the adoption of the UDHR, as the foundational human rights document emanating from the UN, Islamic scholars, politicians, and official statements of Governments of Muslim States have declared human rights as a basic norm of the Islamic tradition and offered the Islamic contribution and perspective to human rights. These include the Cairo Declaration on Human Rights in Islam (the Cairo Declaration), the Tehran Declaration on the Role of Women in Islamic Societies (the Tehran Declaration), and the Islamabad Declaration on the Role of Muslim Women Parliamentarians in the Promotion of Peace, Progress and Development of Islamic Societies (the Islamabad Declaration), adopted from the platform of OIC. The fourth document entitled, the Universal Islamic Declaration of Human Rights (UIDHR), although not officially representing the views of Muslim States, is the result of the work of a group of eminent Muslim scholars and has been widely disseminated internationally.

 This section draws upon some of my earlier publications on the subject including: Ali, Gender and Human Rights, above n. , chapter .  Adopted by resolution No. /–P, A// S/, by the Nineteenth Islamic Conference of Foreign Ministers (Session of Peace, Interdependence and Development), held in Cairo, Egypt from  July– August, .  Adopted by the OIC Symposium of Experts on the Role of Women in the Development of Islamic Society, held in Tehran, Iran from – April  in accordance with resolution / – C(IS) of the Seventh Islamic Summit Conference.  Published in Shirkatgah, Newssheet ()  pp. –.  Adopted on  September  by the Islamic Council in Paris.  The Arab Charter of Human Rights is another document emanating from a group of Muslim states, i.e., League of Arab States was adopted it by resolution  (nd regular session) on  September . This Charter has not yet come into force. Reprinted in ()  Human Rights Law Journal . The  member States of the League of Arab

as-Siyar and International Law in the Contemporary World  The Universal Islamic Declaration of Human Rights (UIDHR) was adopted on the th September  by the Islamic Council. The foreword of this document states that it ‘is based on the Quran and Sunnah and has been compiled by eminent Muslim scholars, jurists and representatives of Islamic movements and thought’. The UIDHR does not take note of any international human rights document, treaty or convention recalling in its preambular statements, only the Islamic tradition. It consists of a preamble and twenty-three articles. It is proposed to discuss three of these Articles, i.e., Articles, ,  and  in an attempt to ascertain the degree of divergence between the UIDHR and similar documents adopted at the UN. Article , entitled, ‘Right to Equality and Prohibition Against Impermissible Discrimination’ has three sub-sections stating the following: a) All persons are equal before the Law and are entitled to equal opportunities and protection of the Law. b) All persons shall be entitled to equal wage for equal work. c) No person shall be denied the opportunity to work or be discriminated against in any manner or exposed to greater physical risk by reason of religious belief, colour, race, origin, sex or language.

What appears to be problematic here is the phrase ‘impermissible discrimination’ giving the impression that, where ‘permissible’, discrimination will be permitted. Divergence between Article  outlining the ‘Right to Found a Family and Related Matters.’ And international human rights documents is evident from the opening statement of this article which declares that, every person is entitled to marry, to found a family and to bring up children in conformity with his religion, traditions and culture. Every

States are: Jordan. United Arab Emirates, Bahrain, Tunisia, Algeria, Djibouti. Saudi Arabia, Sudan, Syrian Arab Republic. Somalia. Iraq, Oman. Palestine, Qatar, Comoros, Kuwait, Lebanon, Libyan Arab Jamahiriya, Egypt, Morocco, Mauritania, Yemen.  The text of the UIDHR may be accessed on the web site: http://www.alhewar. com/ISLAMDECL.html.  Presented by Salem Azzam, Secretary General of the Islamic Council in Paris.  UIDHR, above n. , at p. .  The inference that may be drawn here is that on literal, traditional readings of the religious text in Islam, women may be discriminated against. For a similar line of argument, see Mayer, above n. , pp. –.



Shaheen Sardar Ali spouse is entitled to such rights and privileges and carries such obligations as are stipulated by the Law.

Within the Islamic legal tradition, a Muslim woman may only marry a Muslim male whereas a Muslim male may marry not only a Muslim women but also a woman professing one of the revealed religions (kitabia). Right to mutual consideration and respect in marriage is provided in Article (b), whereas Article (c) establishes the husband as head of the household by obligating him to maintain his wife and children. Article (h) of the UIDHR provides for sharing obligations and responsibilities within the family. This provision differs from Article (d) of CEDAW in that it stands qualified by the phrase ‘. . . to share . . . according to their sex, their natural endowments, talents and inclinations, bearing in mind their common responsibilities toward their progeny and their relatives.” Article  (i) however appears in line with UN human rights provisions in stating that, ‘No person may be married against his or her will, or lose or suffer diminution of legal personality on account of marriage.’ Article  of the UIDHR makes a detailed provision on rights of married women including, providing a wife the right to residence in her husband’s house, to receive maintenance during the subsistence of the marriage and for the period of iddat following dissolution of the marriage, right to seek dissolution of

 UIDHR, article (a). The explanatory note provided states that ‘the term “Law” denotes the Shariah, i.e., the totality of ordinances derived from the Quran and Sunna and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence’.  Cf. Article () of the UDHR which provides that: ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family’. Article  of the Women’s Convention provides that: ‘States Parties shall take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: a) the same rights to enter into marriage’.  Cf. discussion in the Quran, verse : stating that men are providers and maintainers of women since they are obligated to provide for them out of their earnings.  Cf. Article (d) of the Women’s Convention provides for ‘The same rights and responsibilities as parents, irrespective of marital status, in matters relating to their children; in all cases the interest of the children shall be paramount’.  Cf. Article () of the UDHR which provides that ‘Marriage shall be entered into only with the free and full consent of the intending spouses’. Article (b) of the Women’s Convention makes a similar statement: ‘The same right freely to choose a spouse and to enter into marriage only with their free and full consent’.

as-Siyar and International Law in the Contemporary World  the marriage and inheritance. The Cairo Declaration on Human Rights in Islam (Cairo Declaration) is an example of a human rights document formulated and adopted from an ‘official’ Islamic forum, namely the OIC on th August . The Cairo Declaration consists of a preamble and  articles and is similar in tone and substance to the UIDHR. Article (a) lays down the principle of equality and non-discrimination by stating that : . . . All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, colour, language, sex, religion, belief, political affiliation, social status or other considerations. . . .

Article  declares that woman is the equal to man in human dignity; and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage.

Article (b) is similar in formulation as Article (c) of the UIDHR making the husband responsible for the support and welfare of the family. The Tehran Declaration on the Role of Women in Islamic Societies (the Tehran Declaration), and the Islamabad Declaration on the Role of Muslim Women Parliamentarians in the Promotion of Peace, Progress and Development of Islamic Societies (the Islamabad Declaration), (amongst others) may be used as evidence of the emerging trend of women and children’s human rights instruments in Muslim States. These documents are distinctive in that the issues relating to the rights of Muslim women (impacting on the girl child) were debated, drafted and adopted by women, and in conferences where rights of Muslim women were the focus of discussion. These Declarations are also important statements on Muslim women’s perspectives regarding their human rights prior to the Beijing Conference held in September .

 Rights outlined in Article  is in keeping with traditional principles of Islamic law. See, M.A. Mannan, Mulla’s Principles of Muhammadan Law (PLD Publishers, Lahore, ); J. Nasir, The Islamic Law of Personal Status (Graham & Trotman, London, ).  Appears as Annex to Resolution No. /–P. Document A//. S/.  Adopted by the OIC Symposium of Experts on the Role of Women in the Development of Islamic Society, held in Tehran, Iran from – April  in accordance with resolution / – C(IS) of the Seventh Islamic Summit Conference.  Published in Shirkatgah, Newsheet, Vol.  (), pp. –.

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The first of these conferences was the OIC Symposium of Experts on the Role of Women in the Development of Islamic Society was held in Tehran, Islamic Republic of Iran from –th April . Recommendations of the Symposium to the Twenty-third Conference of Islamic Foreign Ministers presents a number of interesting points of departure from other documents coming from Muslim forums including the UIDHR and the Cairo Declaration. The most prominent of these is reiterating the commitment of member states of the OIC to the principles and objectives of the UN Charter. Secondly, the interdependence and indivisibility between civil and political, and economic, social and cultural rights is clearly acknowledged and upheld. The recognition of the element of ‘cultural’ Islam and the manner in which it has adversely affected rights and status of women in Muslim countries has also been underscored, coupled with the need to reject adverse cultural encroachments detrimental to the identity and personality of Muslim women. This commitment is further elucidated by demanding the eradication of all forms of violence and exploitation of women, including domestic violence, sexual exploitation, pornography, prostitution, trafficking in women, sexual harassment, genital mutilation and other negative traditional and cultural practices. . . .

Genital mutilation, a stronger term than female circumcision has been used to describe the practices so often ascribed to the Islamic tradition, is sought to be discontinued. Special protection for pregnant and nursing mothers is also demanded, but the fact that women’s roles are not confined to motherhood is also made clear by the need for

 This Symposium was organised in accordance with Resolution /–C (IS), adopted by the seventh Islamic Summit Conference. Delegates from  Islamic countries participated in the deliberations. Three documents were submitted to the Seminar: Recommendations of the Seminar to the Twenty-third Islamic Conference of Foreign Ministers; Principles presented as Guidelines to the Fourth World Conference on Women in Beijing; and the Tehran Declaration on the Role of Women in the Development of Islamic Society. The author lead the Pakistan delegation and was elected Rapporteur for the conference.  See Preamble of Recommendations.  Ibid.  Recommendations of the Seminar to the Twenty-third Islamic Conference of Foreign Ministers, para. ..  Ibid.

as-Siyar and International Law in the Contemporary World  facilities to effectively meet the requirements of women and encourage their participation in public life thus enabling them to reconcile their family and professional responsibilities with their political rights and participation in decision making.

A particularly ground breaking provision of the recommendations is one that accepts the fact that women may be heads of households thus moving away from the traditional statement of men alone are, or can be, providers and maintainers of households. Another important demand articulated in the recommendations is for facilitating and enhancing women’s full access to appropriate, readily available, and free quality health care, and related services and facilities, including family planning, reproductive and maternal and infant health in the context of Islamic principle, thus ruling out the position by some that Islam prohibits family planning. The importance of education as an effective tool of empowerment is underscored as is the recognition of women’s roles as Mujtahid. The twenty-three points in the recommendations are condensed in the Tehran Declaration for consideration of the Twenty-third Conference of Foreign Ministers of the OIC. The Islamabad Declaration was adopted at the first Muslim Women Parliamentarians’ Conference in Islamabad on – August . The main objective of the conference was to allow women parliamentarians from Muslim countries to meet in order to forge closer links and develop deeper understanding of the problems facing Muslim women. This conference too, like the Tehran Symposium was significant in its timing, coming just before the Beijing Conference. It adopted the Islamabad Declaration on

 Ibid., para. .  ‘Provision of necessary financial and social support and protection and empowerment of women heads of household . . .’ Ibid., para. ..  Ibid., para. ..  A person with the capacity to engage in independent legal reasoning. This process is known as ijtihad. para. .. Tehran Declaration.  Thirty-five high level delegations from Muslim countries participated. These included representatives from: Pakistan, Libya, Chad, Malaysia, Oman, Azerbaijan, Morocco, Syria, Yemen, Albania, Algeria, Kyrgyzstan, Iraq, Bangladesh, Egypt, Palestine, Jordan, Senegal, Iran, Indonesia, Sudan, Turkish Republic of Northern Cyprus, Turkey and representative of the International Parliamentary Union. The author was member of the Pakistan delegation to this conference.  Official Report Prepared by the Conference Secretariat, reprinted in Shirkatgah ()  Newsheet at p. .

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the Role of Muslim Women Parliamentarians in the Promotion of Peace, Progress and Development of Islamic Societies (Islamabad Declaration). Similar to the Tehran Declaration, the striking feature of the Islamabad Declaration is the reiteration of recognition, and commitment to, international human rights instruments affecting women. It resolves to ‘promote the implementation, as appropriate of the provisions of international conventions on the rights of women and urge all countries to adhere to these conventions’. It may be argued that by specifically taking note of human rights conventions affecting women’s rights, the Islamabad Declaration appears to be formulating an ‘operative’ Islamic international law norm of non-discrimination on the basis of sex, evidence of which was barely visible in either the UIDHR or the Cairo Declaration. A further outstanding feature of the Islamabad Declaration lies in its recognition of Muslim women’s rights to participation in public and political life and decision-making, including the right to become head of State and government. This pronouncement, it is submitted, may also be employed as evidence of an emerging ‘operative’ Islamic law regarding women’s right to public life. Building upon the Tehran Declaration (although the connection between the two documents was not made officially), the Islamabad Declaration seeks to establish the interdependence and indivisibility of all three generations of rights. The Islamabad Declaration also sought to echo the linkage and interdependence now being sought within the UN system between the CRC and the Women’s Convention. To this end, the Islamabad Declaration seeks: ‘To promote and protect the human rights of women at all stages of their life cycle in the true spirit of Islam’. A further commonality between the provisions of the Tehran and Islamabad Declarations, and those of human rights documents adopted at the UN, is the emphasis on women’s central role within the family and the family itself as the basic unit of society.

 Ibid., at p. .  Cf. Tabandeh’s view that women are not allowed in public life. Also note the Hadith where it is stated that ‘Those who entrust their affairs to a woman will never know prosperity’.  Islamabad Declaration, at p.  para.(a).  See, Preamble, of the Islamabad Declaration stating that ‘Recognising that woman, as enshrined in the Quran and Sunnah, is the centre of the family which is the basic unit of society and hence the cornerstone of the edifice of a stable, peaceful and prosperous polity’.

as-Siyar and International Law in the Contemporary World  Both the Tehran and Islamabad Declarations acknowledge the fact that presently laws in Muslim countries do not accord equal rights to women call for working to promulgate laws supportive of women’s positive role and rights in society: ‘We will make special efforts to abrogate discriminatory laws, as well as cultural and customary practices so that our society can advance on an egalitarian and just basis’. To this end, current human rights issues arising out of adverse cultural practices towards women, have also been addressed e.g., violence against women. As compared to the UIDHR and the Cairo Declaration, the Islamabad and Tehran Declarations present a tone and terminology that is closer to the women’s rights language of the UN. A number of articles of the latter Declarations present similarity with human rights instruments emanating from the UN human rights instruments. But, alongside these similarities, some differences are also discernible, the most pronounced being the fact that interdependence of rights and obligations are both brought into prominence in the human rights documents presented from Muslim forums. That is not to argue, however, that UN human rights documents lack the element of corresponding obligations; the distinction appears one of where the emphasis lies. Surveying the UIDHR, Cairo, Tehran and Islamabad Declarations, the question arises: How representative of Muslim thought, belief and views are these forums and writings? This question does not lend itself to an easy response as it is a very complex problem indeed. What is evident however is the fact that male interpretations of the Islamic tradition with regard to women’s rights are invariably more restrictive than women’s forums in their formulations of similar issues. For instance, the Tehran Symposium, despite being hosted by Iran, a regime known world-wide for its strong religious conviction, sought to present the more positive side of rights for Muslim women. At the same time, it has to be conceded that the documents reviewed fail to adequately spell out and address the problematic areas relating to women’s rights in Islam. These areas awaiting deliberation include evidence rights of women, polygamy, divorce, inheritance rights,

UN human rights instruments articulate similar formulations. see for example, Article  of the ICCPR; Article  of the ICESCR.  Islamabad Declaration, p. ; Tehran Declaration, paras. . and ..  Islamabad Declaration, p.  ‘sustained efforts to end suppression, discrimination and violence against women in all forms especially domestic violence, women in armed conflict and crisis situations’. Tehran Declaration, para. ..

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custody and guardianship of children, and so on. What the Tehran and Islamabad Declarations have however achieved is to draw attention to these difficult areas by subsuming these under the heading of ‘problems’ sought to be resolved by Muslim women, or, through progressive ‘women-friendly’ interpretations of religious texts considered as legitimate grounds for the human rights of Muslim women. c. As-Siyar and International Law: Emerging Commonalities and Difference An exploration into as-siyar and international human rights law highlights a number of commonalities as well as differences. Both are as much political as they are legal constructs; evolutionary and responsive to international developments as well as national and regional posturing. As a point of departure, I propose to argue that there has been a rupture and historical disconnect of both regimes which has led to artificial continuities and discontinuities. Let us consider a few examples here: . International (human rights) law until fairly recently accepted slavery as a socially and legally acceptable institution. With the passage of time and economic compulsions, slavery no longer yielded the profits commensurate with ‘investment’ and thus went out of currency. Today very few proponents of as-Siyar and international law are willing to ‘connect’ to that particular chapter of their individual and collective history. The UDHR and other human rights instruments are increasingly invoked as evidence of the histories and civilisation. Likewise subscribers to the Islamic tradition conveniently ignore explicit verses of the primary source of law i.e., the Quran regarding slavery and its regulation. . The norm of non-discrimination and equality is considered as part of customary international (human rights) law and we are led to believe that human rights are non-hierarchical and that this value has forever remained enshrined in the normative frameworks of proponents of human rights. The seventeenth and eighteenth century documents, proclamations and declarations heralding the present international human rights movement were, contrary to claims of universality, confined initially and for a long period thereafter, to a white, male, elite. For instance, the American



See S.S. Ali, Gender and Human Rights, above n. , chapter .

as-Siyar and International Law in the Contemporary World  Declaration of Independence issued in  stated: ‘We hold these truths to be self-evident, that all men are created equal; that they are endowed by their creator with certain unalienable rights, that among these are the right to life, liberty and the pursuit of happiness’. But authors of this Declaration excluded women from political participation, instituted property qualifications for voting, sanctified slavery and accorded slaves the status of property. The universalist claims of the American Declaration of Independence did not apply to black slaves, Native Americans, or women. The feminist critique of human rights also centres around this argument of human rights being a product of the ‘dominant male half of the world, framed in their language, reflecting their needs and aspirations and exclusionary of women’s concerns, needs and experiences’. One may argue therefore, that the concept of individual human rights as hierarchical entitlements of a few was conceived, and grew up, in a specific historical and geographical context and was used to justify political shifts in power within these contexts. In analysing the construction of human rights in Islamic International law as hierarchical entitlements, Muslim scholars including Mohammed Arkoun, Abdullahi Ahmed An-Naim, Bassam Tibi and Riffat Hassan

 People still need to have a ‘home address’ to qualify as a voter in the United Kingdom today, which in a sense, appears to retain the spirit of the earlier property related law for the right to vote.  A.B. Fields and W. Narr, ‘Human Rights: A Holistic Concept’ ()  Human Rights Quarterly  at pp. –.  Ibid., Likewise, Locke accepted the institution of slavery and appeared to have no problems accepting restriction on political rights for people who did not own property. Neither did he argue that the rights of men and women were equal.  These contradictions in the universalist character of human rights emanating in Western tradition were challenged by Mary Wallstonecraft in her Rights of Women and Rights of Men. Her writing was shrugged off and considered unimportant until recently when the feminist movement gained momentum. See E. Brems, ‘Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse’ ()  HRQ  at p. ; H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist Approaches to International Law’ ()  AJIL pp. – and others.  Fields and Narr, above n.  at pp. –.  M. Arkoun, Rethinking Islam Common Questions, Uncommon Answers (Westview Press, Boulder CO, ).  An-Naim, above n. .  B. Tibi, ‘Islamic Law/Sharia: Human Rights and International Relations’ in T. Lindholm and K. Vogt (eds.), Islamic Law Reform and Human Rights (Nordic Human Rights Publications, Oslo, ).

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among others, have argued that any discussion on human rights in Islam must take account of the historical context within which the Sharia’ was constructed and applied by the early Muslims. The Muslim scholar Khadduri stated that Human rights in Islam, as prescribed by the divine law (Sharia’) are the privilege only of persons of full legal capacity. A person with full legal capacity is a living being of mature age, free, and of Moslem faith. It follows accordingly, that non-Moslems and slaves who lived in the Islamic state were only partially protected by law or had no legal capacity at all.

. A further common trait of the two regimes under discussion is the contested terrain of state sovereignty and supremacy of state law over other legal regimes. Despite the oft-repeated remarks that both regimes are international, extra-territorial and universal in reach, in practice, states parties behave in a parochial manner in application of rules and obligations dictated by these laws. This pattern is exemplified in reservations of some states who agree to be bound by a treaty subject to its constitution or domestic law. In a recent debate in Norway, sparked by the CEDAW Committee when discussing her th and th periodic report, asked the state party for incorporation of CEDAW in the Human Rights Act of that country. The government response was to the effect that this demand of the CEDAW Committee was undemocratic as it precludes informed choice and debate within the Norwegian parliament! as-Siyar too, is said to apply to the Muslim Ummah irrespective of geographical boundaries and divisions. But few Muslim countries subscribe to it as highlighted in the disparate reservations entered to the CEDAW and CRC. . As-Siyar conceptualises the world into dar-al-harb (territory of war), dar-al-Islam (territory of Islam) and dar-al-sulh (territory of peace). In order to implement these categories, it sets out institutional framework for protection of non-Muslim minorities including the concepts of aman (promise of security), dhimmi (non-Muslim protected persons paying jizya or tax) and the doctrine of muwada’ah (international treaty). Similarly,

 M. Khadduri, ‘Human Rights in Islam’ () Annals of the American Academy of Political and Social Science  at p. .

as-Siyar and International Law in the Contemporary World  international law espoused notions of rights of ethnic, linguistic, racial and religious minorities and evolved rules for ensuring these rights. Yet, it has to be said that both regimes have not dealt with these human rights issues satisfactorily, leaving these vulnerable groups susceptible to violations of their rights. . A contrasting pattern is discernible between as-Siyar and international human rights law. Whilst as-Siyar moved from an era of expansion to interaction and coexistence, contemporary international law appears to have adopted the reverse trend. From a post-Westphalia principle of interaction and coexistence, it is moving towards an age of hegemonic and ideological expansionism. For example, powerful states are increasingly using human rights and democracy as pre requisites for acknowledging states. Iraq and Afghanistan are the latest additions to earlier casualties of this expansionist approach in international law. Further, it may be argued that a number of similarities emerge in this exploration of as-Siyar and international law. The various steps before declaration of war in classical as-Siyar includes demanding that non-Muslims convert to the Islamic faith or face armed conflict. Democracy and human rights have now acquired the position of the ‘true faith’ of historical Islam. Post ‘/’ ‘democracy and human rights’ have emerged as the new religion and as synonymous to pre-jihad steps. Should states decline to oblige, the ‘secular’ human rights and democracy jihad comes into operation. . A final point on this comparative analysis of as-Siyar and international human rights law is an optimistic note of potential convergence between the two regimes. Despite the rhetoric of many Muslim jurisdictions that human rights is an alien construct, almost three dozen Asian and African States (many of these Muslim states), have incorporated the UDHR in the fundamental rights chapters of their constitution. At a practical level therefore it may be concluded that whilst differences in approach and ethos remain, state practice of Muslim states regarding application of human rights treaties present a promising example of working towards a common understanding of human rights and international relations.

chapter four

Religion as a Source of International Law Ilias Bantekas* i. introduction For many centuries, prior to the Peace Treaty of Westphalia, State-like entities invoked rules and entitlements under the laws of God, even though this corpus of rights and obligations was incoherent, inconsistent and most frequently flouted. Some obligations, having a basis also in morality were stronger and found their way into positive law in later centuries, at a time when the unity of a single Christian faith had dissolved. Post-Westphalian international law was euro-centric, and while it was infused with biblical policy dictates as evinced in the works of the early international lawyers, it is doubtful whether in its present expression any such elements survive with the same potency. The fundamental starting point for this work is to what degree religion constitutes a source of obligation for any particular State or group of States. The situation is compounded by the fact that international law is no more a euro-centric exercise, with Muslim and other nations exerting significant influence in international relations. In addressing the question regarding the existence of obligations through religion we examine the possibility of a historical continuity of norms borne out of religious tradition and thereafter tracing their journey into the realm of natural and positive international law. In this regard, we examine a proposition supported by some contemporary Muslim scholars that Islamic law constitutes a unique international legal framework that is different from the euro-centric model. Is there a single international law or in fact multiple legal regimes that are not subject to a single hierarchical structure? This matter is also closely connected to the debate on human rights recognised under international treaties and customary law but prohibited under particular Islamic schemes, fuelling the cultural relativist agenda. In order to address the question of

*

Professor of International Law and Head of Law at Brunel University.

Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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whether a religious norm has found its way into contemporary positive international law, and whether such norm/s is independent from its parallel treaty or customary prescription, we evaluate two norms under their respective religious and international law perspective: the jus ad bellum and that of diplomatic protection. In this regard we examine what is the role of obligation and estoppel in the case of religious inferences. Moreover, we take a look into the significance of religious constitutions and their capacity in acknowledging a particular State’s obligations on the basis of religious texts and traditions. Finally, of significant concern is the role of organised religious institutions in dictating or lobbying the foreign policy of like-minded States, expressed most typically through voting in international organisations and policy positions during treaty negotiations. ii. is international law a secular discipline? To address the question of whether international law is secular, one must first determine the following: a) the secularity or not of the totality of sovereign States; b) the divorce of religious norms from legal norms and international relations, and; c) the existence of a unifying international legal order to which all States subscribe, irrespective of religious or cultural differences. To be certain, the world is divided into secular and non-secular countries. Nonetheless, the extent to which religion informs the domestic and external relations of non-secular countries varies significantly. Pakistan, for example, whose domestic legal system is predominantly based on the Sharia (Islamic law), adheres to secular standards in its international relations with other States. The same is true of other Muslim-majority countries, including Egypt and Turkey – although the latter has resisted the application of sharia at the domestic level, as have the newly emergent Central Asian republics, preferring instead secular constitutions. Yet, other more traditional Muslimmajority countries, such as Saudi Arabia, while implementing Islamic law internally and generally voicing a secular external policy, do not hesitate to oppose the universality of secular concepts, particularly in the field of human rights and democratic governance. Similarly, in the United States and Europe, while Christianity is the dominant religion among their citi-

Religion as a Source of International Law  zens, and inevitably religious institutions influence a variety of policies, foreign policy is drawn essentially under secular procedures and substantive rules. To answer the question whether international norms are divorced from religious norms requires an initial overarching assumption in the following terms. A positivist would have no problem asserting that contemporary international law is and ought to be devoid of religious propositions, since the contractarian nature of this legal system has excluded reference to religious postulates as sources of law. Natural law theory, on the other hand, would refute the argument that the consensual (contractarian) nature of the international legal system excludes divine rules pertaining to human morality. Despite the erosion of naturalist theory in favour of positivism, particularly in the twentieth century, important positivist instruments such as the preamble to the UN Charter and the Universal Declaration of Human Rights, posit strong naturalist statements. To me it seems reasonable that natural law has a significant role to play, since if positive law is the starting point for contemporary human rights, then the logical conclusion must be that these did not exist prior to the post World War II human rights era – at least universally. Similarly, positive law cannot adequately explain the must-be link between pre and post-Westphalian international law. Indeed, in the work of Grotius, a large number of sources and citations used to support his legal arguments are predicated on Christian religious texts. By the time of Vattel, in the mid-eighteenth century, the relationship between direct religious sources and international law had been replaced by natural law. The positivism that ensued since the early nineteenth century could not have entirely extinguished what international law did exist prior to that time. The reality seems to be that to the extent that a positive rule explicitly and fully overrode a naturalist

 For example, Art. ()() of the Irish Constitution forbids the practice of abortion in Ireland.  H. McCoubrey, ‘Natural Law, Religion and the Development of International Law’ in M.W. Janis, C. Evans (eds.), Religion and International Law (Brill Publishing, The Hague, ), pp. –.  See M.J. Janis, ‘Religion and the Literature of International Law: Some Standard Texts’ in Janis and Evans, above n. , at pp. –.  See, ibid., pp. –.

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rule the latter ceased to exist. Where a positive rule was lacking, natural law would apply, at least between Christian nations, and where a religious rule was transformed over time into a naturalist rule and thereafter into a positive rule (e.g. diplomatic protection, sealing of treaties through oaths and good faith) neither the naturalist nor the religious nature of the now positive rule lost their relevance. The ascertainment of contemporary positive rules falling in the latter two categories is a matter of investigation, and some examples will be cited in other sections of this chapter. If our presumption is correct, then religious rules are not completely divorced from legal rules, although it must be admitted that international law is to a very large degree secular. Whereas some lawyers may argue against the universality of particular norms, such as human rights, even fewer would entertain the contention that separate international legal regimes regulate the relations between States of different moral or religious conviction (e.g. relations between European States, between Muslim States and Muslim-European relations). In the next section we shall examine the validity of this proposition in more detail. iii. how many international laws? In his  work, entitled Elements of International Law with a Sketch of the History of the Subject, Henry Wheaton suggested that the usage and acquiescence that makes up a rule of positive international law “can only spring up among nations of the same class or family, united by the ties of similar origin, manners and religion”. Janis criticises the foundations of this assertion, but points out that Wheaton was inspired by Austin’s command theory, i.e. that international law is not law properly so called because it does not involve sanctions imposed by a higher authority, such as would be applicable under domestic law. For Wheaton, these “sanctions” could be substituted by “international morality”, but these could be enforced only as long as the nations that consented to them subscribed to the same moral order, which is not the case with non-Christian States in their relations with Christian States.

 H. Wheaton, Elements of International Law with a Sketch of the History of the Subject (st edition , reprinted by LawBook Exchange Ltd, Philadelphia, ), p. .  Janis, above n. , at p. .

Religion as a Source of International Law  If this argument were sustained for the entirety of international relations it is not unreasonable to expect that the rubric of international law be dissolved. Let us note a few examples, past and present, where this line of thinking was indeed practiced by States, some of which on religious, others on political or cultural grounds. The division of East and West during the Cold War culminated in the adoption of a Soviet perception of international law, one which, inter alia, disapproved of custom as a source of law binding upon Warsaw Pact and Western States and recognised a right of forceful intervention to avert the overthrow of communist regimes (Brezhnev doctrine). Similarly, following the process of decolonisation in the late s the newly emergent African States argued vehemently that although international law demanded the payment of adequate compensation for nationalised foreign property, this was generally inapplicable in the decolonisation context because the colonisers had for too long exploited the resources of their colonies to the detriment of their people (Nyerere doctrine). A settlement was finally reached in the matter, but as a result of that dispute new countries generally joined the community of nations under the express understanding that they accept the rules of international law as they find them on the day of independence. Nonetheless, this case exemplifies the existence of two parallel systems of international expropriation law in a particular time and place. The most significant theatre, however, where two juxtaposing and competing – to some degree – international legal regimes exist is that regulating the relations of Muslim nations among themselves and another regime encompassing general international law entertaining all other matters of foreign policy. Although religion is the dominant source of this divergence, its very essence on the international plane is more akin to political theology. There are two explanations for this separate Islamic international law regime; a historical and a legal/cultural. Under the historical component, during the first eras of expansion and interaction of Islam, war against unbelievers was justified merely by the fact of disbelief, thus bringing about the dichotomy of ‘dar-al-Islam/dar-al-harb’ (territory of Islam and territory of war respectively). The dar-al-Islam was subject to a particular set of

 J.N. Moore, R.F. Turner, International Law and the Brezhnev Doctrine (Lanham, University Press of America, ).  E.G. Bello, ‘Reflections on Succession of States in the Light of the Vienna Convention on Succession of States in Respect of Treaties ’ ()  German Yearbook of International Law, , pp. –.

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rules common to the Muslim brethren living therein, whereas the dar-alharb was not. By the thirteenth century, at a time when both the Christian and Muslim nations realised that one could not fully subjugate the other, the aforementioned dichotomy was expanded to include a third category, the ‘dar-al-sulh’, which means the territory of peace. This corresponds to the modern state of affairs, comprising relations with non-Muslim States that were not hostile to Muslim nations and which moreover entered into treaty relations with them. Although it cannot be claimed with certainty that dar-al-sulh – even in a contemporary political form – governs the current external relations of traditional Islamic States, there is no serious counterclaim that it has been replaced by another formula. Moreover, despite the fact that it currently represents a political theory of organisation and external relations, its basis is in fact premised upon the primary sources of Islam. The legal/cultural divergence alluded to above emerged as a result of the aforementioned dichotomy in the early years of Islam. Its contemporary expression may be found in the debates between universalism and cultural relativism as regards the scope of application of human rights. For the purposes of the present study it suffices to state that whereas cultural relativists claim that it is through culture or religion that human rights are validated, universalists argue that human rights are of universal application regardless of culture, religion, or other attributes particular to the person or the group. The United Nations is adamantly universalist in orientation and the various human rights instruments concluded under its aegis since  have been moulded in that light also. To be certain, significant opposition has been generated against universality, particularly from the Muslim world, with Saudi Arabia refusing to adopt the  Universal Declaration of Human Rights because of the existence therein of the right to religious freedom and to some degree rights pertinent to the status of women. This opposition even culminated in the submission of a proposal during the  Vienna Conference on Human Rights to the effect that religion should be the test for validating rights in Islam. Although the proposal was rejected, this has not prevented Muslim nations from claiming this position outside the context of the United Nations, or of adopting regional instruments of

 M. Khadduri, War and Peace in the Law of Islam (Baltimore and London, Johns Hopkins University Press, ), pp. –.  J. Donnelly, ‘Cultural Relativism and Universal Human Rights’ ()  Human Rights Quarterly, .

Religion as a Source of International Law  dubious importance within the framework of the Organisation of Islamic Countries (OIC), such as the Universal Islamic Declaration of Human Rights. To the extent that governments adhere to cultural relativism on the basis of Qur’anic sources they are in fact advocating a contemporary formulation of dar-el-sulh (i.e. a set of legal norms applicable among themselves and in their relations with non-Muslim States) as well as a dar-al-Islam (i.e. a unique international law applicable between Muslim States alone). The former is of dubious legality, and in any event is in conflict with international law proper wherein the rights rejected by Islamic international law are well respected. To the extent that these rights do not possess a jus cogens character and are not binding on a Muslim nation as a result of custom or treaty, one may simply dismiss the two international legal regimes scenario and contend that the particular rights are simply not binding. What would happen, however, if the particular right where to attain jus cogens status at some later point? In that case, the country in question would be bound to accept the right in its domestic legal system by the very nature of the jus cogens character of the rule. It is then that the competing international legal regimes argument would be posited by the Muslim nation or nations and religion elevated to a primary source of international law. This is a dangerous precedent for international relations and it is doubtful whether it is wholly valid in legal terms. Religion may constitute a source of international law if it represents a clear obligation to which two or more States adhere, but its force must be countered against a hierarchy of sources, chief among which are jus cogens norms, which themselves have been premised on international consent. Secondly, where the absence of a right or the prohibition of otherwise lawful action is premised on undemocratic or arbitrary governmental action, even where the violated rule itself is not one of jus cogens, such governmental action is subject under international law to the maxim ex injuria jus non oritur. A final argument against the

 I am not rejecting the possible existence of more than one international legal regimes with regard to a specific field of inquiry – such as the variations to the rule of immunity before domestic courts vis-à-vis the ad hoc international tribunals. I am opposed to claims regarding the existence of multiple general international legal regimes. See I. Bantekas, ‘Head of State Immunity in the Light of Multiple Legal Regimes and Non-Self Contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction Against the Background of the  Iraq War’ ()  Journal of Security and Conflict Law, .  G.M. Danilenko, ‘International Jus Cogens: Issues of Law-Making’ ()  European Journal of International Law, .

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validity of two independent and competing international legal regimes may be grounded upon the notion that in contemporary international relations no nation has ever reserved the right unto itself to establish and act within a separate legal regime. Therefore, the fact that differences may arise with regard to the substance and application of particular rules between States of different religious persuasion does not imply the creation of a distinct international law for the opposing nations; it simply evinces the existence of a dispute over the substantive or procedural aspects of a rule within the confines of a single international law. iv. religion as the basis of obligation in international law Thus far we have determined that religious texts and principles have been invoked by States to justify particular action or inaction, as well as to legitimise the existence and application of a different set of rules governing the relations of like-minded nations, as well as a different regime between non-like-minded nations. Although this state of affairs suggests that religion may in some very limited cases be viewed as a source of international law, we have not analysed this matter fully. What is now required is an examination of religion as the basis of international obligation between States. A religious custom or written instrument that expresses a particular duty or right that has been accepted by more than one State should bind these entities in their bilateral or multilateral relations. It further follows that States which have not accepted these rights and duties will have no obligation to perform under the said religious custom or instrument. This basis for international obligation will apply only vis-à-vis those nations that are theocratic in orientation, expressed usually through their constitution or equivalent document, and which clearly renders a particular religious custom or instrument as the basis for that country’s external relations. Certainly, the fact that religion in this sense is the basis of international

 In fact, during discussions over the sources of law available to the League of Nations and the PCIJ, representatives of Muslim countries argued that Islam constituted one of the ‘main forms of civilisation’ to which the Statute referred, and being moreover a ‘principal legal system of the world’, the World Court was obliged to recognise Islamic law as a source of international law. See J. Cockayne, ‘Islam and International Humanitarian Law: From a Clash to a Conversation between Civilisations’ ()  International Review of the Red Cross, , at p. .

Religion as a Source of International Law  obligation does not mean that it is the only basis of obligation, as the country may also adhere to bilateral or multilateral treaties and customary law that is consistent or conflicting with the religious obligation. In this sense, the religious texts resemble an ordinary treaty, and likewise the religious custom resembles regional customary international law. There is no reason why a country cannot adhere to such norms, and as we have already explained, this state of affairs does not establish a different international legal regime, it is simply another, but not sole, basis of obligation. The interpretation of such bases, as well as the examination of their scope of application is therefore subject to the rules pertaining to the ‘normal’ sources of international law. The same applies in all cases of conflict with other treaties or customary rules. The function of unilateral acts of States that are justified directly, indirectly, fully or partially on religion is similar to that described above and relating to religious texts or custom as a basis for assuming obligations under international law. In the case of unilateral acts, such as waging war under the pretext of religion, or making official statements where the basis of obligation contains religious connotations, the State in question creates a binding precedent unto itself that is traceable to the root of the obligation; that is, the religious justification. This does not necessarily mean that religion becomes a source of international law, simply that in the case at hand it forms the basis for a particular obligation. In the following sections we will elaborate these propositions by focusing on two relevant areas; the use of force and diplomatic immunity, as these have evolved from religious instruments into positive law in the twentieth century. a. The Religious Component of Contemporary Jus ad Bellum All major religions have to a lesser or larger degree prescribed rules by which their followers, or communities of followers, may validly use force to defend themselves or help others in need. These prescriptions have appeared either in the principal religious texts or have developed through the philosophical or theological tradition of such religions. Most influential among these has been the formulation of the “just war doctrine” by the early fathers of the then united Christian church (but essentially those of the Latin part of the Church), and particularly St. Augustine of Hippo (–), and later refined by Thomas Aquinas (–). Although one can trace the origins of the doctrine back to Cicero, it was St. Augustine who set out the parameters for waging legitimate war under God as follows:



Ilias Bantekas a) b) c) d) e) f) g)

the cause must be just; it must originate from legitimate authority; action must be accompanied by right intention; there must be a probability of success; war must be a means of last resort; the action must be proportional, and; non-combatant immunity must be recognised in all cases.

The doctrine was in time further refined by the renowned Spanish theologians of the Catholic Church during the thirteenth to the sixteenth century, such as Francisco Suarez, reflecting natural law that was in harmony with the Christian Faith. The contemporary regulation of recourse to armed force is grounded in treaty law of the highest order, particularly Articles (),  and Chapter VII of the United Nations Charter, and is further entrenched in customary international law. On the face of these provisions there is nothing that warrants the conclusion that religion may be invoked to justify the employment or threat of force. Indeed, the whole purpose of the UN Charter was to solidify peace by limiting as far as possible recourse to force, save for self-defence preceded by an ‘armed attack’, or when authorised by the Security Council acting under Chapter VII of the Charter. Despite these valid observations, Article  of the Charter contains language that may be interpreted as recognising the existence of pre-Charter international law, presumably so far as this is consonant with the Charter itself. Without pronouncing any value judgment on what this pre-Charter law may consist of, several writers have suggested the following: pre-emptive strikes and anticipatory self defence, humanitarian intervention, protection of nationals abroad, and others. It is outside the purview of this chapter to examine the validity or not of these propositions, but we shall examine whether there is any religious connotation behind the principle of humanitarian intervention

 St. Augustine of Hippo, Against Faustus the Manichean, XXII –, reprinted in M.W. Tkacz, D. Kries (trans.), Augustine: Political Writings (Hackett Publishing Co., ), pp. –.  F. Suarez, On Hope, Faith and Charity (). Here we are interested in the third section, ‘De Caritate’ [On Charity, XII –], where he examines the jus ad bellum.  Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA), () ICJ Reports, .  Art.  UN Charter.

Religion as a Source of International Law  or an equivalent to a just war in contemporary international relations, so as recourse be made to such rules as well as to the UN Charter. With the demise of the Soviet Union, some believed that bipolarity would revolve around religious/cultural differences. Although at a popular level this theory may find some or even ample application – especially as justification for terrorist attacks – no contemporary State has invoked religion in order to use or threaten to use armed force, with the exception of Saddam Hussein of Iraq, who slightly prior to the US invasion called for a Muslim uprising, asserting that to a large degree the impending US action was an assault on Islam. However, no other Muslim nation made a similar statement, despite strong popular support in favour of Hussein in countries like Pakistan and Saudi Arabia. Similarly, I am not aware of any other State, since the s, predicating force on religious grounds, even as a supplementary justification, although religious elements have featured prominently in numerous conflicts. Certainly, from a policy point of view this would be unwise, and it is doubtful that it would stir up any support even from like-minded States, as was bluntly demonstrated in the case of Saddam Hussein. The same is true in the case of humanitarian intervention, where validation is typically claimed on the basis of justice, and thus the invocation of religion would weaken one’s argument and also result in the loss of support from countries adhering to other religions. It is therefore puzzling that the President of the United States during the  Iraq conflict, George W. Bush, made reference to Christianity to partly justify his decision to attack Iraq. Although the official reasons for the invasion

 S.P. Huntington, ‘The Clash of Civilisations?’ ()  Foreign Affairs, .  See A. Shadid, ‘Scholars Urge Jihad in Event of Iraq War; Cairo Center Declares All Muslims Threatened’ The Washington Post ( March ) . The statement went on to say that ‘Our Arab and Islamic nation, and even our faith, are a main target for all these military build ups.’  Certainly, the argument could be made that these countries were staunch US allies.  For an overview of contemporary conflicts with a religious element, see S. Page and J. Kelly, ‘In God’s Name: The Most Mortal of Combat’ USA Today ( July ) . See also, T. van Boven, ‘Advances and Obstacles in Building Understanding and Respect between People of Diverse Religions and Beliefs’ ()  Human Rights Quarterly, , , who claims that at least  regional or civil wars in the s were based to ‘a significant degree’ on disputes that were at least partially based on religion or belief.  In his  State of the Union Address, President G.W. Bush claimed that: “If war is forced upon us, we will fight in a just cause and by just means . . . The liberty we prize is not America’s gift to the world, it is God’s gift to humanity . . . May he [God] guide us

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centred around Iraq’s possession of weapons of mass destruction and its links to Al-Qaeda, and despite the fact that such religious references may be attributed to the personal strong Christian feelings of the US President, they were nonetheless not refuted by the US government. What is the significance of such statements? There is no continuity between the just war doctrine and the Christian sentiment expressed by the US President, nor is there any intention to create a new obligation or supersede a prior one through the invocation of such religious statements. On this basis, it is very doubtful that there exists any pre-Charter use of force norm that permits recourse to armed force on the basis of a religious duty or obligation, at least one that possesses contemporary validity. b. Islamic Diplomatic Immunity as a Basis of International Obligation The  seizure of the US embassy and two consulates in Iran by militants and the detention of diplomatic personnel for a considerable amount of time eventually brought the matter before the ICJ docket. The obligations owed by Iran to the United States concerned the inviolability of the person of the foreign envoy, as well as the delegation’s premises and other property, such obligations stemming principally from the  Vienna Convention on Diplomatic Relations and the  Vienna Convention on Consular Relations. Although the World Court did not elaborate on the role of customary law or other related sources, it included ‘long-established rules of general international law’ as a basis for obligation. The contribution of the Qur’an and the sunnah to the law of diplomatic immunity and protection follows not only a long tradition stretching from antiquity, but has also been of seminal importance in the development of this area of law. In fact, Prophet Muhammad was so adamant and respectful concerning the inviolability of the person of the diplomat that even when he was personally offended he took no punitive action and ordered that in cases the diplomat’s behaviour has become intolerable or has committed

now”. Available at: http://www.whitehouse.gov/news/releases///–.html  See Case concerning United States Diplomatic and Consular Staff in Tehran (USA v Iran), Judgment of  May  () ICJ Reports, .   UNTS .   UNTS .  Diplomatic and Consular Staff judgement, above n. , at para. ().

Religion as a Source of International Law  a crime, he should be granted safe conduct (aman) until the borders of the country. As the Qur’an and sunnah constitute the principal sources of Islamic law, which as already explained regulates both the domestic and also international relations of several Muslim countries, it would be interesting to examine whether its particular rules on diplomatic protection create a basis for obligation. The judgment of the ICJ in the Tehran Diplomatic and Consular Staff case noted that: The principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established regime, to the evolution of which the traditions of Islam have made a substantial contribution.

There is nothing in this statement clearly and categorically recognising that Islamic law is a basis for obligation incumbent on Iran. However, there was no real need for the Court to do this, since the two multilateral conventions mentioned above, to which both countries were parties, were more than sufficient to found a basis for the particular obligation. What, however, if Iran was not a party to either of these conventions? The Court, in that case, would have to examine the prescriptions of customary international law in more detail than it did, finding that a universal custom did exist, to which Islam had made a significant contribution. So far we are in the realm of customary law. Let us assume for argument’s sake that in its examination of customary law the Court discovered that while the rule relating to the inviolability of the person of the diplomat and diplomatic premises enjoyed universal customary acceptance, the rule that offending diplomats be returned to the sending State did not, but was explicitly recognised under Islamic law. The Court would then have two avenues available to it: on the one hand, it could rule on the existence of a regional or local custom (or even a custom between Muslim countries). On the other hand, it could be argued that the primary sources of Islam, to which Iran adheres, constitute a basis of obligation for that country, proven without doubt by that country’s express adherence to the Qur’an and sunnah. There is no reason why both of these avenues are not viable alternatives. It is not impossible that the ICJ would not even today be

 See C.M. Bassiouni, ‘Protection of Diplomats under Islamic Law’ ()  American Journal of International Law, .  Diplomatic and Consular Staff judgment, above n. , at para. .

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willing to make this statement, especially since removing the cultural dimension of Islam in some countries, this system of law seems to be fully compatible with international law. No doubt, problems of interpretation and acceptance of particular hadith (sayings and deeds of the Prophet), as well as the divergence between various schools and sects, may render determination of obligations obscure at times, but the case study analysed in this section demonstrates the potency of primary Islamic sources as a sound basis for a number of State obligations. v. the role and significance of religious constitutions For the purposes of the present study, we have identified three types of constitutional documents; those that are completely secular, others which make symbolic references to religion, and those that expressly provide for a particular religion as the bearer of legitimacy and law in the country. An example of the second of these is the Hellenic Constitution, where reference to religion in the preamble and Article  confirms the historical links between the church and the State, as well as the religious sentiment of the Hellenes. This notwithstanding, the Constitution in particular, and the legal system in general, conform to secular tenets, although there is no separation between church and State. From a practical point of view, the church does not dictate public policy, nor influence the country’s external relations, and in fact left wing governments in the past twenty years have adopted policy decisions that were antithetical both to church positions and public religious sentiment. The situation is different, however, with regard to religious constitutions. These exist in predominantly Muslim countries, but there is no single model, as there is no single model of governance in the Muslim world. These constitutions, in different degrees, proclaim Islamic law as a/the source of all legislation, and where they omit reference to the law governing their external relations, it must be presumed that Islam is also a basis of international obligation – together with general international law. This is true,

 ‘In the name of the Holy and Cosubstantial and Indivisible Trinity. . . ’.  Referring to relations between church and State.  The most striking example has been the deletion of religious conviction from identity cards during , which the government claimed was imposed by EC directives and personal data protection, whereas the church rightly disagreed in both legal and moral terms.

Religion as a Source of International Law  for example, in Articles ,  and  of the  Saudi Basic Law, which have bearing on Saudi domestic laws, external relations and the system of governance, and where there is no mention of international law, only of sharia. A different variation is reflected in the Yemeni Constitution, where despite Islamic sharia being the source of all legislation, “adherence to the UN Charter, the Universal Declaration of Human Rights, the Charter of the Arab League and doctrine of international law are generally recognised”. This is not to say that Saudi Arabia does not adhere to international law, simply that the drafters of its Basic Law decided to omit direct reference to it. The practical implication goes to the very heart of international obligations. Whereas Yemeni consent to be bound by particular international norms can be traced also to its Constitution, the same is not true with Saudi Arabia, where such consent must be sought in its bilateral or multilateral treaties and relevant customary international law. Another implication is that by pointing only to Islamic law even for its international obligations, Saudi Arabia may be claiming to protest or persistently object against one or more international rules to which it may otherwise have been bound. Certainly, it is a matter of investigation to what extent a State has persistently objected or protested enough against the formation of a customary rule vis-à-vis itself, but opposition to post-World War II norms through constitutional texts, particularly those relating to human rights, seems to be a powerful tool in the hands of such governments. However, this tool is useless, unless it is backed up by hard practice and does not fall within the family of jus cogens norms. The Draft EU Constitution, although not a constitution in the classical sense, aspired to be the defining instrument of the Union by consolidating all previous treaties, granting legal personality to the EU and affirming rights and duties, among others. During the drafting and consultation stages European churches proposed that the Convention make not only explicit reference to religion, but that the nature of religious traditions be formally recognised. Such references were finally omitted from the final draft, whose relevant part in the preamble read as follows:

 R. Aba-Namay, ‘The Recent Constitutional Reforms in Saudi Arabia’ ()  International and Comparative Law Quarterly, .  Art. .  Art. .  Draft EU Constitution, OJ C  vol.  ( Dec. ).



Ilias Bantekas Drawing inspiration from the cultural, religious and humanist inheritance of Europe, the values of which, still present in its heritage, have embedded within the life of society the central role of the human person and his or her inviolable and inalienable rights, and respect for law.

At a speech delivered at Harvard University in September , the President of the drafting committee, Valerie Giscar d’Estain, argued that when he put the Churches’ proposal on the table to the various Heads of State, the overwhelming majority was opposed to religious references, although all agreed that the historical and cultural foundations of Europe lay in Greco-Roman tradition and Judaeo-Christianity. It is evident, therefore, that the European Union’s external relations contain no obligations premised on religious concepts. Overall, therefore, religious constitutions, in their many variations, can express foreign policy from the perspective of a particular religion, most predominantly Islam, but can also convey a protest or persistent objection to consensual international norms. In the same manner they are also expressions of customary law or general principles of law. In the case of the European Union, religion seems to play no part in expressing the obligations of the EC or the Union, other than general international law. vi. religion and international human rights All major religions lay claim to having fostered the idea of human rights long before their inclusion in positive law – whether through domestic bills of rights or international treaties. In fact, natural law philosophy permeates the first constitutions of France and the USA, and is also present in the  Universal Declaration of Human Rights. To the extent that natural law coincides with and is a continuation of religion in the legal field, its roots may be sought there. For the purposes of the present section we shall focus our attention on the influence exerted by religious institutions on international law. Some reference of this type has already been made, particularly by the insistence of European Churches on the  See D. McGoldrick, International Relations Law of the European Union (Longman, London, ).  J. Finnis, Natural Law and Natural Rights (Oxford University Press, ), pp. –.

Religion as a Source of International Law  EU Constitution and the Muslim resistance to the idea of the universality of human rights. Although most Christian Churches have been at some point vocal on matters of faith and policy that have a bearing on religious institutions, the Roman Catholic Church has played a significant role in this regard, particularly through its campaign to eradicate abortion and abolish the death penalty. Although one should not exaggerate the political power of the Catholic Church, there are certain reasons why its policies have been more successful than other religious or political institutions. On the one hand, strong, homogenous Catholic populations in Southern and Eastern Europe and Latin America constitute a potent force for their respective governments. Secondly, the Church speaks with one voice under a coherent and single leadership, in contrast to other Churches and religions – this is not necessarily a good thing as it may denote a non-synodic “democratic deficit; thirdly, and following from the two previous points, the Catholic Church is also a political/State institution that is able to implement its policies beyond the theological level. It is not, therefore, coincidental that encyclicals and other instruments issued by the Catholic Church, or the Pope himself, have been quoted by a variety of State agents in an official capacity. One notable example is the Pacem In Terris, issued by Pope John XXII in . This encyclical addresses many matters, including the use of force, human rights, international relations and others. It has been influential to the degree that it has been quoted by foreign dignitaries of the Catholic faith, particularly in speeches before international organisations. However, in the case of the use of force it has never been employed to contradict the United Nations paradigm, not even to validate it. It has been cited on moral grounds, and as such it has not generated any impact on the development of the law relating to the use of force. The same is not true with regard to the Catholic Church’s policy campaign against abortion and capital punishment. It is true to say that the continuing criminalisation and prohibition of abortion in Latin America has been the result of the Church’s efforts on the governments of these countries to prohibit abortion. Even in more or less secular European countries with a majority Catholic population, such as Ireland, this campaign has paid off. One should note that the Church’s efforts in this regard are twofold; the  Encyclical of Pope John XXIII, On Establishing Universal Peace in Truth, Justice, Charity and Liberty ( April ).

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message is primarily directed to the local Catholic populations, while at the same time communicated to their respective governments. Similarly, the Catholic Church’s campaign against the death penalty has been fought on two fronts; at the bilateral governmental level and the United Nations. Some differences should be distinguished vis-à-vis abortion. On the one hand, unlike abortion, all EU countries have taken a very strong stance against capital punishment and have in fact lobbied other non-like minded nations to abolish it. Again, unlike abortion, some Latin American States, but particularly Caribbean nations, have not yielded to Vatican pressure to abolish capital punishment. The fact that the USA and the Muslim world retain the death penalty in their criminal justice systems does not aid the cause of the Catholic Church even among Christian countries, unlike abortion to which Muslim States are categorically opposed. Some mention should be made to the concept of the “margin of appreciation” in the context of the jurisprudence of the European Court of Human Rights. The concept, as developed by the Court, permits member States to deviate from particular rules – without however violating the essence of the rule – where such deviation originates from that country’s cultural or other tradition. This healthy exercise of cultural relativism allows adherence to the Convention while at the same time affording member States the possibility to retain their cultural, religious and other identity, as well as act within the realm of their own socio-political exigencies. Although the scope of such appreciation is limited, reliance on religious tradition and practice, could form the basis for a particular application, especially with regard to those countries that do not possess a completely secular constitution as discussed above. In this sense, the Court would recognise a special obligation incumbent upon a member State arising from religious tradition or practice. In the field of the laws of war ( jus in bello), what probably started out in the mid-nineteenth century as Christian philanthropy with the establishment of the Red Cross, very quickly re-discovered the contribution of non-Christian civilisations. Moreover, the humanistic nature of the laws of war precluded the erection of cultural or religious boundaries between distinct civilisations. In fact, even though a substantial part of the histori-

 See I. Bantekas, P. Hodgkinson, ‘Capital Punishment at the United Nations: Recent Developments’ ()  Criminal Law Forum, .  Cockayne, above n. .

Religion as a Source of International Law  cal jus in bello may be derived from religious sources, its contemporary formulation is naturally devoid of such elements on account of its universal inclusiveness. Even with regard to less positivist concepts, such as the laws and principles of humanity, or the dictates of public conscience, which partly originate from the Martens Clause that first appeared in the preamble to the  Hague Convention II, it would do no service to the objectives and modern history of international humanitarian law to paint them with a religious brush. Indeed, despite the influence of various religious concepts on this corpus of law, no State will disagree that it now represents a normative as well as morally binding law. However, although the contemporary jus in bello is a universal discipline without any room whatsoever for cultural relativism, obligations arising from a religious context are binding where not only do they not conflict with positive humanitarian law, but they moreover provide more and better protection to combatants and victims of hostilities alike. Such obligations are incumbent on a State, for example a Muslim State, not by the sole fact that its population is majority Muslim, but because it has expressly consented to uphold them through its constitution, laws or unilateral declarations. In the case of the sunna, as discussed above, evidence of particular rules would be a very difficult, but not impossible, exercise. This must be what Judge Weeremantry was trying to admonish in his Dissenting Opinion in the  Legality of Nuclear Weapons Advisory Opinion. After arguing that the effect of nuclear weapons on humanity would be devastating he emphasised the strong religious beliefs of the vast majority of individuals that make up this humanity, and then proceeded to examine the stance of the major religions with regard to such potentially destructive warfare. His conclusions were obviously negative, but what is important here is the method applied. Judge Weeremantry did not use religion as a source of international law, in the sense described in previous

 Art. (), Protocol Additional to the Geneva Conventions of  August , and Relating to the Protection of Victims of International Armed Conflicts [Additional Protocol I ],  UNTS .  Ibid.  See generally, R. Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ ()  International Review of the Red Cross, .   Stat. .  Advisory Opinion on the Legality of the Use of Threat of Use of Nuclear Weapons,  ILM (), .

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sections, but instead placed it on an extra-legal platform that needs to be taken into account when assessing a matter that is of such importance to the whole of humanity and does not involve simply the particular interests of certain States. The logical conclusion to be drawn from this section is that the Roman Catholic Church has been responsible for fostering particular human rights policies in some Catholic-majority nations, particularly Latin America. However, the primary basis of the respective obligations stems clearly from positive international law, essentially human rights treaties. However, and despite the fact that ancient religious texts, particularly the Old and New Testaments, do not constitute the basis of an international obligation, more contemporary documents, especially papal bulls and encyclicals, serve a different function all together, and their invocation by Catholic States with regard to human rights matters does and should indicate the emergence or existence of a particular obligation premised on these instruments. vii. conclusion We have endeavoured to examine to what degree religion may validly constitute a source of international law. We have made the argument that while international law is generally a secular discipline, certain countries within its reach are not. What are the implications stemming from this position? For one thing, unlike Soviet assertions during the Cold-War period that customary law did not bind communist States, contemporary Islamic voices asserting that Islamic international law is a unique system of law (a modern day dar-al-sulh) that is binding on Muslim States and may validly be in conflict with the international law that we know, is unfounded. Such a fallacious proposition would have the effect of transforming every regional or local custom or regional multilateral arrangement into an autonomous legal regime unsusceptible to other rules. The reality is that religion may validly constitute a basis for the assumption of international obligations. Examples of this are abound in the context of Islamic law, particularly since it remains the source of law for the majority of Muslim countries. Although a norm of international law may well coincide with a norm emanating from Islamic sources, the situation is more complicated when international law is generally silent and the matter is regulated by Islamic law. In such cases, it seems evident that if the country in question has unequivocally, through tacit practice, or declaration of some sort, accepted the obligation

Religion as a Source of International Law  contained in the Islamic rule, then it is bound by it in analogy with a rule of customary or treaty law, or of unilateral practice, depending on whether the rule in question is contained in a written text, religious tradition shared among a number of like-minded nations, or religious tradition adopted only by the particular State. Religious constitutions may provide evidence of State practice in this regard. Islamic constitutions – although the term does not have a single meaning – to various degrees accept that obligations emanating from the whole corpus of Islamic law (both the Qur’an and the sunnah) constitute sources of law of those States. In most cases there is very little or no reference to external relations in this regard, but only to State/individual and individual/individual relations. However, both the Qur’an and sunnah contain numerous norms regarding external relations of Muslim States, and it is only logical, since there exists no statement to the contrary, to assume that even these obligations are assumed by Muslim States that profess to incorporate the full ambit of Islamic law. While religious concepts, in the sense described above, may constitute obligations under international law, their place within the existing regime of the law of nations is subject to that regime’s procedural rules, particularly the hierarchy of norms. Even if a religious rule finds its place within the international legal system, it cannot override existing treaties, custom and especially jus cogens. This is particularly important vis-à-vis relativist States in the field of human rights, not because of a vague, western conception of human rights, but on account of the procedural rules of international law that have elevated certain human rights to a jus cogens level.

chapter five

Human Rights and Cultural Relativism: The False Dichotomy Dr Susan C. Breau* i. introduction A major threat to the legitimacy and universality of human rights is the cultural relativist critique. Orentlicher debated the challenge cultural relativism posed to the ‘effectiveness and intellectual coherence of the human rights movement’. She summarized the relativist critique in stark terms, stating: Moral claims derive their meaning and legitimacy from the (particular) cultural tradition in which they are embedded. What we call “universal” human rights are, in fact, an expression above all of Western values derived from the Enlightenment. Understood in this light, the human rights idea is at best misguided in its core claim that it embodies universal values – and at worst a blend of moral hubris and cultural imperialism.

The thesis of this chapter is to take issue with this statement and argue that human rights are not expressions of Western values but, as a discipline, is inclusive of diverse cultural elements. One of the major outcomes of respect for human rights is the encouragement of diversity including acceptance and respect for all cultures. Those who argue that human rights are solely derived from the Enlightenment and thus, do not respect other cultural contexts, do not recognize the diverse philosophical and spiritual underpinnings of human rights. It is not an either or proposition; both human rights and culture can co-exist and thrive. Furthermore, as

* Reader in Law, School of Law, Surrey University, my gratitude to Melissa Khemani for her research assistance for this paper.  D.F. Orentlicher ‘Relativism and Religion’ in M. Ignatieff (ed.), Human Rights as Politics and Idolatry (Princeton University Press, Princeton, ), – at p. . Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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An-Na’im asserts ‘the cultural legitimacy of the full range of human rights standards must be developed’. A dichotomy is defined as a separation into two divisions, things (or ideas) that differ widely from or contradict each other. That is precisely what has happened between the two concepts of human rights and cultural relativism. Cultural relativism was first promoted in the early twentieth century by American anthropologists as they argued that it was impossible to evaluate different cultures by any universal standard and that all cultures should be judged on the basis of mutual respect. This came to a head in  when the American Anthropological Association prepared a statement opposing the Universal Declaration of Human Rights stating: How can the proposed Declaration be applicable to all human beings, and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?

As we shall see below, the Universal Declaration of Human Rights can be applicable to all human beings as human rights and culture can actually compliment and strengthen each other. Cultural relativism can stand for the principle that we should not judge the behaviour of others using the standards of our own culture, and that each culture should be analyzed on its own terms. In fact the two concepts can be harmonized as human rights not only encompass respect for the individual but an understanding of the society in which that individual lives. This has been argued to be the cultural pluralist position as opposed to the relativist stance. In order to challenge this notion of the dichotomy between the two ideas it is necessary to perform three tasks. The first is to examine some of the philosophical, cultural and spiritual ideas that are part of the fabric of human rights, particularly the overriding belief in the innate dignity of the human being. The second task is to examine the content of major human

 A. An-Na’im, ‘Problems of Universal Cultural Legitimacy’ in A. An-Na’im and F. Deng (eds.), Human Rights in Africa (The Brookings Institution, Washington D.C., ), pp. – at .  S.E. Merry, ‘Changing Rights, changing Culture’ in J. Cowan, M.B. Dembour and R. Wilson (eds.), ‘Culture and Rights: Antropological Perspectives’ (Cambridge University Press, Cambridge, ), pp. – at .  Ibid., at p. .  B. Tibi, ‘The European Tradition of Human Rights and the Culture of Islam’ above, n. , – at .

Human Rights and Cultural Relativism  rights instruments and to illustrate that within the process of drafting these instruments and, as a result of specific provisions, allowance was made for diverse cultural contexts. As Donnelly argues, there are important ‘collective dimensions to all human rights’. The enforcement of human rights also reveals sensitivity to particular societal practices and that the development of human rights since the adoption of the Universal Declaration of Human Rights can point to a convergence of views with respect to the importance of various categories of rights. The third is to argue that there are specific political regimes that might choose to ignore their own cultural traditions and systematically violate not only human rights but their own traditional values. A human rights condemnation of those particular regimes does not reflect a lack of respect for a particular cultural context as these regimes may be denying their own cultural and historical traditions. ii. religious, philosophical and cultural traditions There are three interrelated strands that influenced the development of human rights: philosophy, religion and culture. In the debate about cultural relativism these three strands tend to merge together but there are different elements in each. The literature often tends to concentrate on the concept of ‘rights’ as not having meaning in certain cultural, religious and philosophical traditions as many traditions focus on the collectivity and the ‘obligations’ of persons within their cultural group. However, neither side of the culture vs. human rights dichotomy engages in an analysis of the roots of religion, philosophy and culture which I argue share a common basis of the essential worth and dignity of human beings both individually and in community. Those concepts are the fundamental underpinnings of human rights. Ignatieff merged the philosophical, religious and cultural strands and argued strongly against attempting to draw common threads of belief systems and cultural traditions together. He contended that propositions

 J. Donnelly, ‘Human Rights, Indiviidual Rights and Collective Rights’ in J. Berting, P. Baer, J.H. Burgers, C. Flinternan, B. De Klerk, R. Krose, C.A. Van Minnen and K. VanderWal (eds.), Human Rights in a Pluralist World: Individuals and Collectivities (Meckler,Westport, ), – at p. .  But see M. Lubis, ‘Asian Cultures and Human Rights’ Ibid., – at p.  where Lubis argues that Hindusim classified beings into different castes which is anathema to the notion of human rights.

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such as: ‘human beings have an innate or natural dignity, that they have a natural and intrinsic self-worth, that they are sacred’ courted controversy. Igantieff maintained that one should examine human rights in the negative, in the sense of what they can do to protect individuals from abuses. With the greatest respect to my Canadian compatriot, I do not agree. It is critical that the philosophical, religious and cultural roots of human rights be included as part of the curriculum of human rights study. a. The Religious Tradition Although the argument is often advanced that the roots of human rights lies in Christian theology, all of the world’s religions have similar foundational principles. One need not be an expert in religion to glean important similarities between religious traditions throughout the world. The very nature of humanity reveals common values and beliefs. Many human rights experts have encouraged the idea that human rights have Western liberal orientation by failing to inform themselves about the history of the development of religious traditions in other parts of the world. This is being remedied in the new generation of international human rights students who seek to expand the horizon of philosophical and religious thought. One of the pioneers of this type of study is Abdullahi An-Na’im, one of the most respected scholars writing in the field of human rights and religion. He studies the relationship between Islam and human rights and has argued that ‘international human rights norms are unlikely to be accepted by governments and respected in practice, without strong legitimation within national politics’ and this must include acceptance of human rights norms as being consistent with the religious beliefs of the population. The human rights community, according to An-Na’im and Orentlicter, has to engage religion in the process of ‘constructing and construing human rights.’ This must include every religion and not just Christianity. Since  September , the focus of the debate has been on Islam and the conflict between Islam and human rights. One major difficulty is with the concept of apostasy and the fact the believers of other religions are not

  Annual 

Ignatieff, ‘Human Rights as Idolatry’ above n. , – at p. . A.A. An-Na’im, ‘Islam and Human Rights: Beyond the Univerality Debate’, ASIL Meeting Proceedings (ASIL, Washington, ), p. . Ibid., p.  and Orentlicher, above, n. , at p. .

Human Rights and Cultural Relativism  accorded full and equal rights. This is in direct contrast with freedom of religion. It can be argued that freedom of religion and conscience has suffered from ‘a fashionable but unconvincing belief in relativism’ but equally that the Islamic world has failed to subject the foundations of Islamic faith to ‘to rigorous and sympathetic re-examination’. In their article examining the philosophical underpinnings of both Christianity and Islam, Little, Sachedina and Kelsay found ‘deep and surprising parallels between the Western and the Islamic traditions’, and that both traditions had a ‘common framework within which to think about freedom of conscience and religious liberty’. Another apparent divergence between religious belief ’s and human rights is the idea that human rights are reflecting individualistic tradition and religion is based on community. This would mean that individualism runs counter to the spirit of collective loyalty found in religion. A key Indian concept is that of dharma which emphasizes the obligations one holds rather than rights. This can be contradicted by the personal relationship the celebrant holds with their Supreme Being. An example of the personal relationship with one’s God besides personal prayer is a personal contribution made toward charity encouraged in many religions: for example in Islam it is suggested at .% of one’s income. One issue all religions seem to have in common is deep divisions between those who argue that religious beliefs have to change to be relevant in modernity and those who espouse traditional values. This has certainly been the case in the Roman Catholicism with debates ranging from women as priests, the ability of priests to marry, to use of methods of birth control, to abortion. The papacy since John Paul II has been primarily conservative with a retrenchment from the more liberal Vatican II. However, the European and American churches seem to be much more

 D. Little, A. Sachedian and J. Kelsay, ‘Human Rights and the World’s Religions: Christianity, Islam and Religious Liberty’ in D. Little, J. Kelsay, and A. Sachedina (eds.), Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty (University of South Carolina Press, Columbia, South Carolina, ), – at p. .  Ibid., p. .  Ibid., p. .  M. Juergensmeyer, ‘Hindu Nationalism and Human Rights’ in above, n. , – at p. .  Ibid., p. .

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liberal. The Anglican Church has practically been torn asunder by the debate concerning gay bishops. The Jewish religion has definite divisions between ultra orthodox, orthodox and reform branches of the religion. If anything these divisions have deepened with the stress that modern life places on the family and the community. An-Na’im writing about Islam argues that his religion is an ‘extremely complex and multifaceted phenomenon that has been subject of numerous, often violent, disagreements among its adherents for the last fifteen centuries.’ Shari’a law is a system of complex codes from subjects ranging from religious dogma to ethical norms to detailed rules of private and public law. There are controversies in interpretation of Shari’a law which is the product of human interpretation of these codes. An-Na’im supports a position of Islamic reform which brings ancient texts in line with current standards of equality of the sexes and human dignity. The approach is that cultural norms evolve according to specific historical circumstances and should be varied or modified with the change of circumstances. This is not only a controversial concept in Islam but in all religions that wrestle with changes in society. However, it is important not to use language that suggests superiority of any cultural tradition or evolution but to examine the religion in a cross-cultural context. Religion can hardly be separated from the philosophical or culture informing religion. All three areas are closely linked. First of all, the whole nature of theology is to subject religion to theoretical examination. However, there is also a secular philosophical tradition worth examining, which is a system of beliefs and intuitive and logical deductions by which each of us sets out his or her relationship to our fellow human beings and his or place in society and his or her place in the universe. This can be accomplished with reference to a supreme being. b. The Philosophical Tradition It has to be acknowledged that most human rights textbooks argue that the notion of civil and political rights stem ‘from the Western liberal

 An-Na’im, above, n. , at .  Ibid., p. .  Ibid., p. .  Ibid., pp. –, in which he begins this analysis.

Human Rights and Cultural Relativism  philosophies of the seventeenth and eighteenth centuries’. Particularly cited are Locke and his ‘Second Treatise of Government’ and the French enlightenment philosophers such as Rousseau, Montesquieu and Voltaire. The two key documents most often relied upon as sources for the ICCPR and the UDHR are the United States Declaration of Independence of  and the French Declaration on the Rights of Man and of the Citizen of . However, these theories of the enlightenment were derived from the natural law theories developed in ancient Greece and Rome. Furthermore, they also resonate in our philosophical traditions. The difficulty is that most Western writers on human rights have not bothered to study philosophies of other cultures. Merrills, although spending much time on the Western Liberal tradition of the development of human rights norms, argued that there are other ‘other streams of thoughts and other cultures’. He cited the example of Cyrus the Great of ancient Persia who promulgated documents recognizing the rights of man which included the right to liberty and security, freedom of movement, the right to property and to certain economic and social rights. Merrills sums up by stating that ‘it is equally clear that the moral worth of the individual is an idea which no culture can claim uniquely as its own’ and cites the work of sages, philosophers and poets from many countries including China, Japan, Persia, Russia, Turkey, Egypt, and several countries of Africa. Another part of the debate could take place within the discipline of jurisprudence. The conflict between culture and human rights is similar to the positivism/natural law divide. Positivism would assert that human rights are a man made sets of laws that conflict with cultural traditions. Natural law argues the primacy of human rights as part of natural laws and therefore, these natural laws ‘trump’ cultural norms. However, it is more fundamental than that. Consideration of what makes a human being human is an important starting point. Neglecting this important first

 S. Joseph, J. Schultz and M. Casten, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, Oxford, , nd edition), at p. .  Ibid., p. .  Ibid., p. .  A.H. Robertson and J.G. Merrills, Human Rights in the World (rd edition) (Manchester University Press, Manchester, ), at p. .  Ibid., p. .  Ibid., p. .

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principle allows those who would seek to disagree with the universality of human rights to argue that it is only the Western Liberal philosophy derived from Christianity that led to the development of an individualistic rights culture. The philosophical community has begun such a process with a rich variety of materials on other philosophical traditions. One advantage of globalization is access to these sources. It has to be troubling to a scholar from other parts of our globe to read about the Western world’s claim of the philosophy of the enlightenment as if other nations continue to exist in the dark ages! c. The Cultural Tradition An-Na’im defines culture in its broadest sense as the ‘totality of values, institutions and forms of behaviour transmitted within a society’. It is primarily the fields of anthropology and sociology that engages in cultural analysis. There is not space in this chapter to engage in this same analysis but to refer the reader to An-Na’im’s work in which he adopted Preiswerk’s four levels of culture: the micro community level; the national level; the regional culture; and the macro culture which are characteristics common to a number of cultures. Cultural legitimacy for human rights has to be sought at all four levels. This means that human rights would have the authority and reverence derived from internal validity. An-Na’im describes this as the process of enculturation, the belief that one’s own way of life is preferred to all others. Again as with religion and philosophy, one of the main difficulties in the subject is the focus on the Western antecedents of the human rights movement when representatives of all cultures of the world assisted in drafting, interpreting and enforcing human rights instruments. Nevertheless, as Donnelly asserts, cultural relativity is a fact as social institutions

 An-Na’im, above, n. , p. .  Ibid., p. .  Ibid., p.  and R. Preiswerk, ‘Place of Intercultural relations in the Study of International Relations’ ()  Yearbook of World Affairs .  An-Na’im, above, n. , p. .  A.A. An-Na’im, ‘Religious Minorities under Islamic Law and the Limits of Cultural Relativism’ ()  Human Rights Quarterly  at p. .

Human Rights and Cultural Relativism  and cultural values do vary from place to place. There is no society that can argue that it is capable of sustaining the full range of rights in the International Bill of Human Rights, most particularly in the fields of the right to development, the right to peace and the right to protection of the environment. One of the key difficulties seems to be the alleged conflict between community values embodied in the notion of culture and individual human rights. Steiner and Alston included extensive materials on what they termed ‘a duty based social order’ which would be less subject to universalization as the content of duties would be very particular to, and be a product of, a particular religious or social culture. They included in their materials the draft of ‘A Universal Declaration of Human Responsibilities’ prepared by the InterAction Council in  whose members included Helmut Schmidt and Jimmy Carter. The purpose was for the concept of human obligations to balance the notion of freedom and responsibility. The interesting aspect of this process is the attempt to universalize the obligations. Steiner and Alston make an assumption that duties and obligations are not common to separate cultures. This should not be argued without extensive knowledge of various cultures. Assuming that all Western culture is individualistic is far too simplistic. As An-Na’im argues, all society is dependent on individual members for the development of its institutions, norms, values and action and each individual is dependent on society for his or her existence and the prospects of a meaningful and gratifying life. Therefore, human responsibilities are features of all cultures. The African Charter of Human and People’s Rights in addition to including group or collective rights contained duties within its preamble. The preamble stated: ‘Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone’. This is carried on in Chapter II with delineation of duties toward family, society and to the national community. The two streams of rights and obligations reflect the balance between the value of the group or community and the

 J. Donnelly, International Human Rights, Second Edition (Westview Pres, Boulder, Co. ), at p. .  An-Na’im, above, n. , at p. .  H.J. Steiner and P. Alston, International Human Rights in Context (Oxford University Press, Oxford, nd edition, ), pp. –  An-Na’im, above n. , pp. –.

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fact that the individual person has his or her dignity and autonomy carefully protected. The specific articles were: Article  . Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community. . The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. Article  Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance. Article  The individual shall also have the duty: . to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all time, to maintain them in case of need; . to serve his national community by placing his physical and intellectual abilities at its service; . not to compromise the security of the State whose national or resident he is; . to preserve and strengthen social and national solidarity, particularly when the latter is threatened; . to preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law; . to work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of society; . to preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of toler-

 African [Banjul] Charter on Human and Peoples’ Rights, adopted June , , OAU Doc. CAB/LEG// rev. ,  I.L.M.  (), entered into force Oct. , , Preamble see also M. Matua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ in ()  Va. J. Int. L , at p. .

Human Rights and Cultural Relativism  ance, dialogue and consultation and, in general to contribute to the promotion of the well being of society; . to contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity. It should also be noted that these duties follow those rights that are almost identical to the rights set out in the ICCPR.  African countries are parties to the Convention which has now adopted a protocol setting up an African Court of Human Rights. There does not seem to be a difficulty including obligations in the same document with rights and the perspective is that they can exist side by side. This Charter could serve as a model to particularly the Asian countries who have not yet adopted a regional mechanism for enforcement of human rights. In spite of an emphasis on group rights, commentators have argued that although the welfare of the African community may be supreme, it is not the case that traditional African communities disposed of the rights of citizens in an arbitrary fashion. Donnelly argues that all human rights have a social dimension. Due process and equal protection make no sense except in a political community. Torture is often practiced within specific political contexts. Respect for human rights has to entail the relationship of the individual to the larger community. The idea that human rights leads to excessive individualism and is a threat to community cannot be valid as such rights as rights to food, education and health strengthen society. One has to agree with Donnelly when he argues that contemporary human rights are not simply individualistic. Another major theme in the debate concerning cultural relativism alleges a uniformity of Western liberal values or indeed a uniform Western culture. Anyone analyzing the so-called ‘war of terror’ and the sustained attack on civil liberties in North America and Europe would take issue with an idea of homogeneity of cultural values. Another important debate is

 African [Banjul] Charter on Human and Peoples’ Rights, above n. .  O. Ojo, ‘Human Rights in a Pluralist World’ in above, n. , – at  (quoting Okoye, ‘The African content of Human Rights’; paper presented to the International Confrerence on Human Rights and Justice, ).  J. Donnelly, ‘Human Rights, Individual Rights and Collective Rights’, above, n. , –, at p. .  Ibid., at –.

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taking place between those who support security as the ultimate goal and those who argue that there is no security without civil liberties. In fact it could be argued that this shift towards conservatism and indeed religious fundamentalism exists in all societies. In an excellent study, Peerenboom examines the evolution of Asian values but argues firstly that the growth of the human rights movement has led to backlash both in Asia and the West. Furthermore, as Donnelly asserts, even in the West few people define themselves entirely as individuals but see themselves as part of a family and often as part of a religious group or ethnic minority. One of the risks in discussing culture is not to rely on cultural stereotypes including those particularly with respect to Muslim cultures. There is a vibrant debate on exactly what is the nature of culture. Does it necessarily contradict human rights norms? As Kuper argues, ‘there are no pure cultures, distinctive and enduring. Every culture draws on diverse sources, depends on borrowing, and is in flux.’ Notwithstanding obvious cultural differences throughout the globe, this author shares the conclusion of Steiner and Alston that the claims, interests, values and ideal express through rights language is not exclusive to the Western liberal tradition but is expressed through other languages included the language of duty and responsibility. As An-Na’im has stated: I do not believe that universal human rights can only be justified in terms of the least common denominator among the cultural traditions of the world . . . Cross-cultural studies can be helpful from both substantive and tactical points of view. From a substantive point of view, cross-cultural studies can help to discover the actual content and necessary implications of the inherent dignity and integrity of the

 R. Peerenboom, ‘Beyond Universalism and Relativism: The Evolving Debate about Values in Asia’ ()  Ind. Int’l & Comp. L. Rev. .  J. Donnelly, ‘Human Rights, Individual Rights and Collective Rights’, above n. , – at p. .  K. Dalacoura, Islam, Liberalism and Human Rights (L.B. Tauris & Co. Ltd., New York, ).  A. Kuper, Culture, The Anthropologists Account (Harvard University Press, Cambridge, Mass, ), and see M. Lubis ‘Asian Cultures and Human Rights’ above, n. , –, for a discussion of human rights antecedents in Asian countries.  Steiner and Alston, above n. , at p. .

Human Rights and Cultural Relativism  human being. It is vital to do this without violating the paramount human right of self-determination by imposing external standards.

Even if one accepts the proposition that cultural contexts are very different, there is no escaping the fact that many different cultures were and are represented in the process of drafting human rights standards. iii. human rights instruments Consideration of the actual development of human rights has to involve three distinct areas. The first is the history of the development of human rights since World War II and the specific content of these rights in terms of allowance for religious and cultural traditions. The second task is to review how human rights have been interpreted and the doctrines that permit consideration of the context of the limitation of these rights. Finally, there have been dramatic developments in the early years of the st century that have not only brought this debate to the forefront but reveal remarkable convergence between societies. a. International and Regional Human Rights Instruments The Charter of the United Nations has several sections devoted to human rights: the second paragraph of the preamble, Article  (), Article  () (b), Articles  and , Article  () and Article . Although the Charter did not contain a bill of rights, the members of the San Francisco conference that negotiated the Charter agreed to provisions that encouraged respect for human rights and to assist in the realization of human rights. Even if the argument can be sustained that the primary philosophical tradition that developed the concept of human rights was Western liberalism, in  the human rights movement was transformed into a universal process. The first step following the adoption of the Charter was the drafting of the Universal Declaration of Human Rights (hereafter known as the UDHR). Ignatieff argues that the declaration was drafted not only with Western traditions but with Chinese, Middle Eastern, Christian and Marxist, Hindu, Latin American, Islamic traditions in mind. The drafting committee viewed their task as to define a limited range of universal values from different



An-Na’im, ‘Problems of Universal Cultural Legitimacy’ above n. , at p. .

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religious, political, ethnic and philosophic backgrounds. The timing of the declaration is important as it was in the wake of the failure of Western liberal values with the rise of Nazi and Stalinist oppression. However, it has been asserted that the UDHR is a triumph of individualism and a return of European natural law. However Article  states ‘everyone has duties to the community in which alone the free and full development of his personality is possible.’ Forty-eight states voted in favour of the declaration with eight abstaining – Saudi Arabia, South Africa, and the Soviet Union together with four East European states and a Soviet republic. Even at the time of the drafting of the UDHR, the Saudi delegation refused to agree to Article  free marriage choice and Article  freedom of religion. One difficulty with a bald assertion of universalism was that in  membership of the United Nations stood at just  states instead of the  nations of today and many of the major cultures such as Japanese, Indian and African were under foreign domination. Cassese describes the debates between  and the adoption of the declaration as split into four distinct groupings, the Western states such as the United States, France, and Great Britain, the Latin-American States, Socialist Europe and the Asian countries which he stated carried little weight. The major debate was the debate between the socialist states and their emphasis on economic and social rights and the Western states and their emphasis on individual civil rights. Even though there were hints in the Arab states objection to the inclusion of the family rights, the main focus was on the emerging cold war and the clash not of cultural but of political ideals. The outcome was that the Declaration was founded on four pillars: personal rights; rights of the individual in relation to his or her social groups; civil liberties and political rights, and, rights exercised in the economic and social area. There is also a fifth section of disparate provisions which included Article  which provided for duties owed to the community and for limitations on rights. () Everyone has duties to the community in which alone the free and full development of his personality is possible.

 Ignatieff, above n. , at p. .  Steiner and Alston, above n. , pp. –.  A. Cassese, Human Rights in a Changing World (Polity Press, Cambridge, ), pp. –.  Ibid., pp. –.

Human Rights and Cultural Relativism  () In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. () These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. The other important departure was the emphasis on economic, social and cultural rights, which were not part of enlightenment literature. Cassese in his assessment of the declaration states: . . . above all it was for the Third World that the Declaration – despite its narrow, Western mould – had the most important educational effect . . . the Declaration acted as a lodestar, as a pointer to a state structure that is consistent with human dignity . . . in the long term the victor has been the world community, since it has won a “code of conduct” valid for all.

One of the difficulties is that the UN Secretariat in , which commissioned a study on the history and evolution of human rights, limited the scope of material to between the twelfth and eighteenth century thus excluding much of the civilization of the Asian and African peoples. This can be argued to be ‘a lack of articulation of non-Western perspectives’ but not that these perspectives did not exist. However, it can be argued that human rights existed in pre-colonial Africa including the right of free speech and sanctuary in temples and matrimonial home as well as right to participate in public affairs and land use and to receive assistance from the community in illness, attack or bereavement. Therefore, it can be asserted that the UDHR was also reflecting African traditions as well, in spite of the lack of African representation. Although by the time of the drafting of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights the cold war divide between socialist states and the capitalist states was at the forefront, there was a much broader    

An-Na’im, above n. , at . Cassese, above n. , at p. . An-Na’im, above n. , at . Ojo, ‘Understanding Human Rights in Africa’, above, n. , at p. .

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representation of all cultural groups. This was because by the time the Covenants were adopted in  most African and Asian countries were independent and joined in the last stages of drafting and adoption. There are key provisions within these covenants that reflect sensitivity to culture and collective rights. Both covenants contain an identical provision on self-determination which has a large cultural component. This right is in response to colonial domination. Article  . All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. . All people may, for their own ends, freely dispose of their natural resources . . . In no case may a people be deprived of its own means of subsistence.

Another basic principle borrowed from the provision in the Charter is the prohibition against discrimination. Article  All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Another important provision guarantees protection to minority groups. Article  In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own

 An-Na’im, above, n. , at p. .  International Covenant on Civil and Political Rights, G.A. res. A (XXI),  U.N. GAOR Supp. (No. ) at , U.N. Doc. A/ (),  U.N.T.S. , entered into force Mar. ,  and International Covenant on Economic, Social and Cultural Rights, G.A. res. A (XXI),  U.N.GAOR Supp. (No. ) at , U.N. Doc. A/ (),  U.N.T.S. , entered into force Jan. , , Article .

Human Rights and Cultural Relativism  culture, to profess and practice their own religion, or to use their own language.

Finally, religious groups have their own set of protections. Article  . Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. . No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. . Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. . The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

These rights run throughout the fabric of various international and regional human rights covenants and the self-determination and discrimination provisions are often argued to be a preemptory norm of customary international law. Donnelly argues that the danger of the emphasis on peoples’ rights is that they can be used to justify attacks on the people whose rights are being protected. With respect, this does not seem justified when one examine the use made of these provisions by indigenous peoples who have successfully asserted rights of self-determination. An-Na’im argues that the fundamental value underlying the UDHR and the Covenants is the notion of the inherent dignity and integrity of every human being which applies regardless of the cultures of those who assisted in the drafting. What is so compelling in his view is that human

 International Covenant on Civil and Political Rights, G.A. res. A (XXI),  U.N. GAOR Supp. (No. ) at , U.N. Doc. A/ (),  U.N.T.S. , entered into force Mar. , , Articles ,  and .  Donnelly, above n. , at p. .  An-Na’im, above n. , at p. .

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dignity requires food, shelter and health care together with freedom of belief, expression and association. As part of this dignity persons must be given opportunities for education and communication with others to achieve their human potential. It is the later human rights instruments that reflect a wider cultural ambit. It is not just the content of the instruments that is relevant but the process of agreeing on these norms. Orentlicher argues that the drafting of human rights instruments in the post war UN was not universal due to the fact that many of the states that now exist were still colonies. She advocates a truly universal process of drafting these instruments. One good example, although a criminal statute, would be the Rome conference which drafted the ICC convention that was truly global. The fast rate of ratifications and accessions points to the success of this project. Furthermore, Orentlicher argues the concept of transnational collaboration on enforcement of human rights. She maintains that the initial debate over FGM was disrespectful towards cultural tradition. However, if there is cross cultural dialogue and cooperation there can be a ‘genuinely global human rights culture’. It can be argued that human rights conventions, treaties and implementation mechanisms are now created through ‘transnational processes of information gathering, conferences and discussion under the auspices of the UN and regional bodies’. b. The Interpretation of Human Rights It is also in the interpretation of human rights that specific cultural contexts are considered. In the European Court of Human Rights the concepts of the margin of appreciation and the test of proportionality mandate the balancing between the limiting of human rights with the respect of mandates of culture. The jurisprudence of both the Human Rights Committee and the ECHR are laden with cases that do just that especially in the area of what constitutes a family. Although the margin of appreciation is a particularly European concept, the language of accommodation is evident in the consideration of reports of states in the various UN committees and consideration of individual complaints.  Ibid., at p. .  Orentlicher, above n. , at p. .  Ibid., at –.  Merry, above n. , at .

Human Rights and Cultural Relativism  In the margin of appreciation cases, the European Court of Human Rights acknowledged that national governments can be better suited to appreciate the local circumstances. In the Otto-Preminger-Institut v. Austria case where there was a seizure and destruction of a film that offended Catholic religious sentiment, the court held: The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time. In all the circumstances of the present case, the Court does not consider that the Austrian authorities can be regarded as having overstepped their margin of appreciation in this respect.

Therefore the court held that there was no violation of Article  of the European Convention which set out the right of freedom of expression as far as the seizure was concerned. As Dembour argues this doctrine allows the court to take into account local circumstances and what some would call culture. The Human Rights Committee will employ a strict constructionist approach to the ICCPR. Recently the Human Rights Committee considered the case of gay marriage in Joslin v. New Zealand and stated: Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article , paragraph , of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the

 Mari-Bénédicte Dembour, ‘Following the Movement of a Pendulum Between Universalism and Relativism’ in above n. , – at p. .  Otto-Preminger-Institute v. Austria, Judgment of European Court of Human Rights, //.  Dembour, above n. , at p. .

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Susan C. Breau Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article , paragraph , of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.

The Human Rights Committee, unlike the Supreme Court of Canada which ruled in favour of gay marriages, was not prepared to consider an equality argument. Donnelly argues that contemporary international human rights have near universal applicability requiring ‘only modest adjustments in the name of cultural diversity’. For example in the free and full consent of spouses to marriage set out in Article  of the UDHR we can tolerate some notions of consent not acceptable in the contemporary West without supporting forced marriages. He argues that in many rights there is room for cultural interpretation and that human rights do not require cultural homogenization. His position is sensible given the wide diversity in culture around the globe but this does not mean that these variations should go to eliminate the core meaning and sense of the right and the cultural variations should not be imposed on an unwilling population. Another critical development in the case law interpreting of human rights is the evolution from the Western practice of restricting enforcement of human rights to the negative duty of the state not to interfere with the liberty of the individual to the positive obligation to provide for basic needs of a population. Countries such as Canada, India, South Africa and the European Court of Human Rights are including notions of positive obligations in their jurisprudence particularly with respect to economic, social and cultural rights.

 UN Human Rights Committee, Ms. Juliet Joslin et al. v. New Zealand, Communication No. /, U.N. Doc. CCPR/C//D// ( November ), U.N. Doc. A// at  ().  SCC, Reference re Same-Sex Marriage, []  S.C.R. .  Donnelly, above n. , at p. .  Ibid., pp. –.  An-Na’im, above n. , at p. .  See for example: Supreme Court of Canada, Gosselin v. Quebec (Attorney General), []  S.C.R. ,  SCC ; High Court of South Africa City of Johannesburg v. Rand Properties (Pty) Limited and others,  March ; Supreme Court of India, Olga Tellis v. Bombay Municipal Corporation,  () SCC . European Court of Human Rights, López Ostra v. Spain, Judgment  December .

Human Rights and Cultural Relativism  c. The Development of Human Rights in the st Century There is a prominent example of how the non-Western world is currently influencing the development of human rights and that is in the rise of the predominance of economic, social and cultural rights on the political agenda. One of the main criticisms of Western Liberalism is on its emphasis on enforceable civil and political rights over and above the progressive realization of economic, social and cultural rights. This has indeed been the case but the change in emphasis is visible. As An-Na’im stated: ‘The dynamic and evolutionary nature of human rights has already been demonstrated by the contribution of socialist and developing countries in relation to social, economic, and cultural rights.’ This has come to fruition with the acceptance in the st century of the argument that poverty affects the realization of all human rights is valid. If you cannot eat it is difficult to contemplate a right to freedom of association and assembly. The right to development a long-standing contested right seems in the past year to have risen to the top of the political agenda is many Western countries most particularly the UK. There is a long way to go, but if the war on terrorism has taught the west anything, it is that economic discrimination in trade and aid breeds hatred and violence. The work of the Economic, Social and Cultural Committee in arguing that many of the rights are not progressive but real and substantial legal obligations has also bolstered the status of these rights. This is an example of how human rights are evolving into the Vienna Declaration concept of indivisibility and interdependence. Another evolution is towards group rights rather than individual rights. The post war human rights regime was definitely individualistic. One of the groups that fought consistently against exclusively examining individual rights was the indigenous peoples around the globe and landmark instruments on indigenous rights were developed through the ILO. Although there was a suspicion of minority rights regimes due to Hitler’s cynical exploitation of the concepts, human rights NGO’s and enforcement bodies are gradually realizing the fact that persons live in communities and that the rights of the community have to be respected as well.

 An-Na’im, ‘Relgious Minorities under Islamic Law and the Limits of Cultural Relativism’, above n. , at p. .  UN Document, A/CONF./, Vienna Declaration and Programme of Action,  July , Article .

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Cassese examines other points of convergence. One agreement is on the hierarchy of rights from the right to life and security, to fundamental needs of human beings then to civil and political rights. This could be described as a divergence from the traditional Western view of the importance of civil rights. The other convergence is that all states in the world seem to share the view that the some of the gravest breaches of human rights are genocide, racial discrimination, the practice of torture and the refusal to recognize self-determination. In fact, these rights are often held to be peremptory norms of international law, jus cogens. Another point of agreement seems to be on the right to development. Western states including France, Canada and Italy voted in favour of the General Assembly Resolution / on the right to development and this has grown in practice as discussed below. These points of agreement on the content of human rights are one aspect of how cultures come together but it is in the interpretation of human rights that reveal that these standards do not require ‘cultural homogenization’. Nevertheless, one cannot escape the difficulty of the equality of women conflicting with various cultural traditions. This is addressed in other chapters in this book and there are certainly wide cultural differences. But cultures go through transitions and many women’s rights advocates acknowledge that in certain societies equality will take a lot longer to achieve. It certainly took centuries to achieve in Western liberal societies as well, as most have only allowed women the vote since the end of World War I. However, it is clear that the subjugation of women in the post war period might have also had a great deal to do with certain political interpretations of so called cultural traditions that might not have existed. iv. political realities Human rights remains rooted in a state-centric system. In spite of the growth of theories of cosmopolitanism which sees individuals as members of a global political community rather than as citizens of states, the cur-

   

Cassese, above, n. , at p. . Ibid., pp. –. Ibid., p. . Donnelly, above, n. , at p. .

Human Rights and Cultural Relativism  rent international political order is based on the sovereign state. One of the reasons the debate between human rights and cultural relativism is so current is the idea that the call for the implementation of Islamic Law (Shari’a) within an Islamic system of government is in conflict with basic human rights. The position asserts that human rights can only be met through secular regimes. Although there might be a valid argument that truly universal human rights would be easier to achieve if politics around the globe was truly secular that is certainly not the case in many states particularly many countries in the Islamic world. As Mayer argues, some Muslims have begun ‘to treat the human rights principles of international law as part of the common heritage of humankind’. However, there are countries both within and without the Islamic world that might seek to exploit culture as an excuse for severe restrictions of basic human rights. One way to counter this has been to argue that Islam and human rights are very different and that all state should be bound by the universal standard. This is the approach of Mayer who argues that human rights principles are not the creation of a traditional culture. Although one has sympathy with an approach arguing the primacy of human rights this seems to be a dangerous approach because it again poses the ‘them and us’ dichotomy. a. Repressive regimes No one would seriously argue that political leaders who are intent on practicing political repression would not seek to argue cultural imperialism in order to eliminate criticism from abroad. A complete history of dictatorial and repressive regimes would probably reveal that every one of their leaders played the cultural card at some point. An excellent example would be the Taliban regime in Afghanistan, a regime without precedent. Islam encourages women to become educated and yet the Taliban regime refused to educate women. There are many other regimes who discount human rights for political gain. Oje argues:

 Ibid., p. , however, this order may be changing rapidly.  But see B. Tibi, ‘The European Tradition of Human Rights and the Culture of Islam’, above, n. , at , as Tibi does not agree with this perspective.  A.E. Mayer, ‘Current Muslim Thinking on Human Rights’ in above, n. , – at p. .  Ibid., pp. –.

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Susan C. Breau It would be pretentious to argue that the primary justification for the emphasis on these traditional concepts and practices in the present African Charter is the “beauty” of these traditional values and concepts. It would appear that the convergence of the leaders’ concept of state interest-political stability, regime survival and the maintenance of the sovereign and territorial integrity of states – and the traditional values of practices in a more important reason. Because laying stress on “peoples” rights, individual rights could be justifiably denied.

Another recent historical example was the Khmer Rouge regime in Cambodia which in addition to strict socialism argued for a return to rural pastoral life. The problem was that this return was done with armed force and by killing those who would not fit into the new society. There is no excuse for mass murder, torture and detention without trial in any cultural context and to argue that religion permits such behavior is contrary to any theological precept. c. Islam as a tool to promote human rights On occasions, Islamic law has been used to provide an official reason for limiting democratic freedoms but this does not take into account that the limitation is not based on Islamic law but a certain interpretation that is a ‘one-sided and self-serving interpretation of Islamic doctrine’. Mayer argues: An official policy of repudiating international human rights standards in order to follow shari’a law may not necessarily be dictated by the religious piety of the persons who wield power, but may merely be a convenient pretext for denying freedoms that the government wishes to curtail for reasons of self-interest.

In fact, the situation might just be reversed as it has been argued that many Islamic groups have been pressing for new regimes in the wake of severe human rights violations by their autocratic rulers. However, they argue that these new regimes must be founded on Shari’a law. The Islamic revolution in Iran would be a prime example even with the Ayatollah Khomeini

 Ojo, above, n. , at .  Mayer, above, n. , at –.  Tibi, above, n. , at p. .

Human Rights and Cultural Relativism  proclaiming that ‘What they call human rights is nothing but a collection of corrupt rules worked out by Zionists to destroy all true religions’. However, not all proponents of these revolutions have totalitarian ends in mind but seek to eliminate the abuses their people suffer from regimes propped up by powerful western countries. There is no unanimity on the political structure of these new regimes but the evolution in Iran towards dialogue and engagement on human rights is a hopeful development. In September , in Paris, the Universal Islamic Declaration of Human Rights was adopted. The forward contains these provisions: Islam gave to mankind an ideal code of human rights fourteen centuries ago. These rights aim at conferring honour and dignity on mankind and eliminating exploitation, oppression and injustice . . . Human rights in Islam are an integral part of the overall Islamic order and it is obligatory on all Muslim governments and organs of society to implement them in letter and in spirit within the framework of that order.

In spite of the Islamic belief that nonbelievers cannot be tolerated this declaration outlawed discrimination and espoused freedom of religion. It is evidence that Islamic leaders acknowledged the primacy of certain fundamental rights. The Declaration also contained a blanket prohibition against torture. VII Right to Protection Against Torture No person shall be subjected to torture in mind or body, or degraded, or threatened with injury either to himself or to anyone related to or held dear by him, or forcibly made to confess to the commission of a crime, or forced to consent to an act which is injurious to his interests.

As with the UDHR this is a non-binding declaration but it is an important set in the understanding of the evolution of human rights within Islamic thought. As Tibi states: The Islamic Declaration of Human Rights is a cultural document that clearly reveals an effort to read the Western tradition of human rights

 Ibid., at .  Paris, Universal Islamic Declaration of Human Rights,  September .

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Susan C. Breau into Islam and to demonstrate that Islam has always encompassed the values embodied in the concept of human rights.

Mayer argues that this declaration is a fiction (especially with respect to the history of Islam and human rights) utilized in order to bring the two regimes together and notes that Islamic law is treated as the controlling standard. However, she also argues that the International Bill of Rights is being adopted by more and more Muslims as the normative standard for rights and that therefore international human rights standards should be treated as part of the ‘evolving Islamic tradition and the complex Islamic response to human rights issues.’ It seems that the Islamic declaration is an important tool for analysis as it does bring the two systems together. We might never be able to persuade some peoples that it is the public international law system that predominates but the fact that these principles can be found in Islamic law is invaluable. The Sudanese scholar Professor Abdullah An-Na’im has argued for a new interpretation of Islamic scriptures that help to eliminate the conflict between Islam and human rights. His perspective is that the best way to enhance the legitimacy of human rights is to root them in the various cultural traditions of the world and by his many writings on the subject he is doing just that. Although some of his work dates from twenty years ago, the current situation makes their re-examination essential. c. United States Hegemony In the wake of the fall of the Berlin Wall, there has been an argument that the United States has been left as the one remaining superpower. Since  there have been three international armed conflicts with the United States as the leading member of coalitions of states. These conflicts have been in Kosovo, Afghanistan and Iraq. There is no underestimating the negative reaction this has caused in many of the countries of the world. Although

 Tibi, above, n. , at .  Mayer, above, n. , at .  Ibid., at .  Ibid., at .  An-Na’im, above n. , at p.  and see A. An’Na’im ‘A Modern Approach to Human Rights in Islam: Foundations and Implications for Africa’ in C.E. Welch and R.I. Meltzer Human Rights and Development in Africa (State University of New York Press, Albany, N.Y, ), pp. –.

Human Rights and Cultural Relativism  there have been historical examples where western culture en masse has been rejected such as the rise of the Taliban regime in Afghanistan, Pol Pot in Cambodia or the Iranian revolution, at no such time has such an abhorrence of one regime been so evident. To hear American leaders use the language of human rights while at the same time there are revelations that torture has been rife in their detention centres and that they are suspected to have been practicing rendition of terror suspects to face torture in other countries, leads many to reject Western values in total. However, it has to be pointed out that the current United States regime does not represent half its own country. America has a wide variety of political, cultural and religious opinions and a current political situation cannot stand as representative of Western liberal values. It has to be pointed out that many particularly repressive regimes in the Middle East such as the Shah’s Iran and Zia’s Pakistan were actively supported by the West leading to movements asserting Islamic revolution. v. conclusion There is no doubt that there will be clashes between cultural traditions and the human rights movement. As Ignatieff correctly emphasizes human rights is inherently individualistic and thus might pose a threat to traditional practices. However, it does not pose a threat to the degree that the cultural relativism debate seeks to argue. Human rights are not the antithesis to culture. Protection of human rights can take place within any cultural context. There may be some practices such as FGH, forced marriages, and certain punishments that will not be in compliance with human rights standards but most cultural components will remain. It has to be acknowledged that there will be circumstances that traditional cultural practices will conflict with a universal standard and then the argument has to be that the traditional or religious practice must be abandoned. However, as An-Na’im has argued cultural relativism can stand for ‘the equal validity of diverse patterns of life’. It does not mean the complete acceptance of all norms and practices sanctioned by cultures and a relativist can criticize those practices that offend deeply held beliefs including

 See Ignatieff, above, n. , at p. .  Tibi, above, n. , at p. .  An-Na’im, above, n. , at p. .

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human rights. A version of cultural relativism that does not represent a dichotomy with human rights is the notion that does not necessarily allow the culture total autonomy or rigidity. As Stavenhagen states ‘conceptions of individual and collective rights are not exclusive of each other; . . . they turn out to be mutually reinforcing.’ He argues that collective rights of cultural groups are defensible when they reinforce the enjoyment of individual rights. Therefore, in order to ameliorate this perceived conflict, a first step would be in the teaching of human rights in itself. As we teach students from all over the globe we have an obligation to learn the historical, cultural and religious traditions of many peoples instead of relying on the US declaration of Independence and the French declaration of the Rights of Man as the precursors to human rights. This will be assisted by our increasingly globalized culture that I would argue is not homogenous but informed by cultural practices from many lands. In having the opportunity to speak to people in many different walks of life from around the globe it becomes absolutely clear that there is a common belief in the essential dignity of mankind and that above all persons should have their life, bodily integrity and liberty respected no matter where in this world they reside. As Donnelly states: Ordinary citizens in country after country have found that internationally recognized civil and political rights are essential to protecting themselves against repressive economic and political elites.

An-Na’im supports this position and argues ‘I do not believe that universal human rights can only be justified in terms of the least common denominator among the cultural traditions of the world’ but that ‘cross-cultural studies can be helpful from both substantive and tactical points of view’. Part of these studies will be to determine the actual content and implications of the inherent dignity and integrity of the human being within the specific cultural context.

 Ibid., at p. .  Ibid., at p. .  R. Stavenhagen, ‘The Right fo Cultural Identity’ above n. , – at p. .  Ibid.  Donnelly, above, n. , pp. –.  An-Na’im, above, n. , at .  Ibid., at p. .

Human Rights and Cultural Relativism  The second step which is already well underway is the modified universalization of the adoption and enforcement of human rights standards. The crucial lesson from the last decade is that Western ideas of democracy and human rights cannot be forced on peoples. The tragedy of Iraq is a prime example. Civil society, lawyers, judges and prosecutors have to be trained in the language and implementation of human rights and that language by and large must not offend the cultural context. As An-Na’im proposes that we must accept the right of all people to choose among alternatives equally respectful of human rights. Finally, rigorous and sympathetic evaluation of all cultural contexts must be undertaken by the academic community in the respective countries. Modernity does not have to been an abandonment of culture. The cultural mosaic model adopted by the Canadians is far preferable to a melting pot approach. Human rights standards dictate respect for language, dress and religious practices. Those who seek to exploit the differences between us should travel around the globe and not the remarkable similarity of the hopes and aspirations of all of us for food, shelter, education, gainful employment and an active social, cultural and religious life. All of these common goals are established in the International Bill of Human Rights.

 An-Na’im, ‘Religious Minorities under Islamic Law and the Limits of Cultural Relativism’, above n. . This article is a systematic review of the problem of the rights of religious minorities within Islam and how the relgious concerns can be reconciled with the human right.

chapter six

Some Arguments on the Universality of Human Rights in Islam Audrey Guichon* i. introduction Modern human rights are facing increasing challenges, of various forms. Current international politics and recent events have brought the attention of the international community, academics and human rights practitioners alike, to the perceived incompatibility between human rights and Islam. Since , the West has demonstrated some growing, genuine interest in understanding Islam better, though this has gone hand in hand with an attempt by some to reject, demonise and vulgarise a system of religious belief that they deem irrelevant, unnecessary, and dangerous. At the same time, or perhaps, as a consequence, strong religious-based arguments are increasingly becoming part of the discourse; rejecting what is currently the most universally accepted human rights system, as endorsed and promoted by the United Nations. Nevertheless, these challenges are not new, and a classic recurrent argument maintains that human rights are the fruit of Western cultural imperialism. This chapter is an attempt to identify and address some of the religious-based arguments that can be considered as valid justifications for the rejection of the human rights system and theory. It takes a universalist stand, arguing that human rights is a worthwhile system of protection for individuals and that Islam, as a system of belief, does not have to ‘compromise’ itself to endorse it. In order to address this, the chapter presents some of the arguments invoked by Islamic thinkers to reject human rights so as to assess whether the ‘universal project’ can be achieved and legitimised; conversely, it also examines the protective merits of an Islam-based system of human rights protection.

* 

The Junction, Londonderry/Derry, Northern Ireland, United Kingdom. See below part III.

Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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In part two, the chapter looks into the theoretical, religion-based arguments put forward to justify the non-application of human rights in Islam. In part three, it discusses the value of, and potential need for, some degree of cultural relativism and the danger in allowing too much. In part four, it offers a critical view of the legal Islamic human rights instruments by comparing them to the Universal Declaration of Human Rights. The chapter concludes that these instruments alone provide insufficient protection, and sheds light on the potential dangers of some provisions based on shari’a. Objections to human rights principles and reservations regarding human rights treaties and conventions’ articles are varied in nature; however, when they are religion-based, the debate becomes more complicated because it is culturally sensitive. This renders the need for an objective examination of Islamic-based objections to universal human rights even more urgent. This chapter is a legal analysis of some of the theoretical and practical hurdles against a true universal application of human rights in Islam; it does not engage with Islam as a system of belief outside of this framework. The scope of arguments discussed range from those invoking that modern human rights only are a weak copy of Islamic principles to those saying that compatibility is not possible, due to the existence of antagonist values. Since the questions raised do not have clear-cut answers, this chapter will suggest ideas for consideration and reflection, but does not intend to offer absolute conclusions. While it is clear that contemporary Islam is diverse and varied in its interpretation of faith and religious text, ‘Islam’ will be used indistinctively to refer to the main principles and values of the Islamic faith. ii. where incompatibility might lie The starting point of this analysis refers to the argument that human rights are a foreign creation of the West and/or that they exist in parallel to Islamic human rights. This section examines apparent substantial obstacles to making the implementation of human rights in Islam possible and justified, by citing evidence from the literature. The arguments examined refer to the theoretical sources of human rights, to their origin and nature, and finally, to their individualistic versus collective vision.

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a. Al-Shaybani versus Grotius People in the West have the habit of attributing every beneficial development in the world to themselves. For example, it is vociferously claimed that the world first derived the concept of basic human rights from the Magna Carta of Britain – which was drawn up six hundred years after the advent of Islam. But the truth is that until the seventeenth century no-one dreamt of arguing that the Magna Carta contained the principles of trial by jury, Habeas Corpus and control by Parliament of the right of taxation. If the people who drafted the Magna Carta were living today they would be greatly surprised to be told that their document enshrined these ideals and principles.

Mawdudi’s quote illustrates the way he, and other Islamic scholars, defend the idea that the basis for human rights are to be found in sacred Islamic texts and writings. In doing so, they aim to demonstrate that if human rights were first recognised in Islam, Islamic human rights are the best guarantee for human dignity and should be preferred to any other system. Tabandeh argues that the principles consecrated in the Universal Declaration of Human Rights only repeat what the sources of Islam provide for in the sake of human society’s welfare. For Strawson, a simple study of the chronology of the evolution of international law and human rights law demonstrates the impossibility of the Western provenance of human rights. The disagreement refers to the fact that while legal scholars usually associate the birth of modern human rights law with Grotius, some Islamic authors trace its origins back to the end of the eighth century and Al-Shaybani’s Siyar reference to theories such as the law of occupation. But how critical is this question to the overall argument? Mayer argues that failing to properly address the question of origin can be prejudicial, and

 S.A. A’la Mawdudi, Human Rights, the West and Islam, http://www.jamaat.org/islam ( September ).  K. Dalacoura, Islam, Liberalism and Human Rights (IB Taurus, New York, ) at p. .  J. Strawson, ‘Encountering Islamic Law’, Critical Legal Conference (New College, Oxford, September ). Available on the Internet: http://www.uel.ac.uk/law/staff/jsrps. html.  M. Khadduri, The Islamic Law of Nations, Shaybani’s Siyar (The John Hopkins Press, Baltimore, ).

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has led to the incoherent use of the notion of ‘rights’ in Islamic thinking. Arguing for Islamic foundations of human rights not only requires finding human rights principles in early Qur’anic texts, but also requires evidence of political and intellectual use of these sources throughout history in order to illustrate a sense of ‘commitment’ to them. In other words, it requires proof of the existence of theoretical human rights as well as their sustained implementation and protection. According to Mayer, Islamic human rights fail to pass this test, partly because there is no ‘Islamic authority dating from the premodern period that squarely addresses human rights issues as such or that anticipates the interpretation of the sources that are currently being advanced by authors of Islamic human rights schemes’; failure to identify direct human rights implications from Islamic sources indicate the absence of an Islam-based human rights tradition. She illustrates her points by arguing that while Islamisation programmes in the legal field should have meant a return to pre-colonial indigenous Islamic models, the absence of the Islamic equivalent to the Western model of human rights has prevented them from succeeding in doing so. Discussing the same problem, Mayer and Mawdudi reach opposite conclusions by citing the absence of any commitment to human rights values and ideas in the early history of the Islamic or other system of human rights, based on the lack of evidence of practice and a theoretical base. The issue of origins and foundations of human rights will be addressed further below. b. The Law of God and the Law of Men Human rights in Islam are the privilege of Allah, because authority ultimately belongs to him.

The existence of human rights is justified by the fact that they represent natural rights, rights that human beings have because of their humanity. In Islam, human rights are intrinsically linked to the Sacred; they are the attribute of God and cannot exist outside of their religious framework. Islamic human rights are envisaged only through their relation to God, to what God guarantees His followers depending on their actions. Human

 A.E. Mayer, Islam and Human Rights, Traditions and Politics (Westview Press, Oxford, ).  Ibid., at p. .  M. Khadduri, ‘Human Rights in Islam’ ()  The Annals, at p. .

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rights will be guaranteed to an individual only if he is capable and ready to lead a good Muslim life. For Dalacoura, it means that the purpose of Islamic human rights is not to provide individuals with the guarantee of a good life but ‘to protect people from themselves and each other, through separation and stringent moral prohibition’; such system relies on ‘the fear of God and the threat of punishment’. Ensued from this is the fact that Islam does not approach human rights as rights that individuals are ‘entitled to’ but as duties they have to fulfil. If duties are compatible with human rights, it is nevertheless imperative that rights precede duties, which is not proven to be true in this case. Every Muslim man has duties toward His Maker and, in return, will receive protection from a correlative right. Translated into practice, it means that individuals complete their duties toward representatives of the Authority, who in return fulfil their duties toward God. Because both individuals and Authority representatives have to respect and respond to divine law, i.e. God embodying the ‘Just’, there can be no inherent conflict between the individual and the Authority, which nullifies the need for rights, per se. Yet as Mayer points out, this is ignoring the fact that today the Authority is embodied in a very powerful State from which the individuals have to be protected, which is also true in Muslim countries. The main danger that exists in approaching the protection needed for individuals through the angle of duties toward the God embodied in State authority is that State’s interests will often be invoked to justify the violation of individuals’ interests. The absence of inalienable rights is a loophole of the Islamic human rights system, which allows for exceptions to the protection of individuals and can consequently lead to gross violations of what should be recognised as basic human rights. A relevant and constructive addition to this point was made by El Mernissi, who promoted the distinction between duties as a believer and duties as a citizen: ‘[w]hile obedience is the decisive principle for religious

 See above n. , at p. .  See above n. .  See above n. , at p. .  A. Tamimi, Human Rights and Muslim Identity (International Conference on ‘Muslim Identity in the st Century: Challenges of Modernity’, London,  October ).  ‘The historical record shows that religious scruples rarely deterred governments in Muslim countries from oppressing their subjects’, Mayer, above n. , at p. .  Mawdudi even expects the individual to sacrifice for the State in specific circumstances; above n. , at p. .

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belief, equality and the right to make decisions are the determinants of citizenship’. Allowing for such distinction allows for a safeguard against the danger that exists in providing the individual with only duties in all spheres of life. The justification of human rights described by some Islamic scholars as being only given to ‘a person with full legal capacity [who] is a living human being of mature age, free, and of Moslem faith’ is not satisfactory either. The substance of human rights is to apply to all human beings, irrespective of individual status. The political organisation of Islam is also used to justify the foreignness of human rights. Political Islam is not based on popular but divine sovereignty. For some, dissociating human rights from the sacred would result in a necessary reorganisation of parts of Islamic life, which can be read as conceding the Muslim identity. There is extensive literature available on whether or not the ‘universal project’ can and should be envisaged outside the secularist framework. Positions vary, from suggesting that ‘secularism, as practiced in many parts of the world [. . .], is not anti-religion [but] was applied [. . .] to protect freedom of belief and promote religious piety’, to arguing that the separation of Islam from the State is an act of apostasy punishable by the death penalty. While parts of the Islamic community reject human rights, asserting that they lack ‘moral significance’, for many people, human rights represent the most primary rules of human life. Mawdudi’s main criticism of human rights outside the Islamic faith is based on the fact that they are ‘only’ a human creation, which is, for him, the proof that they lack relative legitimacy. Deprived from any religious foundation, he sees no possibil-

 F. El Mernissi, quoted in R. Afshari, ‘An Essay on Islamic Cultural Relativism in the Discourse of Human Rights’ ()  Human Rights Quarterly, at p. .  See above, n. .  S.A. A’la Mawdudi, ‘Human Rights in Islam’ ()  Al Tawhid Journal , at .  See M. Freeman, ‘The Problem of Secularism in Human Rights Theory’, Centre for the Study of Global Ethics seminar (Birmingham, th March ); H. Bielefeldt, ‘Muslim voices in the Human Rights Debate’ ()  Human rights Quarterly ; Dalacoura, above n. .  A.A. An Na’im, ‘Islamic foundations of religious human rights’, in J. White, J.D. Van der Vyer (eds.), Religious Human Rights in Global Perspectives (Martin Nijhoff Publishers, The Hague, ), at p. .

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ity for enforcement of the principles and rights consecrated in the actual human rights system. The latter is consequently ineffective and should thrive to find higher moral authority. Going back to the idea that human rights have been consecrated in order to protect individuals from the reality of excesses committed by States against them, often in instances where those rights were most challenged, one can argue that human rights address ‘reasoned needs’ in quest of no other justification. Human rights are especially relevant and adapted because they originated from human minds to answer human needs. c. Individual versus Group Rights? The individualistic nature of human rights is also sometimes invoked as a proof of their irrelevance in Islam. The Islamic community is organised around the interests of the ummah or community of believers, which are superior to individuals’ interests because as Esposito writes, ‘[t]he Islamic community is to be the dynamic vehicle for the realization of the divine pattern’. The sacred nature of the ummah is fundamental to understanding that individuals are only its servants. Individual rights and freedoms are secondary, and the violation of those rights can be justified when it benefits the community. Opinions on this point vary greatly. On the one hand, authors defend the idea that Islam can include the protection of equal individual rights because individuals are at the basis of responsibility and honours which are the pillars of the Islamic society. Thriving for a fulfilled society requires respecting the human rights of each of its members. Dalacoura adds to this point that the individual had a central position in traditional Islam, as an equal believer in Allah. Endorsing this argument starts paving the way toward the acceptance of human rights in Islam. On the other hand, some Islamic leaders would prevent any questioning of the

 See above, n. .  See debates on the theory of natural rights.  K. Younce Schooley, ‘Comment: Cultural Sovereignty, Islam and Human Rights – Toward a Communitarian Revision’ ()  Cumberland Law Review, at p.  quoting J.L. Esposito, Women in Muslim Family Law (Syracuse University Press, New York, ).  M.M. Taha, The Second Message of Islam (Syracuse University Press, New York, ).  Above n. , at p. .

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sacrosanct supremacy of the ummah. The reasons behind such a stance are varied. First, a communitarian approach to life is presented as the best guarantee for individual human rights. Second, questioning the importance of the ummah weakens the power the community has on individuals and, consequently, favours a liberalisation of the individual. Finally, by prioritising the community, individuals are much less inclined to question their individual social position within this community. Because the individual is expected to accept the responsibilities and fulfil the duties linked to his social positioning, questioning such an established system would endanger the entire societal organisation created in accordance with perceived sacred command. While the dichotomy between individual and community-based society appears as a leitmotiv in literature on the issue, Howard questions its very existence. She writes: Individualist societies contain many communitarian features. [. . .] Both in practice and in theory, we need to reconcile the communitarian and the individual accounts of society. The communitarian account is too critical of the breakdown of community and to refer back to romanticized models, while the individualist account is too uncritical of the costs of individualism.

Here, Howard does not mean that because both societal organisations borrow from each other, the human rights system cannot be applied across both. On the contrary, because the opposition between those two models is not as clear-cut as one would think, one more hurdle toward the recognition of human rights in Islam disappears. This is becoming more real today as the human rights doctrine is increasingly recognising the importance of group/collective rights and, in doing so, provides answers to some of the concerns discussed below.

 For a very good account of the problematic around the community versus the individual, see, R. Howard, ‘Cultural Absolutism and the Nostalgia of Communities’ ()  Human rights Quarterly, at p. .  Ibid., at p. .  See for example, the case of indigenous peoples and minorities. P. Jones, ‘Human Rights, Group Rights and Peoples’ Rights’ ()  Human Rights Quarterly .

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d. Foundations of Human Rights and the Relativist Debate Relativists defend the idea that promoting a universal application of human rights would imply ‘a failure to respect the diversity of cultures’. Culture, understood as the singularities of specific groups of people, is invoked to reject international human rights law. Arguments against the applicability of human rights in Islam are, in part, based on these singularities, one of which refers specifically to the problem of foundations. A short account of Donnelly’s approach to what he sees as ‘relatively universal’ human rights gives a clear understanding of where the divergences might lie. Donnelly defines human rights as the rights that human beings have for the fact of being humans, rights that they resort to in order to realise ‘a life of dignity’. He writes that when approached this way, human rights cannot be granted with unique and universally accepted foundation. The arguments exposed before contribute to supporting this claim. To him, this does not mean that human rights ought to be considered ‘vulnerable’ or ‘arbitrary’ but that it should be accepted, for reasons of righteousness and historical truth, that their existence cannot be justified everywhere the same way. ‘Human rights are centrally linked to “modernity” and have been (and remain) specially connected to the political rise and practices of the “West” ’. Suggesting the idea that human rights are not ‘compatible with all comprehensive doctrines’, Donnelly also concedes that ‘when given a chance people in the contemporary world usually choose human rights’. In short, Donnelly argues that human rights may have been a creation of the West, but that there is a universalist claim to be made regarding the implementation and enjoyment of international human rights law. By opposition, Afshari disposes of the problematic of foundations by arguing that it is irrelevant and that ‘problems magnify when one actually tries to locate or construct roots for human rights standards in local cultures’. Because human rights are a construct, which creation has been required

 J. Donnelly, Universal Human rights in Theory and Practice (Cornell University Press, Ithaca and London, ).  Ibid., at p. .  Ibid., at pp. –.  Ibid., at p. .  Ibid., at p. .  Ibid., at p. .  Above n. , at p. .

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by the exigencies of the modern state, human rights have become obligatory. Human rights have emerged to answer the needs of present realities resulting from individuals’ relations to modern states. By opposition, An-Na’im argues for the value of working on identifying Islamic foundations of human rights, which he believes will facilitate their recognition in Muslim countries. While these questions are of crucial importance, the implications of the answers given are more crucial than the answers themselves, and simply eluding the question of foundations is not satisfactory. Indeed, the start of this chapter has argued for the superior interest of human needs, allowing for a reformation or a re-prioritisation of religious commands; yet the reformation will fall short of being realised without some degree of indigenous grounding. Reformation cannot be imposed from the outside, and An-Na’im’s proposal for working within the Islamic framework calls for further exploration. This part was an attempt to illustrate some of the difficulties linked with making human rights and Islam compatible. The difficulties relate to constitutive elements of human rights as much as to their foundation. A study of some of the relevant literature highlights the absence of a consensus with regard to the conclusion that needs to be drawn, as well as the approach to adopt. For some, the difficulties in accepting Islam and human rights are compatible imply questioning whether a universal application is desirable and indeed needed; others, though acknowledging that these difficulties exist, argue that efforts should be concentrated on finding ways of overcoming them. The only conclusion shared by all is that the universality of human rights is not yet a reality in practice. Universality should be approached as a ‘project’. The following part argues that this project can be, and needs to be realised, utilizing some indigenous tools offered by Islam, where possible.

 On this point, see also Mayer, above n.  and Howard, above n. .  Above n. , at p. .  On the theory of the Universalist Project, see A.A. An-Na’im, ‘Universality of Human Rights: An Islamic Perspective’ in N. Ando (ed.), Japan and International Law, Past, Present and Future (Kluwer Law International, Amsterdam, ), at p. ; F.S. Teson refers to a ‘universalizable moral discourse’, in F.S. Teson ‘International Human rights and Cultural Relativism’ ()  Virginia Journal of International Law, at p. .

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iii. a western construct with ‘extensive’ applicability There is a basic conceptual difficulty with the principle of universal human rights in that, since all normative systems are necessarily a product of cultural and contextual specificity, how can there be a universal agreement on a normative system for human rights in a world of serious and permanent diversity?

The ‘normative difficulty’ inherent to human rights is central to the universalist debate: seeking for a universal implementation of human rights does not only requires their uniform application, but also requires a substantive measure of legitimacy. An-Na’im suggests looking into making the present system of human rights, as emerging from one particular cultural context, understood as peoples’ own in another cultural context. This is indeed a central point of the universal debate on human rights: Unless people accept these rights as binding upon themselves from their own cultural, religious and/or philosophical point of view, they will never voluntarily comply in practice, nor require their government to respect and promote human rights in the official functioning of the state.

The very nature of human rights, as well as the absence of sanction or compulsion in international human rights law, makes it clear that only when perceived as legitimate will human rights be respected and promoted. The only tool in the service of human rights is their universal understanding and acceptation. Addressing cultural, philosophical, or traditional beliefs are key to achieving a universal acceptation of human rights: theses beliefs are at the very basis of their potential rejection.

 Adapted from Pollis and Swab’ quote ‘a Western construct with limited applicability’, ‘A Western construct with limited applicability’, in A. Pollis and P. Swab (eds.), Human Rights Cultural and Ideological Perspectives (Praeger Publishers Inc., New York/London, ), pp. –.  Above n. , at p. .  Ibid.

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a. Is a Moderate Cultural Relativism Necessary for the Universal Application of Human Rights? We must embrace cultural diversity but not at the expense of universal minimum standards.

Various methods and propositions have been made for the purpose of integrating cultural claims when applying universal human rights. They range from searching for equivalences in non-Western philosophies, to promoting the idea that a future ‘modernisation’ of non-Western societies will lead to the recognition of human rights. This section will be particularly devoted to studying An-Na’im’s proposal for cross-cultural dialogue and internal discourse as a tool for achieving a universal recognition of human rights. The arguments presented here are based on the belief that culture is a ‘living, symbolic and open-ended experience’. It will be assumed and illustrated that Islam, taken as a religion based on sacred text like other religious traditions, is not a fixed system of belief. Most objections to the application of human rights in Islam are based on their incompatibility with shari’a, which literally means ‘the path to follow’ and is the word for Islamic law. Shari’a regulates all aspects of Muslim lives: in the absence of separation between sacred/religious affairs and the State, shari’a is the authority for private and public matters. The shari’a is not a ‘formally enacted code’ but brings together different sources of Islam. The primary source is the Qur’an, the Holy Book of Islam. The Qur’an reports the revelations given by Archangel Gabriel to the Prophet Mohammed. It sets down the general principles that every Muslim must respect during their lives, principles corresponding to five kinds of behaviour. The second primary source of shari’a is the Sunnah, or words that

 M. Robinson, General Assembly, Preparatory Committee for the World Conference on Human rights (A/CONF./PC//Add., th Session,  April , at §).  Above n. , at p. .  M. El Sayed Said, ‘Islam and Human rights’, in D. Warner (ed.), Human rights and Humanitarian Law – The Quest for Universality (Martinus Nijhoff Publishers, The Hague, ), at p. .  A.A. An-Na’im, ‘Human Rights in the Muslim World’ ()  Harvard Human Rights Journal , at p. .  They are namely, fard (compulsory duty punishable if omitted), haram (unlawful or forbidden action that is punishable), mukruh (disliked and disapproved action but which carries no penalty), jaiz (permitted action but which is legally indifferent), maidub (action rewarded but which omission is not punishable). See, U. Khaliq ()  ‘Beyond

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‘Muhammad the Prophet elaborated on the meaning of the Qur’an’. They illustrate examples of model behaviour. The authority of Sunnah is lower than that of the Qur’an, which has predominance in cases of conflict. Other methods used for applying and understanding shari’a are ijtihad, al-Ijma and al-Qiyas. Ijtihad literally means ‘effort or exercise to arrive at one’s own judgement’. Al-Ijma consists of the opinions given by the Ullamah (Islamic scholars) after the death of the Prophet. Finally, al-Qiyas is a legal technique dedicated to create a conclusion by analogical deduction. While incompatibilities between human rights and the shari’a are often used to reject the application of the former, one should try to find ways and methods of ‘making them’ compatible. Some of these methods are to be found in Islam itself. Itjihad in particular, seems to represent a welladapted tool for a reformation from within. An-Na’im and Taha’s work on a ‘moderate cultural relativism’ is very useful here. Their theory is based on the principle that even if there are cultural differences, universal principles are applicable. Like other systems of belief or texts, Islam can evolve, but the reformation has to come from the inside. In the case of conflicts between human rights and sunnah, the legitimisation of the exercise of reformation appears relatively straightforward: because the sunnah were compiled posthumously three centuries after the death of the Prophet, it is said that they enclose errors of interpretation, errors that can be identified as the sources of incompatibilities between Islam and human rights. Eliminating these preliminary incompatibilities means getting one step closer to accepting both systems as compatible. An-Na’im also writes that the Qur’an encourages personal reasoning and reflection for the reading of Islamic principles. The variety of ways in which Muslim scholars have interpreted legal issues proves that this interpretative technique has been used extensively. These two illustrations give evidence that the content of the Veil; an Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’a’, Buffalo Journal of International Law –, at p. .  Above n. .  Above n. , at p. .  For more information, see, A.A. An-Na’im, Toward an Islamic Reformation (Syracuse University Press, New York, ), or Mayer, above n. .  Younce Schooley, above n. .  For more information, see, An-Na’im, above n. ; Mayer, above n. .  See A.A. An-Na’im, ‘Islam and Human Rights: Beyond the Universalist Debate’ Proceedings of the th Annual Meeting of the American Society of International Law (Washington DC, – April ), at p. .

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shari’a can be adapted to the needs and requirements of present times, embodied partly in the human rights discourse. Taha gives a comparable humanistic interpretation of Islam that is built on a literal interpretation of the Holy Book. His theory is founded on the idea that ‘shari’a reflects a historically conditioned interpretation of Islamic scriptures: founding jurists had to understand those sources in accordance with their own social, economic, and political circumstances’. While jurists may not have been able, at the formation of Islam, to interpret the Qur’an in a way conform to principles of human rights, the interpretation given then was not dedicated to have definitive authority. He believes that modern Islamic jurists were allowed to re-do their work of interpretation, using the same primary sources of Islam, but adapting them to recent historical and social circumstances. Applying this theory would lead to reforming the legal system in a way more compatible to both Islamic sources and the nature and requirements of the contemporary system of protection of human rights. Dalacoura’s reference to Tabandeh’s Muslim Commentaries on the Universal Declaration of Human Rights is a useful illustration of the temporality of what is taken at certain period of time as absolute truth. On slavery, Tabandeh wrote that ‘the conditions that permitted the existence of slavery at the time of the Prophet no longer exist and the aim of Islam was clearly to limit slavery’. Reaffirming the work of Taha, An-Na’im develops a theory of ‘alternative islamization’. He too, promotes the idea that shari’a reflects a historically conditioned interpretation of the Islamic texts. For example, if the concentration of powers and the absence of constitutional and judicial guarantees were adapted to the early functioning of the Islamic state, it is not adapted to the exigencies of modern states any more. An-Na’im and Taha’s theories are useful to demonstrate that it possible to re-interpret the words of the shari’a so as to make it compatible with Islam, as well as modern human rights:

 Above n. .  An-Na’im, above n. , at p. .  See above n. , at p. .  A.A. An-Na’im, ‘The future of shari’a’, http://www.law.emory.edu/cms/site/fileadmin/faculty_documents/abduh/English_Ch.doc ( September ).

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Islamic distinctiveness has to be reconciled with the realities of transformed political organisation, economic relations and social institutions that Muslims share with non-Muslims in many parts of the world.

Arzt complements An-Naim’s theory by underlining the political nature of the arguments against interpretation of the shari’a: [. . .] Islam is capable of reform. Ijtihad, or creative interpretation, is a classic Islamic methodology for adapting archaic or obsolete doctrines, including those derived from divine revelation. Resistance to such adaptation is not mandated by the original sources of Shari’a themselves but only by later authorities who benefited from the continuation of outmoded doctrines.

The fact that shari’a varies in its application from one state to another also raises questions regarding its absolute and unique meaning. There is neither one Shari’a nor one ‘political Islam’ but as many different ‘political Islam’ as there are different shari’a. It seems almost impossible to determine what interpretation of the Qur’an is more Islamic than another, and what is the ‘true Islam’. The Islamic culture itself is not uniform, and if Islam can have different faces, it certainly is capable of reforming itself by re-interpreting its own principles and values to make them compatible with human rights. Yet, imposing rights that are not perceived as legitimate would result in their rejection. Consequently, the next step toward achieving full implementation of human rights in Islam is to enable the process of cultural ‘appropriation’ to take place. To this purpose, An-Na’im promotes an ‘internal cultural discourse’ paired with ‘cross-cultural dialogue’. Rather than accepting the least common denominator on what human rights are across cultures – which would diminish their content – it is better to thrive for enhancing the legitimacy of existing human rights in different

 Above n. , p. .  Donna E. Arzt, ‘Religious Human rights in Muslim States of the Middle East and North Africa’. Available on the internet: http://www.law.emory.edu/EILR/volumes/spring/ arzt.html ( September ).  See above n. , p. .  See above n. , at p. .  See for example Donnelly commenting that if there are values that are common to all societies, conceding such consensus would lead to a very short list of common values; above n. , at p. .

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cultures. He writes: ‘having achieved an adequate level of legitimacy within each tradition, through this internal stage, human rights scholars advocates should work for cross-cultural legitimacy, so that peoples of diverse cultural traditions can agree on the meaning, scope, and methods of implementing these rights’. An-Na’im’s theory is based on the weakness of the idea that human rights have been universal from their creation, and on the belief that societies share certain ‘fundamental interests’ that can be identified as a common global culture. ‘Internal discourse relates to the struggle to establish enlightened perceptions and interpretations of cultural values and norms. Cross-cultural dialogue should be aimed at broadening and deepening international (or rather intercultural) consensus’. This theory does not deny the importance and legitimacy of culture, but recognises its centrality when intended to serve the purpose of universal human rights. Limitations have to be established only when cultural influences on human rights would result in their sacrifice. If applied properly, this proposal requires including women and minorities in both processes, because they are the groups that have been traditionally excluded and who would benefit most from changes. Pollis’ critique of An-Na’im’s proposal is that it is biased toward Western conceptions in that he mainly asks for the internal cultural discourse to take place in Islam to conform better to Western thinking. This critique calls for questioning whether there is truth in the argument that human rights have remained untouched and preserved from adaptations commanded by cultural requirements. Pollis and Swab’s initial critique of human rights consists of two points: first, that they are Western in the way they give predominance to civil and political rights over economic, social and cultural rights; and second, that they are individualistic and do not leave space for consideration of other social structures functioning around a community of people. Nevertheless, the United Nations system of human rights has had to evolve on those two grounds, and even if the evolution is not complete, a shift has been initiated with the growing recognition of the equal importance of social and economic rights and of group rights – e.g. through the appointment of a Special Rapporteur on the right to food, by

 A.A. An-Na’im, Human Rights in Cross-Cultural Perspectives – A quest for consensus (University of Pennsylvania Press, Philadelphia, ), at p. .  Above n. , at p. .  Above n. , at p. .

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granting rights to groups of peoples (for example indigenous peoples), and by increasingly recognising the importance of cultural rights. The human rights doctrine, like any other doctrine, has to prove capable of adaptation and adjustment in order to meet the needs of changing times by protecting unconditional principles and allowing a margin for interpretation and evolution. One should also recognise the absence of a uniform ‘Western approach’ to human rights, which comes to illustrate the fact that endorsing human rights also leaves space for degrees of variations of understanding and implementation, within an acceptable remit. b. Avoiding Political Stakes If some of the relativist arguments are worth including in the debate, they are too often used for the sole purpose of justifying the abuses committed by some regimes. The power game played by dictatorships and fundamentalist regimes across the world proves this clearly. Culture must not be misused in order to justify gross violations of human rights, but culture is to be welcomed within the remits of human rights. The disputed issue consists of determining where to draw the line between what should be, and what must not be accepted. As Donnelly explains, there are different kinds of cultural relativisms: – Radical cultural relativism for which ‘culture is the sole source of the validity of a moral right or rule’; this particular form of cultural relativism could probably be associated with what Mayer called ‘cultural absolutism’. – Strong cultural relativism: ‘Culture is the principal source of the validity of a rights or rule. [It] accepts a few basic rights with universal application’ under some conditions. – Weak cultural relativism ‘considers culture as a secondary source of the validity of a right or rule. Universality is initially presumed, but the relativity of human nature, communities, and rules checks potential excesses of universalism’.

 Above n. , at p. .  J. Donnelly, Universal Human rights in Theory and Practice (Cornell University Press, Ithaca and London, ), at p. .

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If the last form of cultural relativism has to be considered, it is necessary to reject the validity of the two other forms in order to preserve the meaning of and protection offered by human rights. However, even in its last form, difficulties appear in distinguishing what is and is not within an acceptable ‘margin of appreciation’ when implementing human rights. The existence of hudood punishments demonstrates that some limits can be clearly established, limits above which relativist arguments can be easily dismissed. Hudood punishments are provided for in the Qur’an through provisions that cover the prosecution and punishment of crimes associated with God, including theft or adultery. These punishments provide for the possibility of lashing and death by stoning, and are a form of cruel and inhumane treatment. While in most Islamic societies, hudood punishments have been denounced, others still hide behind the cover of relativism to justify these practices. Culture must not be accepted as justification for this kind of abuse. Culture is made of what the community believes are its constitutive elements and one can hope that no societal group would, if freed of any pressure, recognise themselves in this kind of punishment, and would not support their implementation. If they did, human rights could also be a driver of change. Where politics take over the interest of people, the role of the international community becomes crucial. It has to act as guardian of human rights principles and to denounce excesses and abuses. The United Nations have done so in various resolutions, taking into account the need for cultural awareness but submitting it to the supremacy of human rights; for example, it stated that ‘[w]hile the significance of national and regional particularities and various historical cultural and religious backgrounds must be born in mind, it is the duty of States, [. . .], to promote all human rights and fundamental freedoms, [. . .]’. This proposal has been endorsed by some Islamic states, including the Islamic Republic of Iran that stated such initiatives ‘help to pave the way and fosters a favourable environment for a constructive dialogue on the ways and requirements of taking advantage of different cultural heritages to promote the universality of human rights’.

   

Above n. , at p. . A/RES//,  February , A//,  August . A/RES//,  February , §. A//,  August , §.

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Part two has highlighted some of the theoretical difficulties linked to having Islamic human rights and suggested possible ways of overcoming apparent incompatibilities between human rights and Islam. It argued in favour of internal reformations processes, as they are possible and allowed under Islamic principles. It also suggested that a certain measure of cultural relativism is acceptable and welcome in allowing for the wider endorsement of human rights and space for the evolution of human rights itself. The next section will examine specific Islamic instruments of human rights, and give a practical illustration of the extent to which these tools are able to serve their intended purpose. iv. the universal declaration of human rights and the islamic instruments Three Islamic organisations have been particularly involved in creating alternative, Islam-based human rights instruments. They are the Islamic Council, the League of Arab States and the Organisation of the Islamic Conference. From  to , the three organisations concentrated their efforts on creating Islamic alternative models to what they saw as Western instruments of human rights; this period corresponds to the preparation and entry into force of the two Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Creating Islamic instruments of human rights was meant to lessen the importance of the existing instruments and to reaffirm their commitment to their cultural specificities. Three major instruments have resulted from this process. In December  The Islamic Council, a private organisation based in London and affiliated to the Muslim World League, an international and non-governmental organisation.  The League of Arab States was created in  to respond to the global attitude towards Arab countries; it is composed of all the Arab states that decide to be member of it. For more details about the League of Arab States, see their web site, http://www. leagueofarabstates.org.  The Organisation of the Islamic Conference brings together all the Islamic States. For more details about the Organisation of the Islamic Conference, see their web site, http://www.oic-oci.org/.  International Covenant on Civil and Political Rights,  U.N.T.S. ,  I.L.M.  (). G.A. Res. ,  GAOR, Supp.  U.N. Doc. A/, at , entered into force, Mar. , .  International Covenant on Economic, Social and Cultural Rights, G.A. Res. A (XXI),  U.N. GAOR Supp. (No. ) at , U.N. Doc. A/ (),  U.N.T.S. , entered into force, Jan. , .

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Audrey Guichon

, the Islamic Council was first to adopt its Universal Declaration of Human Rights in Islam (Islamic Declaration) in Paris. In August ,  ministers representing  countries of Islamic faith came under the Organisation of the Islamic Conference to adopt the Cairo Declaration on Human Rights in Islam (Cairo Declaration). The Cairo Declaration was the result of numerous debates and more specifically, of the withdrawal of their previous project, the Declaration of the Rights and Duties of Man in Islam. Finally, in September , the League of Arab States adopted the Arab Charter on Human Rights (Arab Charter) following various unsuccessful attempts. A comparative approach to these three Islamic human rights instruments with the UDHR will illustrate that while there is a parallelism in the rights provided for in the different instruments, each of them has a very singular approach to human rights. a. Ambivalence of the Declarations Specificities of the Preambles The purpose of a preamble being to establish the general ‘philosophy’ of the text as well as to set its general purpose, a comparison of the four instruments’ preamble gives a first sense of what they are. The only reference made in the UDHR preamble is to the UN Charter. On the contrary, the preambles of the three Islamic instruments are strongly religiously referenced. The tone of the Cairo Declaration is given in the first sentence where the importance of the ‘ummah, the best community’ is reiterated several times. Mention is made to the fact that human rights are essential to the attainment of a life of dignity, which ultimately has to conform to the shari’a. The preamble of the Universal Islamic Declaration is very unmistakable, firstly by its length. During several pages, the text affirms the superiority of the religious nature of human rights, their sacred justifica-

 Universal Islamic Declaration of Human Rights from the Islamic Council, September , ,  E.H.R.R., , .  Cairo Declaration on Human Rights in Islam, issued by the Organization of the Islamic Conference, Cairo,  Aug. , A//–S/, .  Analysis based on: M. Borrmans, ‘Convergences et divergences entre la Déclaration Universelle des Droits de l’Homme de  et le récentes Déclarations des Droits de l’Homme dans l’Islam’ ()  Conscience et Liberté, at p. .  At the time of the adoption of the UDHR, the United States made a similar claim to the inclusion of a reference to religion in the preamble. This proposition was rejected in order to keep intact the neutrality of the UDHR.

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tion and clarifies the implications of the Islamic order. The preamble of the Arab Charter is more neutral and is interesting in that it refers equally to international instruments and Islamic instruments of human rights. It says: ‘Reaffirming the principles of the Charter of the United Nations and the Universal Declaration of Human rights, as well as the provisions of the United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and the Cairo Declaration on Human Rights in Islam’. The main problem with regard to these preambles is that instead of clarifying the nature and purpose of the instruments, they remain very unclear. As Borrmans writes, the tone given by the preambles to the three declarations makes one wonder to whom they are applicable: the rights of all human beings, wherever they are in the world, and according to the Muslim view, or the human rights of those called to live in Islamic societies or more restrictively, the human rights of Muslims living in Muslim countries? General Similarities in the Recognition of Rights There is a striking parallelism between the drafting of the three Islamic declarations and the UDHR. The general structure of the latter was taken up in the Islamic instruments as a way of emphasising at the same time, the possible parallelism between them. The first category of rights that can be identified in the four different instruments is ‘procedural rights’. The basic principle of equality before law is embodied in article  of the UDHR; it is also present in article  of the Universal Islamic Declaration,  of the Cairo Declaration and  of the Arab Charter. Articles  and  of the UDHR that refer to the impartiality of the tribunal have an Islamic equivalent at articles  of the Universal Islamic Declaration,  e) of the Cairo Declaration and  of the Arab Charter. Finally the principle of the presumption of innocence can be found in article  of the UDHR but also in article  of the Universal Islamic Declaration,  e) of the Cairo Declaration and  of the Arab Charter.

 Last sentence of the preamble of the Arab Charter.  In French in the text: ‘ces trois déclarations définissent-elles les droits de tous les Hommes, où qu’ils se trouvent de part le monde, selon la «vision musulmane», ou seulement les droits de tous les Hommes qui sont appelés à vivre dans les seules sociétés islamiques, ou bien encore, les droits des seuls musulmans dans les sociétés islamiques, plus particulièrement?’



Audrey Guichon

The same equivalence can be found for ‘economic rights’. The right to private property recognised by article  of the UDHR is largely referred to in articles  and  of the Universal Islamic Declaration and the Cairo Declaration and article  of the Arab Charter. The right to an adequate standard of living of article  of the UDHR is present in article  of the Universal Islamic Declaration and  of the Cairo Declaration but not in the Arab Charter. The protection of private life provided for in article  of the UDHR by prohibiting ‘arbitrary interference’, also exists in articles  and  of the Universal Islamic Declaration,  and  of the Cairo Declaration and ,  and  of the Arab Charter. There is also a precise development on the protection of the right to freedom of movement in article  and  of the Universal Islamic Declaration,  of the Cairo Declaration and , ,  of the Arab Charter that correspond to article  of the UDHR. In the same way the right to seek asylum of article  of the UDHR is also recognised in the Islamic instruments, as it is part of the Islamic tradition. It is in articles  and  of the Universal Islamic Declaration,  of the Cairo Declaration and  of the Arab Charter. There are numerous striking similarities in structure in the different instruments. While the formulation differs, the wish to give exact Islamic ascendants to the provisions of the UDHR was certainly aimed at preventing general criticisms on the absence of recognition of substantial rights within what was identified as a distinct ‘cultural system’. If at first sight Islamic instruments appear justifiable regarding the wish to reaffirm cultural specificities, an analysis of specific provisions will illustrate that the protection provided actually lacks in substance. b. How an Apparent Recognition of Rights Can Hide a Concrete Lack of Protection General Non-Discriminatory Provision Facilitating Specifically Grounded Discrimination Article  of the UDHR is the essence of human rights: it states that human rights apply universally to all individuals indifferently of their personal status. The UDHR was first to recognise this principle, later repeated in

 ‘Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

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different UN Declaration dealing with the protection of children or the elimination of gender and racial discrimination. Like for other rights above-mentioned, this article has an equivalent in article  of the Universal Islamic Declaration,  of the Cairo Declaration and  of the Arab Charter. All instruments affirm the equality of human beings and the prohibition of discrimination. The reading of these articles has nonetheless to be done in balance with other Islamic principles, which will often result in emptying the content of the article in the protection it offers to the individual. Gender-based discrimination is one major matter of concerns when addressing whether Islamic human rights really can offer protection to all individuals. The three Islamic instruments provide for articles dedicated at ensuring equality between women and men in different spheres of life. On divorce, article  c) of the Universal Islamic Declaration stipulates that ‘[e]very married women is entitled to: [. . .] seek and obtain dissolution of marriage (khul’a) in accordance with the terms of the Law’. While this provision appears to consecrate gender equality with regard to divorce, the reference made to ‘the Law’ requires closer examination. According to explanatory note  b) of the declaration, “the term ‘Law’ denotes the Shari’a, i.e. the totality of ordinances derived from the Qur’an and the Sunnah and any other laws” as described earlier in this chapter. As a consequence, article  of the Universal Islamic Declaration does not provide with an inalienable equal right to women and men, the exercise for the right is conditioned by the terms of the shari’a. The words of the shari’a will ultimately be the only provisions relevant to determining whether the regime of divorce is gender respective. The Islamic society is organised around three categories of people: the highest is constituted by Muslim men, followed by Muslim women and finally, by the non-Muslim or dhimmis. Under the notion of qawama, recurrent in different shari’a laws, men have guardianship and authority over women. Qawama establishes the

 Convention on the Rights of the Child, G.A. Res. /, annex,  U.N. GAOR Supp. (No. ) at , U.N. Doc. A// (), entered into force Sept. , .  International Convention on the Elimination of all forms of Racial Discrimination,  U.N.T.S. , entered into force Jan. , .  International Convention on the Elimination of all forms of Racial Discrimination,  U.N.T.S. , entered into force Jan. , .  See A.A. An-Na’im, ‘Islam and Women’s Rights: a Case Study’, http://www.wluml. org/english/pubs/rtf/dossiers/dossier–/D–––case-study.rtf ( October ). Qawama has its origin in verse : of the Qur’an.

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Audrey Guichon

basis of the rules governing the relationship between men and women in marriage and consequently, in divorce. Traditionally, men alone are legally capable of dissolving the marriage (talaq) without needing to resort to the judicial system. The husband can dissolve the marriage for no reason only if he decides to. On the other hand the wife can only dissolve the marriage if she proves its irretrievable breakdown. The apparent equality granted by the Universal Islamic Declaration is rendered inexistent by the restrictions imposed by the terms of the shari’a. Cultural practices worsen the reality of divorce for women as seeking divorce for a woman is seen as an act of public defiance that calls for punitive action to restore male honour. This example is intended to illustrate the fact that while specific provisions might seem to offer an adequate level of protection, a closer examination does uncover unacceptable loopholes. On succession, article  d) of the Universal Islamic Declaration states that ‘[e]very married women is entitled to: [. . .] inherit from her husband, her parents, her children and other relatives according to the Law’. This article encompasses two kinds of discrimination. First, here also, equality is conditioned by the term of the shari’a; secondly, there is no reference to any possibility for the woman to be responsible for her financial means and being able to transmit it in case of her death. The point is often made that indeed, the law of inheritance is more favourable to Islamic women today than it was in the pre-Islamic Arabia; yet substantive discrimination remain. The basic rule of inheritance for a married couple is that the widow is entitled to one-half of the amount that the husband would receive if his spouse were to die. Like the other provisions examined, article  d) of the Universal Islamic Declaration is a violation of the principle of nondiscrimination hidden under the cover of a gender protective measure.

 For a general view on the status of women: see, A.A. An-Na’im, ‘The Rights of Women and International Law in the Muslim Context’ ()  Whittier Law Review, p. .  For more details on the law of inheritance, see, M.F. Radford, ‘The Inheritance Rights of Women Under Jewish and Islamic law’ http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/_/_TXT.htm ( September ). She writes further that ‘If the husband left agnatic lineal descendants, the widow’s share is one-eighth of his estate. Her share is one fourth of the estate in the absence of lineal estate. If there is more than one widow, however, the widows must share that amount equally among themselves’ at p. .

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Provisions against religious-based discrimination within the Islamic instruments of human rights also require a closer examination. On freedom of marriage, article  of the Cairo Declaration states: ‘The family is the foundation of society, and the marriage is the basis of its formation. Men and women have the right to marriage, and no restrictions stemming from race, colour or nationality shall prevent them from enjoying this right.’ While common grounds of discrimination like race, colour and nationality are duly included in this provision, no mention is made to religious-based discrimination in marriage. The provision does not appear to include any reference to the situation of non-Muslim who could be governed by this instrument. In practice, the situation is even less equal as shari’a law often commands that women cannot marry non-Muslim men but that men can marry non-Muslim women. The religious logic behind this is that in Islam the child endorses the religion of his or father in order to ensure the transmission of the Islamic faith. In this context, article  ensures the respect of article  – intended to protect the ‘unspoiled nature’ of Islam – but clearly violate the general anti-discriminatory provision of article . If the general principle of non-discrimination is recognised, a look into specific rights highlights important deficiencies. Article  a) of the Cairo Declaration recognises the right to freely express opinions ‘in such manner as would not be contrary to the principles of the Shari’a’. The problem of the limitations of rights established by the shari’a that exists regarding divorce also applies here: the right is recognised only as long as it conforms with the terms of the shari’a. Under the banner of freedom of expression the Cairo Declaration provides one more subject of concern regarding human rights: a freedom that seems to be recognised at first sight hides a discriminatory measure against non-Muslims. The wording of the article encourages punishment of ‘non-conform’ positions and gives a ‘legal’ justification to religious authorities to censor what they identify as a danger to the Islamic faith. As a conclusion, it can be said that the protection that seems to be guaranteed by the declarations quickly appears to be conditional and relative. Most rights recognised in the declarations are conditioned by the

 For more on religious freedom, see A.A. An-Na’im, above n. , at pp. –.  H. Bielefeldt, ‘ “Western” versus “Islamic” Human Rights Conceptions?: A Critique of Cultural Essentialism in the Discussion on Human Rights’ ()  Political Theory , at p. .

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Audrey Guichon

terms of the shari’a and consequently offer no unconditional guarantee and often very little effective protection. Yet as illustrated before, Islam offers methods that would allow a reinterpretation of the terms of the shari’a. Incoherencies within the Declarations Articles  d) of the Cairo Declaration and  d) of the Universal Islamic Declaration provide for the prohibition of punishment without law. They respectively state that ‘[t]here shall be no crime or punishment except as provided for in the Shari’a’ and that ‘[n]o act shall be considered a crime unless it is stipulated as such in the clear wording of the Law’. The two declarations also provide for the prohibition of torture or cruel inhuman or degrading treatment or punishment. Article  of the Cairo Declaration prohibits ‘torture, humiliation, cruelty and indignity’ and article  of the Universal Islamic Declaration establishes that ‘no person shall be subject to torture in mind or body, or degraded [. . .]’. A simultaneous study of these two provisions highlights a clear incoherency. If the interdiction of punishment without law and the prohibition of torture and inhumane and degrading treatments are provided for, the law invoked in the first provision is actually the one allowing for gross violation of the second one: in places, shari’a law provide for the possibility of inflicting hudood punishments, which constitutes violations to the prohibition of torture and cruel and inhumane treatments. Accepting this incoherency based on cultural differences would mean defending what Howard calls ‘cultural absolutism’, i.e., giving a greater importance to cultural values than to international human rights. The hierarchy of norms established by articles  and  of the Cairo Declaration is very clear. They read as follows: ‘[a]ll the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari’a’ and ‘[t]he Islamic Shari’a is the only source of reference for the explanation or clarification of any of the article of this Declaration’. It is very clear from these two provisions that the declaration that not intend to grant inalienable and unconditional rights as human rights instruments do. The shari’a remains the ultimate norm; the rights enounced in the text are relative but the shari’a is expected to remain untouched. Under the cover of the respect of religion, reference to the shari’a allows for violations of individual rights present in the Islamic human rights declarations. As Bielefeldt wrote, ‘the



See above, n. .

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Cairo Declaration on human rights actually weakens or denies some basic international human rights by claiming a general priority for the traditional shari’a’. v. conclusions Tensions and disagreements about the origins and the value of human rights result in them not being universally accepted yet. These tensions are complex and may never receive satisfactory and clear-cut answers. However, if conflicts exist between human rights and other values like Islamic values, it is also clear that there are tools available to address them. The fact that human rights are the best protection to human dignity and well-being today, is the necessary proof of the need to pursue the universalist project. Yet, this project will only be realised if some cultural claims are given consideration in order to allow human rights to be legitimised: there is a space for cultural concerns in implementing universal human rights. The regime of reservations to treaties and conventions is one of the tools international human rights law offers to integrate specific claims when ratifying human rights instruments. However like any other such tool, it should be used when truly necessary and not abused, as is too often the case. The same way that human rights have evolved to correspond better to the needs of populations and individuals worldwide, culture can also change, as it is not an untouchable and fixed concept. Worldwide and throughout time, people have made their culture evolve to correspond better to their identity and time. The problematic aspect attached to the relativist arguments based on the Islamic faith is that it only rarely allows for this evolution. Despite the fact that the meaning of the shari’a is often presented as untouchable because it is based on sacred texts, these same texts actually allow for some interpretation and reformation from within. In this context, it is possible to venture in questioning the untouchable nature of the texts, hence touching upon the very obstacle to making culture and human rights compatible within the Islamic world. This internal process should be encouraged and favoured: only if these changes are initiated from the inside will they be accepted. It is by ‘mainstreaming’ human rights and allowing for cultures to be expressed within – and only  H. Bielefeldt, ‘Muslim voices in the Human Rights debate’ ()  Human Rights Quarterly , at p. .

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Audrey Guichon

within – the framework of human rights that their importance and value will be understood better and their influence felt. Where culture needs debating it can: cultural references are not set in stone, they are alive and adjustable. The level of protection offered by Islamic human rights instruments does not match what a community and all its members inclusively can reasonably expect. This chapter has illustrated some of the shortfalls of these systems, which inevitably lead to favouring the more efficient protection measures enshrined in the non-Islamic human rights instruments. Their implementation on Islam will be facilitated by working at inter as well as intra communities’ levels. The debate on the universal application of human rights, especially within Islam is about balancing what can appear as conflicting notions, i.e., supremacy of human rights principles and respect for religious beliefs, cultural identity and traditions. As long as the supremacy of human rights values is kept in mind, it is possible to work on and integrate respect for cultural differences to the debate, to the extent that cultural disagreements are not motivated by pure political interests.

part three

Religions, Values and Constitutionalism within International Human Rights Law

chapter seven

Religion within the Refugee Context: Squaring the Circle? Rebecca M.M. Wallace* i. introduction Religion based refugee claims can be amongst the most complex not least because a consistent approach has not always been adopted by decision-makers. This inconsistency is reflected in the application of the term religion and that of persecution within this context. The complexity of such claims is frequently compounded because of an overlap with one or more of the other enumerated grounds which warrant refugee status. Often religion based claims involve post-departure conversions, that is, sur place claims.

* Professor of Human Rights Law, Robert Gordon University, Aberdeen, United Kingdom. The views expressed are those of the author and do not reflect those of the Immigration Appellate Authority. The research of Mrs Anne Holliday, Research Fellow Robert Gordon University, Aberdeen is acknowledged.  The UNHCR Guidelines on International Protection: Religion-Based Refugee Claims under Article A() of the  Convention and/or the  Protocol Relating to the Status of Refugees, HCR/GIP//, issued th April .  A person who falls within the  Convention and the  Protocol and may be characterised as warranting refugee status is one who; ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality, and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it.’ Article  A () of the  Geneva Convention on the Status of Refugees as amended by Article ., of the  New York Protocol. See also Council Directive //EC of th April  on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive) Article  (b), entered into force 9th October 2006.  See above n. . A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee ‘sur place’. A person becomes a refugee sur place due to circumstances arising in his country of origin during his absence. A person may become a refugee sur place as a result of his own actions, such as associating with Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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Rebecca M.M. Wallace

Religious freedom is a fundamental right recognized in the Universal Declaration of Human rights (hereafter UNDHR) and reiterated in Article  International Covenant on Civil and Political Rights  (hereafter ICCPR). This right includes the freedom to have or to adopt a religion or belief of his/her choice, freedom, either individually or in community with others and in public or private, to manifest his/her religion or belief in worship, observance, practice and teaching. The exercise of Article  rights is subject only to those limitations which are prescribed by law and which are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The absolute nature of Article  is endorsed by Article  ICCPR, which precludes derogations from Article  even in times of public emergency. In the context of refugee law the  Geneva Convention on the Granting of Refugee Status (hereafter  Convention) and the  New York Protocol (hereafter  Protocol) seek to afford protection from religious persecution. Denial of religious freedom (if amounting to persecution) and a fear of persecution if precipitated by the exercise of that freedom can successfully engage the  Convention. The United Nations High Commissioner for Refugees (hereafter UNHCR) Handbook links the international norms of religious freedom with the protection from religious persecution. The UNHCR Handbook makes explicit reference to the UNDHR and the ICCPR, however Convention refugee status will only be granted if the alleged fear of persecution as jurisprudentially recognized is reinforced by a lack of or an insufficiency of protection. Protection, that is, which the authorities in the Appellant’s state of nationality or country of habitual residence are unable refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s county of origin and how they are likely to be viewed by those authorities. (UNHCR Handbook, paras. ,  and ). Obviously religious conversion is one such instance whereby a person may become a refugee sur place.  Article ().  See also the UN Human Rights Committee General Comment No () on Article  Freedom of Thought and Religion (UN Doc. A//, Part , p. ).  Office of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the  Convention and the  Protocol relating to the Status of Refugees, Geneva, , HCR/p//Eng/Rev.. The Handbook although not binding is regarded as highly persuasive.  Ibid., para. .

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or unwilling to afford. No definition of persecution is provided, the  Convention is silent and the UNHCR Handbook recognizes there is no universally accepted definition, and various attempts to formulate such a definition have met with little success. Article  of the  Convention infers, however that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. One definition of persecution finding increasing judicial favour is that advanced by Professor James Hathaway, a “sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community.” ‘Core entitlements’ are then characterized with reference to the UNDHR and defined in relation to a hierarchy of rights. Level one rights include inter alia non-derogable rights derived from the ICCPR with a failure to ensure these rights constituting persecution. Encompassed in these rights are that of freedom of thought, conscience and religion and a failure to guarantee and protect these rights under any circumstances is considered tantamount to persecution. Professor Hathaway’s interpretation endorses the fundamental nature of religious freedom. The travaux préparatoires of the  Convention indicate that religion-based persecution formed an integral and accepted part of the refugee definition throughout the drafting process but there was no attempt to define the term as such. However as employed in the  Convention it embraces freedom of thought, conscience or belief. The UNHCR Handbook acknowledges; . . . persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   []  

See above n. , para. . Ibid., Article  is the prohibition of expulsion or return (non-refoulement). See Gashi and Nikahi I [] INLR ; Horvarth v. SSHD [] INLR  (CA);  WLR  (HL). J. Hathaway, The Law of Refugee Status (Butterworths, Toronto, ), p. . See above n. , para. .

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Rebecca M.M. Wallace

As para.  states ‘mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may however be special circumstances where mere membership can be a sufficient ground.’ ii. religion as a ground for refugee status There are two components to the freedom of religion. One is the right of individuals to hold or not to hold any form of theistic/non-theistic or atheist belief. This is the personal component. Secondly, there is also however the individual’s right to live in accordance with a chosen belief including participation in or abstention from such religious acts as formal worship. Religion as a ground for refugee status embraces both elements: affording protection to those who are at risk because they are known adherents of a particular religion as well as to those who are at risk for living by their convictions. A substantive analysis of the term ‘religion’ is provided by the UNHCR Guidelines on International Protection (hereafter UNHCR Guidelines). These UNHCR Guidelines are intended to provide interpretative legal guidance for those involved in refugee status determination including inter alia governments, legal practitioners, decision-makers and the judiciary. The UNHCR Guidelines issued pursuant to its mandate are designed to compliment the UNHCR Handbook and are informed inter alia by UNHCR, Church World Service roundtable (October ) as well as by an analysis of relevant state practice and international law. The UNHCR Guidelines do not purport to offer a definitive definition of religion but they do identify religion based claims. ‘Religion’ may arise from religion as belief (including non-belief ); religion as identity; and religion as a way of life. The term ‘belief ’ is to be interpreted so as to include theistic, non-theistic and atheistic beliefs. The UNHCR Guidelines identify,

 See above n. , the Guidelines were informed by an expert paper K. Musalo, Center for Refugee Studies, University of California ‘Claims for Protection Based on Religion or Belief; Analysis and Proposed Conclusions’. See also K. Musalo ‘Claims for Protection Based on Religion or Belief ’ ()  Int.J.Ref.L. .  See Yaqub .  See above n. , para. .

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. . . beliefs may take the form of convictions or values about the divine or ultimate reality or the spiritual destiny of humankind. Claimants may also be considered heretics, apostates, schismatic, pagans or superstitious, even by other adherents of their religious tradition and be persecuted for that reason.

Identity on the other hand is less a matter of theological beliefs and refers more to . . . membership of a community that observes or is bound together by common beliefs, rituals, traditions, ethnicity, nationality, or ancestry. A claimant may identify with, or have a sense of belonging to, or be identified by others as belonging to, a particular group or community. In many cases, persecutors are likely to target religious groups that are different from their own because they see that religious identity as part of a threat to their own identity or legitimacy.

Religion, for some individuals is recognized in the UNHCR Guidelines as being a vital aspect of their way of life and how they relate, either completely or partially, to the world. This may involve the wearing of distinctive clothing or observance of particular religious practices, including observing religious holidays or dietary requirements. The UNHCR Guidelines recognize that non-adherents may perceive such practices as trivial contrary to how they are seen by the adherent. Interestingly the UNHCR Guidelines highlight that establishing sincerity of belief, identity and/or a certain way of life may not necessarily be relevant in every case. In other words emphasis is placed on what is imputed to the individual (or a group) by the persecutor. The UNHCR Guidelines also highlight it may not be necessary for the claimant to know or understand anything about the religion if others have identified the claimant as belonging to a particular group and persecution is feared as a result. It is also acknowledged an individual (or group) may be persecuted on the basis of religion, even if they deny their belief, identity and/or way of life constituting a religion. What is being emphasized is that detailed

    below.

Ibid., para. . Ibid., para. . Ibid., para. . See above n. , para. . See UK case law relating to Iranian converts, discussed

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Rebecca M.M. Wallace

knowledge of the claimant’s belief does not necessarily correlate to sincerity of belief nor to the risk of persecution. Birth into a particular religious community, or a close correlation between race and/or ethnicity on the one hand and religion on the other may make it unnecessary to enquire into the adherence of an individual to a particular faith or the sincerity of their claim to be a member of a particular religious community, if, that is, adherence to that religion is attributed to the individual. iii. forms of persecution on the basis of religion The UNHCR Guidelines reinforce the UNHCR Handbook and acknowledge persecution for reasons of religion may take various forms. In addition to various modes of persecution the UNHCR Guidelines recognize that a failure to adopt the dominant religion of a state or to adhere to its practices could amount to persecution in a particular case. In this context the UNHCR Guidelines make reference to Article  of ICCPR which seeks to guarantee the right of minorities including religious minorities to profess and practise their own religion. The UNHCR Guidelines then address the issue of behaviour modification which if adopted would remove the risk of persecution. The UNHCR Guidelines set out that religious belief, identity, or way of life can be seen as so fundamental to human identity that an individual should not be compelled to hide, change or renounce this in order to avoid persecution. As the UNHCR Guidelines state, . . . the Convention would give no protection from persecution for reasons of religion if it was a condition that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes

 Ibid.  Ibid., para. .  See above n. , para. .  See also UNHCR Guidelines on International Protection: ‘Membership of a Particular Social Group’ within the context of Article A() of the  Convention and/or  Protocol Relating to the Status of Refugees, HCR/GIP//, issued th May , para. . and UNHCR Guidelines on International Protection: Internal flight or relocation alternative within the context of Article A() of the  Convention and/or  Protocol Relating to the Status of Refugees, HCR/GIP//, issued rd July , paras.  and .

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of the persecutors. Bearing witness in words and deeds is often bound up with the existence of religious convictions.

This stance is borne out by existing jurisprudence, If returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgement he would be entitled to asylum.

Similarly in Z v. SSHD and Appellant S/ v. MIMIA in which a majority of the Australian High Court held the Refugee Review Tribunal (hereafter RRT) erred in failing to consider whether the homosexual applicants had acted discreetly to avoid harm, and whether the need to be discreet as homosexuals constituted persecution. The Court confirmed the RRT has no jurisdiction or power to require an applicant for protection to take steps to avoid persecution and that such statements requiring or expecting reasonable steps to be taken to avoid persecutory harm are wrong in principle and should not be followed. More recently where it has been stated ‘it is trite immigration law to say that a person’s claim to refugee protection cannot be defeated by telling him not to do the thing that attracts persecution.’ Similarly in a New Zealand case If the right proposed to be exercised by the refugee claimant in the country of origin is that the core of the relevant entitlement and serious harm ids threatened, it would be contrary to the language context, object and purpose of the Refugee Convention to require the refugee claimant to forfeit or forego that right and to be denied refugee status on the basis that he or she could engage in self denial or discretion on return to the country of origin.

      

See above n. , para. . Iftikar Ahmed v. SSHD [] INLR , Simon Brown LJ. [] EWCA Civ. . [] HCA . MN (findings on sexuality) Kenya [] UKIAT , para. . Refugee Appeal No. / [] INLR . Ibid., para. .

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Rebecca M.M. Wallace

However notwithstanding the foregoing, the Tribunal in MN, made it clear that it did not ‘accept that a person is entitled always to behave as he wishes and then complain of persecution if his conduct attracts any kind of approbation.’ This is in line with Article  () which permits restrictions if these limits ‘are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. However these Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.

Thus the UNHCR Guidelines maintain in assessing the legitimacy of the restriction or limitation at issue, it is necessary to analyse carefully how and why it was imposed. Permissible restrictions or limitations are identified as including measures to prevent criminal activity, e.g. ritual killings, or harmful traditional practices and/or limitations on religious practices harmful to the best interests of the child, as judged by international law standards. Another recognized justifiable or even necessary restriction may be criminalizing ‘hate speech’, including that committed in the name of religion. A decision-maker should take a holistic approach in determining whether restrictions or limitations meet the threshold necessary to be characterized as persecution. Not only should account be taken of international human rights standards, including lawful limitations on the exercise of religious freedom, but also the breadth of the restriction and the severity of any punishment for non-compliance. The UNHCR Guidelines also emphasize the need to deal with each case on a case-by-case basis and highlight the importance or centrality of the practice within the religion and/or to the individual as being relevant. For example the restricted practice may be relatively insignificant to the

    

See above n. . See above n. , para. . See above n. , para. . For example female genital mutilation (fgm). See above n. , para. .

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religion but may be particularly important to the individual and thus may bring the individual within the  Convention as warranting international protection. iv. discriminatory measures amounting to persecution A cardinal principle of international human rights law is the prohibition on discrimination. However, although many religion-based claims do involve discrimination not all discriminatory treatment necessarily gives rise to a successful refugee claim. The UNHCR Handbook notes differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. People who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. Thus in analysing an asylum claim a distinction must be made between discrimination which leads to preferential treatment and discrimination which amounts to persecution ‘because, in aggregate or of itself, it seriously restricts the claimant’s enjoyment of fundamental human rights’. The UNHCR Guidelines cite discriminatory measures amounting to persecution as those which have consequences of a substantially prejudicial nature for the person concerned, ‘such as serious restrictions on the right to earn a livelihood, or to access normally available educational institutions and/or health services. This may also be so where economic measures imposed “destroy the economic existence” of a particular religious group.’ The existence of discriminatory laws per se will not normally in itself constitute persecution, although they may be indicative of persecution. Conversely as the UNHCR Guidelines note the existence of legislation purporting to guarantee religious freedom does not of itself mean  Ibid., see also decision of NZ RSAA (Refugee Status Appeals Authority) No. / and No. /. In the former the claimant had experienced discrimination in education and employment but the discrimination was held not to have attained the level of persecution. In the latter the repercussions of a mixed faith marriage would have a long term impact on any children of the union in that they would be illegitimate c/f a similar set of circumstances which led to a different decision Moezzi v. Secretary of State, th October  (Unreported), and a finding that the offending treatment was discrimination rather that persecution.  See above n. , para. .  See above n. , para. .  See above n. , paras.  and .

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Rebecca M.M. Wallace

individuals are protected. What is important is whether the legislation is implemented. As will be seen much of the relevant case law relates to discriminatory restrictions including penalties for apostasy or proselytizing or for celebrating religious festivals particular to the religion concerned. Obviously forced conversion to a religion is a serious breach of an individual’s fundamental human right. Similarly forced compliance with religious practices may also constitute persecution. Pivotal to a religion based refugee claim is the applicant’s credibility and the UNHCR Guidelines afford assistance on how decision-makers may elicit the relevant information. Information, that is, which will either endorse or deny an applicant’s credibility. The UNHCR Guidelines recognize that applicants may vary markedly in the level of religious knowledge. A lack of knowledge, it is suggested, may be explained by particular practices of the relevant religion, e.g. women are often denied access to religious education. On the other hand a greater knowledge will be expected if the applicant is claiming to be a religious leader. Of particular relevance in the context of refugee law are those claims of ‘post departure conversion’, which prompt a sur place claim. Credibility is again of particular significance in such instances as the applicant’s genuineness of conversion will be probed. This emphasis on genuineness is reflected in UK case law, e.g. Amir Ghodratzadeh v. SSHD, where the Tribunal identified that, . . . the only question that we have to ask ourselves is, is the conversion genuine? That, indeed, is not the exact question because we have to bear in mind in this jurisdiction that we are concerned with reasonable likelihood and therefore the question for us is, is it reasonably likely that this conversion has occurred?

 See above n. , para. .  Ibid., para.  For instances of where the ill treatment has been physical see Karablina v. INS  F.ed  (th Cir. ); Ioda v. Canada (M.E. I) []  F.T.R. ; Doudetski v. Secretary of State June  . These cases indicate a confusion as to the demarcation to be drawn between persecution and, e.g. harassment in respect of physical harm conducted or carried out in an environment of habit and prejudice. This lack of clarity is most marked in the decisions emanating from the lower courts.  See above n. , paras. –.  [] UKIAT .  Ibid., para. .

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However, note the Tribunal in J Iran v. SSHD which stated ‘the test as to the bona fide of the conversion is more than that of a reasonable likelihood.’ What the Tribunal emphasized was not only should adjudicators be satisfied ‘completely’ as to the bona fide of the applicant but also of the Church to which the individual claimed adherence. In other words a decision-maker has to be satisfied that adherence is not a transient claim designed purely for the purposes of pursuing an asylum claim. There is Canadian judicial authority reflecting emphasis on the attitude of the authorities to a person’s conversion. In Sadeghi v. Minister of Citizenship and Immigration the question was framed as; . . . not whether the applicant is so deeply committed to Christianity that he would, if he were to return to Iran, practise that religion there at risk of receiving the attention of the authorities. Rather, the central issue to the well-foundedness of the applicant’s fear of persecution on religious grounds is the fact of his conversion to Christianity and the attitude of the Iranian government, the punitive persecutor, should his conversion come to be known to the Iranian authorities.

Similarly in Australia in W/A v. Minister for Immigration and Multicultural Affairs it was noted, ‘An assessment of the degree of commitment to the conversion would not determine the extent of persecution because it would not determine necessarily the way in which someone would be perceived by the various authorities in Iran.’ Likewise in a  US case in which the credibility of an Iranian’s conversion to Christianity was questioned it was held subsequently that whether the appellant . . . believes the tenets of Christianity in his heart of hearts or, as hinted but not found by the Board, is acting opportunistically (although at great risk to himself ) in the hope of staving off deportation would not, we imagine, matter to an Iranian religious judge.

      

[] UKIAT . Ibid., para. . [] FCT . Ibid., para. . [] FCA . Ibid., para. . Bastanipour v. I.N. S.  F.d  (th Cir. ) at .

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Rebecca M.M. Wallace

What is demanded in the UK is that conversion to Christianity should be endorsed and testified to so that ‘no one should be regarded as a committed Christian who is not vouched for as such by a Minister of some church established in this country; . . ., it is church membership, rather than mere belief, which may lead to risk.’ This was prompted by a ‘realisation’ on the part of the Tribunal that allowing the appeal could be treated as an open invitation by other Iranians less sincere than the instant applicant to take instructions for conversion to Christianity and so secure asylum. The Tribunal also maintained that; . . . c) unless the Home Office have accepted the appellant as a committed church member in writing in advance of the hearing, the minister should invariably be called to give oral evidence before the adjudicator . . . d) if any doubt remains, there is no objection to adjudicators themselves testing the religious knowledge of the appellant: judicial notice may be taken of the main beliefs and prayers of the Church.

However any such judicial questioning should be exercised subject to the caution demanded by the UNHCR Guidelines. v. ascertaining the genuineness of religious conversions A particular group which has been the focus of immigration judicial deliberation is that of Christian apostates and the risk that may be encountered if they are returned to Iran. As noted above the genuineness of conversion has come under judicial scrutiny. In contemporary UK immigration jurisprudence the seminal decision is that of FSa Country Guidance case. FS is particularly interesting in that  Dorodian v. SSHD [] TH para. a.  Ibid., para. ; note also Council Directive //EC Qualifications Directive, Article  Reasons for Persecution para.  ‘When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or politic characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution’.  Ibid., para. .  See above n. , para. .  FS and Others (Iran-Christian converts) Iran CG [] UKIAT .  Country Guidance (CG) cases are cases in which the decision is regarded as representative and useful as a guide to country conditions. The requirement re. application of

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it was remitted to the Tribunal by the Court of Appeal on the grounds that the Tribunal’s stance or guidance in relation to relevant issues was inconsistent and reconsideration was required. This is a lengthy case and the Tribunal considered extensive, objective evidence before reaching its conclusions. In its conclusions the Tribunal identifies certain criteria to which cognizance should be given when any assessment is being made as to the real risk of persecution on return. Initially the Tribunal noted there were a number of important distinctions to draw between different Christian groups and activities. The first being between those who are ethnic Christians, i.e. members of ethnic Churches which do not seek converts or even reject them, worship in a language other than Farsi, and other Christians who are members of Protestant or evangelical Churches. The Tribunal acknowledged that on the evidence available members of ethnic minority Churches are not as a rule persecuted. Such persons, are of course not converts from Islam, but may nevertheless suffer from societal discrimination. The Tribunal recognized these ethnic minority groups are less disfavoured as they do not proselytize or conduct their services in Farsi. The Tribunal then turned to those churches which accept converts and it was noted those Churches which accept Muslim Converts and have a ‘missionary or Imperialist past’ at least in the eyes of many Iranian Muslims retain a connection with Western powers. Accordingly members of such Churches are likely to be viewed with greater suspicion, targeted more often and more frequently harassed or ill-treated. They are perhaps the more vulnerable to any false accusations of vague anti-state offences. Also of importance is the locality of the Church, as smaller, more conservative towns will be more of a risk for a convert than a city such as Tehran where a convert would have greater support as well as being able to keep himself to himself more readily. The Tribunal highlighted the existence of ‘obvious gradations

CG cases is that they should be applied except where they do not apply to the particular facts which an Adjudicator faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision again on the basis that proper reasons for that view are given; In NM and Others (Lone women – Ashraf ) Somalia CG [] UKIAT  the Tribunal characterised the system of CG cases as ‘not having the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence . . .’ (para. ).  [] EWCA Civ. .

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Rebecca M.M. Wallace

of potential risk’ and recognized if a convert’s conversion is unknown the principal risk to them is what would happen to them after discovery. Accordingly the Tribunal deemed it realistic to assess the risk ‘on the basis that the fact of conversion is likely to become known sooner or later to the authorities and hence to friends, family or colleagues. It is possible, but by no means certain, that family and friends would keep it quiet.’ In the particular instance before the Tribunal it was found that although the three applicants would attend Church and associate with Christians they would exercise caution. This finding provided the Tribunal with the basis for distinguishing between the ‘ordinary convert’ and the more ‘active convert’. The Tribunal recognized all Christians suffer from significant legal, social and economic discrimination and known converts live in a society where those forms of discrimination are reinforced. However the actual degree of risk of persecution or treatment breaching Article  is not sufficient so as to engage and warrant the protection of either Convention ( Convention and European Convention on Human Rights and Fundamental Freedoms  (hereafter ECHR)). The more active convert, Pastor, church leader, proselytizer or evangelist, the Tribunal recognized as being at real risk. The ordinary individual convert might however move into the risk category because of additional risk factors, e.g. a single woman without the protection of family. The Tribunal emphasized the way in which a genuine convert would practise his/her religion on return would have to be considered and that demanded that each case be decided on a case by case basis against the framework of identified relevant characteristics. A similar distinction between ‘ordinary’ and ‘active’ has also been adopted by the UK Immigration Judiciary in decisions relating to Ahmadis and their potential risk if returned to Pakistan. The terms coined in respect of Ahmadis, however, have been that of ‘exceptional’ and ‘nonexceptional’.

   

See above n. , para. . Ibid. See above n. , para. . Ibid., para. .

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vi. religious persecution and asylum claims from ahmadis There are approximately ten million members of the Ahmadi faith worldwide with some four million living in Pakistan where it is estimated they make up .% of the population. The legislative restrictions imposed on the Ahmadi community have been highlighted and documented in the United States, Department of State (hereafter USDS) International Religious Freedom Report and Human Rights Practices. The former acknowledged Ahmadis suffer from societal harassment and discrimination whilst the latter acknowledges the specific legislative restrictions. Ordinance XX promulgated in  provided for prison terms of up to  years and fines for Ahmadis who call themselves Muslim and using Islamic terminology or for preaching or propagating their faith. Section (c) was inserted into the Penal Code in  whereby the penalties for blaspheming the Prophet Mohammed are death, or life imprisonment and a fine. A further amendment in  made the death penalty the only punishment for blasphemy. Section (a) of the Penal Code was also amended to increase the maximum punishment for outraging the religious feelings of any group from  to  years. Many Ahmadis have been charged and imprisoned under sections (b) and (c) and (c). Ordinance XX precipitated the United Nations Sub Commission on Prevention of Discrimination and Protection of Minorities to adopt a resolution expressing ‘grave concern’ at the promulgation of Ordinance XX in that it prima facie, . . . violates the right to liberty and security of the persons, the right to freedom from arbitrary arrest or detention, the right to freedom of thought, expression, conscience and religion, the right of religious minorities to profess and practise their own religion, and the right to an effective legal remedy; and . . . that persons charged with and arrested for violations of Ordinance XX have been reportedly subjected to various punishments and confiscation of personal property, and that the affected groups as a whole have been subjected to discrimination in

 Apparently many Ahmadis declare themselves to be Muslims because they do not want to draw attention to their Ahmadi faith.  Annual Report ,  December .  USDS Report Country Reports on Human Rights Practices , released th February .  Resolution /.

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Rebecca M.M. Wallace employment and education and to the defacement of their religious property; . . .

The Sub Commission’s concern was such that it requested the Commission on Human Rights . . . to call on the Government of Pakistan to repeal Ordinance XX and to restore the human rights and fundamental freedoms of all persons in its jurisdiction; The application of Ordinance XX is ad hoc and depends on factors such as the inclination of the police and the geographical area in which a person lives. Members of religious minorities are subject to violence and harassment, and police at times refuse to prevent such actions or to charge persons who commit them.

What is significant from the relevant immigration case law is that a restriction on religious practice such as that imposed on Ahmadis is not regarded per se as persecutory. In order to attain protection the claimant requires to show additional factors warranting such protection. In the United Kingdom there have been a number of cases relating to the Ahmadis and the alleged risk they might encounter upon their return to Pakistan. A contemporary decision which reflects the distinction made in FS is that of KK Pakistan. There the Tribunal distinguished between a person who is a member of the Ahmadi faith but who is otherwise unexceptional and those members who may be characterized as ‘exceptional’. An ‘unexceptional’ Ahmadi was defined as one who; . . . (i) has no record of active preaching and is not a person in respect of whom any finding has been made that there is a real risk that he will preach on return; (ii) has no particular profile in the Ahmadi faith;

 Ibid.  See, e.g. Irfan Ahmed v. M.E.I (Ahmed v. Minister of Citizenship and Immigration (M.C.I.)) [] F.C.T.D. No. IMM ;  Fed. Ct. Trial Lexis ); Butt v. Canada (Solicitor General) []  A.C.W.S. (d) , para.  whereby it was held Ordnance XX ‘does not prohibit or condemn the Ahmadis, but only restricts their acts of worship and religious belief.’; also New Zealand decision – Refugee Appeal No. / at para.  c/.f Kassatine v. Canada (M.C.I.) []  A.C.W.S. (d)  in which a Moldovian law prohibiting public proselytism was held to be ‘patently persecutory’ as it required a minority of citizens to breach the principles of their religion, to be lifelong outlaws. para. .  See above n. .  [] UKIAT .

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(iii) has no history of persecution or other ill-treatment in Pakistan related to his Ahmadi faith; and (iv) has no other particular feature to give any potential added risk to him (e.g. by being a convert to the Ahmadi faith).

The particular applicant came from Rabwah where % of the population is Ahmadi. It was recognized that there may be random attacks on Ahmadis who are of no particular profile and merely because they are Ahmadis. The Tribunal recognized that was a possibility however it was ‘no more than a mere possibility . . . this possibility falls well short of being anything that could be described as a real risk or a reasonable likelihood.’ In an earlier case involving a credible witness an applicant was found to be an active Ahmadi holding a prominent position within the Ahmadi community in Pakistan. The Tribunal emphasized the need to assess future risk as crucial. The Tribunal in assessing the reasonable likelihood of future risk took account of the individual’s past conduct, character, status, legal framework in Pakistan and current objective evidence. The applicant’s history of preaching his faith to others, and previously encountered difficulties were deemed relevant. It was also in the applicant’s favour that he had made attempts to relocate within Pakistan and these attempts had proved unsuccessful. Also of significance was the claimant’s absence of any strong familial support network. However in case A Pakistan the Tribunal rejected the notion ‘that simply because an Ahmadi preaches (or proselytizes – we use the word “preach” loosely in the remainder of this Determination to cover both), he is at real risk of serious harm’. The Tribunal then distinguishes between those who preach openly in a public forum from those who preach “discreetly” amongst their own fellowship. The latter opposed to the former would be unlikely to attract adverse attention. The Tribunal continued that whether an individual is at real risk of serious harm must be a question of fact in each case. A number of relevant factors though not an exhaustive list to be taken into account were then identified. The Tribunal maintained much would depend on how the individual in a particular instance went about his preaching activities.

    

Ibid., para. . See above n. , para. . [] UKIAT . Ibid., para. .. See above n. , para. ..

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Rebecca M.M. Wallace

For example, who did he preach to – to members of the Ahmadi faith or to outsiders? Did he engage in his preaching activities openly in public places, or discreetly behind closed doors amongst those least likely to expose him to those who might cause him serious harm? How vocal or insistent was he? What visibility did he have to those outside his faith or to hostile elements? How often did he engage in his preaching activities? How persistent was he in his preaching activities? For example, when faced with someone who showed complete disinterest, did he desist from preaching to that person or did he become more insistent? The Tribunal continued that Adjudicators would be entitled to; . . . expect an individual’s claims about the way he engaged in his preaching activities in Pakistan to be borne out by his accounts of the problems he encountered from hostile elements. The objective evidence shows that elements hostile to the Ahmadi religion in Pakistan do intimidate, harass and persecute those persons of the Ahmadi faith who do not moderate their practice of their religion. If, for example, at one extreme, an individual claims to have been very vocal and persistent in his preaching activities in Pakistan, standing at street corners and calling to strangers, it would be reasonably likely (bearing in mind the objective evidence) that he would have experienced very severe difficulties indeed from hostile elements.

In making an assessment as to credibility the Tribunal held that if an; Ahmadi claims that, if returned to Pakistan, he would practise his religion in such a way as to expose himself to a real risk of serious harm, and points to his past experiences in Pakistan as the basis for asserting that the practice of his religion would place him at real risk of serious harm in the future, then a credible account of past experiences which amount to serious harm would show that that individual’s way of practising his religion (whether or not this includes preaching) would expose the individual to a real risk of serious harm. Conversely, if it was not reasonably likely that the individual experienced serious harm in the past, then it is not reasonably likely that his practice of

 

Ibid. See above n. , para. ..

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his religion (whether or not this includes preaching) would expose him to serious harm in the future’.

vii. evidence of special risk of persecution The need for a successful applicant to be seen at special risk is further highlighted in the Country Guidance case on MG Sudan. The Tribunal in that case confirmed ‘that being a Christian in Sudan does not without more, give rise to a real risk of persecution.’ The Tribunal acknowledged the evidence is such to confirm that some Christians are more vulnerable than others but maintained each case would; . . . need a careful examination on its own particular facts including an assessment of whether there is in reality a connection between the illtreatment complained of and a Convention reason. The motivation for the acts of persecution will need to be carefully considered.

The right to practise religion and a legitimate interference with that right came before the House of Lords in Ullah & Do. The question confronting the Court was; Whether any article of the ECHR other than article  could be engaged in relation to a removal of an individual from the United Kingdom where the anticipated treatment in the receiving state will be in breach of the requirements of the Refugee Convention, that such treatment does not meet the minimum requirements of article  of the Refugee Convention.

The particular ECHR Article in question was Article  which provides . . . everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in the community with others and in public

 Ibid., para. ..  CG [] UKAIT .  Ibid., para. .  Ibid.  R.v. Special Adjudicator (Respondent) ex. parte Ullah (FC) (Appellant) Appellant, Do (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) [] UKHL ,  June .  Ibid., Lord Bingham para. .



Rebecca M.M. Wallace or private, to manifest his religion or belief, in worship, teaching, practice and observance.

The appeal to the House of Lords arose in the context of failed asylum claims. Mr. Ullah was an active member of the Ahmadi faith and although this was accepted it was maintained he could still practise his religion. Thus the Secretary of State in ordering Mr. Ullah’s removal was acting pursuant to the legitimate aim of immigration control within the terms of ECHR Article  (). Similarly Miss Do, a practising Catholic in Vietnam, could be returned and could still practise her religion under ‘reduced circumstances’. The Court of Appeal when addressing the issue had in the words of Lord Steyn ‘ruled out as a matter of law the possibility that any article other than article  could ever be engaged.’ However Lord Steyn maintained Strasbourg jurisprudence endorsed that articles other than Article  could be engaged in the context of immigration decisions. But for this to be the case there would have to be ‘at least a real risk of a flagrant violation of the very essence of the right before other articles could become engaged. This was accepted at least in respect of Articles , , , , and  but the following caveat was expressed regarding the potential engagement of Article , namely it was; . . . hard to think that a person could successfully resist expulsion in reliance on article  without being entitled to asylum on the ground of a well- founded fear of being persecuted for reasons of religion or personal opinion or to resist expulsion in reliance on article .

 Article () ECHR.  See above n. , para. .  Ibid., para. .  Lord Bingham above n. , para. , Lord Steyn ibid., para.  and Baroness Hale ibid., para. . The reason an engagement of Article  was at least acknowledged as a possibility and not ruled out was because the Strasbourg Court had to date not denied out of hand such an eventuality. Only one “foreign” type case was put to the court in respect of Article  viz – Razgahi v. Sweden (Application No. /,  March ). The term “domestic” and “foreign” cases was employed by Lord Bingham who emphasised the importance of the distinction as important from the perspective of the alleged breach of the ECHR. In foreign cases it is not the host state, which will violate the individual’s human rights within its own territory but rather the removal of that person from that territory to another territory, which will result in the person’s ECHR rights being breached in the destination state. Domestic cases are those where the human rights violation is committed by a state within its own territory. This description however is not perfect in that “even a foreign case assumes an exercise of power by the state affecting a person physically

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‘A flagrant breach or violation’ was characterised as one which involved the complete denial of the right in question. In both instances the restrictions placed on both Mr. Ullah and Miss Do fell short of any such denial of their Article  rights. The Lord’s decision represents at least prima facie a less restrictive interpretation of the ECHR than that of the Court of Appeal. It leaves the door if not open, at least ajar, to the possibility of the engagement of an Article other than Article . However that would only occur in the cases of breaches which are deemed exceptional, extreme or ‘flagrant’. Nevertheless Ullah does underscore the probability of a successful claim on such grounds as being very slim. On that basis any alleged interference with the right to practise religion will require to be successfully argued either within the context of the  Convention or Article  of the ECHR. The UNHCR Guidelines highlight that particular attention should be paid to the impact of gender on religion-based refugee claims. Legal, social or religious mores may determine a woman’s status in society and a failure to comply with such mores may result in punishment, which may warrant characterisation as persecution. Many claims concerning women are considered on the basis of particular social group. Although this concept has been employed so as to make the  Convention definition more inclusive it should not be used so as to exclude analysis of a claim under any of the other  Convention grounds. Women may experience persecutory treatment which is gender specific but may be perpetrated under the cloak of religion, e.g. female genital mutilation.

present within its territory” at paras.  and . Ullah and Do were foreign cases as their Article  rights were not being infringed within the UK. See further R.M.M. Wallace: ‘Not Only Article ? The possible engagement of Articles other than Article  of the European Convention on Human Rights and Fundamental Freedoms within the Immigration Process’,  Scottish Human Rights Journal, Issue .  See above n.  ‘. . . it cannot be said that persons seeking asylum in a member state of the Council of Europe are unable to invoke any of the provisions of the Convention when resisting an expulsion decision.’, Lord Carsewell at para. .  See above n. , para. .  For more extensive treatment see, e.g. UNHCR, ‘Guidelines on International Protection: Gender-Related Persecution within the context of Article A() of the  Convention and/or its  Protocol relating to the Status of Refugees’, HCR/GIP//,  May , especially paras. –.  See ‘Integration of the Human Rights of Women and the Gender Perspective Violence against Women’, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, submitted in accordance with

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Rebecca M.M. Wallace viii. persecution by non-state actors and the position of conscientious objectors

Persecution may of course not be perpetrated by the state but rather by non state actors and the UNHCR specifically recognizes that religious intolerance amounting to persecution may be such a case in point. However for the Convention to be engaged there needs to be an absence of state protection against such actors either through an unwillingness or an inability to afford that protection. Demonstrating a lack of state protection is not without its problems and again there is marked absence of judicial consistency with differences of approaches evident. What is necessary is that persecution extends to that of non state actors in circumstances where state protection is not forthcoming, either because of an unwillingness or inability to provide effective protection. Furthermore in cases where state agents are involved in the perpetration of the persecution there is a presumption in favour of a failure of state protection, which is rebutted only if there is strong evidence of adequate and effective state protection. Religion is also often one of the elements in a claim involving conscientious objection, a fact acknowledged in the UNHCR Handbook. How-

Commission on Human Rights resolution /, Cultural practices in the family that are violent towards women, E/CN. //,  January , available at: http://www.unhchr. ch/huridocda/huridoca.nsf//EFAECBAEC/$File/G. doc?OpenElement;  This was recognized by the UNHCR Handbook above n. , para. ; Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned.  Ibid., The specific instance given is that of a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours.  For the purposes of this article the issue of non state actors and the possible absence of protection is only identified. In the UK the leading case is that of Horvath v Secretary of State for the Home Department [] INLR , HL. There the litmus test was held to be that of a practical test rather than one which would eliminate all risk. It was also held that the unwillingness to invoke state protection had to be for a fear that invoking such protection would lead to reprisals from the perpetrators of the persecution. For a discussion of the criticism levied at the decision in Horvarth and its implication for claimants fearing persecution from non state actors see I. Macdonald and F. Webber Macdonald’s Immigration Law & Practice (Butterworths, London, ) at ..–..  This approach can be witnessed in the New Zealand decision Refugee Appeal No. / () p. .  See above n. , para. .

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ever refusal to perform military service does not in itself make a person a refugee. In order to be characterized as such an applicant must show his religious convictions are genuine and that such convictions had not been taken into account by the authorities of his country in requiring him to perform military service. Furthermore such a claim must be supported by additional indications that the claimant or his family may have encountered difficulties due to their religious convictions. Also assessment of the genuineness of conscientious objection prompted by religious conviction requires to be established by a thorough investigation of the applicant’s personality and background. Claims of conscientious objection raise the distinction between prosecution and persecution however in cases based on conscientious objection a law which purports to be of general application may be persecutory if for example it impacts differently on particular groups, where it is applied or enforced in a discriminatory manner, where the punishment itself is excessive or disproportionately severe, or where the military service cannot be reasonably be expected to be performed by the individual because of his or her genuine beliefs or religious convictions. The position in the United Kingdom regarding conscientious objection is set out in Sepet Bulbul in which the Court examined the findings of the Human Rights (hereafter HR) Committee in LTK v. Finland and its observations contained in General Comment . In  the HR Committee found that ‘the Covenant does not provide for the right to conscientious objection’. However para.  of General Comment  recognizes Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article . In response to such claims, a growing number of states have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with

 Ibid.  Ibid.  See above n. , para. .  As a norm prosecution and punishment pursuant to a law of general application is not generally considered to constitute persecution see UNHCR Guidelines p. . See also UNHCR Handbook see above n. , pp. –.  [] UKHL .  ()  ILR .

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Rebecca M.M. Wallace alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the committee believes that such a right can be derived from article , inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.

Lord Hoffman then made two observations; First, the fact that (a) people claim a right to conscientious objection under article  and (b) a growing number of states concede a right to conscientious objection, does not by any means demonstrate that they recognize that such a right exists under article . It may show no more than that their military requirements make it sensible to tolerate some form of conscientious objection. Secondly, the statement that an obligation to use lethal force may “seriously conflict with freedom of conscience etc” does not even attempt to explain why such an obligation should be distinguished from other legal obligations which may similarly conflict.

Following then a consideration of the position in Europe, Lord Hoffman, concluded the case had not been made for the existence of; . . . a core human right to refuse military service on conscientious grounds which entails that punishment of persons who hold such views is necessarily discriminatory treatment. The existence of such a right is not supported by either a moral imperative or international practice.

Thus punishment for draft evasion based on such an objection does not amount per se to persecution. On the basis of the foregoing the position is that an applicant must always establish that his objections are the consequence of profound convictions arising from inter alia religious, ethical, moral or similar motives.

 

See above n. , para. . Ibid., para. .

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ix. conclusions What emerges from the foregoing is that refugee claims based on religion are complex. Frequently they intertwine and overlap with political and ethnic claims and this may be further compounded by issues as to whether a certain practice is a religion. As the case law shows there is a recognition that freedom of religion, expression and conscience is a basic core right which is recognized in international law and which informs the  Convention. What is also evident is a person will not be required to modify his/her behaviour so as to avoid persecution, but what is also equally true is that restrictions on the exercise and practice of a religion does not in itself engage the protection of the  Convention. In the context of refugee law there has to be ‘something else’ and hence the increased use of terms such as ‘exceptional’ and ‘non-exceptional’. Also judicial interpretation of persecution in such cases has varied and as noted above this is particularly true in respect of decisions from lower courts. Of course as with all claims under the  Convention it is necessary to establish a nexus between the treatment complained of and one of/or a combination of the enumerated  Convention grounds. Thus the question of internal relocation, sufficiency of protection and the perception of alleged would be persecutors are all factors which have to be given consideration in assessing any individual claim. Returning to the UNHCR Guidelines, they alert those within the refugee determination process to a number of general points of particular relevance. These include recognition not only of the complexity of religious claims but also acknowledgement that religious practices, traditions or beliefs may vary within the religion itself and from one country to another. The UNHCR Guidelines underline the need for ‘reliable, accurate, up-todate, and country- or region-specific as well as branch- or sect-specific information.’ The UNHCR Guidelines also favour obtaining assistance from independent experts with ‘particularised’ knowledge of the religion in question. Accordingly the UNHCR Guidelines emphasize the need for objectivity and sensitivity to cultural and gender aspects particularly when selecting interviewers and interpreters.

  

See above n. , para.  (a). Ibid., para.  (b). See above n. , para.  (c), (d) and (e).

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Rebecca M.M. Wallace

The right to freedom of religion and belief and the recognition that individuals should be protected from religious based persecution is openly acknowledged. However the approach used to respect and protect that right in contemporary refugee jurisprudence has evolved on an ad hoc basis without full cognizance being given to the relevant issues. Only when this is done may the circle be squared.

chapter eight

The Advent of Proportional Human Rights and the Dignity Inherent in Individuals qua Human Beings Ben Chigara* Modern man presently has a rendezvous with chaos not merely because of his intransigence, but mainly because of his stupidity. Martin Luther King, Jr.

i. introduction The institutionalization of international human rights after the Second World War has transformed perceptions about life: how we think, act and even die. Victims of murder die with the hope that the State will investigate, prosecute and punish those that breached their right to life. Development of disability rights especially at work and in Education has altered the way architects design and construct public buildings. The list of anti-discrimination rights is increasing and not diminishing. New legislation prohibiting age discrimination in employment and vocational training comes into effect in the United Kingdom on  October . Previous legislation prohibiting discrimination includes the Equal Pay Act ; Sex Discrimination Act ; Race Relations Act ; Disability Discrimination Act ; Employment Equality (Sexual Orientation) Regulations ; The Human Rights Act . * Professor of International Law; Director, Centre for International & Public Law; Brunel University, West London. I am grateful to Constance Chigara; Barnabas Chigara and Ben Chigara Jr. for their encouragement and assistance.  Martin Luther King, Jr. Strength to Love (Fortress Press, Philadelphia, ) at p. .  For a succinct discussion of arguments for and against discriminatory practice, see A.C.L. Davies, Perspectives on Labour Law (CUP, Cambridge, ), pp. –. For a brief summary of the combined social impact of UK anti-discrimination legislation see the Independent ‘Forty Years on, how the Race Laws have fared’,  December  http://news. independent.co.uk/uk/this_britain/article.ece (visited //). Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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Ben Chigara

Nonetheless, the challenges that States face today appear to be radically different from those that inspired the vision and imagination that sponsored the Universal Declaration of Human Rights, the  International Conventions on Civil and Political Rights, and Economic, Social and Cultural Rights; Regional Human Rights treaties; and some of the recent national constitutions which cumulatively evidence the international human rights regime. Whereas the UN framework was built around the idea that States represented the biggest threat to international peace and security, non-State political actors have emerged that are equally capable of frustrating national and international peace and security. It has been argued that these non-State political actors represent an unconventional threat, not previously factored into the UN’s blueprint for international peace and security. According to British Prime Minister Tony Blair, these non-State political actors’ challenge is novel. ‘It is to the world’s security, what globalisation is to the world’s economy’. In this sense, / and / have poisoned the policy-making climate for national security. The first casualty of this development appears to be the rule of law. ii. the advent of ‘proportional human rights’ The critical question is whether the challenge posed by non-State political actors like Al Qaeda should result in an assault on the rule of law that democratic States are premised on. Especially after the Second World War, human rights appear to have been the convergence factor for democratic States. Human rights institutions with power to revise national policies

 Universal Declaration of Human Rights,  December , UN Doc. A/.  International Covenant on Civil and Political Rights,  December , New York, Annex to UN Gen. Ass. Res.  (XXI) GAOR, st Sess. Supp. , p. ; UKTS  () Cmnd. .  International Covenant on Economic Social and Cultural Rights,  December , New York, Annex to UN Gen. Ass. Res.  (XXX) GAOR, st Sess. Supp. , p. ; UKTS  () Cmnd. .  Convention for the Protection of Human Rights and Fundamental Freedoms,  November , Rome, UKTS  () Cmd. ;  UNTS .  ‘PM warns of continuing global terror threat’ http://www.number-.gov.uk/output/ Page.asp last visited on  October  (visited //).  R. Falk, ‘Revisiting the Great War’ ()  Oregon Review of International Law  at p. .

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of Member States of the Council of Europe declare this fact. The check on executive’s adherence to human rights has become a criterion for the rule of law. In ex parte Bennett [] Lord Griffiths stated: . . . the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

Thus, the question whether / and / warrant abdication from human rights law should be the foremost response of the political communities of the free world to their governments’ reactions to / and / respectively. Moreover, the United Nations (UN) Charter charges the political communities of the world with responsibility to ensure State compliance with the UN mandate perhaps because States are reluctant learners of the futility of wars. The UN Charter opens with the following words: We the peoples of the United Nations determined to: ) save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and ) to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and ) to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and ) to promote social progress and better standards of life in larger freedom

What this suggests is that the political communities of the world have a responsibility to organise and to challenge their States to account for those of their actions that depart from the object and purpose of the UN. The way the war on terror is being prosecuted appears to challenge the object and purpose of the UN as outlined above. That is a trigger for the

  AC , pp. –.  United Nations Charter (UNC)  June , San Francisco, UKTS  () Cmd. ;  UNTS xvi.

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political communities of the world to wake up to their call to serve, reaffirm establish and promote UN principles. The answer to the former question of whether the challenge posed by non-State political actors like Al Qaeda should result in an assault on the rule of law on which democratic States have been established must be a resounding negative for the simple reason that no State has ever gained anything from violating international law. The apposite view is that the rules of international law continue to apply clearly. But it would be foolhardy to assume that / and / did not require a fitting policy and legal response. Similarly, it would be foolhardy to assume that the policies and rules in place at tshe time of these events were incapable of application to arrive at the objective of enhanced national security. The terrorist attacks on New York of / and London on / do not require a reaction. Rather they require a response that is premised on an intellectually valid reflection on the policy and legal imperatives required to deal adequately with the threat of terrorism. Typically, reactions are often instinctive and devoid of sober calculations that are attributable to reason. Their results are generated more by chance and opportunism than by logical process. They are often counterproductive. A good example is the ‘shoot-to-kill in order to protect policy’ adopted by the London Metropolitan Police in the immediate aftermath of /. The death on  July of Jean Charles de Menezes, , shot dead by Police officers at Stockwell Tube station, south London after being mistaken for a suicide bomber and ongoing recriminations serves to confirm this. Therefore, the leap to sacrifice human rights on the altar of ‘national security’ is either a farce that countenances political motives or a misguided adventure because human rights practice is not an obstacle to national security. The two are not diametrically opposed in a binary opposition that requires the privileging of the one over the other. Rather they are two sides of the same coin. Strengthening human rights enhances national security. It does not diminish it. Secure and just societies are created under the rule of law of which respect for the human rights of individuals is an integral part. Insecure and unjust societies are characterised by the absence of the rule of law and little or no respect for human rights of individuals.

 Discussing the failure of US foreign policy contrary to international law on the use of force, see Falk, above n. , pp. –.

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To borrow from Asmal, ‘Law is that to which we turn, these days, for collective self-expression’. This interpretive understanding of the rule of law and the role of human rights in securing the values collectively shared by societies rejects the reactionary idea behind the war on terror that there is a conflict between human rights and national security. That is the myth on which justifications are being made for the erosion of civil liberties and human rights of terrorist suspects. Lord Carlile, the UK Independent Reviewer of Anti-Terror Legislation spoke of moving into the zone of ‘proportional human rights’ for terrorist suspects – perpetuating the error that human rights and national security are contradictory elements. This conceptual retreat from human rights is problematic in that instead of contributing to the discovery of the social and legal antidote to terrorism, it will have the opposite effect of fuelling it because without adequate human rights protection, many individuals and communities will feel vulnerable and insecure – the very opposite of what the advent of proportional human rights regime hoped to achieve. iii. insecure states and terrorism A live bulldog is potentially more dangerous than a dead lion. Just as a dead lion could not protect its cubs from danger, failed States, insecure States, dysfunctional States and weak States could not ensure either the promotion or the protection of the human rights of persons on their territories as required under the plethora of national, regional and multilateral human rights documents that evidence the international human rights regime. Therefore, preventing vulnerable States like present day Zimbabwe from declining into insecure, dysfunctional or failed States is one way by which States could fight terror because not only do vulnerable States fail to recognize, promote, protect or ensure respect for the rights of people on their territories, but often they end up as recruiting grounds and bases for terrorist elements.

 Foreword in D. Dyzenhaus, Judging the Judges, Judging Ourselves (Hart Publishing, Oxford, ).  BBC News  Hard Talk,  December , :.  A direct translation of the Shona proverb; ‘Imbwa mhenyu inokunda shumba ivete’.

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Those championing the war on terror have declared a change in ‘the rules of the game’, by which they mean the automatic reduction of the civil liberties and the judicial safeguards of a person from the moment s/he is merely alleged to have committed acts of a terrorist nature. In practice, this would mean an erosion of the judicial guarantees that previously protected the human dignity inherent in them. This alteration of civil liberties and judicial safeguards could be achieved by one of two ways. One is the promulgation of legislation intended to prohibit the Courts from according such persons the usual procedural safeguards that are intended to ensure the safety of convictions in our courts. In other words, such persons are worthy of only partial justice and not the full or usual measure of justice that one is ordinarily entitled to expect of our courts. The UN had already warned against such a decline in the immediate aftermath of / as it had done previously. Security Council resolution  of  October  called upon States to ensure that ‘. . . any measures taken to combat terrorism comply with all their obligations under international law . . . [States] . . . should adopt such measures in accordance with international law, and in particular international human rights, refugee and humanitarian law’. The other is increasing the powers and rights that the Police and other law enforcement agents bear over persons suspected of involvement in terror crimes. The ‘shoot to kill to protect’ policy as well as the shifting of procedural latitudes in the criminal justice system is a clear example of this approach, which erodes away the human rights of individuals. This is hardly consistent with the UK’s constitutional requirements to reject behaviour that threatens either basic human rights or the rule of law. One question this raises is whether / and / have generated an international licence for the erosion of human rights values are settled in the legal traditions of democratic States. Such a licence would serve as a notice that

 See Prime Minister’s  August  Press Conference http://www.number-.gov. uk/output/Page.asp (visited //).  See for instance application of the Anti-terrorism, Crime and Security Act  in the appeal case of A and Others v. Secretary of State for the Home Department [] EWCA Civ ; []  WLR .  See Security Council Resolutions  ();  ();  ();  ();  (); and  ().  See in this connection the UK Anti-terrorism, Crime and Security Act , Chapter  Part  Schedule  Part  http://www.opsi.gov.uk/acts/acts/.htm (visited //).

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human rights had now been shifted onto the slippery slope of distortion and would require the political communities of the world to insist on the rule of law of their governments. The final result of such a development would be the abandonment of the human rights project altogether and a return to self-help, something that the normative order had been established to prevent. This would signal the ultimate coup d’etat of self-help over normative order. iv. the problem In setting up the human rights regime, States have generated legal and secular expectations. These expectations appear to have led to two significant developments. The first is the arrest of public imagination on the potential uses of international law and its ability to identify broad community values that transcend traditional sovereign interests. The second is that these expectations have produced for an interpretive strategy for dealing with protestations of sovereignty by States. This interpretive strategy seeks first to ascertain and secondly to apply the presumed values of the international community in decisions of national courts. Although the Convention Against Torture  contains no specific reference to immunity, the House of Lords ascertained that extending immunity to torturers would breach the object and purpose of the Act, whose primary function was to deny refuge from prosecution against torturers. Thus, the legal expectations generated by the establishment of the international human rights regime can be seen to have emboldened judges of national courts to fill into the gaps in the evolving international law of accountability for human rights violations.

 P. Sands, ‘Turtles and Torturers: The Transformation of International Law’ ()  New York University Journal of International Law and Politics  at p. .  Ibid.  R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte []  WLR .  Sands writes that ‘You will look in vain for the clearly articulated rule of positive international law which removed Senator Pinochet’s immunity. . . ’. See above n.  at p. .

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The Pinochet Case, which culminated in the encyclopedic judgment of the House of Lords, arose out of the request received by the British authorities on  October  from Judge Baltasar Garzon in Madrid for the detention and extradition to Spain of Senator Augusto Pinochet of Chile. The case, which embarrassed different governments including the Clinton administration as it maneuvered its way through the Courts, was initiated and then managed and determined by judges and legal experts, relying on legal tools and international law as opposed to diplomacy and other political tools of the executive. Politicians on both sides of the Atlantic watched, sometimes in desperation and utter helplessness as the Pinochet saga unraveled. The legal element generated public expectations of immense proportion. The House of Lords, so used to conducting its business in private, suddenly found itself under intense international media spotlight. For its part, the judiciary appears to be responding well to its constitutional duty to maintain the rule of law by overseeing executive action and refusing to countenance behaviour that threatens either basic human rights or the rule of law. In this sense the judiciary has demonstrated a determination to complete the circle on the human rights project by ascertaining and applying in the courts the human rights law that governments of the world have created. The secular expectations engineered by the Human Rights regime are evident in the mass appeal to cases of alleged gross violation of human

 R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte []  WLR .  Discussing the US administration embarrassment see Jason Vest, ‘Human Rights Miracle: Detention of former Chilean Dictator Augusto Pinochet could signal a Latin American Nuremberg’,  October– November  http://www.villagevoice.com/news/ ,vest,,.html (visited //).  See D. Sugarman, ‘Resilience of the Judge Who Risked All to Indict Pinochet’, The Times (London),  February , pp. –.  Discussing how judicial activism of national legal officials has emerged as a potent force for the enforcement of International Law, see Sands, above n. , pp. –.  For a comprehensive and succinct examination and analysis of the legal issues see D. Woodhouse (ed.), The Pinochet Case; A Legal and Constitutional Analysis (Hart Publishing, Oxford, ); D. Sugarman, ‘The Pinochet Case: International Criminal Justice in the Gothic Style?’ ()  Modern Law Review, pp. –.  Ex parte Bennett []  AC , pp. –. See especially A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) [] http://www.parliament.the-stationery-office.co.uk/pa/ld/ldjudgmt/jd/aand-. htm (visited //).

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rights. The trials for gross human rights violations of Pinochet in London, Milosevic at the International Criminal Tribunal for the former Yugoslavia (ICTY), and Jean Kambanda at the International Criminal Tribunal for Rwanda (ICTR), Sadam Hussein, among others share the common phenomenon of courtrooms filled to overflowing with the public, civil society and media personnel, extensive radio and television coverage, and even live television coverage. The appeal to the Constitutional Court of South Africa against South Africa’s truth and reconciliation policy of  by victims of human rights abuses and their families illustrates the fusion of the legal and secular expectations that have been generated by the institutionalization of international human rights law. In this sense, the international human rights regime is a promissory note of States to individuals under their control that the State shall recognize, promote, protect and ensure respect for their dignity qua being humans. It is a promissory note that individuals seek to realise when the State’s acts or omissions have breached their inherent dignity contrary to the promise of the human rights regime.

 R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte []  WLR . Pinochet was charged with intentionally inflicting at specified periods of time severe pain or suffering on another in the performance or purported performance of his official duties; and with conspiring with persons unknown to intentionally inflict severe pain or suffering on others in the performance or purported performance of his official duties; and of detaining and conspiring to detain individuals, and of threatening those detained with death, injury and further detention in order to compel them to act as their captors required.  Prosecutor v. Slobodan Milosevic, Case No. IT-– – T. Milosevic is charged with crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws or customs of war.  Prosecutor v. Jean Kambanda, Case No ICTR-– – I. Kambanda was charged with genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide and crimes against humanity.  The Iraqi Special Tribunal ().  The UN reports that from  to  November, sixteen representatives of several civil society organisations in Rwanda visited the International Criminal Tribunal for Rwanda in Arusha to experience first hand, the workings of the tribunal. UN Press Release, Arusha,  November , ICTR/INFO-––. EN.  See AZAPO Case, CCT /.

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In spite of some successes jurisprudence of national courts, regional courts, ad hoc, special and other UN tribunals, and now the International Criminal Court, evidence the enormous difficulties that relate to the enforcement of the international human rights regime. This is particularly because the positive legal rights in question are determined and bestowed by States in their capacity as lawmakers. The difficulty with human rights is that States proposes them, for enforcement against States by individuals that allege breach of those same rights. But the equality of arms idea inherent in this approach is illusory and misleading because as the AZAPO case shows, at the stroke of a pen, States can amend the legal significance of these rights leaving the victim with no claim at all. The AZAPO case arose out of South Africa’s amnesty law of , which expunges liability for alleged criminal activity associated with political objectives in South Africa during the apartheid era. Article () of the Promotion of National Unity and reconciliation Act  protects retrospectively even persons that had been convicted in South Africa of acts or omissions that are covered under the Act of . Under the Act, ‘. . . any entry or record of the conviction shall be deemed to be expunged  In the Zimbabwe case of S v. Nkomo  () ZLR , . Justice As McNally J.A. stated that in one cannot condemn torture on the one hand, and also make use of the mute confession resulting from torture on the other because the effect is to encourage torture. This decision was confirmed by the House of Lords in para.  of A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) [], supra. n. .  Demonstrating the difficulties relating to enforcement of articles ,  and  of the ECHR in the European Court of Human Rights see particularly, Murray v. The United Kingdom, / [] ECHR  ( October ).  Illustrating the challenges in balancing the requirement to prosecute torture and the duty to ensure a fair trial, see especially Ferdinand Nahimana; Jean-Bosco Barayagwiza; Hassan Ngeze(Appellants) v. The Prosecutor (Respondent) Case No. ICTR-––A.  A joint creation of the government of Sierra Leone and the United Nations, the Special Court for Sierra Leone has jurisdiction over serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since  November . See http://www.sc-sl.org/scsl-statute.html (visited //).  Established by the Rome Statute (), its judges and Prosecutor took office in . As at  June  three States had referred situations on their territories to the Prosecutor. The Prosecutor had begun his investigations into the situations in the DRC; Uganda; and Darfur, Sudan. The Pre-trial chambers of the ICC had begun their first judicial proceedings. See ICC website http://www.icc-cpi.int/home.html&l=en (visited //).  AZAPO Case, CCT /.  See Article () of the Promotion of National Unity and Reconciliation Act  ().

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from all official records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place’. Victims of covered human rights abuses argued that the Act of  breached their constitutional rights. The Constitutional Court of South Africa held that both criminal and civil liability for covered offences was definitively unthinkable post the Act of . This applied even where the wrongdoer was an employee of the State, contrary to the well-established principle of vicarious liability of the employer for the acts of their employee in the course of their duties. Similarly, the State itself had been absolved of civil liability in respect of any act or omission of its employees, even where the relevant act or omission had been effected during the course and within the scope of employment of the wrongdoer. Further, the Act exempted from legal responsibility other bodies, organizations or persons for any of the acts or omissions of a wrongdoer, which would ordinarily have arisen in consequence of their vicarious liability for such acts, or omissions. Such amazing protection of those alleged to have breached the human rights of others and the States backsliding from its promise to uphold the human rights of victims is equaled simultaneously by a disappointing betrayal of the victims. Enabling the State to abrogate from its promise to recognize, promote, protect and ensure respect for the dignity inherent in victims qua human beings is considered critical to the realization of first, the cessation of troubles that would otherwise allow for continuation and often deterioration of human rights protection, and secondly, the rehabilitation of States from dictatorial to democratic governance. This view appears to assert emphatically that enforcement of human rights standards is not mutually supportive of peace building efforts. Pursuit of peace in troubled countries is not itself a zero-sum game that requires a trade off between security

 See Wiltshire Police Authority v. Wyn [] QB .  See AZAPO Case, CCT /, para. .  See C. Bell, Peace Agreements and Human Rights (OUP, Oxford, ), pp. –; and R. Wedgwood, ‘The International Criminal Court: An American View’ ()  European Journal of International Law .  Opposing this view see principally B. Chigara, Amnesty in International Law: The Legality under International Law of National Amnesty Laws (Longman, Harlow, ).

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and human rights. Rather, and as the case of present day Zimbabwe demonstrates, deep and lasting peace in formerly troubled States depends on a strategy that positively acknowledges and restores victims’ rights as reasonably practicable as possible. The human spirit lacks severely the capacity to yield to illegal wrongdoing against the self as a natural consequence of life. Writes Martin Luther King Jr. ‘Man has never risen above the injunction of the lex talionis: Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot. In spite of the fact that the law of revenge solves no social problems, men continue to follow its disastrous leading’. This is a good reason why States should constrain their interventions into individuals’ freedoms with full compliance with their promise under the international human rights framework to uphold and maintain the dignity inherent in persons under their control. States could neither achieve, nor create, or recreate peace unless they complied with their promise to recognize, promote, protect and ensure respect for the dignity inherent in every person. For this reason it appears both ambitious and reckless for States to abrogate their duty to justify victims’ rights when it is clear that their action is in breach of human rights. That is a recipe for breaking Locke’s social contract and Rawls’ idea of justice as fairness because under the human rights pact States have contracted to ensure protection of the inherent dignity in individuals qua human beings. Therefore, whatever their reason, when States interfere with the freedoms of individuals the human rights regime must immediately spring into action to restrict, what the State can do in order to ensure respect for the dignity inherent in individuals qua human beings. The human rights pact between States and individuals imposes no additional burdens on individuals, except that the individual be a human being. The Oxford English Dictionary defines a human being as one ‘. . . belonging to the genus Homo, distinguished from animals by superior mental development, power of articulate speech, and upright posture . . . having or showing the qualities distinctive of humans.’ Therefore, this human rights pact applies against States at all times. States’ promise to human beings is that they will recognize, promote, protect and ensure respect for the dignity inherent in individuals qua human beings.

 K. Roth, ‘Human Rights as a Response to Terrorism’ ()  Oregon Review of International Law  at p. .  Martin Luther King, Jr. above n. , at p. .

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Therefore, it is to the inherent dignity of individual human beings that States have sworn to look to in all their dealings with individuals. Could the individual ever frustrate that contract and thereby excuse a State from its obligations under the international human rights framework? In English law, the doctrine of frustration applies to relieve a party to a contract of his/her contractual obligations. It also authorizes them to sue for damages once the other party has breached a fundamental term of the contract. However, individuals are incapable of frustrating the human rights pact between States and individuals qua human beings because the only term that they must fulfill in order for the human rights pact to apply is that they belong to the genus homo and to have an upright posture that distinguishes them from animals, and to show features that are distinctive of human beings. To frustrate the pact, individuals would need to become another creature altogether which was not human. Criminal conduct of individuals alone could not frustrate this human rights pact between States and individuals. That is why even prisoners retain their human rights qua human beings, loss of freedom for a defined period serving as punishment for established breaches of the law. Therefore, States ought always to uphold agreed standards for the recognition, promotion, protection and ensuring respect for the dignity inherent in individuals qua human beings. Upholding of these minimum standards, even when dealing with terrorist suspects distinguishes the civilized State from the misguided extremist individual. Terrorist suspects are human beings first, and terrorist suspects second. In dealing with them, States should distinguish themselves by recognizing first, that these individuals are merely suspects whose correct status only the due process of law can establish. The shoot to kill to protect policy ignores this point, trusting the bullet to settle that point instead. Secondly, States should distinguish themselves by honouring the social contract that they have entered under the human rights framework to recognize, promote, protect and ensure respect for the dignity imbued in individuals qua human beings. And even if they were convicted as terrorists, nothing would detract from these individuals’ inherent dignity qua individuals. Therefore States have a responsibility under the human rights framework to recognize, promote, protect and ensure respect for that



See Hirji Mulji v. Cheong Yue SS Co [] AC .

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dignity. To borrow from the Dalai Lama, ‘I am however, Tibetan before I am Dalai Lama, and I am human before I am Tibetan’. v. the war on terror and the recognition, promotion, protection and the ensuring of the dignity inherent in human beings While States’ reaction to / and / underlines a commendable determination to prevent similar tragedies from occurring, it is plain to see that the challenges generated by these two events in particular have polluted the policy-making atmosphere and taken us back to the pre-human rights era. The US has deployed a number of measures, including the creation of the Cabinet position of the Office of Homeland Security on  September  to oversee internal security arrangements, and the Patriot Act in October . The Australians set about creating anti-terror laws, which became law on  December . The Anti-Terrorism, Crime and Security Act () was the UK’s response to /. Part  of the Act established a new regime, applicable to non-British citizens, whose presence in the UK the Secretary of State reasonably believed to be a risk to national security and whom the Secretary of State reasonably suspected of being terrorists as defined in the legislation. A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) [] raised the question of whether section  of the Act authorises the Special Immigration Appeals Commission to receive evidence which has or may have been procured by torture inflicted, by officials of a foreign state even without the complicity of the British authorities? Following an exhaustive examination of the applicable English Common Law; principles of Public International Law; jurisprudence on the European Convention on Human Rights and the Convention Against Torture respectively, the Court ruled on  December

 T. Gyatso, Ancient Wisdom, Modern World: Ethics for the New Millennium (Abucus, London, ), at p. .  The Americans deployed a number of measures, including the creation of the Patriot Act in October ; the creation of the Cabinet position of the Office of Homeland Security on  September . The Australians created set about creating anti-terror laws which became law on  December .  A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) [] above n. .

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 that the fruits of torture were evil. To borrow from Lord Brown, ‘Torture is an unqualified evil. It can never be justified. Rather it must always be punished. [This is the proclamation made] . . . by the Convention against Torture and many other international instruments and now too by section  of the Criminal Justice Act ’. Therefore, the fruits of torture have no place in proceedings before any English Court. Lord Bingham stated that the condemnation of torture under English law was ‘. . . more aptly categorised as a constitutional principle than as a rule of evidence. . . . [T]he inadmissibility of a confession not proved to be voluntary is perhaps the most fundamental rule of the English criminal law. . . ’. Consequently, the UK government will have to re-examine the evidence presented to the Special Immigration Appeals Commission against the appellants. It did not matter that the Special Immigration Appeals Commission was not called a Court as such. Citing the report of Mr Alvaro Gil-Robles, Council of Europe Commissioner for Human Rights of  June , Lord Bingham stated that: ‘[T]orture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose – the former can never be admissible in the latter’. a. To Erode the Human Rights Regime OR to Insist on the Rule of Law? Following the / attacks on London, the London Metropolitan Police instituted a shoot to kill to protect policy. Those suspected of terrorist activities risk being shot without notice, charge or due process. If they are fortunate enough to be arrested, being shot dead being the worst scenario, they could be detained for up to  days without charge under the Anti Terror Bill []. In November  the Labour government urged new legislation that would have allowed for detention without charge to be extended up to  days. It urged also for evidence to be adduced against terror suspects even if it had been obtained through torture so long as British authorities had not been involved in the torture or could not reasonably be expected to known about it. This zero-sum approach to the fight against terror will get us nowhere. It is myopic in that it seeks to fight the terror of the terrorist with that

 Ibid., para. . See also Lord Hope, paras. , .  Ibid., paras.  and .  Ibid., para. .

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of the State. The terrorist immediately wins the first battle by converting the State into a user of terror where it previously did not. State terror is comparably far worse than that of an eclectic group of individuals or organisations. While we could call them misguided and even brainwashed, extremist elements, there are no similar descriptors for States that torture except “uncivilized”. What would we call a State that had allowed itself to be lured by the terrorists into using the terrorist’s philosophies, policies and methods? Ironically, it was President Bush that surmised that / had occurred because Al Qaeda hates democracy. “Their leaders are self-appointed. They hate our freedoms – our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.” By taking away the freedoms of terrorist suspects the State reduces itself to the level of the terrorist, the psyche of the terrorist, the tactics of the terrorist and may even assume mantle of a terrorist itself. The State returns the terrorist hate with hate, thereby establishing a culture of hate out of the terrorist’s previous inclination to hate. Perhaps this reaction is reinforced by the State’s belief that it has more resources and greater capacity to demonstrate hate and will therefore wear out the terrorist’s hate. The London Metropolitan Police’s shoot to kill to protect policy is a symptom of the cancer that has begun to tear away at the values of a democratic State at the instigation of the terrorist element. The upshot of this is that the terrorist element can boast of having instituted the culture change that it sought for the free world. Even more, the terrorist would have impacted the democratic pedigree of nations of the free world because civil and political rights are constitutive of democracy and the rule of law. The judiciary’s duty to refuse to countenance behaviour that threatens the rule of law is emphasised in Article () of the ECHR on the requirement of a fair trial. In cases where the claimant pleads torture, Article () applies qua duty to prevent behaviour that threatens the rule of law. And what might that behaviour be? Not torture but the presentation by the State of evidence obtained through torture. Claims of torture would

 In his joint address to Congress and the American People,  September  President Bush described the authors of the / attack on America as ‘a collection of loosely affiliated terrorist organizations’.  Ibid.  Per Lord Griffiths in ex parte Bennett [] AC , pp. –.

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constitute a separate and additional ground of appeal under Article  of the ECHR. According to Lord Hoffman, in Montgomery v. H M Advocate, Coulter v. H M Advocate [] that responsibility is to ensure that events before the trial do not . . . create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article () lies not in the use of torture (which is, separately, a breach of article ) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of article  but no breach of article ().

Therefore, those that are fighting terror may do well to remind themselves of what the ultimate prize is for this war. The repression of a few individuals that the frantic efforts of some leaders seek to achieve will not settle the war on terror. Rather, it is the rejection of the imposition on our territories of the culture that the terrorists would wish for us by our insistence on the value systems that inform our freedoms and way of life. Writes Martin Luther King Jr. ‘Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction’. The war on apartheid in South Africa did not require tough leaders for its ending but intelligent, realistic visionaries. The war on terror will be perpetuated for generations to come so long as misguided extremists and tough-minded national leaders fight it. According to While the war on terror must be fought and won, there is no doubt that respect for human rights should be deployed as its foremost weapon because ‘. . . the law enforcement model has registered much more significant and unambiguous success in weakening Al Qaeda’ than the war against the Taliban in Afghanistan and Saddam Hussein in Iraq. These two wars have been extremely costly in that they have demonstrated most plainly the futility of international law. To borrow from Falk, the US war on terror has resulted in ‘. . . serious collateral damage to the international legal order and to the authority of the UN. This concern is

   

 AC , . Martin Luther King, Jr. above, n. , p. . Falk, above n. , p. . Ibid., p. .

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prospective as well as retrospective’. The foremost principles of the International Legal System were breached. The Court of public opinion’s jury hardly needs convincing about the moral, democratic and strategic bankruptcy of abandoning the rule of national and international law in pursuit of ‘new and unconventional threats’. The erosion of human rights of others is evidence of State terror unless the State has legal justification for doing so. The zero-sum game is doomed to fail because ultimately its strategy seeks forcefully to humiliate the opponent through surrender, defeat or annihilation. In his address President Bush stated: ‘How will we fight and win this war? We will direct every resource at our command . . . to the disruption and to the defeat of the global terror network’. But history is replete with endless examples of defeat and resurgence of old foes as the President describes in his speech. ‘We have seen their kind before. They are the heirs of all the murderous ideologies of the th century . . . they follow in the path of fascism, and Nazism, and totalitarianism. And they will follow that path all the way, to where it ends: in history’s unmarked grave of discarded lies’. The question is this: If these agents of terror are truly the heirs of previously vanquished ideologies, does their reappearance not show the weaknesses in the strategy of humiliation envisaged by military conquests? Human rights efficiently applied to the context of the war on terror will ultimately debrief the terrorist and disabuse him from the ‘reasons’ why he has been acting in the way that he has. It invokes the humanity in him and converts a foe into a friend resulting in a net gain for both parties. Either party loses an enemy, but gains an ally to challenge the next hurdle with. To borrow from one of America’s many great sons, ‘love is the only force capable of transforming an enemy into a friend. We never get rid of an enemy by meeting hate with hate; we get rid of an enemy by getting rid of enmity. . . . Love transforms with redemptive power’. In this instance love implies recognition, promotion, protection and ensuring respect for

 For a lucid examination of custom’s potential to facilitate abandonment of the International Legal System’s foremost rules, see B. Chigara, ‘Short-Circuiting International Law’ ()  Oregon Review of International Law –.  See above n. .  Ibid.  Martin Luther King, Jr. above n. , p. .

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the inherent dignity of those on the territories or in situations under our control. The zero-sum game is also dysfunctional in that it labels as a handicap, the tool that would isolate terror for what it is, i.e. evil that is unacceptable in civilized society. Instead it casts human rights as the terrorist’s refuge. From this misconception is derived the logic of capping or eroding substantially, the human rights of those that are suspected of terrorist activities in order to contain and or, eradicate terrorism. But to defeat terrorism, as we must, and to secure our States from terror, as we must, we ought to insist on the rule of law. In particular, the political communities of democratic States must insist pedantically on the requirement that their governments are guided, governed and restrained in their practice by human rights. This includes requiring them to manifest in their practice that they have deployed full and not proportional human rights as the foremost tool in their fight against terrorism. They must remove categorically and unequivocally the suggestion that human rights are an obstacle to national security. The verdict of the Court of international public opinion on America’s war on terror led Falk to the lamentation that ‘. . . our response to September th has managed to transform an initial global solidarity with the security difficulties facing the US into a growing sense of alienation and resentment against the way in which we have used our power to meet this challenge . . . far more people in the world are worried about the dangers posed by the American use of its power than by threats associated with the Al Qaeda network’. Recent decisions of the House of Lords suggest that the English judiciary and its executive hold different views on whether the terrorist attacks of / and / could and should be presumed to have compelled us to use torture contrary to constitutional provisions and requirements of international human rights law. b. / and / and the potential sanctioning of torture?  Although English common law prohibited torture, the historical record shows that judicial torture was practised in England in the th and early

 See also K. Roth, ‘Human Rights as a Response to Terrorism’ ()  Oregon Review of International Law  at p. .  Falk, above n. , pp. –.  For a conclusive consideration of this question, see A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) [] para. . See above n. .

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th centuries pursuant to torture warrants issued by the Council or the Crown, in exercise of the Royal prerogative. In  the Court of Star Chamber, where torture evidence had been received was abolished. That was the year in which the last torture warrant was issued in England. Following the Act of Union of  the Westminster Parliament abolished judicial torture in Scotland in . Nothing is as incontrovertible in international law as the prohibition on torture. According to Peter Koojimans, the UN Special Rapporteur on Torture ‘If ever a phenomenon was outlawed unreservedly and unequivocally it is torture’. The jurisprudence of the ECHR, the Committee against Torture (CAT) established by Article  of the Torture Convention to monitor State compliance, national courts and UN ad hoc tribunals on the prohibition of torture suggest that offenders are ‘common enemies of mankind’. This makes it unthinkable that anyone would contemplate presenting before English court evidence that they were not sure was free from torture and still claim to recognise, promote, protect and ensure respect of the human rights of persons charged. Lord Cooke stated in Higgs v. Minister of National Security [] that the right not to be subjected to torture, inhuman or degrading treatment is a right that inheres ‘in the concept of civilisation’. The presumption here is that those that torture or condone torture cannot claim the mantle of civilised nation. If George Bush were right that the perpetrators of terror are seeking a culture change for democratic States, by beginning to incline themselves to benefit from the fruits of torture, democratic States are handing victory to the terrorists. Therefore, no matter how pressing the challenges that face States may be, torture is not for them an option. The prohibition on torture is absolute. Chahal v. United Kingdom ruled that:

 Report of the Special Rapporteur on Torture, E/CN. //, para. .  See for instance PE v. France,  December , CAT/C//D//; GK v. Switzerland,  May , CAT/C//D//.  See Demjanjuk v. Petrovsky  F Supp  (), . See also A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) ()A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) para. .   AC .  ()  EHRR , para. . See also A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) ()A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) para. .

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Article  enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos.  and , Article  makes no provision for exceptions and no derogation from it is permissible under Article  even in the event of a public emergency threatening the life of the nation.

This appears to proscribe the possibility that English Courts could turn a blind eye to fruits of torture if they were presented before them. The arguments that the challenges presented by terrorism require us to revisit the human rights issue have no mileage in the light of the above. Further, the CAT requires in Article  that: ‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made’. Moreover, devaluing the fruits of torture by banning them from courts removes the main reason why suspects end up being tortured. Evidence gathered from torture is often unreliable. Therefore, precluding the fruits of torture from legal proceedings enhances significantly the chances of ensuring a fair trial as far as is humanely possible. vi. conclusion This essay subjected the current reaction of States to / and / to the potential effect test. It examined the question of whether a trade off was necessary between human rights and national security when dealing with the unique challenges visited on States especially after / and /. It showed that the promissory note of States to recognize, promote, protect and ensure respect for the dignity inherent in every human being under

 Examining British Prime Minister Tony Blair’s arguments for a revisionist approach to human rights, see Chigara, above n. .  A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) ()A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) para. .

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their control is sliding away from credit into debit because of States’ reaction to / and /. This is because the reactionary language of States to these two evil events labels human rights as an obstacle to efforts to ensure national and international security. Once labelled as such, human rights become the first casualty on States’ ‘to do list’ in the name of national security of its people. Therefore, reduction or even erosion of human rights becomes necessary in spite of the apparent link between human rights and the rule of law. The net effect of this trading off of human rights for national security is a corruption of the promissory note of human rights that States will recognize, promote, protect and ensure respect for the dignity inherent in individuals qua human beings. The paradox in this claim is that it suggests that the insecurity of others (suspects) will enhance the security of the rest (the public). Further, it suggests that there is a competing dichotomy between the rule of law on the one hand and national security. But the internal security of nation States depends on the absolute rule of law; any reductions from it pointing ominously towards collapse of democratic practice. When the rights of the weakest are eroded, the nation becomes more insecure and not more secure. Therefore, there is no basis for trading off human rights for national security. Human rights are a constitutional requirement of democratic States. A trade-off of human rights for national security amounts effectively to granting of a culture change in democratic States. That is the goal of terrorist action. It amounts therefore to losing the battle to the terrorist cause. Tension has already arisen between organs of the State on whether the UK Courts should consume the fruits of torture when processing terrorist suspects. The House of Lords has ruled in favour of the constitution, which insists on the rule of law. The UK must be more secure with that ruling than without it. The prohibition on torture is comprehensively absolute and unshakeable even in the light of / and /. To derogate from that prohibition on account of / and / contradicts reason. First of all it would hand terrorists a cheap victory. They would have converted democratic States from shining shrines of the rule of law to purveyors of terror, just like themselves. Whereas terrorists could be called misguided extremists elements, there is no corresponding label for democratic States of that nature. Democratic States are civilised and distinguished by their inclination towards the rule

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of law. Nothing justifies contemplating such a radical constitutional and cultural change. Secondly, it would add to the reasons why States would want to use torture and thereby promote torture instead of promoting the recognition, promotion, protection and ensuring the respect of the human rights of persons on their territories. However, evidence obtained from torture is often unreliable and therefore averse to a fundamental tenet of the rule of law, namely, fair trial. More importantly, it would erode the constitutional principle of the rule of law in democratic States. Practice is often rejected if its potential effect on those that it is intended to serve appears or proves during early trials to be counter-productive. The emerging practice of breaching constitutional rules of domestic law and of breaching the foremost rules of the International Legal System in the name of ‘the war on terror’ is bad practice that contradicts the rule of law. Such practice should have no place among the strategies applied against the threat of terrorist action on non-State political actors. So it is the case that modern man presently has a rendezvous with chaos, not merely because of his intransigence, but mainly because of his stupidity unless of course, the political community of the free world rises up to its call to ensure that states uphold the rule of national and international law.

chapter nine

The Religiosity of Jus Cogens: A Moral Case for Compliance? Fiona de Londras* i. introduction Jus cogens can be defined as ‘rules of customary international law that are so fundamental that they cannot be modified by treaty’, or law that ‘imports notions of universally applicable norms into the international legal process’. Although this positivist definition of jus cogens appears relatively straightforward Christopher Ford reminds us that ‘jus cogens is among the most ambiguous and theoretically problematic of the doctrines of international law’. This difficulty results in jus cogens being a phrase that tends to elicit looks of horror from international law students (and many practitioners) the world over. It is not that the positivist construct is difficult, but that questions relating to the ‘why’ of jus cogens are exceptionally tricky to answer. Why should these particular rules and rights have a higher status in international law than others? Why should states have to comply with these rules regardless of the surrounding circumstances and their security (and political) exigencies? Why should this category of law exist at all? Questions of this nature arise not because we don’t feel that it is right and proper that certain rules should be capable of being enforced against all states at all times, but because we don’t know why we feel like that. In times of international change, crisis or conflict these theoretical vulnerabilities are particularly open to exploitation. If a state argues that it must carry out torture on suspected terrorists, for example, and forwards the argument that this may well save innocent civilians from a ticking bomb

* Fiona de Londras BCL, LL.M (NUI), PhD Candidate, National University of Ireland (Cork).  M. Dixon, Textbook on International Law (OUP, Oxford, ), at p. .  H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, Manchester, ), p. .  C. Ford, ‘Adjudicating Jus Cogens’ ()  Wisconsin International Law Journal  at p. . Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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it is difficult for us to convince the state not to do so by saying ‘but it’s a violation of jus cogens’. The state will respond with a simple question – why should we comply with jus cogens if such compliance makes us weaker? The only answer the respondent can give is, essentially, ‘just because’. Hardly convincing . . . It is not the case that jus cogens has only become theoretically vulnerable since the events that ‘shook the world’, however this vulnerability has become particularly worrying in recent years. In a state of global uni-polarity the United States of America, joined by its partners in the ‘Coalition of the Willing’, has launched a so-called ‘War on Terror’ in which international norms have all too often appeared to be low on the list of priority. Thomas Franck has remarked on the emerging view of ‘international law as a disposable tool of diplomacy, its systems of rules merely one of many considerations to be taken into account by governments when deciding, transaction by transaction, what strategy is most likely to advance the national interest’ (sometimes described as the ‘rational choice theory’). This observation leads us to two conclusions. First, that if we care about international law we may well have to start rethinking what we conceive of as ‘the national interest’. Second, that if he is right we are experiencing (or at least entering) a ‘Grotian Moment’ – the phrase used by Richard Falk to describe a fundamental change of circumstances that creates the need for a different world structure and a different international law. This new era of international relations appears dominated by national and international security concerns which manifest themselves not only in national laws to enhance police powers, but also in changing international priorities, the use of force and the exercise of power to advance particular ideals with a view to meeting the security needs of the main protagonist nations. These ideals are expressed in the catchphrases of ‘regime change’, ‘spreading democracy’, ‘transformational diplomacy’ etc. . . . and almost uni-

 This phrase is used in two texts describing the events of September th,  and their impact on the world – F.E. Halliday, Two Hours that Shook the World: September , : Causes and Consequences (Saqi Books, London, ) and BBC News Team, The Day That Shook the World (BBC Consumer Publishing, London, ).  T. Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’ ()  American Journal of International Law  at p. .  R.A. Falk, ‘On the Recent Further Decline of International Law’, in A.R. Blackshield (ed.), Legal Change: Essays in Honour of Julius Stone (Butterworth, Sydney, ), p. .

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versally involve (if not require) the restriction of certain rights justified by the reason and rhetoric of ‘war’. Human rights are particularly vulnerable in times like these because of their alleged incompatibility with security requirements. Indeed, this purported rights v. security dichotomy finds a home within human rights law itself in the form of derogations in times of emergencies. The only thing that stands between tyranny and freedom in times of emergency is jus cogens, particularly in nations with a strong tradition of judicial deference during ‘war’ or emergency, or without a truly independent judiciary. Furthermore, recent developments tend to suggest an even-broader role for jus cogens in the affairs of nations. In the case of Prosecutor v. Anto Furundzija the International Criminal Tribunal for the Former Yugoslavia suggested, albeit obiter, that the breach of jus cogens could have direct implications for the legality of domestic policies and actions related to that breach. Erika de Wett surmises that, in effect, this dicta requires that ‘[s]tate parties . . . eliminate as far as possible the consequences of acts performed in reliance of provisions in conflict with the peremptory norm, and should bring their mutual relations into conformity with the peremptory norm’. This dictum may have significant implications for domestic policy. If those implications were to limit a state’s capacity to act as it wished, particularly in the name of security, then it is foreseeable that states might wish to exploit the theoretical vulnerability of jus cogens to evade these implications. For this reason a vulnerable doctrine of jus cogens leaves us – the individual and the collective – unsafe. This paper considers only the rights

 See J. Meierhenrich, ‘Analogies at War’ ()  Journal of Conflict & Security Law .  In fact security and human rights are not necessarily in conflict with one another. For more on the fallacies of the security v. rights dichotomy see D. Luban, ‘Eight Fallacies About Liberty and Security’, in R.A. Wilson, Human Rights in the ‘War on Terror’ (Cambridge University Press, Cambridge, ), at pp. –.  See C. Gearty, ‘Reflections on Civil Liberties in an Age of Counterterrorism’ ()  Osgoode Hall Law Journal , at  – ‘a restriction of civil liberties that takes place within the framework of a human rights document . . . can be presented not as an attack at all, but rather as an action mandated by the state’s commitment to human rights’.  Case No. IT-–/–T, Trial Chamber, Judgment,  December .  E. De Wett, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’ ()  European Journal of International Law  at p. .

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elements of jus cogens, although the argument may be capable of generalisation beyond that. If jus cogens is all that we have, we must find a way to protect and strengthen it. This paper considers one way in which we might do this. I approach this challenge as a series of ideas. The first idea is simply that jus cogens exists and includes within it certain rights. The second claim is twofold. First that religion matters to people, and second that rights matter to people. The third idea is that jus cogens is essentially religious embodying, as it does, the basic protections that represent a consensus between different religions about the basics of human dignity. The fourth idea is that jus cogens is in danger and that, if we care for it and its capacity to ensure the basic circumstances for individual security and flourishing despite the surrounding conditions, we must do something about this threat. The final idea is that recognising the religiosity of jus cogens could be the means by which we find a different way of thinking about the obligation to comply. If we accept the need to relocate the debate around jus cogens in a theoretical framework, many may still need to be convinced of the efficacy of looking towards religion in this respect. The relationship between human rights and religion is traditionally problematic and the move towards secularisation is itself well established. Indeed Michael Ignatieff has stated that “[f ]ifty years after its proclamation the Universal Declaration of Human Rights has become the sacred text of what Elie Wiesel has called a ‘worldwide secular religion’ ”. In our contemporary world, however, religion appears to be playing a more prominent role than at any stage since the founding of the United Nations, making the human rights movement’s engagement with religion particularly troublesome. In the forward to a recent Human Rights Watch report Jean-Paul Mathoz and Joseph Saunders state:

 In this context I distinguish the notion of individual security from national security. While national security is mostly concerned with ensuring the security of borders and preventing acts of criminality, terrorism or war, individual security can be defined as creating and ensuring conditions in which individuals are guaranteed protection for the basic requirements of secure living.  M. Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press, Princeton, ), p. .

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Questions of how the human rights movement should engage with religious communities are particularly difficult because they occur in a highly volatile context marked by the rise of ‘fundamentalism’, religious extremism, the fusion between religion and ethnic identity in many armed conflicts, and the worldwide impact of terrorism in the name of God and responses to it.

The resurgence of religion in local and world politics has been described by Gilles Kepel as ‘God’s revenge’ and poses a significant risk for human rights defenders, particularly in situations where rights are seen to conflict with religious doctrine. However despite the challenges of religious resurgence this situation may also present an opportunity for human rights activists and scholars to participate in a new engagement with religion – one that recognises pluralism and the connections between basic dignity and religious doctrine. In this way it may be possible to engage in a discourse that can at the very least secure the basic minimum security required for individual protection and flourishing. I should stress that this chapter is designed to operate as a question, or series of questions, as opposed to a solution. As a result of the tense relationship between rights and religion many of us, me included, are reluctant to put our faith in a connection between the two. However the words of another discomforted writer considering similar questions, Jeffrie Murphy, are equally applicable to this author. Murphy remarks that it is, for him, ‘very difficult – perhaps impossible – to embrace religious convictions . . . [but] . . . the liberal theory of rights requires a doctrine of human dignity, preciousness and sacredness that cannot be utterly detached from a belief in God or at least from a world view that would be properly called religious in some metaphysically profound sense’.

 J.-P. Mathoz and J. Saunders, Religion and the Human Rights Movement (January ) (Human Rights Watch), p.  (footnote omitted).  G. Kepel, La Revanche de Dieu. Chrétiens, juifs et musulmans à la reconquête du monde (Le Seuil, Paris, ).  J. Murphy, ‘Afterward: Constitutionalism, Moral Skepticism and Religious Belief ’, in A.S. Rosenbaum, Constitutionalism: The Philosophical Dimension (Greenwood Press, New York, ), p. .

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Fiona de Londras ii. jus cogens exists and includes certain rights

The formal definition of jus cogens is provided by Article  of the Vienna Convention on the Law of Treaties: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Notably absent from Article  is some mechanism of identifying which norms can be considered as peremptory. The Convention does provide that whether any norm can be qualified as jus cogens can be decided by the International Court of Justice, which Charlesworth and Chinkin claim ‘counter-balances criticisms of the imprecision of the doctrine and concerns about its destabilising impact upon the principle of pacta sunt servanda’. Despite this mechanism, however, uncertainty continues to exist as to whether particular norms are or are not jus cogens. It is sometimes thought that the notion of human rights generally, and indeed all rights identified as such in international treaties and agreements, can be described as possessing the character of jus cogens. Liberal approaches that classify human rights in general as jus cogens are relatively rare with the dicta of Judge Tanaka in the South West African Cases being the classical statement of that school of thought: If we can introduce in the international field a category of law, namely jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to jus depositivism, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to jus cogens.

Rubin equally concludes that human rights can be included within the ambit of jus cogens and indeed that a ‘consensus soon emerged that

 Charlesworth and Chinkin, above n. , at p. .  South West Africa Cases [] ICJ Rep , at p. .

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“human rights” were not only ‘rights’ in the legal order as distinguished from the moral or other normative orders, but were rights from which no derogation could be permitted: jus cogens’. The main difficulty with the classification of ‘human rights’ as jus cogens is what, exactly, we mean by human rights in this context. Rehman rightly comments that to include all human rights as part of jus cogens might well ‘stretch the concept to unacceptable limits so as to risk its indelibility’. The reason for this is precisely the lack of universal consensus on many human rights standards included in international treaties. Consensus may be lacking because of cultural relativism, because of state objection on the basis of domestic law, because of popular public opinion in a particular state or for any other of many reasons, but the existence and applicability of concepts such as reservations and derogations to human rights treaties, as well as the basic freedom of states to subscribe to any particular treaty, is evidence of a lack of moral consensus. Should rights that do not attract a moral consensus be included within the category of jus cogens the very thing Rehman warns of – the erosion of indelibility of the concept – would result and jus cogens may, as a consequence, lose its significance. Some human rights are, however, accepted as being included within the category of jus cogens – the prohibition on torture, racial discrimination, slavery and genocide among them. iii. religion matters; rights matter The second idea involved in this paper is that religion and rights matter to both people and organisations in analogous ways. a. Religion Matters To say that religion matters to individuals is not to say that it plays the same role in everyone’s life, but rather that to some extent religion plays a role in our lives. People are religious, albeit to different degrees, and those who

 A.P. Rubin, ‘Acto Popularis, Jus Cogens and Offenses Ergo Omnes?’ ()  New England Law Review  at pp. –.  J. Rehman, Islamic State Practices, International Law and the Threat From Terrorism: A Critique of the ‘Clash of Civilisations’ in the New World Order (Hart Publishing, Oxford & Portland, ), at p. .

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describe themselves as atheists in the true sense of the word are generally in the minority. Others may not practice their religion, or at least not practice it regularly, but are likely to be familiar with the basic tenets and doctrines and have a basic belief in some kind of higher power we shall, for the purposes of shorthand, call ‘God’. Still others will consider their religious conviction as a fundamental part of their personality and their life. Even those who are atheists or describe themselves as non-religious are unlikely to have formulated their personal moral codes (i.e. their beliefs as to what is right and what is wrong) without having been influenced by religion in some way. For those who describe themselves as religious, religion offers a sense of mission; a sense of loving and being loved as part of a human family; a set of guiding principles by which we can adjudicate what is right and what is wrong. It informs our decision-making processes in situations of moral difficulty or ambiguity. This is true to varying degrees in people who describe themselves as religious. For some, it is the sole actor in their decision-making processes putting complex questions beyond the realm of difficult and slotting them into the comfortable and comforting categories of good or bad. For others, religion is merely one consideration of many in decisions as to how they live their lives and, particularly, how they interact with others. Even those who do not define themselves as religious are likely to define themselves as moral, or at least as not amoral. These people may have removed themselves from direct consideration of doctrinal questions, but religion’s pervasive influence in most societies (be these societies based on family, community, nation, church etc. . . .) makes it unlikely that religion has not at all influenced their moral outlook on life and on the world. In the words of Raimond Gaita  By which I mean people who believe there is no God, as opposed to those who are sceptical of religion or opposed to the notion of organised religions who sometimes self-identify as atheists without necessarily ascribing to the idea that there is no God.  This is not an uncontested assertion. Marc D. Hauser, for example, has recently claimed that most people are born within an inbuilt neural moral grammar and that, as a result, moral codes are not a product of community, religious, cultural or other factors – M.D. Hauser, Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong (HarperCollins, New York, ). For the purposes of this argument I eschew the view of moral codes as arising from nature rather than nurture and subscribe to the view that, to some degree if not completely, moral codes arise from ‘nurture’ and, particularly, from the moral codes of an individual’s family, religious or other community.

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Only someone who is religious can speak seriously of the sacred, but such talk informs the thoughts of most of us whether or not we are religious, for it shapes our thoughts about the way in which human beings limit our will as does nothing else in nature. If we are not religious, we will often search for one of the inadequate expressions which are available to us to say what we hope will be a secular equivalent of it. We may say that all human beings are inestimably precious, that they are ends in themselves, that they are owed unconditional respect, that they possess inalienable rights, and, of course, that they possess inalienable dignity. In my judgment these are ways of trying to say what we feel a need to say when we are estranged from the conceptual resources we need to say it.

Human dignity – the bedrock of the ontological arguments for the human rights movement and the ascribed characteristic that results in the universality of rights – can be said to be the secularised version of ‘sanctity’; an inherently religious concept we will return to later. If the human rights movement is essentially about recognising and vindicating human dignity in a cosmopolitan manner – i.e. essentially about sanctity – then it can also be expressed as being about religion. The beauty, for religion, of the notion of sanctity is that we are sacred because God loves us. Certainly we may be expected to live by particular codes in order to be said to justify God’s unconditional love for us and receive it in its entirety (by entering into ‘heaven’), but essentially we are born with the love of God and capable of replenishing that love by genuine repentance should we stray from this code. If we are all then sacred – or all have human dignity – this means God loves us all, and what God loves we must love.  R. Gaita, A Common Humanity: Thinking About Love and Truth and Justice (Routledge, London & New York, ), pp. –.  I use the term cosmopolitan in this context in the way that Bruce Robbins conceives of it – in the mould of a shared cosmopolitan perspective. B. Robbins, ‘Comparative Cosmopolitanism’ () / Social Text . This is removed from what he calls the evoked image of ‘a privileged person: someone who can claim to be a “citizen of the world” by virtue of independent means, high tech tastes and globe-trotting mobility’ (p. ) that often results from the term cosmopolitan.  The notion of love requires some explanation here. Patrick Hannon remarks: Love is a troublesome word of course, its meaning confused in the variety of its usage. A child loves ice-cream as well as its parents, a whole generation loved the Rolling Stones, Dante loved Beatrice, Hamlet loved Ophelia, and Don Juan loved many women. C.S. Lewis wrote a book called The Four Loves, from

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Fiona de Londras Michael Perry describes this idea as follows: We are created by God to love what is sacred – what is beloved of God – and therefore we are created to love one another. (We are created not only to achieve union, in love, with one another; we are also created, [the religious person] believes, to achieve union, in love, with God. [The religious person] understands this state to be ‘not an ontological unity such that either the lover or the beloved ceases to have his own individual existence, [but rather] a unity at the level of affection or will by which one person affectively takes the other to be part of himself and the goods of the other to be his own goods.

Religion therefore gives us feelings of fraternity, humanity and empathy encapsulated in human loving. As well as acknowledging that religion matters to individuals, it can also be said to matter to collectives or organisations. Religious questions are, in many Western democracies, usually packaged as ‘values’ questions in the political sphere and tend to assume a prominent role in political debates and elections. In countries where religion is a founding or fundamental political, legal and cultural principle these questions are also of high import but usually presented very clearly as questions of religious doctrine relevant to the state. For example, questions relating to abortion or homosexuality might be considered as issues of ‘family values’ in political debates in the United Kingdom but questions of ‘religion’ in Saudi Arabia. Family values

which it may be seen that even when we use the word aptly we may be talking of different forms of love. But there is at least the residue of a core meaning, and for present purposes we can say that love means wishing people well and doing them good. So the good person is one who loves. But this is too general, it tells us nothing about how we ought in practice to behave, and we need immediately to give it concrete content. We could say that to love is to appreciate another, to have regard (in more than one sense); and to express this appreciation and regard in our dispositions and attitudes and intentions and actions. We should therefore acknowledge the dignity of others, respect their life and person, aim to do them good, be just and truthful, don’t steal from them or take away their good name, refrain from harming them in any way. P. Hannon, ‘Law and Morality’, in T. Murphy, Western Jurisprudence (Thompson Round Hall, Dublin, ), p. .  M. Perry, ‘The Morality of Human Rights: A Nonreligious Ground?’ ()  Dublin University Law Journal , at p. .  D.M. Gallagher, ‘Thomas Aquinas on Self-Love as the Basis for Love of Others’ ()  Fascicolo , cited in Perry, ibid.

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debates are often centred on religion, contemplating what is ‘right’ or ‘wrong’ for society, which is also constructed as being ‘good’ or ‘bad’ in a normative sense. The questions of right and wrong, good and bad are, as we have already seen, related to religion in many ways. Religion plays an even more prominent role in national or international discourses when a nation state is experiencing a time of religious resurgence. In the United States of America, for example, the astounding growth of evangelisms in recent years has put questions of ‘values’, religious guidance and doctrine to the forefront of elections, Supreme Court nominations and even foreign policy. This is not to say that religious ideology dictates a state’s foreign or domestic policies, but rather that it plays a similar role in helping an individual to decide what he believes to be right or wrong whether the decision-maker is an ‘average’ person considering whether they should have an abortion or a top-level official deliberating on whether military action in a particular situation would be a ‘just’ or ‘unjust’ use of force. In both situations our personal religious convictions and the general ‘value systems’ within our broader communities inform our decisions as to what the ‘right’ course of action would be. Religion, therefore, matters in a very fundamental sense. b. Rights Matter On a very basic level, rights and effective rights protection matter to all of us. They ensure that we have sufficient personal security to allow us to flourish as individuals and as collections of individuals. This personal security is ensured in relation to our own state (for these purposes, the state in which we reside), other states and other individuals. The notion of human rights is the notion that the actions of all are informed by basic standards of human dignity, which includes the idea that our own actions are informed by these same standards. In order for me to flourish as an individual I require the human rights to life, health care, family privacy, freedom of expression, freedom of religious belief, protection from discrimination – to name but a few. In order for you to flourish as an individual you require the same rights. Therefore we all require freedom from unjustified interference in these areas, and only interference that recognises and values our dignity and sanctity can be said to be justified. I also need the language of rights. This language – based on human dignity and personal security – empowers me; it allows me to engage in a discourse about the civil society in which I participate. It provides me, for example, with a lens through which I can assess whether any particular

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state action unjustifiably restricts my freedoms and, as a result, my personal security. Even when my self-interest is not immediately engaged – for example in laws targeting non-citizens in the country of which I am a citizen – the language of rights matters. More specifically, the universality of the language of rights matters. It is irrelevant that the policy or legislation does not directly affect me; it offends against my brother and therefore against us all. The language of rights gives us the same feelings of fraternity and love and concern for one another as the language of religion. Conor Gearty recently wrote that ‘[h]uman rights talk is an appealing echo of two previous eras when first God and then reason said what we want to hear, that there is right and wrong, that there is truth which can make us good, that life is worth something more than our own skin, our instinct, and the noises we call talk’, reflecting (to some extent) this theory. The difference is that the language of rights is based upon the notion of ‘dignity’ whereas the language of religion is based upon the notion of ‘sanctity’. If, however, we accept that talking about dignity is just another way of talking about sanctity then we can see that the concepts of rights and religious ‘right’ and ‘wrong’ are closely related. Rights also matter to states. They are important for a number of reasons – they provide guidance as to the permissibility of state action within both a moral and legal framework; they provide an aspiration benchmark against which to measure state development and the development of other states; they provide a way in which states can connect with their citizens and others within their territory in a very personal and practical manner. In many cases states use rights and human rights law in a fundamentally bona fide manner. There are, however, cases in which states instrumentalise the language of rights while undermining their substance. One example is the instrumentalisation of women’s rights to partly justify the war against Afghanistan. Christine Chinkin, Shelly Winters and Hilary Charlesworth recently commented on this phenomenon: Twentieth-century developments in international law on the use of force have been undercut by the revival of the idea that there are ‘civilised’ and ‘uncivilised’ subjects of international law, for example

 C. Gearty, ‘The Holism of Human Rights: Linking Religion, Ethics and Public Life’ ()  European Human Rights Law Review  at p.  (hereafter ‘The Holism of Human Rights’).

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‘US/us’ versus ‘the axis of evil’. Women have sometimes been paraded as the objects of the conduct of ‘uncivilised’ states, such as Afghanistan, justifying at least in part the punitive action of the ‘civilised’. The situation of some women in Afghanistan has improved since the overthrow of the Taliban regime, but many women remain subject to deeply repressive practices. Those using the rhetoric of women’s rights to justify their actions rarely consider the views of women themselves . . .

Rights language, restrictions and constructions can be of particular value to states in helping them to assess whether their actions are right or wrong in any given circumstance. This is especially so in times of heightened passion when intemperate impulse can lead to rash decision-making. Writing in  James Madison advised against the making of laws in times of war or passion because, in such situations, a state is (usually and understandably) stymied in distancing the instant circumstance from a normative framework. Human rights law can act as a guide to the parameters of allowable action in such scenarios, just as religion might do in situations of personal decision-making. It can temper passions and quieten impulses; in other words it can act as a controlling influence. Rights and religion are therefore analogous in terms of the role that they can play in the decision-making processes of different actors, and in particular in helping us to assess the ‘rightness’ or ‘wrongness’ of our actions. iv. jus cogens is religious In the light of the Holocaust there was a general recognition that a body of laws should be created that would protect the individual against the power of the state, and that some of those laws were of such a fundamental nature that a state should not be in a position to evade their terms by omission from their national laws or the completion of treaties granting them immunity from these norms. Even before World War II, however,

 C. Chinkin, S. Winters, H. Charlesworth, ‘Feminist Approaches to International Law: Reflections from Another Century’, in D. Buss and A. Manji (eds.), International Law: Modern Feminist Approaches (Hart Publishing, Oxford and Portland, ), at .  J. Madison, An Examination of the British Doctrine which subjects to Capture a Neutral Trade not open in Time of Peace ().

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there were indications in international legal documents that certain laws were considered to be imbued with a particular moral character. The Preamble to the th Hague Convention of , for example, refers to “the principles of the Law of Nations, derived from the usages established among civilized peoples, from the laws of humanity and from the dictates of the public conscience”. In both the SS Wimbledon and the Oscar Chinn cases Judge Schucking had indicated a belief that one could not validly contract to violate the rights of a third party and that certain rules had a peremptory character. Such statements, both ‘legislative’ and judicial, in turn influenced scholars who began to turn their attention to such questions with Alfred Verdross, in particular, being exercised by this notion. In  he wrote that: Every judicial order regulates the rational and moral co-existence of the members of a community. No judicial order can, therefore, admit treaties between judicial subjects, which are obviously in contradiction to the ethics of a certain community.

Most of these early allusions to the notion of peremptory norms made some, at least implicit, reference to morality and the underlying indication of a connection with Christian natural law theory was clear. Indeed the early international natural law theorists such as de Vattel believed that international law included necessary law as well as consent based law. Necessary law was the ‘application of natural law to the law of nations’ and was ‘necessary because nations are absolutely obliged to observe it’. As the impetus grew for the express inclusion of jus cogens in an international treaty the connection with natural law and religion was submerged. This resulted, to some extent at least, from the character of the states to the forefront of this movement. In the early s socialist and developing countries began to canvass for the inclusion in law of what were to become jus cogens norms. Cassese surmises that these nations were motivated on the one hand by a desire to resist colonial countries and

 Judgments, PCIJ Series A, No.  (); Dissenting judgment of Judge Schucking.  Belgium v. Great Britain, Judgment, PCIJ Series A/B, Fasc. No.  () pp. –.  A. Verdross, ‘Forbidden Treaties in International Law’ ()  American Journal of International Law  at p. .  M. De Vattel, Le Droit des Gens ou Principles de la Loi Naturelle (), pp. –.

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condemn imperialistic actions that violated the equality and sovereignty of states and on the other (red) hand by a desire to declare common core values which safeguarded and permitted relations between the ever-polarising East and West. While Cassese rationalises such moves by reference to realist-international-relations motivations of the respective states, Christopher Ford offers a different perspective. He claims that, as a result of the rapid diversification of the international community, the European ‘sophisticate system’ in which peremptory norms were essentially unspoken but understood could no longer be relied upon. In addition he claims that the codification of jus cogens represented an acknowledgment on the part of the international community that some deeds were simply so wrong that they could never be legitimated within any legal order. It is clear then that jus cogens were developed in a particular social and historical milieu – a relatively recent history of decolonisation and the Holocaust. Indeed Jack Donnelly has surmised that the very idea of human rights protections is attributable to the structural and political changes in early modern Europe. However perceiving of the human rights movement, and as a result jus cogens human rights norms, as a mere product of history is problematic. Max Stackhouse states that ‘if it is . . . that such ideas are little more than a by product of a particular historical and social context, it becomes very difficult to argue that they ought to be taken as governing principles when the context has changed substantially, or is contiguous with other areas of the world’. Theories, such as Donnelly’s, that attribute the development of human rights law and its various nuances to context instead of philosophy allow for arguments that the body of law is no longer of contemporary import, that the rights protected should no longer apply, or that those rights identified as the superior rights should no longer enjoy that status. Ford notes that, at the conference leading to the adoption of the Vienna Convention, ‘[t]he existence of peremptory law as a category of law was

 See generally A. Cassese, International Law (OUP, Oxford, ), pp. –.  Ford, above n. .  J. Donnelly, ‘Human Dignity, Human Rights and Political Regimes’ () () American Political Science Review .  M. Stackhouse, ‘Human Rights and Public Theology: The Basic Validation of Human Rights’ in C. Gustafson and P. Juvelier (eds.), Religion and Human Rights: Competing Claims? (M.E. Sharpe, New York, ), at .

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proved, in effect, by the sheer unimaginability of behaving otherwise’ and refers to the use of the example of slavery as a means of arguing the existence of such norms. In the process of debating the inclusion of jus cogens, the concept was therefore effectively proved by examples. This created an intellectual vacuum that continues to be the most problematic aspect of this classification of international law. It is an instinctive doctrine; a moral doctrine, but that means of argumentation is easily susceptible to criticism and therefore difficult to uphold, leaving jus cogens stranded as something that ‘feels right’ as opposed to something that can be defended by analytical debate. It would be preferable if, instead of it feeling right to comply with jus cogens, we could argue that it simply is right to do so. Not every right is contained within the classification of jus cogens norms, as we have already seen. However those which are seen as peremptory norms share a common characteristic – they reside on the intersection between the vast majority of moral codes. As we have already considered moral codes are either expressly or impliedly influenced by religious traditions, therefore the intersection of moral codes can also be said – or at least argued – to also be an intersection between religious codes. It is time to consider this a little more deeply. More particularly, to consider the question: What connection does religion have to what we define as ‘the moral thing to do’ or ‘the right thing to do’? Definitional strategists claim that ‘to look at things morally is to look at them, in some sense or other, impartially, granting every person some kind of equal status’ and that morality can be a stand alone concept: that certain things ought to be done for people and ought not to be done to people because an impartial and universal morality requires it. An example of this is found in a recent opinion by Conor Gearty, who claims that we are all equal on the basis of scientific reason. In particular he traces this equality to the breakthrough of Charles Darwin in deducing ‘the pivotal post-modern insight that we are all little more than (as Nietzsche put it) “clever animals”. This definitional strategy fails to meet the challenge identified by Perry as follows:

 Ford, above n. , at p. .  J. Griffin, Well Being – its Meaning, Measurement and Moral Importance (OUP, Oxford, ), p. .  C. Gearty, ‘The Holism of Human Rights’, above n. , at .

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You claim that we ought not to do certain things to any human being, and that we ought to do certain other things for every human being. We ask why. You say that the moral (impartial, universal) point of view requires it. For the sake of argument we will stipulate to your definition of “moral”. Our challenge remains, but now we’ll express it this way: Why ought we to adopt “the moral point of view”; why ought we to be “moral” in the stipulated sense? Why ought we to give a damn about being “moral” or doing the “moral” thing? We are right back where we started: what reasons – what real-world, flesh-and-blood reasons – are there for doing for every human being those certain things that the moral point of view requires to be done for every human being and for not doing to any human being those certain other things that the moral point of view forbids to be done to any human being?

In other words – why should we act morally? If we strip morality of any underlying basis or rationale then we leave it as a disposable option. Unless there is recourse to some kind of underlying rationale explaining the moral imperative it is difficult to find a compulsion towards moral behaviour. But what might be advanced as that rationale? I submit that one possibility, and it is only a possibility, may lie in accepting a religious basis for morality; an understanding that human rights included within the category of jus cogens can be conceived of as moral imperatives because of their religious basis. In this respect religiosity can be conceived of in two ways; either cosmologically or in term of religious faiths. A cosmological conception of religion can be described as one that recognises the basic notion of religion as opposed to the theological or doctrinal differences between particular religions or religious philosophies. Etymologically ‘religion’ comes from the Latin religare, which means to bind together that which was once bound but has since been broken, or to heal. Taking an etymological perspective on religion may allow us to be cosmological; to construct a theoretical account of the nature of humanity. It is arguable that jus cogens norms can be understood as those which are the bare necessities to restore a common sense of humanity: to reconnect the human family on the basis of a culture of dignity following the indignities of genocides, colonisation and slavery. In other words, they can be seen as the basic necessities to ensure that we love one another.



M.J. Perry, The Idea of Human Rights: Four Inquiries (OUP, Oxford, ), p. .

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These jus cogens rights differ from other human rights and attract this higher level of enforceability because they reside within the moral consensus and therefore have the capacity to be accepted by all as a force for good. On this understanding of jus cogens we can argue that the concept does have religion. Indeed we can argue that all human rights are religious in this way – they are designed to ensure that we can all attain a basic level of personal security and participation required for the chance to prosper and to grow. Some rights are promoted to the standard of jus cogens over others because of a consensus (which does not attach to other rights norms) that these rights are necessary in order for that level of security and participation to be attained, or because of a consensus that these rights are essential to ensure human dignity. In terms of identifying a connection between human rights and religious faiths a number of issues arise. First there is the question of whether any religious faiths had an influence on the conception of human rights as we know them. Second we must consider whether the influence of any one type of religious faith at the embryonic stages of human rights law necessarily excludes the argument that the concept has support within a broad range of religious traditions. There can be little doubt that the initial stages of rights protections in international law were influenced by Judeo-Christian principles of human dignity. This is evidenced by, for example, the reference in the Preamble to the Universal Declaration of Human Rights to ‘the inherent dignity . . . of all members of the human family’ and ‘the dignity and worth of the human person’, and in Article  to ‘all human beings . . . [acting] towards one another in a spirit of brotherhood’. Notwithstanding the original Christian sources, however, there is no necessary conflict between the notion of dignity and non-Christian traditions. It flows from the basic notion of all human beings as sacred; a notion that is found in many other religious traditions. There is a growing body of scholarship in Buddhist philosophy, for example, which stresses the existence of rights within Buddhism despite the absence of the language of rights. Amongst the most prominent proponents of this view is Damien Keown who states that ‘it might be said that in classical Buddhism the notion of rights is present in embryonic form although not yet born into history’ as a result of the concentration on duties in the Dharma. Islamic  D. Keown, ‘Are There Human Rights in Buddhism?’, in W.R. Husted, D. Keown and C.S. Prebish (eds.), Buddhism and Human Rights (Curzon Press, London, ), at p. .

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concepts of human beings as God’s representatives (khalifah) on Earth and receiving individual freedom in perfect subservience to God also suggest an understanding of the individual as sacred, although that individual freedom tends to be group-based; a freedom for the individual within Islam. The Hindu non-dualist Ramanuja believed the Lord was manifested in five ways, including in the heart of every individual, again suggesting authority for a Hindu conception of the individual as sacred. In broad and general terms, then, it can be said that most religions and religious philosophies have some concept of the individual as sacred, although the exactitudes of that differ from faith to faith, most particularly in whether that sacred nature resides in the individual qua individual or in the individual within the spiritual group. It is these differences in substance and particular doctrine that give rise to cultural difficulties in the enforcement of individual rights and as a result of which we have the capacity to enter reservations or derogations on certain rights. There exists nevertheless this core body of rights that are not only non-derogable in times of emergency, but also intractable in general; a body of rights that receives its intractability from its position in the centre of the majority of religions, religious philosophies and religious faiths. v. jus cogens is in danger Article  of the Vienna Convention on the Law of Treaties allows for the amendment of jus cogens by a changing body of international opinion, providing that jus cogens ‘can be modified only by a subsequent norm of general international law having the same character’. This can, arguably, work in two directions – either to add to the list of rights conceived of as jus cogens or to remove a norm from that category. The current global phenomenon of the ‘War on Terror’ and the apparent desire on the part of certain states to use torture, in particular, as a weapon in this war make a reconceptualisation of jus cogens imperative. If it is true, as I have suggested, that rights deemed jus cogens are of a character of ‘moral absolutes’ because of their placement within the moral common ground between all or most states and religions then it flows logically that no circumstances, no matter how grave, could be used to justify behaviour that deviates from these norms and, as a result, that such behaviour could never lead to a change in jus cogens. It is quite clear that only the emergence of extensive, although not universal, states’ practice could give rise to a modification of jus cogens.

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However, in the case of demotion for example, these states’ practices would, by definition, be contrary to jus cogens and potentially illegal. The International Law Commission’s Articles on State Responsibility require that no state recognise as lawful a ‘serious breach’ of a peremptory norm (Article ). Serious breach is defined as one that involves a gross or systematic failure to fulfil the peremptory obligation (Article ()). Certainly a change in jus cogens requires a systematic practice as opposed to ‘one off ’ breach and might therefore be included in this definition. Any demotion of a jus cogens norm is hugely problematic as it requires the international community to recognise potentially illegal and immoral activity, thereby undermining the value of the jus cogens concept. It is in situations such as this that the intellectual vacuum surrounding jus cogens becomes most acute and where the restatement of a moral obligation for compliance can prove of value from a rights protection perspective. While this provision in Article  may be designed to reflect the fact that the conscience of the international community changes as world affairs develop, it is dangerous to include in the law a ‘get out clause’ of this nature for the simple reason that any state brought to book over their contraventions of jus cogens could easily argue that they are taking part in an act of evolution of the law allowable, at least implicitly, by Article . The danger becomes even more clear where states reluctant to abide by recognised jus cogens norms hold a super- (or uni-) power status or are diplomatically and/or militarily aligned with such a superpower. It may be instructive to explore this hypothesis within the context of torture. The prohibition on torture is included in every major human rights document – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the African Charter on Human and Peoples’ Rights, the Arab Charter on Peoples’ Rights, the American Convention on Human Rights, and the Convention on Human Rights and Funda-

 See M.N. Shaw, International Law (Cambridge University Press, Cambridge, ), pp. –.  Article .  Article .  Article .  Article .  Article .  Article .

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mental Freedoms of the Commonwealth of Independent States, as well as specific conventions on torture. The most important of these specific conventions is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (), which provides a clear definition of torture and, through an Optional Protocol, establishes a Committee Against Torture which carries out visits to places of detention, receives and reviews reports, and advises states on measures for the prevention of torture. Some regional schemes have also introduced Conventions for the prevention and punishment of torture. The Council of Europe has established an Anti-Torture Committee under Article  of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Inter-American Convention to Prevent and Punish Torture takes a distinctively victim-centric approach to the issue guaranteeing compensation and ensuring individual liability for torture for ordering another to torture on your behalf or for failing to prevent torture. Article  of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that no derogation whatsoever is permitted regardless of the nature of the threat against the nation or the existence of a state of emergency. The right to be free from torture is also marked as non-derogable in the International Covenant for Civil and Political Rights, European Convention on Human Rights, the Arab Charter on Peoples’ Rights, the American Convention on Human Rights, and the Convention on Human Rights and Fundamental Freedoms

 Article .  Article : 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 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.  This extends to situations of war where the prohibition of torture may not be lifted. Additional protection against torture is afforded by common Article  of the Geneva Conventions.  Article ().  Article ().  Article .  Article .

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of the Commonwealth of Independent States. The African Charter on Human and People’s Rights does not expressly contain a system for derogations although many rights within the Charter are subject to the caveat of being exercisable only in accordance with the law. Such a caveat does not, however, accompany Article  which is expressed in absolute terms. The prohibition on torture is clearly widely accepted as not only a human right but a fundamental human right that can not be derogated from in any circumstances. These characteristics led to the prohibition of torture being quickly recognised as a jus cogens norm. The peremptory nature of the prohibition of torture was notably reasserted by the House of Lords in the recent decision in A (FC) & Ors v. Secretary of State for the Home Department, a case concerning whether evidence acquired by torture carried out by non-British troops could be adduced in a trial of the accused. The Law Lords found that it could not and held that there was no dispute that the prohibition of torture is a jus cogens norm: It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of jus cogens, or peremptory norms of international law . . . . . . The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention.

Since September  there have been widespread accounts of the torture and ill-treatment of detainees at the hands of the United States and her allies, as well as accounts of the torture of detainees being tolerated by these states as a necessity within the ‘War on Terror’. One report from Human Rights Watch recalls the claims of eight Guantanamo Bay detainees that they were held in a ‘prison of darkness’ in Kabul at various times between

 Article ().  [] UKHL .  Ibid., per Lord Bingham LJ, para. .  Ibid., para. .

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 and  and, while there, that they were ‘chained to walls, deprived of food and drinking water, and kept in total darkness with loud rap, heavy metal music or other sounds blared for weeks for a time’. Despite multiple reports of torture and ill-treatment the United States claims that it complies with international legal prohibitions on torture. In addition, the McCain Amendment, introduced to enshrine in domestic legislation the prohibition of torture by American armed forces, resulted in strong opposition from the Bush Administration and an attempt to exempt the CIA from this prohibition. In fact the McCain prohibition on torture was passed only once it was agreed that the Graham-Kyl-Levin amendment, which purported to strip federal courts of jurisdiction to hear habeas corpus claims from Guantanamo Bay detainees, would also be included in the legislation. Such opposition to the McCain Amendment, combined with reports from Abu Ghraib, stand in strong contrast to the Secretary of State’s repeated claim that America does not torture detainees and puts the bona fides of that claim in some doubt. Fears of duplicity in the Bush Administration’s attitude towards torture have been compounded in the light of Hamdan v. Rumsfeld. Following the Supreme Court’s decision that Al Qaeda detainees were entitled to the protections of Common Article  of the Geneva Conventions, Congress passed legislation that would reinforce detainees’ Common Article  rights (including the right to be free from torture) but at the same time strip federal courts of habeas corpus over ‘War on Terror’ detainees, deem the Geneva Conventions non-justiciable in federal courts, limit the extent to which American courts could consider international law in  Human Rights Watch, ‘US Operated Secret “Dark Prison” in Kabul’,  December  ( January ).  One of the most notable denials of torture and ill-treatment came from Secretary of State Condoleezza Rice on a recent European tour when she claimed that ‘[t]he United States does not permit, tolerate, or condone torture under any circumstances’. Statement of Secretary of State, Condoleeza Rice,  December .  See, e.g., ‘Mr. Cheney’s Imperial Presidency’, Editorial, The New York Times,  December .  The McCain and Graham-Kyl-Levin amendments make up the Detainee Treatment Act , Part of the Department of Defence Appropriations Act of  (Title X, H.R. ).  Hamdan v. Rumsfeld, Secretary of Defence, Et. Al.  US ____ ().  Military Commissions Act , Public Law No. –.  S. , MCA .  S. , MCA .

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detainees’ appeals from Guantanamo tribunals, and assert the President’s exclusive jurisdiction to interpret the Geneva Conventions and decide whether particular acts were in compliance therewith. Questions of interpretation are particularly germane in the ‘War on Terror’. In addition to early allegations of torture there are widely documented reclassifications of certain interrogation techniques as ‘not torture’ – clearly a question of interpretation. Perhaps the most prominent of these memoranda was written by John Yoo and Jay Bybee and signed by Bybee on behalf of the Office of Legal Counsel. This memorandum attempted to interpret the Torture Convention and concluded that only activities resulting in ‘death, organ failure or the permanent impairment of a significant body function’ would qualify as torture. In addition the memorandum made the extraordinary claim that American military forces could offer a defence of necessity and/or self defence to any charge of torture as a result of the  September  attacks. The memorandum also suggests that criminal prohibitions on torture ‘may be unconstitutional if applied to interrogation undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers’. This memorandum was extraordinary in its narrow definition of torture. All international legal prohibitions on torture have long established that torture is in fact much more broadly defined than Bybee and Yoo envisaged. The UN Convention on Torture, for example, defines it as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information or confessions, punishment, intimidation, coercion or for any reason based on discrimination of any kind. The Inter-American Convention to Prevent and Punish Torture defines torture in even broader terms and includes within the definition ‘the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish’. The European Convention on Human Rights equally employs

 S. , MCA .  Ibid.  On the contents of the Memorandum see further Dean, ‘The Torture Memo by Judge Jay S. Bybee That Haunted Alberto Gonzales’ Confirmation Hearings’,  January , FindLaw. Available at http://writ.news.findlaw.com/dean/.html ( April ).  Article .  Article .

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a broader definition of torture than the United Nations although in this case the term torture is defined by reference to the jurisprudence of the European Court of Human Rights as it is not defined within the text of the Convention itself. The Court has held that in order to be classified as torture acts must attain a ‘minimum level of severity’ taking into account the duration and physical and effects of the treatment and the age, sex and health of the victim. John Yoo, however, has defended the definition of torture contained within the memorandum, claiming that it was consistent with American legal standards and complied with the “American practice of ratifying human rights treaties so as to require no change in domestic law”. In other words the Memorandum reflected the view that international definitions of torture, which in turn shape the jus cogens prohibition thereof, were of little or any relevance; what mattered was the domestic law. On  December  – some twenty-two months after the original memorandum was written – the Assistant Attorney General, Daniel Levin, released a new memorandum, which stated that torture can consist of acts that fell short of the extreme standard proposed by Bybee and Yoo and may include physical suffering or mental anguish. Since that memorandum was released there has been a well-documented reclassification of certain acts by the Department of Defence including water-boarding and the use of certain stress positions. The United States is not alone however in this apparent move towards torture within the ‘War on Terror’. The former United Kingdom ambassador to Uzbekistan, Craig Murray, has recently released documents that appear to reveal a tolerance by the United Kingdom of the use of torture against detainees in Uzbekistan and the use of evidence acquired by such torture. The UK has also attempted to adduce evidence acquired through torture in domestic criminal trials, as evidenced

 Ireland v. United Kingdom (), ECHR (Series A) No. , .  See D. Long, Guide to Jurisprudence on Torture and Ill-treatment: Article  of the European Convention for the Protection of Human Rights (Association for the Prevention of Torture, Geneva, ).  J. Yoo, War by Other Means: An Insider’s Account of the War on Terror (Atlantic Monthly Press, New York, ), at p. ; see generally Chapter , ‘Interrogation’.  See J. Smith and D. Eggen, ‘Justice Expands Torture Definition’, The Washington Post,  December , p. A.  See, e.g., C. Murray, ‘What Drives Support for this Torturer?’, The Guardian, May th  and, generally, www.craigmurray.org.uk.

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by the case of A (FC) & Ors v. Secretary of State for the Home Department considered above. Despite the fact that the House of Lords in that case did assert the status of the torture prohibition as a jus cogens norm and prohibit the use of evidence acquired by torture in criminal trials, the Law Lords also implicitly accepted that evidence acquired through torture might well have some value in other respects. Lord Bingham in particular considered the capacity of the Government to act on the basis of evidence acquired through torture in paragraph  of his judgment: I am prepared to accept . . . that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article  for which the United Kingdom would be answerable, but no breach of article () or . Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

Lord Bingham therefore accepted that there is some anomaly in the law whereby torture evidence may actually be useful for intelligence and crime-aversion operations despite not being capable of forming the basis for a prosecution. It is certainly arguable that this portion of the judgment undermines the remainder. If, in the ‘War on Terror’, the main priority is the security of a nation and the protection of persons against acts of terror then this statement may suggest that breaches of the non-derogable prohibition on torture in Article  of the European Convention might be seen as some kind of acceptable trade-off in the law. This can be said to undermine the exclusion of torture evidence from trials because prosecution takes a secondary role where protection of the public is prioritised.



[] UKHL .

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Therefore despite the importance of this decision in reinforcing the prohibition on torture and clarifying that acceptance of torture evidence would engage courts in what Lord Carswek described as ‘moral defilement’, governments wishing to engage in torture on the basis of its perceived potential to protect the public could find some succour in this portion of the judgment. There has also been some movement in American law towards ensuring that evidence acquired by means of torture can not be adduced in criminal proceedings against suspects. This was always a feature of the domestic legal system in the United States, although there are some concerns that the case of Ahmed Omar Abu Ali set a dangerous precedent excepting from this principle. Ahmed Abu Ali had been detained in Saudi Arabia for one and a half year during which time he claimed that he had been subjected to torture in the form of beatings, whippings and threats of amputation and beheading. Following a confession he was transferred to the United States and charged with being associated with alleged terrorists with whom he discussed killing President Bush and from whom he received monies in February. Ahmed Abu Ali claimed that this confession was acquired as a result of such torture, however at his trial US District Judge Gerald Bruce Lee refused to allow the defence to put evidence of documented Saudi interrogation techniques to the jury that would contextualise and tend to support these claims of torture. Ahmed Abu Ali was found guilty and, on  March , he was sentenced to thirty years imprisonment. It was not until the issuance of Military Commission Instruction  on March th  that a definitive statement was made relating to the admissibility of torture evidence in the Guantanamo Bay Military Commissions. These tribunals were established pursuant to President Bush’s Military Order of November th  authorising the use of military force and were announced in February . Following Hamdan v Rumsfeld these commissions were given a statutory basis in the Military Commissions Act 2006. These commissions are used as an alternative to civil trials for foreign nationals detained in Guantanamo Bay, although as of April th  only ten detainees from an estimated  have been charged and the

 See Amnesty International, ‘Concerns remain over Ahmed Abu Ali’s  year sentence’ ( March ), AI Index: AMR // ( April ).

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first charge sheets were issued February th . Military Commission Instruction  states that ‘[t]he prosecution shall not offer any statement determined by the prosecution to have been made as a result of torture. The commission shall not admit statements established to have been made as a result of torture as evidence against an accused, except against a person accused of torture as evidence the statement was made’. Despite the positive implications of this statement of rule in the Instruction, the hearings of April rd  in the case of Abdul Zahir exposed some troubling aspects of the Instruction relating particularly to where the burden of proving that the evidence was acquired by torture lies. As with the dicta already discussed in the House of Lords decision of A, however, it is important to bear in mind that simply making torture evidence inadmissible does not mean that evidence acquired through torture can not be used in security operations, and in this case the difficulties associated with proving that torture was used to illicit evidence or confessions offers little disincentive to military forces (either America, British or foreign) from engaging in illegal interrogation techniques. The example of torture and suspected use thereof in the ‘War on Terror’ serves to highlight the present dangers to hitherto accepted jus cogens protections against torture. If it becomes generally accepted, the rational choice theory now popular in the American international law academy and within the Bush administration may well subject jus cogens rights protections to notions such as ‘military necessity’, undermining their peremptory status and, arguably, bringing the international legal system towards a position where these rights are demoted from jus cogens through the provisions of Article  of the Vienna Convention on the Law of Treaties. vi. finding religion: a new concept of state interest International relations theories are largely concerned with why states behave in the manner that they do. In particular, these theories explore

 See A. Selskey, ‘Court Rules Questioned at Gitmo Hearing’, The Associated Press,  April  (April th ).  The best example of rational choice international law scholarship is E. Posner and J. Goldsmith, The Limits of International Law (OUP, Oxford, ).  For a rare inside perspective on the role of international law in post / decision making within the Bush Administration, see J. Yoo, above n. .

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why states make the decisions that they do in terms of, inter alia, international law. While there are numerous schools of international relations thought, realism remains dominant. Jack Donnelly states ‘[p]olitical realism, Realpolitik, “power politics”, is the oldest and most frequently adopted theory of international relations’. Realist theory holds that international treaties and institutions are in place because powerful states benefit from their existence. From a classically realist perspective, states are motivated by their geopolitical interests alone with international law being complied with only when it is in the interests of a hegemon or a few powerful states, which may in turn coerce less powerful states into accepting the regime and complying with it. This will, however, only happen when the effects of compliance with international law are compatible with the geopolitical objectives of the hegemon or group of powerful states. Realist thought can probably be traced back at least as far as Thucydides’ realist account of the Peloponnesian War. In discussing the cause of the war Thucydides reflects briefly on the truce between the Athenians and the Peloponnesians and its subsequent breach but later states “the real reason for the war is, in my opinion, most likely to be disguised by such an argument [about the truce]. What made war inevitable was the growth of Athenian power and the fear which this caused in Sparta”. This is a clearly realist view in as much as the author connects the need for security and the fear of accumulation of power elsewhere to the breakout of war. Should one join the contemporary movement that contends Thucydides was probably not a realist, Thomas Hobbes’ Leviathan is likely be one’s starting point in realist theory. In Leviathan and, in particular, in Chapter , Hobbes imagines politics in a pre-social state of nature. Hobbes makes three assumptions, the conjunction of which leads to a war of all against all: . All men are equal This assumption does not mean that all men have the same resources available to them, but rather that “the weakest has strength enough to kill the strongest, either by secret machination or by confederacy

 J. Donnelly, ‘Realism’, in S. Burchill, A. Linklater, R. Devetak, J. Donnelly, M. Paterson, C. Reus-Smit and J. True, Theories of International Relations, rd Edition (Palgrave – MacMillan, Basingstoke & New York, ), p. .  History of the Peloponnesian War, Book , .

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Fiona de Londras with others”, and this potential for all to attain their needs leads to men being enemies. . They are driven by competition, diffidence and glory. This enmity tends to be exacerbated by the combination of competition, diffidence and glory which lead men to invade others: ‘The first maketh men invade for gain; the second for safety; and the third, for reputation’. The three factors need not coexist in a man for him to invade, however. Even where there is no competition (i.e. desire for gain) one may invade in order to prevent another from attacking him resulting in pre-emptive attacks. . They interact in anarchy Added to these natural desires and fears is the lack, in the state of nature, of a hierarchical system of governance. This absence results in men residing in a perpetual state of war and human industry has little hope of operating effectively, leading Hobbes to conclude that ‘the life of man [is] solitary, poor, nasty, brutish, and short’.

While collections of individuals can usually escape that by organising into a hierarchical structure the same does not tend to be true of collections of states as evidenced by the lack of an international government or a tribunal with compulsory jurisdiction over every country in every situation. Since Hobbes, realism has witnessed the development of various strands and the two most prominent protagonists are Hans Morgenthau and Kenneth Waltz. Regardless of one’s chosen starting point for realist theory, or whether one identifies with Morgenthau or Walz or any other theorist, most realists share some common characteristics, including the belief that states do not generally pursue moral objectives in international relations, or at least that moral considerations are not a primary motivating factor in state action. This argument most rests on the notion that states operate in their own self-interest as opposed to in the confines of some kind

 Leviathan, Chapter , para. .  Leviathan, Chapter , para. .  Leviathan, Chapter , para. .  See, e.g., H. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (Alfred A. Knopf, New York, ).  See, e.g., K.A. Walz, Theory of International Politics (Addison-Wesley, Reading MA, ).

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of moral ideology or code and that a state’s primary responsibility is to maintain and ensure national security. The development of human rights law itself bears some witness to this theory. David Forsythe recalls that the inclusion of human rights in the UN Charter was a result of American self-interest as opposed to moral or ideological conviction: Key developments that were to lead to the international recognition of human rights occurred when Franklin D. Roosevelt and others drew the conclusion that human rights were connected to international peace and security. It cannot be stressed too strongly, because the point has not been sufficiently emphasized, that human rights as such became a formal part of international relations when important states believed that universal human rights affected their own selfinterests. That human rights language was written into the United Nations Charter had less to do with a western moral crusade to do good for others, than with the expediential concerns of particularly the United States.

In general realist theory appears relatively plausible – states tend to act in the manner that best advances their own self-interest, seeing the duty to one’s own as being of greater import than the duty to others. However, what would recognising the religiosity of jus cogens mean for how we consider the whole idea of states’ self interests? As we reflected upon earlier, individuals who are religious find in that religion feelings of fraternity, humanity and empathy encapsulated in human loving. Most of us, in a general sense, would be likely to agree that those feelings of humanity and fraternity and love are in our self-interest (whether we define where we get those feelings from as religion or morality or rights or all of the above). From these feelings of love we are comforted in the knowledge that others share in those feelings and, in recognition of what religion calls the sanctity of others and rights calls the dignity of others, will not harm us. This is not to say that people will never act to our

 D.P. Forsythe, Human Rights in International Relations (Cambridge University Press, Cambridge, ), p. .

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detriment, but that these occurances will be aberrations in an otherwise loving human family. This is clearly in our self interest – it benefits me to not be hurt by you; you do not hurt me because I do not hurt you; I do not hurt you because I recognise your sanctity; I recognise your sanctity because of my religiosity; therefore religiosity is in my self-interest. Precisely the same argument can be made in relation to rights for, as we already saw, sanctity and dignity can be analogised (or, arguably, be said to be the same). Therefore it benefits me to not be hurt by you; you do not hurt me because I do not hurt you; I do not hurt you because I recognise your dignity; I recognise your dignity because of my morality encapsulated in rights; therefore morality and rights are in my self-interest. Now let’s transpose this to States. In general a state of peace can be said to be in States’ self interests: they can concentrate on economic relations and diplomacy, their coffers are not in a constant state of strain from arming and deploying troops and fighting wars etc. . . . There will, however, be cases where a State needs to go to war. The decision as to whether to use force will, in some ways, be informed by religiosity inasmuch as the decision-makers will have their own moral codes to grapple with. However, once the hostilities have commenced and states are engaged in a war, deep and complex moral questions arise as to what actions each party can take against one another. In these times of heightened passions the creation of norms or reinterpretation of existing norms is difficult because moral boundaries are clouded by the perceived exigencies of the situation. To have rules that give direct instruction as to moral boundaries can therefore be helpful – just as religious norms help us to decide on what is right and wrong in times of personal strain, these moral/religious norms can help us to assess the rightness or wrongness of any actions under consideration. In this way acceptance – both internal and external – of the absolute nature of jus cogens rights will help is to decide on what we can and cannot do in relation to our others. That acceptance can come from a conception of jus cogens not just as law, but as law that reflects absolute moral and religious rights and wrongs in a manner that is cosmological rather than denominational but supported by the common denominational concept of sanctity. How does this equate to state interest? If states were to accept that jus cogens norms represent the absolute moral rules as identified by their

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religious commonality then all states that wanted to act morally – regardless of their religious or other identities – would comply with those norms in relation to their own people and in relation to citizens of other states. They would use these norms to assess whether their proposed actions were right or wrong in a manner that distances them from the emotion and passion of difficult situations. Therefore regardless of the situation at hand all states would treat all people as sacred or dignified persons. In addition states would treat one another as sacred or dignified in recognition of the identity of the state as a collection of people. Should this situation emerge, the feelings that religiosity invokes in the individual would begin to invoked in states in relation to one another. In other words a situation of a brotherhood or ‘family’ of states could, conceivably, arise in which occurrences of the use of force by one against one another would be minimised and the mistreatment of persons would also be minimised. Importantly, accepting the absolute nature of jus cogens by reference to its religiosity – it’s residence on the intersection between faiths and its capacity to bind together that which was one torn apart – would not prevent states from acting in self defence where necessary. Emergency provisions could still be introduced, force could be used where necessary, rights could be suspended where the situation required it and within the limitations of that requirement. All of these eventualities are envisaged and catered for by international law and international human rights law as it stands. Jus cogens norms would simply act as the absolute parameters of allowable action, allowing us to assess whether our movements are right or wrong in accordance with universal moral codes encapsulated in jus cogens norms and not in accordance with the momentary passions and concerns of a particular situation. vii. conclusion September th and the ‘War on Terror’ have changed our world in ways that are probably not yet fully comprehensible. Regardless of this, however, we cannot and must not allow it change our basic commitment to human dignity. Jus cogens norms, as I have argued, are the ultimate assertion of that human dignity and actions that strip people of that characteristic, such as torture, are not and can not ever be allowable or given the opportunity to amend existing jus cogens rights. If we continue to move towards conceiving

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of states as constrained by nothing but their will then this unimaginable outcome may become a reality. However recasting national interest in terms of the creation of a feeling of international brotherhood, fraternity and love may offer a new way of thinking about self-interest and influence states’ will, constraining it by moral absolutes encapsulated in jus cogens.

chapter ten

Why the Hindu Caste System Presents a New Challenge for Human Rights David Keane* the caste system is a legal system maintained at the point of a bayonet. – Dr B.R. Ambedkar

i. introduction The Hindu caste system is the oldest form of racial discrimination in the world. It is believed to be over three thousand years old. The archaeological evidence for this is described in Wolpert’s A New History of India: In , an archaeological dig in Harappa, India unearthed an ancient and unknown Indus city. The city, no greater than three and a half miles in circumference, had been protected by enormous brick ramparts. Outside the walled city, the archaeologists found workers’ quarters or barracks similar to those occupied by most Dalit labourers at the time of the excavation. Radiocarbon tests of the stone and brick led many archaeologists and historians to extend the roots of urban Indian civilization as far back as  B.C. More interestingly, the dig made many question whether Indian society was already socially stratified – whether specific social groups were already pushed to the tattered fringes of Indian society millennia ago. Although hidden from view for

* Lecturer, Brunel Law School, Brunel University, London.  B.R. Ambedkar, ‘What Congress and Gandhi have done to the Untouchables’ (), reproduced in V. Rodrigues (ed.), The Essential Writings of B.R. Ambedkar (Oxford University Press, Oxford, ), p. .  A. Sharma, Classical Hindu Thought (Oxford University Press, Oxford, ), pp. –. The Vedas were in existence by  B.C. though not written out until much later. Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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David Keane thousands of years, the ruins of Harappa reveal the extensive history of oppression in India.

The treaty-based and charter-based bodies of the United Nations have examined caste-based discrimination as a form of racial discrimination since , under the rubric of descent-based discrimination’. Descentbased discrimination has been understood as a global phenomenon that extends beyond the traditional realm of caste in South Asia, to cover groups in diverse states such as Yemen, Senegal and Japan. Within the United Nations, caste is considered a subset of the wider problem of descent-based discrimination; yet its precise features, and the causes and consequences of caste-based discrimination, have not been elaborated upon by the relevant international bodies. This chapter will show that the history of the caste struggle in India presents a particular problematic for human rights law which is of broader significance to the movement towards the elimination of all forms of racial discrimination. It describes caste as a religious structure that engages history, politics and constitutional law, and the current legal standing of caste-based discrimination in India must be factored into the international response. Section II describes the Hindu caste system, emphasising its religious origin, and distinguishing caste from the concept of ‘race’. Section III explains why caste, although not analogous to race, is to be considered a form of racial discrimination. This is a legal distinction which has emerged from the discussion on descent-based discrimination, and the latter movement is briefly described. Sections IV and V focus on remedies. Section IV looks to reform of the existing constitutional protections against caste-based discrimination in India. Section V proposes an enhanced system of protection against caste-based discrimination that draws on the contemporary Dalit movement. The final subsection signals the wider relevance of the caste question to human rights law.

 S. Wolpert, A New History of India (Oxford University Press, Oxford, ), pp. –, quoted in W. Eisenman, ‘Eliminating Discriminatory Traditions Against Dalits: The Need for International Capacity-Building of the Indian Criminal Justice System’ (),  Emory International Law Review, p. .  See generally P. Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples, and Caste/Descent-based Discrimination’, in J. Castellino and N. Walsh (eds.), International Law and Indigenous Peoples (Martinus Nijhoff Publishers, Leiden, ), pp. –.  Ibid., p. .

Why the Hindu Caste System Presents a New Challenge  ii. the hindu caste system a. Dr Ambedkar and the Dalits Dalits, a Hindi term meaning ‘the oppressed’, describes the lowest members of the Hindu caste system who were previously known as Harijans, or ‘Untouchables’. It is estimated that  million Dalits live in India, and despite substantial national and international legal protections, they still suffer from discrimination on the basis of caste. As a pure, theoretical structure, the caste system is composed of four main castes, or varnas: Brahmans (priests), Kshatriyas (warriors), Vaishyas (farmers) and Shudras (labourers or servants). This fourfold division has its origins in the Vedas, the ancient Hindu scriptures. Historically, the Dalits were considered to be outside this system. They undertook occupations that Indian society considered ritually polluting such as scavenging, sweeping or leatherworking. The concept of untouchability meant that Dalits were discriminated against in every aspect of their social lives. They were prevented from entering temples, or using the same wells as higher caste Hindus. Dr B.R. Ambedkar, a Dalit of the Mahar caste, founded the Depressed Classes Federation in  (re-launched in  as the All-India Scheduled Caste Federation), in order to advance the cause of the Dalits. In the

 ‘Harijan’ was a term coined by Gandhi in an issue of Young India on  August  to replace the term ‘Untouchables’. It means the people ( jan) of god (hari). A  letter from the Centre for Dalit Human Rights to the Rajasthan State Human Rights Commission, reproduced in the Indian national newspaper The Hindu, complained that the word ‘Harijan’ was ‘derogatory, insulting and against the dignity of millions of Dalits and oppressed people in India . . .’, and pointed out that ‘two decades back the then Union Home Minister had issued a circular to all the Government Departments banning the use of “Harijan” word in all official papers and functions’; The Hindu  September . The early governmental term was ‘Depressed Classes’, which was replaced by ‘Scheduled Castes’ in , the term used in the  Indian Constitution; E. Zelliot, ‘The Leadership of Babasaheb Ambedkar’, in E. Zelliott, From Untouchable to Dalit: Essays on the Ambedkar Movement (Manohar, New Delhi, ), p.  n. . Since the s, ‘Dalit’ has become the most acceptable term.  B.B. Hanchinamani, ‘Human Rights Abuses of Dalits in India’ (),  Human Rights Brief p. .  J. Muir, Original Sanskrit Texts on the Origin and Progress of the Religious Institutions of India, Vol. I (William & Norgate, London, ), p. .  R. Deliège, ‘The Myths of Origin of the Indian Untouchables’ (),  Man No. , p. .  Indira Junghare, ‘Dr Ambedkar: The Hero of the Mahars, Ex-Untouchables of India’ (),  Asian Folklore Studies No. , pp. –.

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s, he became a well-known figure through his speeches, publications and support of such causes as temple entry. In , he caused a sensation by burning a copy of Manusmrti, the ancient law book that symbolized Hindu injustice to the Dalits. He would come to represent the voice of caste reform through secular, political and legislative means. The secular approach was opposed by Mahatma Gandhi, who believed in an evangelical approach to the uplift of the ‘Untouchables’. Gandhi wished to bring the Dalits into the fourfold model of the Vedas, integrating them into the fourth Shudra caste, and in this manner, purify Hinduism. Gandhi thought that the caste system itself was not to be condemned, only its pernicious effects, such as untouchability. Ambedkar believed that the entire system should be destroyed. Ambedkar ensured that the problem of caste would become inextricably linked to India’s independence. He was appointed Law Minister by Prime Minister Jawaharlal Nehru and subsequently Chairman of the Drafting Committee of the Constituent Assembly of India, which formed the government upon the granting of Independence on the ‘appointed day’,  August . He was primarily responsible for the system of reservations in the  Indian Constitution for what were termed the ‘Scheduled Castes, Scheduled Tribes and Other Backward Classes’ (SC’s ST’s and OBC’s). The reservations have their origin in the Poona Pact, an agreement signed in  between Gandhi and Ambedkar, after Gandhi went on hunger strike in protest at the British government granting separate electorates to the Dalits. Ambedkar waited for twenty-one days while Gandhi fasted, before eventually conceding. In exchange for relinquishing separate electorates for the Dalits, Ambedkar required guarantees of special measures in employment, education, and reserved seats. In return, the Poona Pact kept the ‘Untouchables’ within the majority Hindu polity. The conference that ratified the Poona Pact in  issued a resolution that was unanimously adopted: This Conference resolves henceforth, amongst Hindus no-one shall be regarded as an Untouchable by reason of his birth, and that those

   versity 

E. Zelliot, ‘The Leadership of Babasaheb Ambedkar’, above n. , p. . E. Zelliot, ‘Gandhi and Ambedkar: A Study in Leadership’, Ibid., p. . M. Galanter, Competing Equalities: Law and the Backward Classes in India (Uniof California Press, Berkeley, ), at p. . Ibid., p. .

Why the Hindu Caste System Presents a New Challenge  who have been regarded hitherto will have the same right as other Hindus in regard to the use of public wells, public schools, public roads and all other public institutions. This right shall have statutory recognition . . . it shall be the duty of all Hindu leaders to secure, by every legitimate and peaceful means, an early removal of all social disabilities now imposed by custom upon the so-called Untouchable class, including the bar on right of admission to temples.

Consequently, untouchability was banned under article  of the  Indian Constitution. Article  of the Constitution authorised Parliament to enact legislation giving effect to the provisions of article , and it did so through the Untouchability Offences Act . Furthermore, in accordance with the terms of the agreement, the Indian Constitution allows for a scheme of special measures in the form of reservations, designed to secure the uplift of the ‘Scheduled Castes, Scheduled Tribes, and Other Backward Classes’, by reserving a percentage of seats for members of these groups in legislative assemblies at state (Vidhan Sabha) and national level (Lok Sabha), as well as allowing for reserved places in educational institutions and in government posts. In the twentieth century, the Dalits were raised and all but discarded as a political issue, while the circumstances of their living have undergone little transformation. Ambedkar registered his lack of belief in the efficacy of India’s constitutional reservation scheme by resigning from his position

 Quoted in C. Rajagopalachari, Plighted Word: Being an Account of the History of Untouchability Abolition and Temple Entry Bills (Servants of Untouchables Society, Delhi, ), at p. .  The Act was amended in , and renamed the Protection of Civil Liberties Act . In , the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act  was passed. The abolition of untouchability is also envisaged by article () of the  Constitution, which forbids the denial of access to shops, public restaurants, hotels and places of entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partially out of State funds or dedicated to the use of the general public.  Article  provides for reserved seats in the Lok Sabha, the House of the People or lower house of parliament of the Union, for the Scheduled Castes and Scheduled Tribes. Article  contains reservations for the Scheduled Castes and Scheduled Tribes in the Legislative Assembly of every State.  Reservations in educational institutions and in government posts may be made under articles () and ().  O. Mendelsohn and M. Vicziany, ‘The Untouchables’, in Upendra Baxi (ed.), The Rights of Subordinated Peoples (Oxford University Press, New Delhi, ), at p. .

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David Keane

in the government in , after serving just four years. He believed that there was little political will on the part of the caste Hindu majority to dismantle the caste system or effectively tackle caste-based discrimination. In , months before his death, he led several million Dalits into Buddhism in a mass conversion aimed at removing them from Hinduism and its crippling caste system. In the fifty years since, no comparable leader has emerged. The Dalits remain deeply subordinated; they are at the bottom of Hindu society, in terms of wealth, social status, and education. Their low status marks them off from the rest of society, and they continue to suffer caste-based discrimination. b. Caste and Religion The caste system is believed to be nearly three thousand years old. It is submitted that caste is a unique feature of the Hindu religion, and as such, caste systems only exist in countries that practise Hinduism. With the exception of the phenomenon of caste among diaspora communities, there are two countries that can be said to have a caste system: India and Nepal. Although sociologists may differ as to a precise definition of caste and the parameters of its meaning, it is the religious element that differentiates the system from other forms of discrimination based on inherited status.

 See generally, R.J. Miller, ‘They Will Not Die Hindus: The Buddhist Conversion of Mahar Ex-Untouchables’ (),  Asian Survey No. , pp. –. The title refers to a statement made by Ambedkar at a conference in : ‘I was born a Hindu but I will not die a Hindu’ (quoted on p. ).  Mendelsohn and Vicziany, above n. , p. .  A. Deshpande, ‘Does Caste Still Define Disparity? A Look at Inequality in Kerala, India’ (),  American Economic Review  at p. .  The UN Sub-Commission on the Promotion and Protection of Human Rights issued an Expanded Working Paper on Discrimination based on Work and Descent in July , which examined the question of diaspora communities whose original culture and traditions contain aspects of inherited social exclusion, including caste. The Working Paper discussed principally the South Asian diaspora in the United Kingdom and the Untied States; UN Doc. E/CN. /Sub.//.  The situation of caste in Bangladesh and Sri Lanka would also merit attention, but there is a difference in scale that must be appreciated. Because they are not states with a majority Hindu population (Bangladesh is ten percent Hindu, while the Tamils in Sri Lanka constitute eighteen percent of the population), caste cannot be said to permeate all aspects of socio-economic life, as is the case in India and Nepal. The latter are the only predominantly Hindu states in the world and caste-based discrimination is systematic and endemic in these two countries.

Why the Hindu Caste System Presents a New Challenge  Ambedkar, in The Annihilation of Caste (), explained: Caste has not the same social significance for non-Hindus as it has for Hindus . . . Among non-Hindus, caste is only a practice, not a sacred institution . . . Religion compels the Hindus to treat isolation and segregation of castes as a virtue . . . Hindus observe caste not because they are inhuman or wrong-headed, but because they are deeply religious. People are not wrong in observing caste. In my view, what is wrong is their religion. Then the enemy is not the people who observe caste, but the Vedas that teach them the religion of caste . . . Reformers working for the removal of untouchability including Gandhi do not understand that people will not change their conduct until they cease to believe in the sanctity of the Vedas on which their conduct is founded . . . Caste has a divine basis. The observance of caste and untouchability is a religious duty.

Ambedkar was writing at a time when the term ‘caste’ was being applied to a range of situations, notably discrimination on the basis of skin colour. The word ‘caste’ should be reserved exclusively for describing the Hindu system, because ‘it [the caste system] represents a divine, sacred or natural order of things’. In order to annihilate caste, Ambedkar argued, ‘you must therefore destroy the sacredness and divinity with which caste has become invested.’

 B.R. Ambedkar, ‘The Annihilation of Caste’ (), above n. , pp. –.  The extension of the term ‘caste’ to stratification based on skin colour in the Southern states of the United States of America was an enduring application of the term outside the Indian context. The theory found its most authoritative expression in Lloyd Warner’s ‘American Caste and Class’, published in the American Journal of Sociology in . ‘The social organization of the Deep South consists of two different kinds of social stratification’, Warner wrote: ‘There is not only a caste system, but there is also a class structure’ W. Lloyd Warner, ‘American Caste and Class’ (September ), American Journal of Sociology Vol. , No. , p. . Oliver Cox provided a detailed analysis of the specific features of the Indian caste system in ‘Race and Caste: A Distinction’, as a direct rebuttal to Warner’s essay. Cox outlined the salient characteristics of the Indian caste structure: ‘As distinguished from a bipartite interracial adjustment, the caste system is ancient, provincial, culturally oriented, hierarchical in structure, status conscious, nonconflictive, nonpathological, occupationally limited, lacking in aspiration and progressiveness, hypergamous, endogamous and static.’ O. Cox, ‘Race and Caste: A Distinction’ (March ), The American Journal of Sociology, Vol. , No. , p. .  Sharma, above n. , p. .  B.R. Ambedkar, ‘The Annihilation of Caste’ (), above n. , p. .

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David Keane

The Vedas were in existence by  B.C. The creation hymn the Purusha sukta, which is found in the tenth book of the Rig Veda, is the oldest extant passage on the fourfold origin of the castes: When they formed Purusha, into how many parts did they divide him? What was his mouth? What were his arms? What were called his thighs and feet? The Brahman was his mouth; the Rajanya [Kshatriya] was made his arms; that which was the Vaishya was his thighs; the Shudra sprang from his feet.

The debilitating effects of the caste system, including the practice of untouchability, were laid down by the dharma codifiers (dharma meaning ‘duty’), and in subsequent religious tracts that drew their authority from, and found their justification in, the creation hymn of the Vedas. The Vedas contained no rules on purity, pollution, ceremony, marriage, inter-commensality, expulsion from a caste, or any of the innumerable associated practices that grew around the original fourfold division. These were studied as a complement to the rituals found in the Vedas: ‘the theory of the varnas provided the authors of the dharma-sutras with a framework within which they could lay down the precise duties of individuals according to their caste.’ The karma doctrine perpetuated caste division and inequality, for it promised promotion within the system in the next life to those who observed the prescribed rules of dharma in this one.

 Ibid., p. .  The Sanskrit word Purusha means man or mankind, sukta means well-recited, or eloquent; Sir Ralph Turner, A Comparative Dictionary of the Indo-Aryan Languages (Oxford University Press, Oxford,  (reprinted ), p. , entry .  Rig Veda, Book X, Verse  (The verse is also found in Vajasaneyi Sanhita, Book XXXI, Verses –, Atherva Veda, Book XIX, Verse ); J. Muir, above n. , p. .  J. Koller, ‘Dharma: An Expression of Universal Order’ () () Philosophy East and West () at p. : ‘as a social concept it refers to a moral code, natural and positive law, and also to various distinct duties of individuals’. See generally P.V. Kane, History of Dharmashastra (Bhandarkar Oriental Series, Poona, ).  R. Lingat, The Classical Law of India (University of California Press, Berkeley, ), at p. .  According to the doctrine of karma, ‘a person’s current incarnations and experiences are, at least in part, the fruit of past actions’; M. Milner Jr., ‘Hindu Eschatology and the Indian Caste System: An Example of Structural Reversal’ (), () Journal of Asian Studies () at p. . Max Weber linked the karma doctrine to the operation of the caste system: ‘the idea of compensation was linked to the individual’s social fate in the societal

Why the Hindu Caste System Presents a New Challenge  The caste system itself is composed of an unknown number of groups called jatis, which are endogamous and observe their own rules of duty, drawing to various degrees from the ancient dharma codes, such as the Manusmriti. Jatis represent the reality of caste division, and they do not fit evenly into the four Vedic categories or varnas, Brahman, Kshatriya, Vaishya and Shudra. Yet the entire system of jatis is framed within these four corners. Klass explains that ‘the Vedic system – which here means the classic varna system – remains the justificatory and explanatory shell. The caste system is clearly not the classic varna system, even though Hindus believe that castes have derived (or degenerated) from those varnas.’ The ‘Untouchables’ were traditionally considered to be outcastes, outside the system, below even the Shudras or servants, and were treated as polluted and unclean due to their ignorance of dharma ritual and resulting accumulation of impurity. The levels of punishment for transgression of caste boundaries in all aspects of social intercourse are extensively documented in the dharma codes. Untouchability stems from the ranking of castes and sub-castes, ‘which is fixed neither by wealth nor education nor the ownership of land, but by the taking of water.’ Water may be taken from equals and superiors, but not from inferiors. Untouchability differs in degree rather than in kind from other caste restrictions. Throughout the caste structure there are certain relations one does not have with one’s

organization and thereby to the caste order’; Max Weber, ‘The Religion of India’ (New Delhi, ), p. . Weber’s analysis has been criticised; see Milner, p.  n. .  Pillai writes: ‘The caste system is upheld by the orthodox on the authority of the dharmasastras or smrtis . . . the often quoted one is Manusmriti . . . this smriti was given out by Manu to a group of Brahmans, who approached him for ‘the sacred laws in their order, as they must be followed by all four castes’; G.K. Pillai, Origin and Development of Caste (Kitab Mahal, Allahabad, ), at p. .  Deshpande writes that the evolution of jati distinctions has an economic origin: ‘As the economy grew more complex, the Varna system metamorphosed into the jati (also translated as caste) system, with jatis sharing the same basic characteristics of the varnas. However, what makes the jati hierarchy complex is that (i) jatis are not exact subsets of varnas and (ii) there is considerable regional variation in the evolution of specific jatis’; Deshpande, above n. , at p. .  M. Klass, Caste: The Emergence of the South Asian Social System (Institute for the Study of Human Issues, Philadelphia, ), Chapter : Divine Plan or Racial Antipathy?, at p. .  See generally S. Charsley, ‘Untouchable: What is in a Name?’ ()  Journal of the Royal Anthropological Institute , at pp. –.  T. Zinkin, Caste Today (Institute of Race Relations, Oxford University Press, ), at p. .

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David Keane

inferiors. Marriage, for example, only takes place with a member of one’s subcaste. For the ‘Untouchables’ these restrictions are extended. Not only does one not take water from them, they may not even take water from the same well. Not only does one not take food from them, they may not even eat in the same restaurant. It is impossible to have a clear notion of what constitutes a caste. Every characteristic that can be identified can also be contradicted by the empirical reality of caste divisions. Zinkin writes that ‘it is much easier to say what caste is not than what caste is.’ The author proceeds to list what caste is not: it is not class, for in every caste there are educated and uneducated, rich and poor, well-born and ordinarily born; it is not skin colour, for an Untouchable is an Untouchable whether born fair or dark; it is not Aryan and non-Aryan, for the Aryans never penetrated into the South or East of India; it is not occupation, for although some occupations are overwhelmingly identified with particular castes, mostly artisans, the main occupation, agriculture, is open to all. Panikkar, writing in , summarised caste as ‘a comprehensive system of life, a religion rather than a changing social order, and the rigidity with which its rules are enforced would put to shame even the Great Inquisition.’ iii. caste as a form of racial discrimination a. Descent-based Discrimination The word ‘caste’ does not appear in any international human rights treaty. Consequently, when increasingly well-organised and vocal Dalit human rights organisations began successfully highlighting the widespread discrimination on the basis of caste still taking place in India and other areas  Ibid., pp. –.  Ibid., p. .  Ibid., pp. –. Zinkin does not deny that generalisations can be made, for example with regard to class, most members of the upper classes are in fact the upper castes while most members of the lowest classes are in fact ‘Untouchables’.  K.M. Panikkar, Caste and Democracy (Hogarth Press, London, ), at p. , quoted in Zinkin, Ibid., p. .  The following section draws from a previous article by the author on the legal history of descent-based discrimination; see further D. Keane, ‘Descent-based Discrimination in International Law: A Legal History’ ()  International Journal on Minority and Group Rights .

Why the Hindu Caste System Presents a New Challenge  of South Asia, and the failure of domestic policies to tackle the issue, there was a need to find a precise source of international legal obligations for the eradication of caste-based discrimination in these countries. That source is article () of the International Convention on the Elimination of All Forms of Racial Discrimination , and in particular the word ‘descent’, one of the five grounds listed in the definition of racial discrimination. Caste-based discrimination, the Committee on the Elimination of Racial Discrimination (CERD) confirmed in a series of Concluding Observations beginning with India’s State Report in , is a form of descent-based discrimination and a form of racial discrimination, and falls within the purview of the Convention. Since , CERD has consistently sought to distinguish caste from descent, with the result that descent-based discrimination is viewed as a far wider problem than caste-based discrimination. CERD has raised the issue of descent-based discrimination in a number of State Reports, from a variety of regions, including Senegal, Mali, Ghana, Bangladesh and Japan, as well as India and Nepal, the South Asian countries traditionally associated with caste. In August , CERD issued General Recommendation XXIX on descent-based discrimination, the result of a thematic discussion on the issue conducted by the Committee in the same month. Caste is cited as a specific example of descent-based discrimination that is to be strongly

  U.N.T.S. , entered into force  January .  Article () of the Convention defines racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin . . .’  See generally Patrick Thornberry, above n. , pp. –. Patrick Thornberry, as a member of CERD, was instrumental in drawing attention to the issue of caste-based discrimination in the context of India’s report, and in holding that caste fell within the remit of the Convention through the interpretation of the meaning of ‘descent’.  Thornberry writes: ‘The specific conception of descent-based discrimination in the Recommendation [CERD General Recommendation XXIX] is also clearly wider than caste but includes it . . . This is important lest the Committee be seen to be picking on a particular State or States’; Patrick Thornberry, Ibid., p. .  UN Doc. A//.  CERD/C/SR. . The thematic discussion took place on  August ; there are no summary records for the session, which involved twenty-three separate interventions from members of the UN Sub-Commission on the Protection and Promotion of Human Right, NGO’s (one of which was a joint statement from thirty-two NGO’s), and two governments – India and Nepal; Thornberry, above n. , p.  n. .

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David Keane

condemned. The Recommendation includes a number of measures of a general nature to be undertaken by States Parties, notably the identification of: . . . those descent-based communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status, and whose existence may be recognised on the basis of various factors, including: inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in housing and education, access to public spaces and places of worship, and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading and hazardous work; subjection to dehumanising discourses of pollution or untouchability; and generalised lack of respect for their human dignity and equality.

In August , the UN Sub-Commission on Human Rights passed resolution / on Discrimination based on Work and Descent, which declared that discrimination based on work and descent is a form of discrimination prohibited by international human rights law. In less than four years, the Sub-Commission has produced a working paper, and two expanded working papers. These working papers have found evidence of descent-based discrimination in a large number of countries, including Yemen, Somalia, Ethiopia, Pakistan, Burkina Faso and Micronesia, as well as those countries and regions already identified by CERD. In April , the Commission on Human Rights appointed Mr Yokota and Miss Chin-Sung Chung as Special Rapporteurs with the task of preparing a comprehensive study on discrimination based on work and descent on the basis of the three working papers submitted on the issue.

 UN Doc. A//, p. .  UN Doc. E/CN. /Sub./RES//,  August .  UN Doc. E/CN. /Sub.//,  June . The paper’s focus was limited to Asian countries due to time restraints and lack of access to relevant materials, however, the author insisted in paragraph  that the problem is not limited to Asia alone, and that it exists in some parts of Africa and South America.

Why the Hindu Caste System Presents a New Challenge  b. Caste and Race The caste system is the ‘longest living social hierarchy in the world’, the first and oldest known form of systematic discrimination on the basis of birth, which in modern times has been labelled ‘racism’ or ‘racial discrimination’. The concept of race is much younger than the concept of caste, with the first documented use in English of the word ‘race’ occurring five hundred years ago. The word ‘discrimination’ is also relatively young – becoming prevalent in American English, which is largely responsible for its current wide usage, from the middle of the eighteenth century. Pillai traces race distinctions directly to the influence of Linnaeus and the eighteenth century taxonomists, and finds that the caste system cannot be considered racial discrimination, given that the concept of race distinctions did not exist when the caste system was constructed: Inferiority based on colour does not appear to have had its existence before the days of Negro slavery. There was no colour bar between the Queen of Sheba and King Solomon about , B.C. The slavery in Greece or Rome does not appear to have had anything to do with the colour bar. When Seleucos gave a daughter in marriage to Chandra Gupta in the third century B.C. there was no colour bar. But since the days of Linnaeus, the colour theory has been that the superiority of the European civilization so far advanced is attributed to their white colour . . . The apologists of caste distinctions found a good argument in the colour enunciated by Linnaeus.

Pillai reasons that as a result the caste system cannot be considered racial discrimination. Another conclusion, however, is that caste was the first form of racial discrimination, the first system that viewed superiority and inferiority of human beings as an immutable fact. This does not imply

 Eisenman, above n. , at p. .  See M. Banton, Racial Theories (Cambridge University Press, Cambridge, ), at p. : ‘The earliest references to the word “race” in English appeared in the poem The Dance of the Sevin Deidly Sins by William Dunbar in  . . .’  R.K. Barnhart (ed.), Chambers Dictionary of Etymology (Chambers, New York, ). Discrimination in the sense of making distinctions prejudicial to people of a different race or colour is first recorded in American English in .  On the role of Linnaeus and taxonomy in the development of the concept of race, see Banton, above n. , p. .  Pillai, above n. , pp. –.

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that race is the same as caste. Discrimination on the basis of race and on the basis of caste is not the same; the religious justification and the lack of identifiable physiognomic differences, notably skin colour, between the modern caste groups, being the essential differences. Instead, a distinction ought to be made between racial discrimination and race. Racial discrimination is broader than race, and its legal definition includes several forms of discrimination not based on skin colour, for example discrimination on the basis of national origin, as well as caste-based discrimination. There has been some discussion on the link between caste and race within the United Nations bodies. Maurice Gélé-Ahanhanzo, the then UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, in a report submitted in January  pursuant to Resolution / of the Commission on Human Rights, described the ‘basic question’ as ‘whether the age-old caste system in India, which had produced several million untouchables, could be regarded as racial discrimination.’ The Special Rapporteur was informed of the situation of the ‘Untouchables’ in India in communications from three organizations. He communicated these allegations to the Indian authorities, who replied on  September . In substance, the Indian Government rejected the allegations that it tolerated untouchability and closed its eyes to the human rights violations of protected castes. The reply contained a list of the measures taken to curb discrimination between castes. It maintained also that a practice that is so old could not be eliminated rapidly. The Special Rapporteur stated that, in view of the discrepancy between the facts alleged and the reply of the Indian Government, he would like to visit India to make an evaluation. The results were reported in January . The  Report noted that in its appearances before CERD and its communications to the Special Rapporteur, the Indian Government had consistently held that the caste system is not a hierarchical system based

 UN Doc. E/CN. //, Report by Mr. Gélé-Ahanhanzo, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance,  January , paragraphs –.  UN Doc. E/CN. //. They were the Ambedkar Centre for Justice and Peace, the World Council of Churches and the Dalit Liberation Education Trust.  UN Doc. E/CN. //, Report by Mr. Gélé-Ahanhanzo, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance,  January , paragraph .

Why the Hindu Caste System Presents a New Challenge  on race. He outlined the Indian Government’s position, taken from an extensive communication of  September : The fusion of . . . diverse racial elements over centuries has meant that Indian society is neither racially nor ethnically homogenous. Categorical distinctions of “race” or “national or ethnic origin” have ceased to exist and race itself as an issue does not impinge on the consciousness or outlook of Indian citizens in their social relations. Today India is a mosaic of different groups who seek identification in terms of language, religion, caste or even regional characteristics, rather than race, colour or ethnic origin. The term ‘caste’ denotes a ‘social’ and ‘class’ distinction and is not based on race. It has its origins in the functional division of Indian society. A hierarchical arrangement is the principal characteristic of this social institution in which certain privileges or disabilities are enjoined on its members from birth and are not supposed to change during a person’s lifetime. Each caste group is functionally dependent on the other caste groups and has a well-defined role in a social set-up based on a symbolic relationship between persons belonging to different castes. Racial hierarchy appears as an aberrant adjunct to the main structure of society, while the multi-segmented and intricately ranked social grouping of castes has been the central principle of a functional organization of Hindu society. Further, there is ample evidence of persons belonging to different castes having the same racial characteristics. Communities which fall under the category of ‘Scheduled Castes’ are unique in India and its historical process. They comprise persons who were excluded from the caste system and subjected to severe discrimination in ancient India. These persons were treated as ‘untouchables’ and social and physical contact with them was shunned by the dominant castes. ‘Race’ has thus never been a factor in the process of identification and determination of the communities which constitute Scheduled Castes. Persons who belong to the Scheduled Caste communities are today considered different from others because of their social, economic and educational backwardness, not because they belong to a separate ‘race’.



UN Doc. E/CN. //, paragraphs –.

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David Keane

Consistent with its position in the Special Rapporteur’s Report, the Indian government opposed the inclusion of the term ‘caste’ in the Durban Declaration and Programme of Action, which stemmed from the  World Conference against Racism. The Attorney General of India, Mr. Soli Sorabjee, described ‘misconceived attempts by some NGOs to equate racism with caste-based discrimination that is based on birth and occupation and has nothing to do with the race of a person’, in a letter to the Times of India. ‘Caste’ was excluded from the final text at Durban, although India was the only state vocally opposed to its inclusion. The Special Rapporteur did not specifically answer his own ‘basic question’ put forward in the introduction to his  report. His conclusion was that the situation of the ‘Untouchables’ merited particular attention, but it did not extend to defining discrimination against them as racial discrimination, or indeed racism, although he did defer to the CERD Committee on this point. As a result, the Report implicitly supported the belief that caste-based discrimination is a form of racial discrimination, as expressed by CERD. It is probable the Special Rapporteur did not commit himself in the Report because, clearly, caste is different from race. The features of caste that require it to be distinguished from race have been indicated. Yet this ought not to have prevented him from making a correct distinction between race and the legal concept of racial discrimination, and consequently concluding that caste-based discrimination is a form of racial discrimination. Racial discrimination is broader than race. To employ the definition in the Convention, it covers discriminatory action based on five grounds, only one of which is ‘race’. CERD member Thornberry notes that: the umbrella term of the Convention is “racial discrimination”, not “race” . . . “racial discrimination” is given a stipulative meaning by the Convention: as precisely the five terms set out in Article , which mentions “race” but four other terms as well.

 South Asian Human Rights Documentation Centre (SAHRDC), Submission to the st session of the Committee on the Elimination of Racial Discrimination on the Thematic Discussion on Discrimination on the ground of Descent, – August .  Times of India,  March .  SAHRDC, above n. .  UN Doc. E/CN. //, paragraph .  Thornberry, above n. , p. .

Why the Hindu Caste System Presents a New Challenge  The caste system is a racially discriminatory system as it is a system whereby one is born into an immutable position of inequality that ignores individual human worth and dignity. It does not imply observable physical differences between the castes, such as skin colour. In contrast to the Indian position, Nepal has described its caste system in its state reports to CERD as constituting racial discrimination: However, racial discrimination in the society, especially in rural areas, is still in existence. So-called untouchables cannot even enter the houses of the people of so-called higher and middle-class castes.

The work of CERD in tandem with the UN Sub-Commission on the Promotion and Protection of Human Rights in documenting caste-based discrimination has resulted in an unambiguous position within the United Nations treaty-based and charter-based bodies that caste-based discrimination is a form of racial discrimination. The current Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance, Doudou Diène, has made it clear that he considers caste-based discrimination to fall within his remit. In his  Annual Report to the Commission on Human Rights, he signalled the need for ‘the recognition and treatment of the discriminatory significance of the problem of castes, in close cooperation with the countries concerned.’ He has requested an invitation to visit India on a prospective mission. India has yet to accede to this request.

 CERD/C//Add., Periodic Report – Nepal, May , paragraphs –.  See UN Doc. E/CN. ///Add., paragraphs –; In this appendix to his  Annual Report to the Commission on Human Rights, Mr. Diène documents having sent a letter of allegation jointly with the Special Rapporteur on Violence against Women to the Indian Government, concerning a group of  people who attacked a Dalit settlement in the Kalapatti village of the Coimbatore district, Tamil Nadu, on  May .  UN Doc. E/CN. //, p. . Caste was one of four issues that the Special Rapporteur believed warranted especial consideration (along with immigration, anti-Semitism and Islamophobia; paragraph ).  UN Doc. E/CN. //, paragraph .

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David Keane iv. reform of existing protections

a. Caste and Justice In , in an addendum to its response to India’s third periodic report, the Human Rights Committee noted India’s resolve to translate into reality the enjoyment of rights by its people, as evident from the Constitution and the laws as well as the effectiveness of the machinery it provides for enforcement of rights. Highlighting ‘the elaborate and stringent provisions to safeguard the fundamental rights of all individuals’ under the Constitution, the Human Rights Committee ultimately characterized India’s approach to protecting human rights as ‘holistic’. The Supreme Court contributed strongly to this climate, and ‘in its concern to enhance protection and enforcement of human rights, [it had] developed a highly advanced public law regime which goes far beyond many other democratic countries.’ The reservations system was held up as an exemplary practice in the fight against discrimination: Integral to this holistic approach has been [the] Government’s policy of affirmative action to create an effective environment for the exercise of human rights by certain vulnerable sectors of society who, as a result of socio-historical distortions, have been socially or economically disadvantaged.

In response to the failure of the Constitution and its legislative progeny to eliminate the ancient practice of untouchability, the Human Rights Committee excused many human rights violations as the product of the country’s ‘extensive territorial domain, the vastness of its population and the complex social structure.’ The Committee concluded that violations ‘may sometimes occur despite best efforts.’ Eisenman views the Human Rights Committee’s comments as evidence that, in India:

 Due in     

CCPR/C//Add. (), Addendum to Third Periodic Reports of State Parties  – India,  June . Ibid., paragraph . Ibid., paragraph . Ibid., paragraph . Ibid., paragraph . Ibid., paragraph .

Why the Hindu Caste System Presents a New Challenge  The standard of good governance, here defined as “a stable law and order environment where rule of law prevails” and where human rights can be exercised freely, is embodied in the national laws of India.

Yet: The Constitution, despite all its promise and special protections, was never expected to change Indian society immediately. Indeed, any development of anti-discrimination laws is bound to encounter much socio-political retaliation from dominant groups who feel threatened by sudden changes in traditional power structures. Discriminatory traditions against Dalits span the Indian landscape . . . discrimination and traditional biases thrive in the rural areas of India. Where secularization has advanced slowly and traditional Hindu norms are still significant, discrimination is widespread.

In particular, he identifies the police as failing to reflect equality in their daily maintenance of law and order, to the extent that ‘the police force has acquired the reputation as being the prime instrument of lawlessness in India.’ The Dalit experience with police brutality has shown that, ‘operating with complete impunity, the local police are able to defy anti-discrimination laws and decimate innocent Dalits.’ The Untouchability Offences Act  was amended in , and renamed the Protection of Civil Liberties Act . Certain acts were declared as offences, such as refusing admission to any person to public institutions, such as hospitals or schools, or preventing any person from offering prayers in any place of public worship. The  amendment added offences such as insulting a member of a Scheduled Caste on the ground of untouchability, preaching untouchability, directly or indirectly,

 Eisenman, above n. , at p. .  Ibid., p. .  Ibid., p. , and on p. : ‘the police demonstrate their religious and political motivations in their actions and on the record books.’  Ibid., p. .  Protection of Civil Liberties Act , section (a). The abolition of untouchability is also envisaged by article () of the  Constitution, which forbids the denial of access to shops, public restaurants, hotels and places of entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partially out of State funds or dedicated to the use of the general public.  Protection of Civil Liberties Act , section (b).

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David Keane

or justifying untouchability on historical or philosophical grounds, or on the ground of tradition of the caste system. In the Asiad Project Workers case, the Supreme Court found that the fundamental rights under article  are available against private individuals, and it is the constitutional duty of the State to take necessary steps to see that these fundamental rights are not violated. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act  theoretically creates courts for speedier trials and imposes harsher penalties for these crimes, but has yet to be implemented in many states. According to Castellino, ‘few cases of these atrocities seek remedy before the courts, a vast majority remaining unreported; rather there are instances where atrocities committed against the community are celebrated by other sections of society.’ The author quotes the findings of India’s National Commission for Scheduled Castes and Scheduled Tribes, that ‘even after fifty years of Independence, Untouchability has not been abolished as provided in Article  of the Constitution and incidents continue to be reported.’

 Protection of Civil Liberties Act , section (c)(i) and (ii).  Peoples Union for Democratic Rights v. Union of India, AIR  SC .  J.N. Pandey, Constitutional Law of India (Central Law Agency, ) at p. .  Described in its title as: ‘An act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.’  J. Castellino, ‘Minority Rights in India’, in Joshua Castellino and Elvira DominguezRedondo Minority Rights in Asia: A Comparative Legal Analysis (Oxford University Press, Oxford, ). The author notes: ‘The majority of the States have failed to set up Special Courts under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act . As of  February , exclusive Special Courts have been set up only in Andhra Pradesh (), Bihar (), Chhatisgarh (), Gujarat (), Karnataka (), Madhya Pradesh (), Rajasthan (), Tamil Nadu (), Uttar Pradesh () and Uttranchal (). The remaining States and Union Territories have notified the existing Courts of Sessions as Special Courts for the trial of offences under the Act. As the courts in India are already over-burdened with . million and  thousand cases at the High Courts level in , according to the report of the Parliamentary Standing Committee on Home Affairs, designation of the Court of Sessions as Special Courts helps little and further adds to judicial delay in India. See ACHR Features (A weekly service of the Asian Centre for Human Rights), “Spanners in the Draft National Policy on Tribals”, ACHRF /,  August .’  National Commission for Scheduled Castes and Scheduled Tribes, Fourth Report: – and – (Government of India Press, New Delhi, ), p. ; Ibid.

Why the Hindu Caste System Presents a New Challenge  The judiciary has failed to uphold the constitutional guarantees of equality, and mirrors the same biases as the police. Eisenman states: ‘Dalits seem to be recognized by the judicial system only as criminals, as threats. When they appear before the courts as victims of abuse, Dalits are often treated with indifference by local judges.’ He illustrates the point by reference to the  Supreme Court case Karnataka v. Ingale. ‘In Karnataka v. Ingale, the Indian state charged five individuals with violating the Prevention of Atrocities Act. At the trial, four witnesses testified that the defendants had threatened Dalits with a gun in order to stop them from taking water from a well. The defendants told the Dalits that they had no right to take water, because they were ‘Untouchables’. They were convicted, but on appeal in the High Court, the judge acquitted all of the defendants after he had rejected the testimony of four Dalit witnesses. The High Court judge’s refusal to believe Dalit testimony was described by Justice Ramaswamy in the Supreme Court as a patent error. He recognized that judges – in their capacity to enforce laws penalizing the practice of untouchability in any form – are nevertheless being swayed by the centuries of dehumanizing traditions that bear behind the Constitution. He stated that the High Court judge had [fallen] into the trap of traditional mould and found doubt where none exists” in atrocities cases. Blaming “apathy and lack of proper perspectives”, Justice Ramaswamy ultimately expressed hope that the judiciary would be able to fulfil its purpose under the Constitution: “[The] judiciary does not forsake the ideals enshrined in the Constitution, but [must] make them meaningful and make the people . . . realise and enjoy the rights” that they are guaranteed by law.’ Eisenman writes that this kind of discrepancy between national laws and the ‘ground reality’ of human rights has come to occupy the attention of the international human rights movement. Now, more than fifty years after the Universal Declaration of Human Rights, the translation of

        

Eisenman, above n. , p. . Ibid., pp. –. State of Karnataka v. Ingale ()  S.C.R. ,  (Ramaswamy, J., concurring). Ibid., p. . Ibid., p. . Ibid., p. . Ibid., p. . Ibid., pp.  and . Eisenman, above n. , p. .

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David Keane

international human rights standards into national laws is no longer a key issue. Since more and more states have incorporated human rights norms into constitutional and statutory provisions, the international human rights movement has begun to look beyond ‘international standard-setting’ and move closer to the victim. Eisenman appeals to the Organisation of the High Commissioner for Human Rights to establish an international field presence in India that is specifically designed to ameliorate the condition of Dalits as part of this movement. This would require an invitation from India to the High Commissioner; which would mean conceding to India that her internal mechanisms are adequate in addressing untouchability. The work would lie in convincing India of the need to give effect to domestic provisions, especially within the criminal justice system, and assisting her in doing so. The difficulty is that the ‘Indian government continues to operate under the assumption that it has done all in its power to eliminate discriminatory traditions against Dalits.’ b. Reforming the Reservations System In its concluding observations to India’s  state report, the CERD Committee drew attention to the failure of the constitutional safeguards to protect the SC’s and ST’s from discrimination and bring about substantial improvements in their social condition: It is noted that although constitutional provisions and legal texts exist to abolish untouchability and to protect the members of the scheduled castes and tribes, and although social and educational policies have been adopted to improve the situation of members of scheduled castes and tribes and to protect them from abuses, widespread discrimina-

 S. James Anaya, Indigenous Peoples in International Law (Oxford University Press, Oxford, ), at p. , quoted in William Eisenman, Ibid.  I. Martin, ‘Closer to the Victim: United Nations Human Rights Field Operations’, in Yael Danieli et al. (eds.), Universal Declaration of Human Rights: Fifty Years and Beyond (Baywood Publishing Company, New York, ), p. . Martin makes the general proposition that, for the victim of human rights violations everywhere, the work of the United Nations has been remote; cited in William Eisenman, Ibid.  Eisenman, Ibid.  Martin, above n. , p. ; cited in Eisenman, Ibid.  Eisenman, Ibid., p. .  Ibid., p. .

Why the Hindu Caste System Presents a New Challenge  tion against them and the relative impunity of those who abuse them point to the limited effect of these measures.

India’s National Commission for Scheduled Castes and Scheduled Tribes has drawn a similar conclusion: Each and every act of development . . . reviewed for judging the condition of the SC’s/ST’s shows that their position today in rural India and urban slums had not improved substantially even after fifty years.

Why is the system not working? A recent assessment of constitutional reservations in India notes that while the ‘Other Backward Classes’ have been at the centre of the debate surrounding reservations, particularly in the context of the Mandal Report, there has been a relative lack of controversy over reservations for the SC’s and ST’s. Mendelsohn views this lack of controversy as evidence of the reservation system’s failure, for it has not generated the animus of a more successful programme. There are structural problems with the operation of the reservations policy. Dalits have failed to unite as a single political force since Independence. The electoral potential of the SC vote is recognised by all the political parties, who seek those votes in electoral campaigns, but sideline Dalit issues once elected to office. There is little incentive to see that the reservations system is implemented effectively. Consequently, it has developed into a bureaucratic structure with major inefficiencies.

 CERD/C//Add., Concluding Observations – India, September , paragraph .  National Commission for Scheduled Castes and Scheduled Tribes, Annual Report – (Government of India Press, New Delhi, ), p. .  ‘Reservations in India’, Chapter III: ‘An Assessment of Reservations’, available at www.ambedkar.org. The website does not attribute any authorship to this ‘online book’.  O. Mendelsohn, ‘A Harijan Elite? The Lives of Some Untouchable Politicians’ (), Economic and Political Weekly, Vol. XXI, No.  quoted in ‘Reservations in India’, Ibid.  Bandyopadhyay concludes of the independence period: ‘the main thrust of the transfer of power process was to depoliticize caste and push it into the social or religious domain . . . when the dominant mood of the people and all other political parties was to achieve and enjoy the long-awaited freedom, any concern for citizens’ rights in a future state needed to be blended with anti-colonialism, in order to capture the popular imagination. It was here that the dalit Federation failed and the result was the elimination of what Ambedkar imagined to be a viable third force in the troubled Indian politics of the ’s.’ S. Bandyopadhyay, ‘The Independence Period (–), and the End of the Untouchables as a Political Force’ () () Modern Asian Studies at p. .  ‘Reservations in India’, above n. , p. .

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David Keane

The collection of information, statistics and data on the operation of the reservations system in a timely and complete manner is difficult, for there is a general lack of priority given to SC issues. For example, the government of the state of Tamil Nadu did not collect any data on reservations until . At the central level, Commission reports are not reviewed by Parliament until months or years after they are written. In , the ‘long gap between presentation of [the annual] Report to the President and its placing before Parliament’ was noted with regret by the Commissioner, Anil Chanda. Thirty years later, the Commissioner, B.D. Sharma, wrote: Even if a Report is presented it remains shelved for months and years together without any action being taken on it. Even when the Parliament finds time . . . there is hardly any discussion on the contents of the report and the formality is over in no time.

The most recent National Commission report available to the public is from . Subsequent reports are still pending Parliament’s review before they can be released. The reservations system, despite its flaws, has undoubtedly made a vital contribution to Dalit opportunity and uplift. It is a remarkable and commendable system that exceeds any other affirmative action programme in the world, in terms of scale and ambition. It plays a vital role in providing representation, and improved education and employment prospects for India’s lowest castes. Furthermore: the system has become such a mainstay in India, involving a significant portion of the population, that it is doubtful that the dismantling of the system is even feasible. No politician will risk trying to roll back these ‘temporary’ measures.

Critics of reservations have often asserted that the policy has had disproportionate effects, benefiting only the most forward of the SC’s – those already in a better position to take advantage of reservations – and facili-

 P. Radhakrishnan, ‘Sensitising Officials on Dalits and Reservations’ ( February ), Economic and Political Weekly, p. , in ‘Reservations in India’, Ibid.  ‘Report of the Commissioner for Scheduled Castes and Scheduled Tribes’, th Report, p. .  ‘Reservations in India’, above n. , p. .  Ibid., p. .

Why the Hindu Caste System Presents a New Challenge  tating the emergence of an SC ‘elite’. Mendelsohn describes the emergence of the ‘Harijan elite’ which is moving further and further away from the rest of the SC population, politically, socially and economically. Over half of SC’s are employed in the agricultural sector, primarily as landless agricultural labourers, where  percent of Dalit households are landless or near landless. It is imperative that reforms are introduced to ensure an effective operation of the system. Such reforms, which have been proposed on an annual basis by the National Commission for Scheduled Castes and Scheduled Tribes, will depend on political will, which is lacking given the delays in reviewing and implementing the Commission’s reports and recommendations. In enacting the  Constitution, India showed the world that she was serious in her commitment to combat caste-based discrimination and uplift the Scheduled Castes. Implementing the recommendations of her own statutory bodies, and rejuvenating the reservations system, would make a similar statement. v. enhancing protection against caste-based discrimination a. The Bhopal Declaration The reservations system will continue to form an important part of the movement towards the eradication of caste-based discrimination in India. Yet it may not be the only means of solving the problems of the SC’s. Reservations apply only to the public sector, and not the private sector. In January , the Madhya Pradesh government sponsored an all-India meeting of Dalits in Bhopal. The conference resulted in the release of the Bhopal Declaration, a twenty-one point document highlighting the lack of progress of SC’s in the fifty years since Independence, and calling for economic reforms beyond the established system. The Chief Minister of Madhya Pradesh, Digvijay Singh, stated in his conference paper:

 O. Mendelsohn, above n. .  Human Rights Watch, ‘Broken People: Caste Violence against India’s Untouchables’ (), p. . http://www.hrw.org/reports//india/

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David Keane While the Dalit movement must strive to achieve complete fulfilment of the quota, we at the same time must understand the limited role reservation in government jobs has in SC-ST’s progress and emancipation. Unless we have understood it, it would be difficult to mould the direction of the movement toward the desired goal.

In his address to the nation on the eve of Republic Day, the President of India, Shri K.R. Narayanan, stated: Recently a conference was held in Bhopal of Dalit and tribal intellectuals and activists. They issued a Declaration called the Bhopal Declaration . . . [which] emphasises the importance, in the present era of privatisation, of providing for representation for these deprived classes, not only in Government and public institutions but in private corporations and enterprises which benefit from Government funds and facilities. Indeed in the present economic system and of the future, it is necessary for the private sector to adopt social policies that are progressive and more egalitarian for these deprived classes to be uplifted from their state of deprivation and inequality and given the rights of citizens.

The Bhopal Declaration represents the belief that the growth of capitalism, the private sector and the middle class in India is the key to breaking down the caste system. It is a ‘blueprint for the full-blooded participation of Dalits in capitalist entrepreneurship’, and seeks to create ‘a capitalist class from the country’s quarter of a billion Scheduled Castes and Scheduled Tribes.’ Its preamble declares a belief in ‘Babasaheb Dr B.R. Ambedkar’s ideal of Social Democracy’, and recognises ‘that the social consensus over the Dalit cause – reluctantly agreed upon at the time of Independence – has by and large broken down’. The signatories declare themselves ‘convinced also that the national psyche and public discourse in the country accepts uncritically the rigid hierarchy and discrimination caused by caste and thereby denies that caste is a major source of prejudice and brutal violence.’

 in India’,    

‘Digvijay’s Dalit Gambit’, Indian Express ( January ), quoted in ‘Reservations above n. , p. . Shri K.R. Narayanan, Address to the Nation,  January . Kancha Ilaiah, ‘The Bhopal Declaration – Text and Commentary’. The Bhopal Declaration, – January , Preamble. Ibid.

Why the Hindu Caste System Presents a New Challenge  The Declaration attempts to go beyond government reservations by ‘democratising capital’: Democratise capital so as to ensure proportionate share for SCs and STs. Make budgetary allocation for SC’s and ST’s to enable them to enter the market economy with adequate investment resources, and develop their capacities and skills for such market enterprises.

It calls for every government and private organisation to implement: Supplier Diversity from socially disadvantaged business and Dealership Diversity in all goods and services.

In addition, the document recommends, inter alia, ensuring that each Dalit family owns enough cultivable land for socio-economic well-being; compulsory free and high quality education for all Dalits; making the reservation quota applicable in all public and private educational institutions; recognizing SC and ST women as a distinct category among women; full implementation, in letter and spirit, of the SC and ST (Prevention of Atrocities) Act  and Rules (); eliminating the humiliating practice of manual scavenging; placing annual debates on the report of the National Commission for SC’s and ST’s on a statutory footing at state and union level; and implementing a policy of reservation for SC’s and ST’s at all levels within the judiciary. The Declaration met with some immediate results. The Chief Minister of Madhya Pradesh, Digvijay Singh, announced that the state would introduce Supplier Diversity from the ensuing financial year – where  percent of government purchases would be made from SC and ST traders and businessmen, starting with the Department of SC and ST Welfare. A Task Force under Digvijay Singh’s chairmanship was set up to make recommendations on the implementation of the Declaration to the government of Madhya Pradesh. Its recommendations included: extending the supplier diversity programme to all the government departments of Madhya Pradesh; goods and services purchased by the state should be in proportion to the SC/ST enterprises controlling them; SC’s and ST’s must have a share in the workforce in proportion to their population; the State

  

Ibid., point . Ibid., point . Ibid., points , , , , , ,  and  respectively.

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should build an environment for wider acceptance of affirmative action in partnership with the industry and corporate sector; a special law should be enacted so that the schemes of the financial institutions are redesigned to ensure that a minimum credit in proportion to SC/ST population flows to these categories; Multi National Corporations, and the United Nations organs, should follow diversity policies that favour SC’s/ST’s; Dalits should be assisted in entering sectors hitherto closed to them, including the media, the mainstream cultural arena and the private sector in general. Each SC/ST landless family should be provided with a minimum of five acres of agricultural land. In education, the Task Force highlighted ‘drop outs’ as the biggest challenge, which can be as high as  percent at high school-level. Acute poverty was determined to be the decisive factor. The Task Force noted a ‘very peculiar correlation’ between the age of dropping out and India’s cropping pattern. Most children dropped out at fourteen, when they can be hired as a child labourer. It was recommended that compensation should be paid to SC/ST families at this time to enable their children attend school. In addition, the education of the SC’s and ST’s was being ‘sacrificed at the altar of merit’. A rational system should be devised to determine merit whereby students from a particular socio-economic background are allowed compete among themselves in entrance or competitive examinations. Fellowships should be assigned to SC/ST students to enable them undertake third level and doctorate studies, with a view to filling up lectureship positions. In employment, it was recommended that a special drive be undertaken to fill up the backlog in the reservation quota. The state should send a strong recommendation to the Central Government on the implementation of reservations for SC/ST’s at all levels of the judiciary. SC/ST (Prevention of Atrocities) Act  and Rules  must be implemented in spirit and action, as called for in the Declaration. The government’s financial commitment for the development of the community should match the magnitude of the problem. It should be mandatory by law

    

Ibid., Ibid., Ibid., Ibid., Ibid.,

pp. –. p. . pp. – and . p. . pp. –.

Why the Hindu Caste System Presents a New Challenge  for both the Centre and states that they set aside a minimum of funds proportionate to the population of SC’s and ST’s for their development. Criticism of the Bhopal Declaration from Dalit writers has pointed out that the document fails to account for the origins of the caste system. Subramaniam writes: The Bhopal Declaration in its long preamble avoids any historical analysis of the conditions which have created and sustained the oppression of the dalits. While noting that the dalits have gained little from the post independence developments it does not go into the causes. This neglect of history allows its authors to come up with patently dubious formulations.

The author is concerned that the discrimination being experienced by the SC’s in the public sector is already being reproduced in the private sector, and does not see the resolution to caste-based discrimination in the growth of private business in India: This perspective of emancipation of the vast masses of dalits and tribals through the development of capitalist enterprises only paves the way for further stratification and disintegration of the dalits and tribals as distinct social actors. We already know that the reservation policy, far from assisting in emancipating the disadvantaged social groups as a whole has only helped to create an elite among them with its own distinct interests and compromises with the powers that be. The document does not specify the kind of enterprises which are most suited to the needs of the dalits. Indeed it is silent on setting up cooperative enterprises and seems to privilege the usual kind of capitalist enterprises.

Subramaniam stresses that he is not against setting up or supporting private Dalit enterprise, but wishes only that such support is not regarded as the solution to caste inequality. He sees the Dalit movement in general as forming part of a wider movement against poverty and inequality. Since the Bhopal Declaration does not seek to reform the institutions that have

 Ibid., pp.  and .  C.N. Subramaniam, ‘The Bhopal Declaration and a Tribal Fishworker’s Cooperative’, available at: http://www.revolutionarydemocracy.org/rdvn/bhopal.htm.  Ibid.

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perpetuated caste-based discrimination in India, or poverty as a global reality, its effect must be limited: We are not arguing against the setting up of dalit capitalist enterprises; indeed such enterprises would help to undercut the upper caste monopoly over capital. But this cannot be regarded an effective remedy for the mass of the dalits who will continue to be condemned to slave for the upper castes. Nor are we arguing against preparing the dalits to enter the market with effective buying and selling power. But the central question before the dalit movement will remain whether it can see its emancipation in the path of capitalist development or in the path of joining forces of workers who are fighting the capitalist system to establish a commonwealth of labour.

Whether or not one agrees with the socialist philosophy that informs this criticism, the writer makes an important point on the relationship between the state and the Dalits that the Declaration is perhaps ignoring in its aspirations to dismantle the caste system by transforming the Dalits into a viable market force in India: Its primary emphasis lies on persuading the state to implement the agenda. What forms of struggle and organisation the dalits should undertake, who can be their allies and whom they should win over etc. etc. are left unstated. This leaves just the state as the ally of the dalit movement. It does not take much imagination to see the flaw in this line of thinking since in most cases the dalits and tribals stand in direct opposition to the state.

The point is relevant given that only the state of Madhya Pradesh, with the support of its Chief Minister, Digvijay Singh, has implemented any part of the Declaration. The document is aspirational, and represents a series of guiding principles that are not legally binding. Nevertheless, some of the ideas that have been proposed are commendable, and as noted by the commentator above, it may represent one aspect of the way forward to a fairer society in India. The Conference at Bhopal and resultant Declaration draws an important link between the protection of economic and social rights and caste-based  

Ibid. Ibid.

Why the Hindu Caste System Presents a New Challenge  discrimination. The Bhopal Declaration, with its desire to see minimum economic standards for Dalits in the private sphere as well as the public sphere, has the potential to progress beyond its current status as a guiding instrument in the negotiations between the Dalit minority and the caste Hindu majority in India. This progression must take place in concordance with measures in other aspects of the Indian polity if caste-based discrimination is to be eradicated. India has submitted only one periodic report to the Committee on Economic, Social and Cultural Rights, and that was almost twenty years ago, on  December . Its second, third and fourth reports are overdue, the fourth since  June . The overdue report of India will represent an important opportunity for the Committee on Economic, Social and Cultural Rights to bring the question of caste-based discrimination into the realm of economic and social rights, which have already been identified in such documents as the Bhopal Declaration as representing an important stage in the movement towards breaking down the Hindu caste structure. Such developments must inform the Committee’s analysis of India’s future report, and its concluding observations should engage with the question of how the caste system and its discriminatory effects violate the rights protected in the Covenant in a comprehensive manner, drawing from the work of Dalit NGO’s and the other treaty-monitoring committees. b. Is Caste a Sui Generis Category? The growing movement against descent-based discrimination in the United Nations has seen the issue of caste subsumed within a global fight to eradicate descent-based discrimination. The movement against descent-based discrimination must not lose sight of its original intention, to eradicate the ancient, entrenched practice of caste in the Hindu states, India and Nepal. In the travaux préparatoires to the International Convention on the Elimination of All Forms of Racial Discrimination, the word ‘descent’, which was introduced by India into the Convention, did not originally refer to the caste system. The point is an academic one, but it is made to highlight

 State Report: E///Add.; Concluding Observations of the Committee: E//WG./SR.; . See the United Nations Treaty-bodies Database, at: http://www. unhchr.ch/tbs/doc.nsf/RepStatfrset?OpenFrameSet  Ibid.  See Keane, above n. .

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the need to distinguish caste from descent. There is a structural difference that must be appreciated by the United Nations treaty and charter-based bodies. This difference is that the caste system, uniquely, has religious support in the sacred texts of the Hindus, resulting in large-scale caste-based discrimination, causing widespread poverty and degradation. The need to distinguish caste from descent does not deny the wider questions raised by the story of India’s caste struggle. Indeed, it emphasises the broader relevance of the caste question to the legal understanding of racial discrimination. There is a problematic that the discussion of castebased discrimination in international human rights law has raised that goes beyond the parameters of Hinduism and the Dalits. It is a question for human rights law itself. The United Nations has been concerned primarily with standard-setting in the area of racial discrimination. There has been a clear strategy to the work of the Committee, involving three steps: first, recognition or identification of the problem; second, introduction and enforcement of robust laws of non-discrimination, which comport to the criteria laid out in the General Recommendations; and finally a movement towards affirmative action, that would bring a desired shift from de jure to de facto equality. The Committee’s history of engagement with states parties reflects this approach. A review of the first forty-five state reports has shown that more than half the states in question emphatically denied that any form of racial discrimination existed on their territories, with many states initially viewing the Convention as an instrument designed solely to combat racial discrimination by ‘whites’ against ‘blacks’. In , Madagascar, having received a communication from the Committee outlining the required format for state reports, wrote in its Report that: ‘the Malagasy Government considers that the detailed questionnaire in the aforementioned communication is intended for countries in which either de facto or de jure racial discrimination exists.’ In response, the Committee issued General Recommendation II, which held that the communication was ‘addressed to all states parties without distinction, whether or not racial discrimina-

 M. Banton, International Action against Racial Discrimination (Oxford University Press, Oxford, ), at p. .  T. Buergenthal, ‘Implementing the UN Racial Convention’ (),  Texas International Law Journal , at p. .  Ibid., p. .

Why the Hindu Caste System Presents a New Challenge  tion exists in their respective territories.’ Following the issuing of the Recommendation, the number of states making assertions similar to that of Madagascar, that no racial discrimination existed on their territories, dropped accordingly. The last thirty years of state reporting have seen the Committee concentrate on the second and third steps. This entails setting the standard for provisions against racial discrimination, and raising the requirement from formal non-discrimination on the basis of race, colour, descent, or national or ethnic origin, to affirmative action measures designed to bring about economic and social equality, as well as civil and political equality between groups. The first Special Rapporteur on Affirmative Action, Marc Bossuyt, describes the process in his Final Report. He notes that where the nondiscrimination principle removes factors such as race, sex and nationality from the society’s decision-making processes, affirmative action seeks to ensure full and substantive equality by taking those factors into account. Consequently, not every different treatment is prohibited – only those treatments that result in discrimination, it being universally accepted that the term ‘discrimination’ has to be reserved for arbitrary and unlawful differences in treatment. Affirmative action is no exception to the principle of non-discrimination. Rather, it is the principle of non-discrimination that establishes limits to each affirmative action. The difficulty this approach raises in the Indian context has already been signalled. India’s  Constitution appears to go beyond the accepted legal path that CERD has forged in its quest to eliminate all forms of racial discrimination. It is the next stage that is uncertain. This is why it is so important to distinguish caste from descent; many of the groups viewed as descent-based groups, such as the Griots of Senegal or the Akdham of Yemen, have not been identified in their respective states as suffering any

 General Recommendation II, Decision (V)  February .  Buergenthal, above n. , p. . By , only one State, Bolivia, seemed to be making the claim that no racial discrimination existed on its territories. The Bolivian representative agreed with the Committee that: ‘his government had not fulfilled all its obligations and must submit a more detailed report.’ (quoted in Buergenthal, n. )  UN Doc. E/CN. /Sub.//, paragraph .  Ibid., paragraph .  Ibid., paragraph .

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form of discrimination. General Recommendation XXIX seeks first of all to push states towards identifying descent-based groups within their territories; it requests of states parties ‘the identification of those descentbased communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status . . .’ Despite the hostility shown to CERD’s probing of the caste system, India is far beyond the identification process with regard to the Dalits. Indeed, in relation to the entire concept of ‘special measures’, as affirmative action is labelled in international human rights law, India has been to the fore. According to Marc Bossuyt’s Final Report, the first mention of ‘special measures’ was made by the Government of India during the drafting of the International Covenant on Economic, Social and Cultural Rights. India suggested that an explanatory paragraph should be included in the text of article  of the Covenant, specifying: Special measures for the advancement of any socially and educationally backward sections of society shall not be construed as distinctions under this article. Alternatively, the Committee might wish to insert in its report a statement, which would make that interpretation clear.

The representative of India pointed out that the implementation of the principles of non-discrimination raised certain problems in the case of the particularly backward groups still to be found in many underdeveloped countries. In his country, the delegate stated, the Constitution and the laws provided for special measures for the social and cultural betterment of such groups. Measures of that kind were essential for the achievement of true social equality in highly heterogeneous societies.

 See for example UN Doc. A//, Concluding Observations – Senegal, August , paragraph , in which CERD noted with concern ‘the continuing legacy in Senegal of aspects of a caste-based system, despite its having been banned by law’. Senegal’s report had not acknowledged the existence of any such discrimination in its territory. It is submitted that this is an incorrect application of the term ‘caste’, which should be used only to describe the Hindu system.  UN Doc. A//, p. .  UN Doc. E/CN. /Sub.//, paragraph .  UN Doc. A/C./SR., paragraph .  UN Doc. A/C./SR., paragraphs  and .

Why the Hindu Caste System Presents a New Challenge  India is far beyond implementing non-discrimination norms and affirmative action measures, and recommending such an approach, like the identification process, is no longer relevant. What is the next step? The two Special Rapporteurs on Discrimination based on Work and Descent are not just concerned with caste. Similarly the treaty-monitoring bodies are committed to the elimination of descent-based discrimination, in all its forms. In tracing the problem of descent-based discrimination as a global phenomenon, these bodies can focus on identification and standard-setting, however, again, it is imperative to remember that tackling the Indian caste system is the origin of the movement against descent-based discrimination. What measures can be brought in, that would move beyond the legal protections that Ambedkar wrought from the caste Hindu majority in the early twentieth century? Implementation and reform of the existing reservations system are an issue, and this has been discussed. Beyond this, moving into the private sphere to tackle discrimination is an important innovation. If the successful elements of the Bhopal Declaration could be distilled, then this could become a model for reducing the reality of racial discrimination in other states. vi. conclusion Most, if not all, states have sophisticated laws on non-discrimination on the basis of race, colour, descent or national or ethnic origin. Some states have affirmative action measures in limited spheres. No states have gone further; yet poverty and exclusion can be divided upon the basis of race, colour, descent and national or ethnic origin, to the extent that those groups at the bottom illustrate that there is a reality of racial discrimination in the world. Social and economic equality requires more than non-discrimination, and requires innovation with regard to special measures. It is a challenge for human rights law, and combating caste-based discrimination calls for renewed thinking and a new step to be taken that stretches the boundaries of human rights law remedies. Caste may have been the first form of racial discrimination – it should become the test for our ability to rid the world of this disease. The strategies employed beyond the existing mechanisms are the next step in the elimination of racial discrimination. They apply to caste, and to all other forms of racial discrimination. The particular elements that

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sustain such discrimination must be constantly reassessed. That reassessment in India by Dalit NGOs has led to the conclusion that the enforcement of social and economic rights is the next direction that the Dalit struggle must take. This should be supported within human rights law, and extended to other situations of de facto racial discrimination. The ability of special measures in the private sphere to tackle racial discrimination is being tested in one state in India; the international community needs to take note of the results. The progressive steps towards the elimination of racial discrimination have been highlighted: identification; non-discrimination; affirmative action; and finally enhanced protection, involving a push towards social and economic equality between groups. These are common to all forms of racial discrimination. However enhanced protection must also be focussed on the root of the particular problem. Belief structures must be unravelled. A belief in biological difference underlies discrimination on the basis of skin colour. The classification of mankind into biological ‘races’ must cease, if the belief in a natural superiority and inferiority of peoples is to end. In regard to caste, the system is primarily a religious belief structure. Its discriminatory elements have their genesis in the religious texts of Hinduism. There is a vibrant discourse on the compatibility of religious tenets and human rights law within other religions, such as Islam, that has not permeated Hinduism. Ambedkar singled out the nature of Hindu prescriptions on caste and labelled them laws that are capable of reform. It was only the discriminatory aspect of Hinduism, translated into the reality of caste prejudice that he sought to attack. In The Annihilation of Caste (), Ambedkar wrote: The only question that remains to be considered is – How to bring about reform of the Hindu social order? How to abolish caste? This is a question of supreme importance.

His analysis concentrates on the Hindu religion, as contained in the Vedas and the Smritis. Describing these texts as ‘a multitude of commands and prohibitions’, he linked the dharma codes to the concept of law: ‘To put



B.R. Ambedkar, ‘The Annihilation of Caste’ (), above n. , p. .

Why the Hindu Caste System Presents a New Challenge  it in plain language, what the Hindus call religion is really Law or at best legalized class-ethics. Frankly, I refuse to call this code of ordinances . . . religion’. The consequence of ‘misnaming this law as religion’ is the loss of the possibility of reform.

 

Ibid., pp. –. Ibid.

part four

Islam, State Practices and Contemporary International Law

chapter eleven

The Role of Islam in Human Rights and Development in Muslim States Mashood A. Baderin* i. introduction The concept of human rights has, today, become an important form of social ordering which no State can ignore. This status of human rights as a form of social ordering is boosted by the fact that there is a strong link between respect for human rights and development within States. The development of a State depends largely on the level of human development within the State and human development is a principal objective of human rights, especially through the guarantee of economic, social and cultural rights. In his report titled In Larger Freedom: Towards Development, Security and Human Rights For All, which was presented to the th Session of the United Nations General Assembly in March , the UN Secretary General noted significantly that: ‘. . . we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights’. He also observed that: ‘. . . countries which are well governed and respect the human rights of their citizens are better placed to avoid the horrors of conflict and to overcome obstacles to development’. These observations clearly capture the strong link between respect for human rights and the attainment

* Professor of Law, Brunel Law School, Brunel University, London.  See e.g. Former UN High Commissioner for Human Rights, Mary Robinson’s lecture on: ‘Bridging the Gap between Human Rights and Development: From Normative Principles to Operational Relevance’ Presidential Fellows’ Lecture, World Bank Washington D.C.,  December . See also P. Alston and M. Robinson (ed.), Human Rights and Development: Towards Mutual Reinforcement (Oxford University Press, Oxford, ).  See e.g. Art. () of the UN Declaration on the Right to Development (), GA Resolution / of  December , which provides that: ‘The human person is the central subject of development and should be the active participant and beneficiary of the right to development’.  UN Doc. A//,  March , para. .  Ibid., para. . Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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of development and the consequent need for respect for human rights especially in developing States. Development is itself being promoted as a human right through the concept of ‘right to development’, while the concept of a ‘human rights-based approach’ to development is fast emerging. The quest for human rights and development is therefore a matter of great public and international interest in the affairs of all States today. Regrettably, different inter-governmental and non-governmental organisational reports as well as individual academic research on the global situation of human rights and development reveal that, despite their substantial human and natural resources, Muslim States are amongst the States of the world that are relatively much behind in the practical guarantee of human rights and in developmental progress. This has engendered significant focus of interest, by different stakeholders, on the human rights situation in Muslim States. There is currently an important need to engage with the question of identifying the best means of enhancing the practical guarantee of human rights and developmental progress in Muslim States. In addressing that question, Islam is a relevant factor that cannot be ignored. This chapter therefore examines the role that Islam as a religion can play in the promotion of human rights and development in Muslim States.

 On this point see generally P. Tlakula, ‘Human Rights and Development’ in P.T. Zeleza and P.J. McConnaughay (eds.), Human Rights, the Rule of Law, and Development in Africa (University of Pennsylvania Press, Philadelphia, ), pp. –.  See the UN Declaration on Right to Development adopted by the UN General Assembly Resolution / on  December . The Constitutions of developing countries such as Malawi and Ethiopia also provide for a right to development.  See e.g. UNICEF, Guidelines for Human Rights-Based Programming Approach (UNICEF, ); OHCHR, Frequently Asked Questions on a Human Rights-based Approach to Development Cooperation (United Nations, New York and Geneva, ); Overseas Development Institute, What Can We Do With A Rights-Based Approach To Development? ODI Briefing Paper () September.  See e.g. M. Ahsan, ‘Human Development in the Muslim World: From Theory to Practice’ ()  The Muslim World, pp. –; UNDP, The Arab Human Development Report : Creating Opportunities for Future Generations (UNDP, New York, ); UNDP, The Arab Human Development Report : Building a Knowledge Society (UNDP, New York, ); UNDP, Arab Human Development Report : Towards Freedom in the Arab World (UNDP, New York, ); UNDP, Human Development Report : Millennium Development Goals: A Compact Among Nations to End Poverty (OUP, New York, ); UNDP, Human Development Report : Cultural Liberty in Today’s Diverse World (UNDP, New York, ); UNDP, Human Development Report : International Cooperation at a Cross-Road (UNDP, New York, ).

The Role of Islam in Human Rights and Development



ii. the public role of islam in muslim states The theme of this book, Religion, Human Rights and International Law, is relatively more relevant to the situation in Muslim States than others. That is because religion, specifically Islam, continues to play a considerable role in the public sphere of a significant number of Muslim States today. An observation of the current political and legal developments in States such as Egypt, Morocco, Iraq, Saudi Arabia, Malaysia, Palestine and Nigeria, among others, reveals a practical potency of Islam in the politico-legal affairs of many Muslim States. Buskens has noted that: ‘In most Muslim societies it is impossible to speak about family law except in terms of Islam’, which, on the one hand, reveals the influence of Islam also in the socio-cultural affairs of Muslims, but on the other hand, has an important human rights implication especially in the area of women’s rights in most Muslim States today. The public role of Islam is formally demonstrated in the Constitutions of different modern Muslim States that declare Islam as the religion of the State, or recognise Islamic law is part of State law or provide for the establishment of State courts that apply Islamic law. Also, Muslim States have adopted regional instruments such as the Arab Charter on Human Rights, the Charter of the Organisation of Islamic Conference (OIC), the OIC Cairo Declaration on Human Rights in Islam and the OIC Covenant

 L. Buskens, ‘Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere’ () () Islamic Law and Society pp. – at .  See e.g. R.C. Blitt, and T. Stahnke, ‘The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries’ (USCIRF: March ), p.  where the authors record that  of  predominantly Muslim States have constitutionally declared Islam as the religion of the State. ( August ).  Ibid., pp. –.  See e.g. the Constitution of the Federal Republic of Nigeria () Sections – and Sections –; the Constitution of the Islamic Republic of Pakistan ( as amended) Article .  Adopted by the League of Arab States on  September , reprinted in ()  Human Rights Law Journal, . A Revised version of the Charter was adopted in May .   UNTS, p. .  Adopted on  August . See UN Doc. A///, p. .

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on the Right of the Child in Islam, all of which make reference to Islam as a relevant factor in the quest for human rights in the Muslim world. There are also references to Islam as a relevant factor in the Arab Human Development Reports published by the United Nations Development Programme (UNDP) which aims at identifying and remedying the problems of human development in the countries of the Arab world. Islam, therefore, has both a socio-cultural and politico-legal relevance in the affairs of many Muslim States and that of regional organisations such as the Arab League and the OIC. Thus, Islam is also an important form of social ordering in the Muslim world. This raises the question of what role can Islam play as a parallel form of social ordering in the promotion of human rights and development in Muslim States. Depending on one’s perspective, Islam as a parallel form of social ordering in Muslim States can be conceived either as a positive or a negative factor in the promotion of human rights and development in Muslim States. While it is acknowledged that some hard-line traditional and conservative interpretations of Islamic sources can be of negative effect in the quest for human rights and development in Muslim States, this chapter strongly advocates the former. It argues that Islam can, and should, serve as a positive factor for the promotion of human rights and development in Muslim States. The Qur’an and the Sunnah (i.e. the Sharī‘ah), which constitute the main sources of Islamic religious, moral and legal norms, contain relevant provisions that support the guarantee of human rights and the promotion of development in Muslim States. Also, the methods and relevant principles of Islamic law can be positively employed to ensure the practical realisation of that objective. Rather than presenting human rights as a form of alternative ideology, this chapter advocates the possibility of harmonising Islam and human rights as parallel forms of social ordering in predominantly Muslim States. This harmonistic approach finds support in an observation by one of the oldest and renowned American human rights scholars, Professor Louis Henkin, that: Human rights are not a complete alternative ideology, but rights are a floor, necessary to make other values, including religion, to

 Adopted by the nd Islamic Conference of Foreign Ministers in Sana’a, Republic of Yemen in June, .  See e.g. UNDP, Arab Human Development Report : Towards Freedom in the Arab World (UNDP, New York, ).

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flourish . . . religion can accept if not adopt the human rights idea as an affirmation of its own values, and can devote itself to the larger, deeper area beyond the common denominator of human rights. Religion can provide, as the human rights idea does not adequately, for the tension between rights and responsibilities, between individual and community, between the material and the spirit.

The veracity of this harmonistic proposition is based on the fact that the ideals of human rights is best reflected through persuasive authority rather than through forceful authority; and one way of doing that in Muslim societies is through the medium of Islam, which has a persuasive influence in most Muslim States as earlier identified above. To advance the harmonistic proposition, I will analyse the relevant theoretical, transitional and substantive perspectives respectively in Sections III, IV and V below, with a brief conclusion in Section VI. iii. theoretical perspectives In analysing the theoretical aspect of the harmonistic proposition herein, I will employ the two theories of social ordering established by Professor Lon Fuller, in his seminal jurisprudential essay on The Forms and Limits of Adjudication first published in full in the Harvard Law Review in . Fuller identified that there are two basic approaches to social ordering in human society, namely, ‘organization by common aims’ and ‘organization by reciprocity’. He observed that these two approaches ‘represent the two basic ways in which men [and by implication, States] may, by coming together, secure an advantage for all participants’. Organization by common aims applies where the participants want the same thing or things, meaning, they have a common objective. Conversely, organization by reciprocity applies where the participants want different things. Fuller then noted, in relation to organization by common aims, that: ‘In an organiza-

 L. Henkin, ‘Human Rights and Competing Ideas’ in E.G. Bello and B.A. Ajibola (eds.), Essays in Honour of Judges Teslim Olawale Elias, Vol.  (Martinus Nijhoff, The Hague, ), p.  at .  L.L. Fuller, ‘The Forms and Limits of Adjudication’ ()  Harvard Law Review, –, particularly at pp. –.  Ibid., at .  Ibid.

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tion dominated by the principle of common ends, nothing is easier than to slip into the assumption that the other fellow wants what we want, or that he will want the same thing when his perception has developed to the level of our own.’ Whereas, in relation to organization by reciprocity, he noted that: ‘we must know, if we are to obtain what we want, what the other fellow wants.’ Although Fuller discussed these two forms of social ordering as applying independently, in my view, expediency may demand a combination of the two theories in some situations. In practice, complex human relations – and by implication, inter-State relations – are usually based on a combination of organization by common aims and organization by reciprocity. This is because, sometimes the participants may have a common objective, which calls for the application of the theory of common aims, but they may still want to achieve the common objective through different means, which concurrently calls for the application of the theory of reciprocity. Applying the common aims theory to the relationship between Islam and human rights, my first proposition is that the protection and enhancement of human welfare constitutes a common objective of both the Sharî’ah and the international human rights scheme. Islamic jurists agree that the overall objective of the Sharî’ah (maqāsid al-sharī’ah) is the enhancement of human welfare (maslahah). Similarly, the overall objective of international human rights is to enhance human welfare universally. This common objective of enhancing human welfare can therefore serve as an important link between Islam and human rights as parallel forms of social ordering in Muslim States. However, in promoting this common objective of human welfare, the human rights approach and the Islamic approach may respectively be seen as theoretically different. The international human rights system adopts a liberal and anthropocentric approach while Islam adopts a religious and theocentric approach in the pursuance of human welfare

   ),

Ibid., at pp. –. Ibid. See M.A. Baderin, International Human Rights and Islamic Law (OUP, Oxford, pp. –.

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respectively. However, these theoretical differences are, in my view, ‘not vehemently incompatible’. I have argued elsewhere that: Both perspectives are accommodative of each other through constructive analysis and proper understanding of the concepts. While the recognition of the right to freedom of religion and belief  does facilitate the accommodation of the theocentric perspective within international human rights law, Sharī‘ah provisions such as “. . . God intends every facility for you (humans); He does not want to put you in difficulties . . .” also facilitate the accommodation of the anthropocentric perspective within Islamic law.

As indicated earlier above, a combination of the theory of common aims and the theory of reciprocity is necessary in some complex human and inter-State relations, especially where the participants in a common objective pursue it through different approaches as demonstrated in this case. Consequently, my second theoretical proposition is that in pursuing this common aim of human welfare in Muslim States, there is the need, as demanded by the reciprocity theory, that ‘we must know, if we are to obtain what we want, what the other fellow wants.’ Certainly, what we want, as international human rights scholars and advocates, is the realisation of human rights and human development in Muslim States. To help us achieve this objective effectively, we must, in relation to the reciprocity principle, also know what Muslim States want in that regard. Relevant submissions of some Muslim States to international human rights bodies demonstrate that they aim at pursuing their international human rights obligations within their adherence to Islam as a parallel form of social ordering in their respective States. For example, the Saudi Arabian Deputy Minister for Foreign Affairs observed, inter alia, in a statement before the UN Commission on Human Rights in  that:

 See M.A. Baderin, ‘Dialogue Among Civilisations as a Paradigm for Achieving Universalism in International Human Rights: A Case Study with Islamic Law’ ()  Asia-Pacific Journal on Human Rights and the Law, p.  at –.  Ibid., at p. .  See e.g. Art.  of the Universal Declaration of Human Rights  (UDHR) and Art.  of the International Covenant on Civil and Political Rights  (ICCPR).  Qur’an :.  Baderin, above n. , at p. .  See above n. .



Mashood A. Baderin There was a need to develop current human rights concepts with reference to the humanitarian values enshrined in the various religions, civilizations and cultures of the world. Islam, like other religions, was clearly playing a leading role in that regard, since it continued to enrich the concepts of human rights through its noble moral values and principles and its comprehensive way of life, in which rights and obligations were defined in a just and equitable manner.

Other Muslim States have also called for understanding in their effort to balance between Islamic principles and their international human rights obligations. In my view, they are entitled to such understanding. However, in calling for such understanding, the reciprocity principle demands conversely that Muslim States should also not loose sight of the fundamental common objective, which is the enhancement of human welfare, and thus must be able to demonstrate practically that they can still realise, appropriately, that fundamental common objective within their maintenance of Islam as a parallel means of social ordering in their respective States. While there has been some tangible practical effort in some Muslims States, there still remains much to be done in that regard by most Muslim States. It is submitted that with the right political will and commitment, it is possible for Muslim States to improve their human rights practice significantly within their Islamic ethos. A study of the Islamic sources will reveal that, where applied appropriately in the context of its overall objective of maslahah, maintaining an Islamic ethos by Muslim States should not be an impediment to human rights and development in the Muslim world. It is the non-contextual, hardline and conservative interpretations of Islamic provisions by some Muslim States that often lead to constraints on international human rights norms and consequently create discord between their maintenance of Islam as a form of social ordering on the one hand, and international human rights as a parallel form of social ordering on the other. With the right political will and cooperation amongst States and other relevant stake-holders, a combination of the two theories of social ordering, namely’ organization by common aims’ and ‘organization by reciprocity’, as proposed above, can  See UN Doc. E/CN///SR. at para.  (Saudi Arabia).  See generally, M.A. Baderin, ‘A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence?’ () () Human Rights Law Review, –.

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provide the proper foundation and understanding for employing Islam as a positive means for the realisation of human rights and development in Muslim States. We shall now consider the relevant transitional factors in that regard. iv. transitional perspectives Transitionally, the promotion of human rights and developmental progress has both an external and internal aspect. The external aspect calls for international co-operation among States and other stakeholders in that regard. Since the realisation of human rights and developmental progress ensures the enhancement of human welfare to human beings everywhere, everyone must be concerned and thus co-operate in pursuing its realisation in every State. The need for international co-operation for the realisation of human rights and development is expressed, for example, in the UN Charter, the International Covenant on Economic, Social and Cultural Rights  (ICESCR) and the UN Declaration on the Right to Development. The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in Vienna in  also emphasised the importance of international co-operation for the realisation of human rights and eliminating obstacles to development. More specifically, the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms adopted in  provides that: ’Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.’ The Islamic principle of ‘ta‘āwun alā al-birr wa al-taqwā’ (cooperation in goodness and devoutness) can serve as a motivating factor for such

 Art. () of the UN Charter calls for ‘international co-operation in solving international problems of an economic, social cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.  Art. , ICESR.  Art. (), Declaration on the Right to Development.  Vienna Declaration on the Cause of Action, para. .  A/RES//,  March .  Ibid., Art. .

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international cooperation in Muslim States. This principle is based on the provision of Qur’an :, which enjoins Muslims generally to ‘cooperate in goodness and piety but not in evil and enmity’. As the guarantee of human rights and developmental progress are both acts of goodness for the benefit of humanity, Muslim States are obliged under this Qur’anic provision to cooperate amongst themselves as well as with other States and stakeholders in realising the fundamental objective of enhancing human welfare. By such cooperation Muslim States can enhance their developmental progress through access to international assistance and developmental cooperation with other States, international organisations and other stake holders in the international human rights venture. The fourteenth century Islamic scholar Ibn Taimiyyah articulated the benefits of external cooperation for the attainment of human welfare in the introduction of one of his early works, al-Hisbah f ī al-Islam (Public Order in Islam), by stating that: None of mankind can attain complete welfare, whether in this world or in the next, except by association, co-operation and mutual aid. Their co-operation and mutual aid is for the purpose of acquiring things of benefit to them and their mutual aid is also for the purpose of warding off things injurious to them.

Conversely, this external aspect also requires Muslim States to be prepared to accept and act upon constructive criticism and international pressure for improvement in their human rights practices. One of the problems in that regard is the issue of distrust, often from Islamist groups in Muslim States and sometimes from the respective Muslim States themselves, regarding the constructivism and good faith underlying such external interventions and criticisms. For example, in his analysis of the debates on family law reforms in Morocco leading to the promulgation of the new Moroccan Family Law Code (Mudawwana) in February , Buskens noted that some Islamist and political groups in Morocco opposed the proposed family law reforms on grounds of external connivance against Islamic norms and Moroccan cultural values which, they claimed, was seeking ‘to destroy one of the last strongholds of Islam: the family’. The significance of such claims is that

 T. Ibn Taimiyyah, al-Hisbah f ī al- Islām, al-Jāmi‘ al-Islāmiyyah, Madīnah al-Munawwarah, n.d. Translation quoted from A.K.S. Lambton, State and Government in Medieval Islam (OUP, Oxford, ), p. .  L. Buskens, above n. , at p. .

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they are often addressed to, and acted upon by, a large constituency of the populace in the respective Muslim States, which can be quite significant in the human rights debates and initiatives in those countries, and therefore cannot be ignored. For example, in response to the above claims by the Islamist groups in Morocco, there was what Buskens described as a remarkably well-organized demonstration organised by the Islamist groups in Casablanca, which attracted an estimated , to , male and female participants from all parts of Morocco, carrying placards with slogans such as: ‘Yes to the integration of women in development. No to westernization and submission’. Such reactions, in my view, indicate the need to present human rights initiatives in ways that can re-assure the general populace in Muslim States that human rights are not meant to undermine their religious norms and beliefs, but, in the words of Henkin, serve as ’a floor, necessary to make other values, including religion, to flourish’, and that religious norms can be harmonised with human rights and vice versa. In an apparent attempt to re-assure the Moroccan populace in that regard, the preamble of the new Moroccan Family Code adopted in  stated that the Moroccan monarch had . . . provided the Commission with his constant enlightened guidance and advice in order to prepare a new Family Code bill, and insisted upon their fidelity to the provisions of Sharia (religious law) and Islamic principles of tolerance, and encouraged the use of ijtihad (juridical reasoning) to deduce laws and precepts, while taking into consideration the spirit of our modern era and the imperatives of development, in accordance with the Kingdom’s commitment to internationally recognized human rights.

The preamble further observed that the provisions of the new Family Code was: . . . drafted in a modern legal jurisprudential style, in conformity with Islam’s tolerant rules and exemplary purposes while providing balanced, fair and pragmatic solutions resulting from enlightened open

 Ibid., at p. .  Henkin, above n. .  th Preambular Paragraph of the English Translation of the Moroccan Family Code (Moudawana) of February ,  by Global Rights.



Mashood A. Baderin ijtihad (juridical reasoning). This code further stipulates that human and citizenship rights are accorded to all Moroccans, women and men equally, in respect of the holy divine religious references.

However, despite the importance of international cooperation as analysed above, the primary responsibility for the realisation of human rights and development lies on each respective State. This brings us the internal aspect, which is the need for appropriate political will and commitment of the State itself to improve the human rights conditions of its populace for the better. A motivating provision can be found in the Qur’an to encourage Muslim States to take this primary internal responsibility seriously. The Qur’an says: ‘God will never change the condition of a people [or nation] until they change it themselves (with their own souls)’. This demands appropriate internal political will and determination on the part of Muslim States in relation to human rights guarantees and developmental progress. Under the Islamic politico-legal principle of al-Siyāsah al-Shar‘iyyah, the ruling authority has the mandate under Islamic law to exercise a wide discretion in matters of public law to improve the welfare (maslahah) of the populace in the Muslim State. Similar to other human beings anywhere in the world, the populace of Muslim States would certainly prefer the liberties and welfare, which the respect for human rights and developmental progress can bring them. Often however, the under-trodden populace in Muslim States may be deluded by conservative interpretations of Islamic religious provisions to the effect that they should only concentrate on attaining heavenly bliss and not bother about their worldly conditions and welfare. However, it must be noted that even though the Qur’an encourages Muslims to seek heavenly attainment with what God has provided them, it immediately adds categorically that: ‘. . . and forget not your portion of legitimate enjoyment in this world and do good as God has been good to you . . .’ In that regard, good governance is the most important internal agent of human rights and development in any State, without which it is difficult,

   

Ibid., th Preambular Paragraph. See e.g. Art. (), Declaration on the Right to Development . Qur’an :. Qur’an :.

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if not impossible, to guarantee both. In Resolutions on the role of good governance in the promotion of human rights adopted by the former UN Commission on Human Rights, the Commission consistently recognised the necessity of good governance as an enabling agent for the enjoyment of human rights and attainment of sustainable human development. The Commission identified transparency, responsibility, accountability, participation and responsiveness to the needs and aspirations of the populace as the main attributes of good governance. In my view, the two key elements of these identified attributes of good governance are accountability and participation. Where the elements of accountability and participation are fully respected, all the other attributes of good governance will be easily realized. In relation to Muslim States that uphold Islam as a form of social ordering, there are relevant provisions within the Sharī‘ah which equally advocate the concept of good governance as well as its two key elements of accountability and participation in Muslim States. First, Islam considers governance as a Trust (Amānah) primarily from God and subsequently from the populace to those in authority. Thus, those in authority are accountable to God in the hereafter and accountable to the populace here in this world for that Trust. This is confirmed in the Qur’anic provision that: ’God commands you to render the Trusts back to those whom they are due . . .’ Since governance is a Trust entrusted by God and the populace unto the leadership, this Quranic provision imposes a duty of accountability upon the leadership to both God and the populace, which must be fulfilled. The Prophet of Islam makes this clearer in a statement where he is reported to have said: ‘Each of you is [like] a shepherd and each of you is accountable regarding his flock. The leader of a people is [like] a shepherd and is accountable regarding his subjects . . .’ Thus, no government of a Muslim

 See generally, H. Sano, G. Alfredsson, and R. Clapp (ed.), Human Rights and Good Governance (Martinus Nijhoff Publishers, Leiden, ).  See e.g. the Commission on Human Rights Resolution / adopted on  April  and Commission of Human Rights Resolution / adopted on  April . The Human Rights Commission was replaced by a new Human Rights Council in . See UN General Assembly Resolution A/RES// of  April .  Ibid.  Qur’an :.  Reported by al-Bukhari and Muslim.

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State can plead Islam as a ground to deny good governance or accountability in that regard. Accountability in governance was demonstrated practically by the first Caliph, Abubakar, in his acceptance speech on his appointment as the Caliph after the death of the Prophet. He is reported to have addressed the populace in the following words, inter alia: O People!, you have elected me as your leader, yet I am not the best of you. So help me when I do well and correct me when I go wrong. Truthfulness is a Trust and deception is betrayal. The weak amongst you will remain strong with me until I restore their rights, God willing, and the strong amongst you will remain weak with me until I recover the rights [of others] from them, God willing . . .

By inviting the populace to help him when he did well and to correct him when he did wrong, the speech of Caliph Abubakar above also recognized participation as an element of good governance. In fact the Qur’an had specifically directed the Prophet to consult the Muslim populace in their affairs in an injunction saying: ‘. . . and consult them in the affairs. . . ’. In another verse the Qur’an also states that the Muslims should conduct ‘. . . their affairs by mutual consultation . . .’ Many contemporary Muslim scholars and organizations currently refer to these two verses as the Islamic basis for promoting democratic government and public participation in the governance of Muslim States. I shall now proceed to examine the substantive perspectives of applying the theoretical and transitional aspects analysed above. v. substantive perspectives Substantively, all civil and political rights as well as economic, social and cultural rights must be promoted and protected to ensure the full enjoyment of human rights generally and for sustainable human development

 See e.g. A.S. Najeebabadi, The History of Islam, Vol.  (Darussalam International Publishers, Riyadh, ), p. .  Qur’an :.  Qur’an :.  See e.g. A.A. Sachedina, The Islamic Roots of Democratic Pluralism (OUP, New York, ); J.L. Esposito and J.O. Voll, Islam and Democracy (OUP, New York, ), pp. –.

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in all States. However, in the context of this chapter, I will highlight six specific rights for particular attention by Muslim States. To ensure accountability and participation in relation to good governance, it is proposed that Muslim States should pay particular attention to the substantive guarantee of three essential rights, namely, the right to freedom of opinion and expression, the right to public and political participation, and the right to fair trial and due process of law. And in relation to the enhancement of developmental progress, it is proposed that Muslim States should also pay particular attention to the substantive guarantee of women’s rights, the right to education and the right to work. That is not to suggest that these six rights are more important than all other rights, rather it is submitted that the substantive guarantee of these six rights can boost the ultimate realization of all other human rights and promote development in Muslim States. The scope of each of these proposed rights and the possible role of Islam in advocating their realization in Muslim States are briefly analysed below. a. The Right to Freedom of Opinion and Expression The importance of freedom of opinion and expression cannot be overemphasised, both as a human right and as a channel for development. Opinion and expression are an inherent part of being human. The right to freedom of opinion and expression is therefore one of the most important human rights, without which being fully human will be jeopardised. It is a universal right that is guaranteed under international instruments, regional instruments and the constitutions of many States, including Muslim States. This right includes ‘freedom to seek, receive and impart  See M.A. Baderin, above n. , for an extensive analysis of each of these six rights in the light of Islamic law.  See e.g. Article , UDHR; Article , ICCPR.  See e.g. Article , European Convention for the Protection of Human Rights and Fundamental Freedoms (); Article , American Convention on Human Rights (); Article , African Charter on Human and Peoples’ Rights (); Article , Arab Charter on Human Rights (); Article , Cairo Declaration on Human Rights in Islam ().  See e.g. Article  Constitution of the Islamic Republic of Afghanistan (); Article  The Constitution of the People’s Democratic Republic of Algeria ( as amended); Article  Constitution of the Kingdom of Bahrain (); Articles  and  Constitution of the Islamic Republic of Iran ( as amended); Article  Constitution of the Islamic Republic of Pakistan ( as amended); Article , Constitution of the Federal Republic of Nigeria ().

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information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media’. The human intellect is the greatest instrument of human life and its full potential can only be achieved through interaction of ideas among individuals. Guaranteeing the right to freedom of opinion and expression is therefore essential to stimulate intellectual and dialectical exchanges that help human development and well-being. Respect for this right is necessary for achieving participatory democracy and encouraging individuals to contribute views and opinions on good governance. Similarly, this right must be guaranteed to ensure press freedom, which is an important vehicle for government accountability. The respect for freedom of opinion and expression has contributed in many ways to the promotion and protection of human rights and good governance in most developed nations of the world, which can be emulated by developing nations, including Muslim States. Under its Anti-Poverty Projects, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) has observed in respect of freedom of expression that: The right to freedom of expression guarantees the right of the poor and their representatives to express and impart any opinions, ideas or information, in relation to the Poverty Reduction Strategy process and in general, either orally, in writing or in print, in the form of art, or through any other media.

Thus, to enhance the general promotion and protection of human rights and good governance in Muslim States, it is imperative that the right to freedom of opinion and expression, in terms of both individual expression and freedom of the press, must be respected, actively encouraged and guaranteed. In many Muslim States, freedom of expression is often subjected to the fundamental beliefs of Islam or to the principles of the Sharī’ah either in fact or by law. For example, Article  of the Constitution of the Islamic Republic of Pakistan provides that:

 Art. , ICCPR.  See UNESCO web page at: http://portal.unesco.org/shs/en/ev.php-URL_ ID=&URL_DO=DO_TOPIC&URL_SECTION=.html ( April ).

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Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence. (emphasis added)

Similarly, Article  of the Constitution of Bahrain provides that: Freedom of opinion and scientific research is guaranteed. Everyone has the right to express his opinion and publish it by word of mouth, in writing or otherwise under the rules and conditions laid down by law, provided that the fundamental beliefs of Islamic doctrine are not infringed, the unity of the people is not prejudiced, and discord or sectarianism is not aroused. (emphasis added).

The Constitution of the Islamic Republic of Iran also provides in that regard that: Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law. (emphasis added) The freedom of expression and dissemination of thoughts in the Radio and Television of the Islamic Republic of Iran must be guaranteed in keeping with the Islamic criteria and the best interests of the country . . . (emphasis added)

This position is also reflected in Article  of the OIC Cairo Declaration on Human Rights in Islam which provides, inter alia, that ’Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari‘ah’ and that ‘Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, under moral and ethical values or disintegrate, corrupt or harm society or weaken its faith.    

Art. , Constitution of the Islamic Republic of Iran ( as amended). Ibid., Art. . Art. (a). Art. (c).

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From a strict human rights perspective, this subjection of freedom of expression to Islamic principles or to the Sharī’ah by Muslim States can be problematic, where interpreted restrictively. The possible friction that can arise between the limits of freedom of expression under human rights law and the protection of Islamic principles in that regard was demonstrated by the Salman Rushdie affair in  and the Danish cartoons affair in . On the one hand, both situations were seen by some, from a human rights angle, as an instance of religious constraint on the right to freedom of expression. On the other hand, others considered the two situations as an abuse of the right to freedom of expression without regard to the religious sensibilities of others. While opinion is a private and internal phenomenon, which cannot actually be restricted, its expression is a public and outward phenomenon, which can interfere with the rights of others and thus not absolute. The non-absolute nature of freedom of expression under human rights law is depicted by the subjection of the exercise of that right to certain restrictions under both international and regional human rights instruments. For example, the International Covenant on Civil and Political Rights  (ICCPR) provides that the exercise of the right to freedom of expression may be subjected to the ‘respect of the rights and reputations of others’ and the ’protection of national security or of public order (ordre public), or of public health or morals’. The European Convention on the Protection of Human Rights and Fundamental Freedoms  (ECHR) also provides that the exercise of the right may be subjected to: . . . the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for

 See e.g. M.H. Kamali, Freedom of Expression in Islam (Islamic Texts Society, Cambridge, ) pp. – and M.M. Ahsan and A.R. Kidwai, Sacrilege versus Civility: Muslim Perspectives on the Satanic Verses Affair (The Islamic Foundation, Markfield, ) on the Salman Rushdie affair. See e.g.: http://libertysecurity.org/article.html ( April, ) and http://hrw.org/english/docs////denmar.htm ( April ), on the Danish cartoon affair.   UNTS .  See Art. ()(a) ICCPR.  See Art. ()(b) ICCPR.  ETS .

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preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

It is important to emphasise that, similar to the established human rights approach, the general rule under Islamic law is that of guaranteeing freedom of opinion and expression. Any restrictions on the right is the exception that must be interpreted and applied as narrowly as possible in ways that does not put the right itself in jeopardy. According to Mawdudi, ‘Islam does not prohibit people from holding debate and discussion, on religious matters, but it wants that these discussions should be conducted in decency’ This rule applies to all religions and faiths reciprocally. Muslims are therefore equally enjoined to debate with others ‘in ways that are best and most gracious’. They are also enjoined to respect the opinion of other faiths and ‘not to revile those whom they worship beside God, lest they revile God wrongfully without knowledge. Thus We [God] have made fair-seeming to each people its own doings; to their Lord is their final return and He shall inform them of all that they did’ This indicates an equitable and reciprocatory demonstration of respect for religious sensibilities of others, while exercising the right to freedom of expression. Although respect for the religious sensibilities of others is not expressly mentioned in the list of possible restrictions under the international and regional human rights instruments earlier mentioned above, the European Court of Human Rights did accommodate in the case of Otto-Preminger Institute v Austria, within the context of protection of the ‘rights of others’, a restriction on the right to freedom of expression under Article  of the ECHR ‘to ensure religious peace . . . and to prevent that some people

 See Art. () ECHR; See also Art. () of the American Convention on Human Rights () and Art. () of the African Charter on Human and Peoples’ Rights (), which subjects all the rights in the Charter to: ‘due regard to the rights of others, collective security, morality and common interest.’  See the Human Rights Committee (HRC) General Comment  on Freedom of Expression.  A.A. Maududi, Human Rights in Islam (The Islamic Foundation, Marakfield, ), p. .  Qur’an :.  Qur’an :.  () ECHRR, Series A, Vol. –A.  Under Art. () of the ECHR.

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should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner’. There are both direct and indirect provisions within Islamic sources to promote the general rule of respect for the freedom of opinion and expression in Muslim States. In respect of freedom of opinion, there are many verses of the Qur’an that constantly challenge human beings to use their mind, to think and to reflect. In his commentary on one of such verses of the Qur’an, Yusuf Ali observed, inter alia, that: ‘All the means by which knowledge can be gathered, judgement formed and goodness cultivated are provided’ to human beings by God. The inherent and fundamental nature of the right of every human being to freedom of expression is clearly demonstrated by the provisions of Qur’an :–, which states: [God] The Most Gracious!; [He] Taught the Qur’an; [He] Created Man; [and] Taught him expression.

Also, there are many verses of the Qur’an that begins with the phrase ’yas’alūnaka an . . .’, meaning ’they ask you [Muhammad] about . . .’ and many recorded Traditions indicating that the Companions of the Prophet Muhammad asked him many probing questions, which represents an exercise of their right to freedom of expression. The Prophet is also reported to have specifically stated that: ‘The best form of jihad is to tell a word of truth to a tyrannical ruler’. Islam cannot therefore be arbitrarily employed by the political authority to constrict political or developmental debates by individuals and the press in Muslim States. Rather, the above provisions, inter alia, can be used as valid evidence from Islamic sources to promote the concept of the right

 () ECHRR, Series A, Vol. –A, para. . This decision of the European Court of Human Rights has however been criticised as carrying ‘matters to extremes in order to spare and “protect” the . . . States (and not the individual holders of the guaranteed rights)’ See G. Haarscher, ‘Tolerance of the Intolerant?’ ()  Ratio Juris. No. ,  at p. .  See e.g. Qur’an :; Qur’an :; Qur’an :; Qur’an :; Qur’an :; Qur’an :. According to Afzalur Rahman, ‘These and many other verses of the Qur’an invite people to think and understand and make their judgement rationally, basing them on the Truth and the facts of life and not merely on conjecture or in pursuance of their vain and selfish desires’ A Rahman, Readings in Political Philosophy, Vol. , LIBERTY (Seerah Foundation, London, ), p. .  Y. Ali, The Meaning of the Holy Qur’an (Amana Corporation, Maryland, USA, ), p. , n. .  Ibn Majah, Sunan (Cagri Yayinlari, Istanbul, 1981, Hadith No. 4011).

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to freedom of expression as an indispensable means for the realisation of other human rights and developmental progress in Muslim States. b. The Right of Citizens to Public and Political Participation The right to public and political participation is another important channel of ensuring respect for other human rights and good governance within States. As States are represented by governments, who are responsible for the guarantee of human rights and development, the importance of the right of every citizen of the State to participate in the public and political processes for the establishment of the government cannot be overemphasised. This right is guaranteed under the Universal Declaration of Human Rights  (UDHR), the ICCPR and regional human rights instruments. Article  of the ICCPR offers the most comprehensive provision of the right: Every citizen shall have the right and the opportunity, without any of the restrictions mentioned in article  and without unreasonable restrictions; (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

This provision reflects a democratic process that calls for the right and opportunity of every citizen to participate directly or indirectly in the conduct of public and political affairs of a State. Thus, autocratic regimes ‘which offer no opportunities for political participation by citizens’ are

 See further, M.H. Kamali, Freedom of Expression in Islam (Islamic Texts Society, Cambridge, ).  Art.  UDHR.  Art.  ICCPR.  See Article  ACHR, Article  ACHPR; Article  of Protocol  to the ECHR; Article (b) OIC Cairo Declaration on Human Rights in Islam.

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incompatible with this right. The Human Rights Committee (HRC) has indicated that: The conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article  should be established by the constitution and other laws.

It is important to note that this right is guaranteed to all citizens of a particular State, and ‘(n)o distinctions are permitted between citizens in the enjoyment of the right on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status’ The importance of this right in relation to the overall guarantee of human rights in a State is reflected in the preamble of the ECHR that human rights and fundamental freedoms ‘are the foundation of justice and peace in the world and are best maintained . . . by an effective political democracy’. Similarly, the importance of this right in relation to the enhancement of development and eradication of poverty is reflected under the UNESCO Anti-Poverty Project as follows: Active and informed participation by the poor is not only consistent with, but also demanded by the rights-based approach to poverty eradication because the international human rights framework affirms the right to take part in the conduct of public affairs.

The practical guarantee of this right, in the democratic sense, is currently lacking in many Muslim States, particularly, of the Middle East. The ques-

 S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, Oxford, ), p. . See also H. Steiner, ‘Political Power as a Human Right’ ()  Harvard Human Rights Yearbook, .  HRC General Comment , Par. .  HRC General Comment , Par. .  th Preambular Paragraph, ECHR.  See above, n. .

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tion has thus often being raised whether or not the democratic process which this right calls for can be realised within an Islamic social order. Generally, the Qur’an and Sunnah have not laid down any specific political system for Muslim States. The Sharī‘ah only emphasises good governance based on justice, equity and responsibility but leaves its actual administration and process in the hands of the community. However, there is evidence within the Sharī‘ah that the community has the right to elect its leaders either directly or indirectly. While the Qur’an states in many verses that sovereignty of the heavens and earth belongs to God it also mentions in other verses that God has made human beings agents and representatives on Earth. Islamic scholars and jurists agree that this representative capacity of human beings is conferred upon all human beings alike. Based on these Qur’anic provisions and the practices of electing Caliphs after the demise of Prophet Muhammad, contemporary Islamic jurists concur that every Muslim has the right to participate, either directly or indirectly in the public and political affairs of the State, particularly in the election of the leadership. For example Mawdudi, writing on the right of Muslims to participate in the public affairs of the Muslim State, stated as follows: According to Islam, governments are representatives (khalifa) of the Creator of the universe: this responsibility is not entrusted to any individual or family or to any particular class or group of people, but to the entire Muslim community. The Holy Qur’an says: “God has promised to appoint those of you who believe and do good deeds as (His) representatives on earth” (:). This clearly indicates that khilāfa (representation) is a collective gift of God in which the right of every individual Muslim is neither more nor less than the right of any other person. The method recommended by the Holy Qur’an for running the affairs of the state is as follows: “And their business is (conducted) through consultation among themselves” (Q:). According to this principle it is the right of every Muslim either to have a direct say in the affairs of the state or to have a representative chosen by him and other Muslims to participate in the running of the state.

 ),  

See e.g. A.K. Zaidan, Individual and the State in Islamic Law (IIFSO, Kuwait, pp. –. See e.g. Qur’an :. See e.g. Qur’an :.

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Mashood A. Baderin Under no circumstances does Islam permit an individual or a group or party of individuals to deprive the common Muslims of their rights or usurp powers of the state. Nor does Islam regard it as right and proper for an individual to put on a false show of setting up a legislative assembly and by means of such tactics as fraud, persecution, bribery and so on, get himself and men of his choice elected to the assembly. This is not only treachery against the people whose rights are illegally usurped, but also against the Creator who has entrusted Muslims to rule on earth on His behalf, and has prescribed the procedure of an assembly for exercising these powers. The shūrā or legislative assembly should embrace the following principles: . The executive head of the government and the members of the assembly should be elected by free and independent choice of the people. . The people and their representatives should have the right to criticize and freely express their opinions. . The real conditions of the country should be brought before the people without suppression of fact so that they are in a position to judge whether the government is working properly or not. . here should be adequate guarantee that only those people who have the support of the masses should rule over the country and those who fail to win this support should be removed from their position of authority.’

The Qur’anic principle of consultation (shūrā) to which Maududi referred above has been interpreted by most contemporary Islamic scholars to accommodate the right to public and political participation as well as the process of democratic free and fair elections for the selection of leaders. In fact, some Islamic scholars and jurists consider free and fair elections as the best way to reflect the principle of shūrā, because this involves the participation of all citizens in selecting their ruler and giving him the contract to govern them known as bay‘ah (allegiance) under Islamic law. Article (b) of the OIC Cairo Declaration on Human Rights in Islam provides in that regard that:

 Maududi, above n.  at pp. –.  See e.g. G.M. Hussein, ‘The Shura and Human Rights in Islamic Law’, Paper delivered at the Cairo Conference on Democracy and the Rule of Law (Dec. th–th ), pp. –; and also, M.S. Chaudhry, Islam’s Charter of Fundamental Rights and Civil Liberties (Al-Matbaat-l-Arabia, Lahore, ), pp. –.

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Everyone shall have the right to participate directly or indirectly in the administration of his country’s public affairs. He shall also have the right to assume public office in accordance with the provisions of Sharî’ah.

This Islamic concept of Shūrā is currently being employed as an Islamic principle for advocating and promoting democracy and public participation in the Muslim world by different institutes, organisations and scholars. c. The Right to a Fair Trial and due Process of Law The right to a fair trial and due process of law has both a general and specific significance in relation to both human rights and development. Its general significance is depicted by the fact that the protection of all other human rights in a State depends, inter alia, on the availability of fair trial and due process procedures in the domestic courts through which remedies can be sought for human rights violations. Its specific significance is in the sense that the right to a fair trial and due process of law aims specifically at protecting the liberty and security of individuals through ensuring equity and fair play in the administration of justice by the State. The term ‘fair trial and due process of law’ is a generic expression connoting procedural norms that ensure an equitable access to justice and humane administration of justice by the State. It can be considered generally as an innate concept for the equitable dispensation of justice, the scope of which has expanded through human experiences and civilisation. Today, it is a fundamental human right of great importance to ensure, inter alia, that individuals, groups and organisations have access to a dependable justice system to fall back on when the campaign for human rights and good governance gets rough with the political authority of the State. Thus, no justice system in any modern State is complete without provision for this right. Due to its importance, a clear identification of its existence and scope is essential within every legal system. In international law, provision for it is found in different international and regional human rights instruments,

 See e.g. Centre for the Study of Islam and Democracy, http://www.csidonline. org/ ( May ). See also M. Al-Sulami, ‘Democracy in the Arab World: The Islamic Foundation’ Open Democracy, , http://www.opendemocracy.net/debates/article. jsp?id=&debateId=&articleId= ( May ).

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while in domestic law it is normally provided for in State constitutions and other domestic judicial procedural legislation. This right consists of different elements, which are usually categorised into ‘pre-trial rights’, ‘in-trial rights’ and ‘post-trial rights’. Under international human rights law, the combined provisions of Articles , , , ,  and  of the ICCPR covers, comprehensively, the different elements of the right. It is doubtful whether any State today will generally declare itself as a non-recogniser of the right to a fair trial and due process of law. Even States that violate elements of this right usually deny such violations or find one excuse or another to justify their action rather than an outright refutation of its imperativeness. Since it is one right the elements of which is generally provided for in most States’ constitutions today, it is therefore arguable that the actual practice of States and the general provision for elements of this right in most States’ constitutions demonstrate an existence of the elements of State practice and opino juris necessary to consider this right generically as a norm of customary international law binding on every State. Elements of the right are also specifically made non-derogable even in times of ‘emergency that threatens the independence or security’ of the State under Article () of the American Convention on Human Rights  (ACHR), Article () of the ECHR and Article () of the ICCPR. The above analysis no doubt demonstrates the recognition of the importance of the right to a fair trial and due process of law in ensuring the protection of every other recognised human right under international law, which makes its guarantee universally binding

 See e.g. North Sea Continental Shelf Case () ICJ Reports, p. , para. . See also American Law Institute, Restatement of the Law, Second (Minn, American Law Institute Publishers, ), pp.  ff.   OAS Treaty Series No. . Art. () of the American Convention disallows derogation from eleven rights, which include the Right to Juridical Personality (Art. ), Freedom from Ex Post Facto Laws (Art. ), and ‘the judicial guarantees essential for the protection of such rights’ (emphasis added).  ETS No. . n relation to the right to a fair trial and due process, the European Convention disallows derogation in respect of Art. , i.e., ‘no punishment without law’, and in respect of the principle of double jeopardy (ne bis in idem) under Article () of Protocol  to the Convention.   UNTS . In relation to the right to a fair trial and due process, the ICCPR disallows derogation in respect of Article , i.e. ‘the right not to be subjected to retroactive legislation (ex post facto laws)’ and Article , i.e. ‘the right to recognition as a person before the law’.

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on all States especially in relation to protecting those rights considered as customary international law. While the constitutions of many Muslim States currently provide for different elements of this right, its practical guarantee is generally lacking in most Muslim States. Where the populace are sure to receive fair trial and due process in a State, that will go a long way to encourage public participation and ensure government accountability in respect of human rights, good governance and developmental progress. Muslim States must therefore strive to ensure the practical respect for this right in all its ramifications to encourage human rights advocacy and developmental endeavours. It is submitted that relevant Islamic provisions and principles can be positively utilised for advocating and promoting the practical respect for this right in Muslim States. Under Islamic law, the issue of fair trial and due process of the law, being procedural, is covered mostly by the methods rather than by the sources of Islamic law per se. The Sharî’ah, per se, mainly covers substantive aspects of Islamic law while the procedural aspects fall within the realms of Fiqh as formulated by the jurists. Provisions of the Qur’an and Sunnah often mainly emphasise substantive justice, leaving the procedure for its realisation to the authorities of State to decide in accordance with the best interests of society. Drawing from the practices of Prophet Muhammad and the Caliphs after him during the early period of Islamic law, classical Islamic jurists endeavoured to lay down judicial procedures which they believed would facilitate the realisation of substantive justice as prescribed by the Sharī‘ah. It is within that procedural context of Islamic law that rules

 See Baderin, above, n. , at pp. –, for an analysis of the distinction between the ‘Sources’ and ‘Methods’ of Islamic law.  For classical analysis of the development of Islamic judicial procedure, See e.g. M. Ibn Qayyim al-Jawziyyah, al-Turuq al-Hukmiyyah fi al-Siyâsah al-Shar‘iyyah [Arabic] (al-Mu‘asasah al-Arabiyyah, Cairo, ), p. ff and al-Mâwardi, al-Ahkâm as-Sultâniyyah: The Laws of Islamic Governance, Trans. A. Yate (Ta Ha Publishers, London, ), pp. ff. See also contemporary analysis on the subject by A.M. Awad, ‘The Rights of the Accused under Islamic Criminal Law’ in M.C. Bassiouni (ed.), The Islamic Criminal Justice (Oceania Publications, New York, ), pp. –; T.J. Al-Alwani, ‘Judiciary and Rights of the Accused in Islamic Criminal Law’, in T. Mahmood, et al. (eds.), Criminal Law in Islam and the Muslim World (Institute of Objective Studies, Delhi, ), pp. –; T. Mahmood, ‘Criminal Procedure at the Sharî’ah Law as Seen by Modern Scholars: A Review’, in T. Mahmood, et al., Ibid., pp. ff ; and generally M. Lippman, et al. (eds.), Islamic Criminal Law and Procedure: An Introduction (Praeger Publications, New York, ).

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on fair trial and due process are found. The judicial procedures as found in the works of the classical Islamic jurists were not rigid but were adjusted in practice under the doctrine of siyāsah shar‘īyyah, especially during the Abbasid Caliphate to fulfil the needs of time and substantive justice. It would be wrong therefore for any Muslim State to insist that the judicial procedures under traditional Islamic law cannot be modified to ensure the realisation of substantive justice as is necessary for contemporary times. Muslim scholars and jurists fully agree that the particularities of the Islamic judicial system are not inflexible, but leave room for necessary refinement as the needs of substantive justice may demand from time to time. Thus, although the judicial procedures found in the works of classical Islamic jurists may not expressly contain a specific listing of all the elements of the right to a fair trial and due process of law as can be found in modern international human rights instruments, it is not difficult to establish those elements within the broad spectrum of the Sharî’ah and the general principles of Islamic administration of justice laid down by the jurists. For instance, Tabandeh rightly observed that all the six articles of the UDHRrelating to the guarantee of a fair trial and due process of law ‘conform fully to Islamic law, which has long dealt with all the points they raise under its perfect social regulations’. There are therefore relevant provisions and principles of Islamic law that can be positively advanced to advocate and promote the right to fair trial and due process of law within Muslim States. d. Women’s Rights The important role of women in the developmental progress of a State cannot be overemphasised. However, women have traditionally been subjected to a long culture of discrimination in almost all societies, which continues to affect, adversely, the cultural, social, economic and political positions of  This is a doctrine of legitimate political exigency and governance under Islamic legal and political thought.  See materials cited above n. .  I.e. Articles , , , , , and .  See S.A. Tabandeh, Muslim Commentary on the Universal Declaration of Human Rights, F. Goulding (trans.) (F.J. Goulding, Guildford, ), p. .  See M.A. Baderin, ‘A Comparative Analysis of the Right to a Fair Trial and Due Process under International Human Rights Law and Saudi Arabian Domestic Law’ () (), International Journal of Human Rights, pp. –.

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women in most parts of the world today. The promotion and protection of women’s rights is therefore an important aspect of international human rights discourse. The guarantee of women’s rights remains, perhaps, the most topical question in relation to human rights and development in Muslim States today. Muslim scholars often argue that Islamic law had, over fourteen centuries ago, established the woman’s position as a dignified human being sharing equal rights with her male counterpart in almost all spheres of life. However, due to factors such as patriarchal conservatism, illiteracy and poverty, women in most parts of the Muslim world still suffer, practically, one form of gender discrimination or the other. Muslim States therefore need to take the issue of women’s rights seriously in terms of both human rights and developmental progress. Ensuring women’s rights and enhancing their socio-cultural, economic and politico-legal empowerment will not only improve the position of women but will ultimately contribute to the overall developmental progress of the State. This is based on the fact that women approximately constitute half of the population of every State, so ignoring their rights and empowerment means ignoring the rights and empowerment of approximately half of the population, which will, ultimately, affect adversely the development of the State itself. It must be acknowledged that conservative and restrictive interpretations of Islamic sources can impede the enjoyment of different rights by women in Muslim States. Islamic religious and cultural arguments have often been applied selectively to practically restrict women’s rights in most Muslim States. However, Islamic law and culture have generally never been static but have, in fact, been evolutionary and responding to modernity and changes in most Muslim societies, albeit to the advantage of men. I have stated elsewhere that ‘it is hypocritical if men on one hand acquire and

 See e.g. Common Article  of the ICCPR and ICESCR; The Convention on the Elimination of All Forms of Discrimination Against Women (); The Additional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa () and The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women ().  See e.g. A.R. Doi, Woman in Sharî‘ah (TaHa Publishers, London, ); S. ElBahnassawi, Woman between Islam and World Legislations (Dar-ul-Qalam, Safat, ); L. Al-Faruqi, Women, Muslim Society and Islam (American Trust Publications, Indianapolis, ); Z. Chaudhry, ‘The Myth of Misogyny: A Re-analyses of Women’s Inheritance in Islamic Law’ () , Albany Law Review,  at pp. –.

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enjoy many rights and liberties of today’s world, often through constructive and evolutionary interpretations of the Sharî’ah but on the other hand consider the rights and liberties of women to be stagnated upon the juristic views of the classical schools of Islamic law.’ However, it is important to emphasise that many of the adverse cultural attitudes attributed to Islam in most Muslim States are based on traditional cultural practices and not on Islamic legal provisions or religious norms. One example is the so called ‘honour killing’ that occurs in some Muslim societies, which cannot be justified under any Islamic legal or religious source. Rather, there are relevant evidences within the sources of Islam to justify women’s enjoyment of the evolutionary nature of Islamic law and culture in a way that ensures their human rights similar to their male counterparts. Muslim States therefore have an important responsibility to ensure the guarantee of women’s rights and to ensure that Islam is not negatively or erroneously pleaded to deny women’s rights in Muslim States. The important role of Islam in promoting women’s rights in Muslim societies is reflected in the observation of one researcher on women’s rights in Afghanistan that: From my impressions and interviews in Afghanistan, . . . [m]any women expressed that while they were keen to have rights, they wanted it within the framework of Islam and not as a cultural imposition from the West. Afghan women felt that the U.S. was pushing them to undermine Islam.

The research also revealed that: Many Afghan women believed that the Qur’an offered women enough rights for them to negotiate their rights, but it was the fundamentalist interpretations that prevented women from claiming those rights and from educating themselves. Given the strategies employed by various women’s organizations in Afghanistan to empower women, it became obvious that their perceptions of culture and religion played a crucial role in their women’s rights strategies.

 Baderin, above n. , at p. .  H. Ahmed-Ghosh, ‘Voices of Afghan Women: Women’s Rights, Human Rights, and Culture’ ()  Thomas Jefferson Law Review  at p. .  Ibid., at .

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The author quoted the former Afghanistan Minister for Women’s Affairs, Habiba Sorabi, as stating that ‘Islam is here to stay and women want rights within the Islamic framework; . . . Islam gave women rights to education and employment and that her Ministry was working within that framework. The role of Islam is similarly reflected in the report of a desk-based research published in  by the Centre for Islamic Legal Studies of the Ahmadu Bello University, Zaria, Nigeria. The report titled Promoting Women’s Rights through Sharia in Northern Nigeria, observed, inter alia, Muslim women in Northern Nigeria, like women in other societies across the world, have been subjected to practices that violate their rights. Some of these violations are carried out in the name of Islam in spite of the fact that such practices are against the teachings of Islam and that the Islamic prescriptions in respect of women, if practised, can serve as a model to other societies.

Based on a conviction that women’s right can be promoted through the Sharī’ah and that the Sharī’ah can be used to ‘improve the position of women, and to improve their means to face the challenges confronting them in this global age and ever-changing Muslim society’, the report identified some ‘harmful practices affecting Muslim women in Northern Nigeria and evaluates them according to Sharia’. The report covered issues relating to the girl-child, inheritance, marriage and marital relationships, property ownership, divorce, access to health and reproductive health services, custody of children, political participation, economic rights, access to justice and criminal justice. The new Moroccan Family Code earlier mentioned above also represents an endeavour to ensure the enhancement of women’s rights in Morocco within the framework of Islam.

 Now appointed as the first female Governor in Afghanistan for the Province of Bamiyan.  Ahmed-Gosh, above, n. 112.  Promoting Women’s Rights through Sharia in Northern Nigeria, British Council, .  Ibid., p. , para. ...  Ibid., para. ...  Ibid., p. , para. ..  See text to n. .

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Due, on the one hand, to the topicality of women’s rights in human rights discourse generally and its relevance to developmental progress of States, and the current poor situation of women’s rights in most Muslim States, on the other, Muslim States still need to do a lot more regarding the practical guarantee of women’s rights. It is submitted that advocates of women’s rights can, in that regard, find many provisions within Islamic sources for advocating and promoting positive development of women’s rights in Muslim States. e. The Right to Education Education is an important channel for development. It is the key to mental liberation which helps the individual not only to develop his own personality but also to be useful to his society. The right to education is guaranteed under Articles  and  of the ICESCR, with the States Parties agreeing that: education shall be directed to the full development of the human personality and the sense of dignity, and shall strengthen the respect for human rights and fundamental freedoms’ [and that] education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups and further the activities of the United Nations for the maintenance of peace.

There is therefore some consensus amongst States on the fact that education is an important tool of individual and societal development. Education has been described as an empowerment right. Without some minimum level of formal or non-formal education, an individual’s awareness about his human rights would be greatly impaired and his contribution to societal development will be limited. Article () states that education ‘shall strengthen the respect for human rights and fundamental freedoms’. This is achieved through both general education and provision of specific human rights education in the educational curriculum. The Vienna Declaration and Programme of Action adopted after the  World Conference on

  

See Baderin, above n. . Art. () ICESCR. See ESCR Committee, General Comment , Par. .

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Human Rights called on all States and institutions ‘to include human rights, humanitarian law, democracy and rule of law as subjects in the curricula of all learning institutions in formal and non-formal settings.’ In explaining the scope of this right, the ESCR Committee has observed: The right to education, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect requires States parties to avoid measures that hinder or prevent the enjoyment of the right to education. The obligation to protect requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right to education. The obligation to fulfil (facilitate) requires States to take positive measures that enable and assist individuals and communities to enjoy the right to education. Finally, States parties have an obligation to fulfil (provide) the right to education. As a general rule, States parties are obliged to fulfil (provide) a specific right in the Covenant when an individual or group is unable, for reasons beyond their control, to realize the right themselves by the means at their disposal. However, the extent of this obligation is always subject to the text of the Covenant.

The ideals and aspirations regarding the right to education under international human rights law are very much in consonance with the Islamic ideals on education. There is consensus among all Islamic schools of thought that education is absolutely important and compulsory under Islamic law. Right from its inception, Islam had laid great emphasis on the importance of education and highlighted its role in the development of the human person and society. The first five revealed verses of the Qur’an were very much related to education and learning: Read! In the name of your Lord Who created (everything). He created Man from a clot of congealed blood. Read! And your Lord is Most Generous. He has taught (writing) by the Pen. He has taught Man that which he knew not.

 UN Doc A/CONF./. Part II Par. .  Ibid., paras. –.  Qur’an :–.

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These five verses continue to be the basic reference point for advocating the right to education under Islamic law. There are also many other references in both the Qur’an and Sunnah on the importance of education, the obligation of seeking knowledge, and the superiority of scholarship. The Qur’an summarises the importance of education and scholarship with an affirmatory interrogative statement that: ‘. . . Can those who are learned be compared with those who are unlearned? It is those who are endowed with understanding that receive admonition’. The Prophet of Islam is reported to have also stated emphatically in one Tradition that seeking of knowledge (i.e. education) is compulsory on every Muslim. Asad thus concluded that from an Islamic perspective ‘it is the citizens’ right and the government’s duty to have a system of education which would make knowledge freely accessible (and compulsory) to every man and woman in the state’. This recognition and emphasis on the importance of education within Islamic sources can be positively used to advocate the right to education in Muslim States. f. The Right to Work Work is obviously an important channel of development in every State. Work is traditionally recognised as the legitimate means of earning a livelihood in every human society. Sieghart has thus rightly pointed out that work is ‘an essential part of the human condition’. It is through work that a dignified source of income is often guaranteed and the material well being of an individual and a harmonious development of his personality and the society may be realised. The popular saying that ‘there is dignity in labour’ substantiates the fact that the right to work is fundamental to the maintenance of the dignity of the individual. Article  of the ICESCR therefore guarantees the right to work and recognises the value of work

 Qur’an :.  Reported by Ibn Mâjah, See A.A. Fazlul-Karim, Al Hadis: An English Translation and Commentary of Mishkat-ul-Masabih with Arabic Text,  Volumes (Islamic Books Service, New Delhi, rd ed., ), Vol. , p. , Hadith No. .  M. Asad, The Principles of State and Government in Islam (Dar Al-Andalus, Gibraltar, ), p. .  P. Sieghart, The Lawful Rights of Mankind: An Introduction to the International Legal Code of Human Rights (OUP, Oxford, ), at p. .

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as ‘an element integral to the maintenance of the dignity and self-respect of the individual’. As Muslim States are mostly developing nations, the level of unemployment is often very high. It is therefore imperative that the right to work should be very much promoted in Muslim States to enhance developmental progress. While States may argue that the right to work does not necessarily mean full employment and total elimination of unemployment, it places an obligation on the States to, at least, provide the opportunity of work for everyone who wants to work and narrow the channels of unemployment. Also, while the right to work under Article () of the ICESCR may be subject to progressive realisation, as is the case with most economic, social and cultural rights, Article (), as read with Article (), provides that certain steps must be taken by the States Parties to achieve the full realisation of the right. Such steps, which include ‘technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual’, can be very demanding for many developing nations, including Muslim States, and may still take some time to be achieved, depending on available resources. This re-emphasises the need for international and regional cooperation, as earlier discussed above under Section IV of this chapter, by Muslim States to realise this important right. As work and dignity of labour is fully recognised under Islamic law, this can play an important role in promoting the right to work in Muslim States. There are many relevant provisions in the Islamic sources that extol the value of labour and work. For example the Qur’an states categorically that God has ordained daytime for seeking sustenance (through work) by

 M.C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon Press, Oxford, ), p. .  See Art. () of the UDHR which provides that ‘Everyone has the right to work . . . and protection against unemployment’.  See e.g. M al-Ghazālī, Huqūq al-Insān Bayn T‘alīm al-Islām Wa I‘lān al-Umam al-Mutahidah (Arabic) (Dār al-Da’wah, Alexandria, ), pp. –; W Al-Zuhayli, Fiqh al-Islāmī wa Adillatuh,  Volumes (Dār al-Fikr, Pittsburg, ), Vol. , pp. – and M.F. Uthmân, Huqūq al-Insān Bayn al-Sharī’ah al-Islāmiyyah wa al-Fikr al-Qānūniy alGarbiyy (Arabic) (Dār al-Surūq, Beirut, ), pp. –; where the authors discuss many Qur’anic verses and Prophetic Traditions on dignity of labour and work in Islamic law.

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humans, and has also made trade lawful. The Prophet Muhammad himself set many examples on the dignity of labour both in deeds and words. In one Tradition he is reported to have said: ‘There is no better way of sustenance than through the labour of one’s own hands, because even the Prophet David used to feed from the labour of his own hands.’ And in answer to a question put to him as to which was the best means of sustenance the Prophet gave a similar answer that: ‘. . . the best means of sustenance is through the labour of your own hands or through lawful trade.’ He also stated in another Tradition that it is better and dignifying for an individual to earn a living by cutting and selling fire-wood than through begging. The Prophet himself is recorded to have worked for his livelihood. It is clear from the above Islamic sources that Islam encourages labour and working for one’s sustenance. The State therefore has a duty under Islamic law to respect the right of every individual to work, encourage work and take steps to provide opportunities for work. The duty of the State to recognise the right to work and to take steps to ensure the provision of opportunity for work and the protection of individuals from unemployment is often inferred by Muslim scholars from a precedent laid by Prophet Muhammad when a man came to him begging for alms. The Prophet asked the man to bring two items from his own house, which he sold for two silver coins. He then gave the coins to the man instructing him to feed his family with one of the coins and to buy an axe with the other coin. The Prophet fixed a handle to the axe and gave it to the man saying: ‘Go, cut wood and sell it, and do not come back to me for fifteen days.’ The man did as he was told and returned thereafter to the Prophet having earned up to ten silver coins from few days’ work, and was able to fulfil his needs conveniently from his own labour. The Prophet then advised him that this was better and more dignifying for him than begging. Based on this precedent of the Prophet of Islam, as an embodiment of the State during his time, Chaudhry concluded that the ‘Islamic State is, thus, responsible to

   No. .  

See Qur’an : . See Qur’an :. Reported by al-Bukhārī, See e.g. Fazlul-Karim, above n. , Vol. , p. , Hadith Reported by Ahmad, See Fazlul-Karim, ibid., p. , Hadith No. w. Reported by al-Bukhārī See e.g. Fazlul-Karim, ibid., Hadith No. .

The Role of Islam in Human Rights and Development

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provide employment to its citizens if they have no employment or occupation to earn their livelihood’. Al-Zuhayli reached the same conclusion by reference both to this Tradition and also through another Tradition in which the Prophet stated that the ruler (i.e. State) is like a shepherd over the people and is thus responsible for the affairs of the people. Muslim scholars also argue from the facts of the above precedent of the Prophet that there is a corresponding duty to work on every individual who has the capacity to do so under Islamic law. The concept of a duty to work can complement the right to work in furthering development in the State. A relevant point here is the question of the right of women to work under Islamic law. The ESCR Committee has expressed concern regarding the prohibition of women from certain jobs in some Muslim States. Generally, one finds nothing in the Qur’an and Sunnah that specifically excludes women from doing any legitimate work of their choice provided they possess the required skills and expertise and are not exposed to any hazards therefrom. It is important to state that the Sharī‘ah recognises the independence of women within basic moral and ethical rules that equally apply to men. Most contemporary Muslim scholars support the view that women can not be legally discriminated against in the right to work and choice of profession. For instance, Hamidullah has observed that: In every epoch of Islamic history, including the time of the Prophet, one sees Muslim women engaged in every profession that suited them. They worked as nurses, teachers, and even as combatants by the side of men when necessary, in addition to being singers, hair-dressers, cooks, etc. Caliph ‘Umar employed a lady, Shifa’ bint ‘Abdullah as inspector in the market at the capital (Madinah) as Ibn Hajar (Isabah) records. The same lady had taught Hafsah, wife of the Prophet, how to write and read. The jurists admit the possibility of women being appointed as judges of tribunals, and there are several examples of

 Chaudhry, above n. , p. . See also F. Uthmân, above n. , at p. . and Fazlul-Karim, above n.  at p. , Hadith No. .  See Al-Zuhayli, above n. , Vol. , p. .  See ibid., p. –.  See e.g. Art. () of the Syrian Constitution of  which provides that: () Work is a right and duty of every citizen. The state undertakes to provide work for all citizens.  See e.g. Concluding Observations on Islamic Republic of Iran (), UN. Doc. E/C.//. Par. .

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Mashood A. Baderin the kind. In brief, far from becoming a parasite, a woman could collaborate with men, in Muslim society, to earn her livelihood and to develop her talents.

Similarly, Abdulati has also stated that: Historical records show that women participated in public life with the early Muslims, especially in times of emergencies. . . . They were not shut behind iron bars or considered worthless creatures and deprived of souls. Islam grants woman equal rights to contract, to enterprise, to earn and possess independently.

The current position in most Muslim States however indicates the need to redress the misconception about the right of women to work and also ensure their safety and security in that respect both in the private and public sectors in Muslim States. In the light of the above, it is submitted that the Islamic provisions on the right and duty to work can positively complement the advocacy for the guarantee of the right to work in Muslim States. vi. conclusion Religion, in a broad sense, has been part and parcel of human existence since its inception. Religion can however be a very sentimental and an explosive phenomenon, which has sometimes been misused to perpetrate hatred and human rights violations in many parts of the world. Paradoxically however, religion also forms the basis of the actions of many individual and collective humanitarian endeavours in many parts of the world today. Islam is perhaps the most misunderstood religion in that regard today and often perceived as an impediment to human rights and development in Muslim States. The analysis in this chapter advocates with relevant evidence and arguments that due to its very significant role in Muslim States, Islam can and should, where employed appropriately, provide the glue that can make human rights to stick and a channel to promote development in Muslim States.  M. Hamidullah, Introduction to Islam (Ansariyan Publication, Qum, ), p. .  H. Abdul Ati, Islam in Focus (El-Falah Foundation, Cairo, ), pp. –; See also generally J. Badawi, ‘The Status of Woman in Islam’ () () Al-lttihad, September, at p. .

chapter twelve

Human Rights, Natural Justice and Pakistan’s Shariat Courts Dr Martin Lau* i. introduction In , almost thirty years ago, General Zia ul Haq promulgated a series of Ordinances, collectively referred to as the Hudood Ordinances, which revolutionised Pakistan’s system of criminal law. The stated objective of these Ordinances was the Islamisation of the legal system of Pakistan. The impact of these Islamisation measures on the landscape of human rights has been dramatic. The Zina (Enforcement of Hudood) Ordinance, , has been responsible for a dramatic increase of Pakistan’s female jail populations and even committees appointed by the government itself have demanded its repeal. Such has been the impact of the  Hudood Ordinances on human rights in Pakistan, that they have tended to obscure another, significant Islamisation measure, which was carried out in the very same year: the creation of courts empowered to strike down laws on the basis of Islam. The setting up of the Federal Shariat Court as court of appeal against convictions under the Hudood Ordinances and as the only court with the jurisdiction to examine the validity of laws on the basis of Islam was a truly revolutionary measure. Never before had there been in Pakistan a court endowed with the express power to invalidate laws on the basis of Islam. Whilst revolutionary at the time, more recently other countries have created similar mechanism to ensure that their legal systems comply with Islamic law. Both the new constitutions of Iraq and of Afghanistan contain provisions which will allow the highest court of the land to review legislation on the basis of Islam. The Pakistanis experience with a judicial review based on Islam not only sheds light on an area of law which is of very real relevance to any debate on religion and human rights but is also of interest in a comparative perspective. *

School of Oriental and African Studies (SOAS), London University.

Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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Martin Lau ii. the jurisdiction of the federal shariat court

The Constitution (Amendment) Order  (P.O. No.  of ) incorporated into the Constitution provisions relating to a new court, the Federal Shariat Court (Article  C. ()). The Federal Shariat Court consists of not more than eight Muslim Judges including the Chief Justice of the Federal Shariat Court (Article C ()). Of the judges, not more than four have to be qualified as High Court Judges and not more than three of them have to be ulema (religious scholars) well versed in Islamic law (Article C (A)). The Federal Shariat Court has, inter alia, the power to examine and decide whether or not any law or provision of law is repugnant to the injunctions of Islam (Article D ()). The Shariat Appellate Bench of the Supreme Court, consisting of three Muslim Judges of the Supreme Court and two ulema, hears appeals from the Federal Shariat Court (Article F. ()). The decision of the Shariat Appellate Bench of the Supreme Court is binding on all High Courts and courts subordinate thereto (Article GG). In  the Federal Shariat Court was given the power ‘of its own motion’ to ‘examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet [. . .]’. The suo moto jurisdiction of the Federal Shariat Court was unprecedented in the legal history of Pakistan and constituted a significant departure from the principle that courts in the words of the Supreme Court, ‘do not, therefore, decide abstract, hypothetical or contingent questions or give mere declarations in the air.’ The fact that the Federal Shariat Court in its suo moto jurisdiction did not operate like an ordinary court but more like a commission has been criticized even by supporters of the radical Islamisation of Pakistan’s legal system. Justice Tanzil-ur-Rahman observed that the Federal Shariat Court hardly ever received any response to the notices published in national newspapers inviting comments from the general public and ‘received no assistance whatsoever from any quarter, perhaps, for lack of involvement of any personal interests.’

 The suo moto powers were conferred upon the Federal Shariat Court in , see Article -D as amended by section  of The Constitution (Second Amendment) Order, .  See Province of East Pakistan v. Md. Mehdi Ali Khan PLD  SC , at p. .  See Justice Tanzil-ur-Rahman, Enforcement of Islamic Law in Pakistan – A New Approach, n.d., quoted in Habib Bank Ltd. v. Muhammad Hussain PLD  Kar ., at p. .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  Another surprising feature of the exercise of suo moto jurisdiction was that hardly any laws were ever declared to be repugnant to Islam. The provisions declared repugnant in respect of statutes related to commercial law can be counted on the fingers of one hand. The first substantive change to an important commercial statute came about in  when the Federal Shariat Court in exercise of its suo moto jurisdiction reviewed The Specific Relief Act, . Justice Aftab Hussain found that those provisions of the act which hold a buyer liable to pay for goods destroyed before delivery, but after the completion of an executory contract, repugnant to Islam and directed that the illustrations (a) and (b) of section  and illustration (e) of section  should be deleted. In another suo moto case a whole tranche of statutes including The Trademark Act,  were declared not to be repugnant to Islam. Equally, The Contract Act, , The Partnership Act,  and The Sales of Goods Act,  survived the examination conducted by the Federal Shariat Court largely intact. The most interesting outcome of the suo moto jurisdiction was the emergence of a set of general principles based on Islamic law which were employed to test the Islamic vires of legislation. These will be examined in the next part. iii. fundamental rights and islam: the right to equality Its suo moto jurisdiction enabled the Federal Shariat Court to conduct a systematic review of a large number of statutes on the basis of Islam. The most surprising effect of the solitary, inquisitorial nature of the proceedings – as mentioned above in most cases the Federal Shariat Court did not receive any comments or input from third parties – was the emergence of a set of fundamental rights and principles of natural justice, both derived from Islamic law, against which legislation was tested. The two most important Islamic rights were the right to equality and the right to be heard. These two ‘Islamic fundamental rights’ were applied in a manner similar to the constitutionally guaranteed fundamental rights: if a statutory provision was in conflict with any of these rights it was liable to be invalidated on the ground that the law was repugnant to the injunctions of Islam. It will be seen that the reliance on generic rights rather than concrete provisions of Islamic law was considered controversial amongst   

In re: The Specific Relief Act (I of ) PLD  FSC . In re: Trade Marks Act,  PLD  FSC . See SSM –/,  October , Federal Shariat Court (unreported).

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Pakistan’s higher judiciary since quite inevitably the application of general principles lead to a situation where the functions of the Federal Shariat Court and those of the other superior courts overlapped. In theory, of course, their respective jurisdictions were carefully demarcated with the Federal Shariat Court examining legislation on the basis of the injunctions of Islam as laid down in Qur’an and Sunnah and the high courts and the Supreme Court testing the vires of statutes against the benchmark of the fundamental rights. In practice, however, a different scenario emerged with the jurisdiction of the shariat courts and of the other superior courts being virtually indistinguishable. This overlapping of jurisdictions was caused by the identical normative content of the laws applied by the Shariat courts and the other superior courts: in final analysis the effect of the right to equality before the law did not depend on whether its normative foundation was derived from a principle of Islamic law, the Constitution or in fact natural justice. In all three cases a law in conflict with such a right could be invalidated. However, on a practical level there were important differences. Unlike the Supreme Court and the high courts, the suo moto jurisdiction of the Federal Shariat Court was proactive and did not depend on a petitioner challenging the constitutionality of statute as a party affected by the breach of his fundamental rights, or in the public interest. The pace, scope and timing of the examination of the Islamic vires of legislation was entirely within the suo moto powers of the Federal Shariat Court. As a result more statutory provisions were invalidated on the basis of an Islamic right to equality than on the basis of the constitutionally guaranteed right to equality. This must be regarded as a most extraordinary result considering that the implementation of Islamic law is normally associated with a loss of fundamental rights. A caveat to this observation must be mentioned. The

 Natural justice was never a strong feature of Pakistani jurisprudence. For a review of the cases see M.A. Fazal, Judicial Control of Administrative Action in India, Pakistan and Bangladesh (New Delhi, ) (rd edition), p. ff. See also Syed Shabbar Raza Rizvi, Fundamental Rights and Judicial Review in Pakistan (Lahore, ).  See especially Ann E. Mayer, Islam and Human Rights (Westview Press, Boulder, Co., ) and also A.K. Brohi, ‘Islam and Human Rights’, PLD  J  and A.K. Brohi, ‘The Nature of Islamic Law and the Concept of Human Rights’, PLD  J  and ‘The Nature of Islamic Law and the Concept of Human Rights’, in IJI, Human Rights in Islam (Report of a Seminar held in Kuwait, December , Geneva: International Commission of Jurists, Kuwait University, Union of Arab Lawyers, , pp. – and A.A. An-Na’im, ‘Civil Rights in the Islamic Constitutional Tradition: Shared Ideals and Divergent Regimes’ ()  The John Marshall Law Review, –, at p. .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  Islamic right to equality was never applied to the issue of gender equality despite the fact that a large number of Pakistani statutes discriminate on the basis of gender. Many of these statutes have no connection to Muslim personal law and there is therefore no reason why they should have escaped the attention of the Federal Shariat Court. The Pakistan Citizenship Act, , for instance allows a woman married to a Pakistani citizen to obtain Pakistani citizenship. No corresponding rights exist for a foreigner who marries a Pakistani woman. Discriminatory provisions can also be found in The Workmen’s Compensation Act, , and The Factories Act, . Both statutes were examined by the Federal Shariat Court but were found not to be repugnant to Islam. In addition to this there are obvious instances of gender bias in the qisas and diyat laws. In the area of gender discrimination the Federal Shariat Court desisted from applying the newly found Islamic right to equality. There are a considerable number of cases which explore the human rights dimension of Islamic law. One of the first cases which relied on general Islamic principles of justice and equality was In re: The Civil Servants Act,  which invalidated section (i) of The Civil Servants Act,  on the basis of Islamic law. The impugned section allowed the government to dismiss a civil servant over and above a certain seniority ‘on such date as the competent authority may, in the public interest, direct.’ Justice Aftab Hussain held that the section violated the Islamic principle of equality before the law observing that One of the reasons for affording protection and safeguards against premature retirement, removal or dismissal is that all Government servants may act according to Law without any fear or favour. To withdraw this protection amounts to virtually withdrawing from them the duty to act according to law and conscience and to make them bend to the will of the Chief Executive.

 See section () of The Pakistan Citizenship Act, . For a full discussion of gender discrimination in Pakistan’s statutes see Government of Pakistan, Report of the Commission of Inquiry for Women (Islamabad, ).  See for instance section ()(b) of The Pakistan Penal Code,  as amended by The Criminal Law (Amendment) Act,  which allows the father of a minor victim to ask for qisas on its behalf but not the mother.  PLD  FSC .  Ibid., at p. .

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Martin Lau

A year later Justice Aftab Hussain invalidated similar dismissal provisions in other service laws, including The Punjab Civil Servants Act, , on the basis that they breached the principle of equality and could be used to prevent civil servants from carrying out their duties in accordance with the injunctions of Islam: It is well-established that security of tenure of a civil servant can be an incentive to him for discharging his duties honestly, constitutionally and according to Sharia. On the other hand any apprehension in his mind against this security is liable to breed in him what is known as servility to the boss. This is something which may make him corrupt. Security, therefore tends towards the advancement of the welfare of the society and elimination from it of the main source of mischief, i.e. corruption, servility is likely to endanger his independence of action and make his actions subservient to the wishes of the boss, however unlawful and un-Islamic they may be.

In both these cases what was at issue was not so much a right to equality – the provisions affected all civil servants above a certain level of seniority – but the wide discretionary powers of the government to dismiss civil servants in an arbitrary manner. As such Aftab Hussain was more concerned with principles of Islamic good governance than with concrete provisions of Islamic law. Nevertheless, the two cases also illustrate that the ‘Islamic’ review of legislation could incorporate a constitutionally guaranteed fundamental right – namely the right to equality enshrined in Article  of the  Constitution – without any conceptual difficulty. This is significant in the context of martial law and the fact, that fundamental rights themselves remained suspended in . A similar application of an Islamic notion of equality was made in In Re: Islamization of Laws in respect of section  of The Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance, . Justice Aftab Hussain held that even members of the National Assembly should be required to attend civil hearings if and when so required by a court and declared section  to that extent repugnant to

 

Muhammad Ramzan v. Federal Government PLD  FSC , at p. . PLD  FSC .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  Islam. In the same case parts of The Cantonments Rent Restriction Act,  were declared repugnant to Islam on the ground that The provisions of sections  and  of the Act of  also violate the Islamic principles of equality before law. There is no logic behind the discrimination between the landlords in the Cantonment areas and the landlords in other urban areas of the country. If once it is conceded that rent can be increased periodically to keep them in line with the increase in prices [. . .], there is no earthly reason why the other group of people should be deprived of that facility.

Even after the lifting of martial law in  and the re-emergence of fundamental rights on the legal landscape of Pakistan the Federal Shariat Court continued to strike down legislation as un-Islamic which breached the rule of equality before the law. In Abdul Majid Qureshi v. Islamic Republic of Pakistan the Federal Shariat Court struck down as un-Islamic section  of The Corporation Employees (Special Powers) Ordinance,  which allowed dismissal or demotion of any civil servant appointed or promoted between  and the  July , i.e. the day when General Zia-ul-Haq overthrew Zulfikar Bhutto’s government. The Federal Shariat Court held that ‘it appears from the provisions challenged before this Court, firstly, the classification is absolutely arbitrary as no reason or justification for it is given.’ The case law seems to suggest that the right to equality was identical in normative content and effect irrespective of whether or not it was based on Islam or the  Constitution. But were there differences between fundamental rights like the right to equality and an Islamic equality principle?

 The question of whether or not to The Members of National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance, , was in fact un-Islamic came as an appeal before the Shariat Appellate Bench of the Supreme Court in . In Federation of Pakistan v. Public at Large [PLD  SC ] Justice Nasim Hasan Shah confirmed the judgment of the Federal Shariat Court adding another ground to justify why members of the National Assembly should not be exempt from appearing in civil suits: it makes also impossible for the member himself to obtain justice. See also In re: N.-W.F.P Provincial Assembly PLD  FSC  where a similar provision of The North-West Frontier Province Provincial Assembly (Powers, Immunities and Privileges) Act,  was declared to be repugnant to Islam.  Ibid., at p. .  PLD  FSC .  Ibid., at p. .

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Martin Lau

The Federal Shariat Court addressed this question in the case of Muhammad Ramzan Qureshi v. Federal Government. The Court’s explanation of the Islamic equality clause initially seemed to suggest that there was no difference between the secular and the Islamic approach: Islam also allows for classification but such classification made in legislation must stand the test of reasonableness and intelligibility. Only the class legislation is forbidden but not reasonable classification. The classification, however, cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classifications made. In other words the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation.

The Federal Shariat Court then referred to an Indian Supreme Court case further deepening the impression that there was no difference between the secular and the religious as far basic human rights were concerned. However, secular fundamental rights’ jurisprudence in Pakistan had established that a statute which was not prima facie discriminatory could only be challenged if it could be shown that it had actually been applied in a discriminatory manner. It was here that differences emerged: the Federal Shariat Court held that in an Islamic legal system legislation had to reduce as much as possible the chances of oppression and discrimination because it is difficult to find out persons holding qualities and qualifications required of Ulul Amr [. . .] (those having authority). The principles based on the constitutional provision of equality as interpreted on the basis of English and American law cannot be applied in all their details in a matter in which the legislature is required to enforce legislation based on Quranic ‘Musawat’ (equality) because the object of legislation should be to reduce as much as possible the chances of its implementation in an unjust and oppressive manner. The idea may appear to be idealistic but an attempt should be made to remove the

    SC .

PLD  FSC . Ibid., at p. . Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar AIR  SC . See Jibendra Kishore Acharyya Chowdhury v. Province of East Pakistan PLD 

Human Rights, Natural Justice and Pakistan’s Shariat Courts  chances of mischief as far as possible. Where the modern law requires guidelines to be provided for exercise of discretion the object of law enforced on the basis of the Qur’an and the Sunnah is to make it as immune as possible from being misused if the person in authority is not possessed of the required scruples.

The result is a surprising one: the Islamic right to equality goes considerably further than the constitutionally guaranteed right to equality in that it incorporates a presumption that those authorised to exercise discretion are unlikely to carry out their discretionary powers fairly and equally. The reason for this inherently distrustful approach to civil servants is located not so much in legal theory but in Islamic morality and in Islamic notions of good governance. Only upright Muslims of the highest moral probity should be allowed to serve as civil servants because only then could it be guaranteed that Islamic standards of conduct would be observed. In Pakistan, according to the Federal Shariat Court, officials did not meet these high, Islamic standards. Therefore, the amount of discretion conferred by a statute to a civil servant had to be reduced significantly more under the Islamic equality clause than under the secular fundamental right to equality. The application of the Islamic equality clause proceeded in an almost mechanical fashion in S.A. Zuberi v. National Bank of Pakistan, where The National Bank of Pakistan Rules,  were challenged because they allowed the bank to retire an employee either at any time after the completion of  years of service with the bank or on reaching the age of  years. The Federal Shariat Court did not hesitate in declaring this rule to be violative of Islam. The attacks on laws allowing for the arbitrary dismissal of civil servants was in itself not highly contentious: in most cases the government seems to have made only half hearted attempts to defend these rules. However, the Federal Shariat Court had no hesitation in tackling more sensitive and controversial subject matters. The best example for this is the case of Nusrat Baig Mirza v. Government of Pakistan where the Shariat Appellate Bench of the Supreme Court decided that the Federal Shariat Court

  

Ibid., at pp. –. PLD  SC . PLD  SC  [SAB].

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had the jurisdiction to examine the Islamic vires of the quota system for the appointment of civil servants introduced by The Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, . This review was carried out in the case of Nusrat Baig Mirza v. Government of Pakistan. The quota system itself was considered controversial in Pakistan: unlike India, where a quota system exists in order to improve the socio-economic conditions of groups of low social status, the Pakistani system was designed to alleviate ethnic and provincial imbalances in the make-up of the civil service. Only ten percent of the posts were open to applicants on merits – the remaining % were allocated between the four provinces, large cities, tribal areas, Azad Jammu and Kashmir, with further differentiations being made between rural and urban areas. Justice Justice Tanzil-ur-Rahman had little difficulty in holding that the right to equality was firmly enshrined in Islam. However, apart from political reasons the quota system also ensured that those from rural areas had a chance to enter the civil service. Was such an ‘affirmative action’ permissible in Islam? Justice Tanzil-ur-Rahman did not examine this question from an Islamic perspective but instead doubted the effectiveness of the quota system to tackle this problem: It is true as submitted by Dr Irfani, that the standard of education in rural areas is much below as compared to the standard in urban areas and so the quota system has been introduced, but is equally true that the standard of education in different urban areas had also suffers from inequalities: it differs from institution to institution. In fact, there are two systems of education which are running parallel: one is available for to affluent people where the medium of instruction, generally speaking, is English whereas the other system of education is available for lower middle and poor classes where Urdu medium is in practice. This double system of education has been responsible in creating polarization in our society which is poisonous for the growth and development of society on Islamic lines. If we look to the past history of Muslim rule in the sub-continent or for that matter in

 PLD  FSC .  See M. Galanter, Competing Equalities – Law and the Backward Classes in India (University of California Press, Berkley, CA., ).  On the quota system see C.H. Kennedy, Bureaucracy in Pakistan (Karachi, ), pp. – and T. Amin, Ethno-National Movements of Pakistan (Islamabad, ), p. .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  other Muslim countries, we find one and the same system of education meant for all classes of people whether poor or rich, or in rural areas or the urban one.

The quota system’s departure from Islamic principles of equality could therefore not been justified on the ground of social ‘necessity’. Further, Justice Rahman observed that under the provisions of The Enforcement of Shari’ah Act, , Islamic law was to be the supreme law of the land. He therefore held that The Holy Qur’an and Sunnah form the basis of all our directions for all our spiritual as well as worldly endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. Quota system in disregard of merit makes the place of domicile as the criteria and this has, unfortunately, been so woven and institutionalised in our socio-political fabric that unless we return to the original message of the Holy Qur’an we will be farther away from the righteous and straight path [. . .].

Consequently, Justice Rahman declared the quota system for admission to the civil service to be un-Islamic and therefore void. There is no doubt that despite muted public reactions the effect on Pakistani politics was potentially explosive since the quota system had to some extent addressed the persistent complaint of Pakistan’s smaller provinces, esp. Sindh and Baluchistan, that Punjabis were over-represented in the all-Pakistan civil service. The system also dealt with the grievances of rural Sindhis who felt disadvantaged by the more affluent and educated urban Mohajirs living in Karachi and Hyderabad. The invalidation of the quota system would have removed whatever small protective features there had been in place. Unsurprisingly, the government appealed against the decision. As to date the Shariat Appellate Bench of the Supreme Court has not heard the matter. Therefore, for the time being the quota system continues to operate.

 

See above, n. , at p. . Ibid., at p. .



Martin Lau iv. the right to be heard

In addition to a right to equality based on Islamic law the Federal Shariat Court also formulated general principles of natural justice, the most important being the right to be heard. Statutes which allowed the government to take action against citizens without giving them a right to be heard were liable to be invalidated as being repugnant to Islam. In the case of Pakistan v. Public at Large the Shariat Appellate Bench of the Supreme Court held that a civil servant could not be dismissed without having been given an opportunity to be heard and upheld the invalidation of provisions in various central and provincial civil service laws to this effect by the Federal Shariat Court. Another example is Iftikharuddin v. Federal Government decided by the Federal Shariat Court. At issue was The Evacuee Trust Properties (Management and Disposal) Act,  which gave the Chair of the Board wide discretionary powers. His decisions on the allocation of evacuee properties were final and could not be challenged in any court. The Federal Shariat Court found this to be repugnant to Islam. The right to a fair hearing as a principle of Islamic law also included a right to an appeal. In the case of Pakistan v. General Public the Shariat Appellate Bench upheld the suo moto decision of the Federal Shariat Court declaring those parts of the various Pakistan army acts which did not provide a right to a appeal against a court-martial to be repugnant to Islam. Unsurprisingly, the army vigorously challenged this attack on the system of court martial. In a first line of defence it was argued that a convict nevertheless had a right to petition the Federal Government or the head of the armed forces concerned. More importantly it was argued that a right to appeal would have a detrimental effect on discipline. Justice Nasim Hasan Shah, who wrote the judgment, rejected both arguments. In a first step he observed that both in the US and the UK rights of appeal against court martials were introduced after the Second World War. Shah did not discuss in any detail  The right to be heard was held to include the right to an appeal. See In re: Pakistan Armed Forces Nursing Services Act,  PLD  FSC  where the lack of any appeal court in respect of internal disciplinary proceedings in the armed forces was held to be repugnant to Islam.  PLD  SC .  PLD  FSC .  PLD  SC .  See section  of The Pakistan Army Act, , section  of The Pakistan Airforce Act,  and section  of The Pakistan Navy Ordinance, .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  the position under Islamic law but simply observed that with respect to statutes which had far less serious consequences on the live of a person affected by them, like for instance The West Pakistan Press and Publications Ordinance, , a right to appeal had been found to be mandatory by the Federal Shariat Court. In case of a court martial ‘the need for testing the correctness of a decision which results in deprivation of liberty and also livelihood would obviously be greater.’ In Re: Passports Act,  the Federal Shariat Court invalidated a provision of The Passports Act,  which allowed the government to withdraw a passport for up to four months without giving any notice or grounds to the holder or applicant for a passport. The Federal Shariat Court again seemed to equate fundamental and religious rights observing that: It is now well settled that the principle of natural justice required that every statute should be read as incorporating in itself the requirement to give a notice to show cause against any action intended to be taken against the person unless the statute expressly or by necessary implication excludes such a Rule. The denial or withholding of Passport to a citizen has been considered throughout one of the principle instruments of intimidation since in that manner the individual concerned is virtually imprisoned at home without a passport. Thus looked at from any angle the existence of the said proviso in the relevant section of the Passport Act is in a way denial of free movement to a citizen as well as the right of hearing.

The Federal Shariat Court held that ‘The right of free movement from one place to another to all human beings has been fully recognised in Islam’ and declared the impugned proviso repugnant to Islam. The Shariat Appellate Bench of the Supreme Court confirmed the repugnancy section  of The Passports Act,  in . The application of the Islamic equality clause were also used to remove the ‘immunity from prosecution’ given to public servants and judges who

 See above n. , at p. .  PLD  FSC .  Ibid., at p. .  Ibid., at p. .  See Federal Government of Pakistan v. Government of the Punjab PLD  SC .

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Martin Lau

could only be prosecuted with the sanction of the government. The Federal Shariat Court observed that ‘These provisions also deprive the Courts of law of their power to adjudicate upon the grievances of a citizen and worse of all is that the ouster is based on the option and discretion of the executive.’ The government submitted that these provisions were required to protect civil servants from floods of frivolous litigation which would reduce their efficiency and independence. The Federal Shariat Court disagreed, holding that such the provisions actually reduced the efficiency of civil servants since their fate was in the hands of the executive and not the courts. The impugned provisions were held to be repugnant to Islam. The Shariat Appellate Bench of the Supreme Court upheld the decision of the Federal Shariat Court emphasizing that: It is conceded that the remedy cannot be denied to one having a legal right nor can the examination of the grievance be shut out at the absolute discretion of the competent authority. Hence, these provisions, as they stand, are clearly violative of the Injunctions of Islam which make all public power a trust and hence all persons exercising it accountable to the persons suffering at its hands and this process of accountability can take place only in forums and avenues which are independent and regulated by properly set out guidelines for the prosecution and adjudication of causes.

In Government of N.W.F.-P. v. I.A. Sherwani Justice Taqi Usmani declared rule  of The Government Servants (Efficiency and Discipline) Rules,  to be un-Islamic since it allowed the government to reduce the salary of a civil servant pending a disciplinary investigation against him. In his judgment the contractual relationship between the government and a civil servant was to be honoured. Consequently, only after a charge had been proved against a civil servant could penal or financial sanctions be imposed. Principles of natural justice were also applied in relation to the quantum of compensation payable by the government in cases of compulsory

 Section  of The Code of Criminal Procedure,  and section () of The Pakistan Criminal Law Amendment Act, .  Maqbool Ahmad Qureshi v. Government of Pakistan PLD  FSC , at p. .  Federation of Pakistan v. Zafar Awan, Advocate PLD  SC  [SAB].  PLD  SC  [FB].

Human Rights, Natural Justice and Pakistan’s Shariat Courts  acquisition of land. In Nazir Ali Shah v. Capital Development Authority the Federal Shariat Court declared as repugnant to Islam a provision of The Capital Development Authority Ordinance, , which allowed the authority to acquire property without the consent of its owner at a lower rate than the market rate at the time of acquisition. For identical reasons section  and -A of The Land Acquisition Act,  and the corresponding provincial statutes were declared un-Islamic. However, the liberal equation of fundamental rights, principles of natural justice and Islamic law by the Federal Shariat Court did not emerge without controversy. The first criticism was formulated by Justice Afzal Zullah in the case of Pakistan v. Public at Large. Justice Zullah expressed his strong disagreement with the way and manner in which some of the laws reviewed by the Federal Shariat Court mainly in the exercise of its suo moto jurisdiction had been invalidated. Justice Zullah found that it was the constitutional duty of the Federal Shariat Court to identify the concrete provisions of Qur’an and Sunnah which rendered a particular law repugnant to the injunctions of Islam. This, according to Justice Zullah, had not been done with any consistency by the Federal Shariat Court. Justice Zullah was clearly unhappy about the application of general principles of Islamic law which were liable to lead to a relaxation of concrete Islamic injunctions. Further, Justice Zullah held that it was not permissible for the Federal Shariat Court to suggest amendments to laws declared repugnant. Justice Zullah himself violated this rule, however, in the very same judgment proposing that all legislative assemblies should pass a law making it imperative on all courts and public authorities to interpret statutory laws in the light of Islam. Justice Zullah also proposed that the service records of all civil servants should include a specific mention whether the person concerned had any tendency against the tenets of Islam and whether there was any outstanding feature in his conduct or character indicating Islamic way of life.

 See for instance In re: Islamization of Laws PLD  FSC  where the Federal Shariat Court declared The Capital Development Authority Ordinance,  to be in accordance with Islam as long the state paid the market value of the compulsorily acquired land as a compensation.  See In re: Land Acquisition Act,  PLD  FSC .  PLD  SC .  Ibid., at p. .



Martin Lau

The above case is also instructive in that it contained, very unusually, a lengthy appendix providing references to sources on Islamic law to be used by the Federal Shariat Court in order to identify concrete provisions of Islamic law rather than general principles based on judicial notions of Islamic propriety. There seems little doubt that Justice Zullah was concerned that especially the suo moto jurisdiction allowed the Federal Shariat Court too much liberty and leeway to impose its own notions of justice and equity under the cover of Islamic law. As a result, several statutes declared in part repugnant to the injunctions of Islam were re-validated and the Federal Shariat Court was asked to re-examine them, this time giving specific references to Qur’an and Sunnah. However, it should be noted that the Federal Shariat Court in not a single ‘review’ case departed from its earlier judgment. It only pointed to the relevant Islamic law and up-held its earlier decision. Justice Nasim Hassan Shah was the other judge who disapproved of the equation of fundamental rights and injunctions of Islam. In Pakistan v Public at Large Justice Nasim Hassan Shah held, in the context of the already discussed repugnancy of certain parts of civil service laws, that a general principle derived from Islamic law, as opposed of a specific injunction contained in the Qur’an or Sunnah, could not be used to invalidate a law. He observed that: The view expressed by the Federal Shariat Court that in the absence of any specific injunction of the Holy Qur’an or the Sunnah of the Holy Prophet, the Court can still declare a law to be bad on account of its repugnancy to the principles laid down in or emanating from the Holy Qur’an or the Sunnah, though correct theoretically as held by this Court in Pakistan v. Public at Large [PLD  SC ] does not appear to us to have been correctly applied in the present case.

 See for instance In Re: The Baluchistan Chief Minister and Provincial Ministers (Salaries, Allowances and Privileges) Act,  PLD  FSC  where the Federal Shariat Court confirmed that the right of a deceased to nominate a person entitled to receive compensation on death of the nominator was held to be repugnant to Islam since such compensation was to be made part of the estate of the deceased and thereby subject to the Islamic law of inheritance. See also In Re: The Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance,  PLD  FSC  and Federal Employees Benevolent Fund & Group Insurance Act, : PLD  FSC  for similar rulings.  PLD  SC .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  The law in question in this case was enacted by the National Assembly in  and was a law made by a representative body of Muslims. Such a law should not be declared to be un-Islamic lightly and only because the views about its propriety and reasonableness are not in conformity with or are not shared by another body of Muslims, sitting as members of a Court. Accordingly, unless it can be shown that the body of Muslims sitting in the legislature have enacted something which is forbidden by Almighty Allah in the Holy Qur’an or by the Sunnah of the Holy Prophet or of some principle emanating by necessary intendment therefrom no Court can declare such an enactment to be un-Islamic. The question of reasonableness of law or the possibility that it is likely to be unjustly observed is a matter which can be examined by the superior Courts in their exercise of their jurisdiction to enforce Fundamental Rights which, inter alia, guarantees equality of citizens under Article  of the Constitution.

It should be noted that Justice Shah’s emphatic distinction between fundamental rights and the injunctions of Islam became only possible because of the lifting of martial law and the return of democracy in . Justice Shah’s ruling – not followed by the other members of the bench – re-asserted the authority of the Supreme Court and the legislature as the supreme organs of the state applying and making laws. Justice Shah was aware of the potential threat to the exclusive constitutional jurisdiction of the superior courts and the danger of convoluting Islamic and constitutional values. He asserted that there is a difference between Islamic law and fundamental rights but fails to identify what this difference may be. His concerns about procedure and forum indicate that he would like to confine the jurisdiction of the Federal Shariat Court to the narrow field of concrete Islamic injunctions. In the case of Federation of Pakistan v. Public at Large Justice Shah again took issue with a decision of the Federal Shariat Court. The original judgment, challenged by the Federal Government and the provincial governments of Punjab and Baluchistan, had invalidated several sections of The West Pakistan Press and Publications Ordinance,  as being violative of both Islamic law and, importantly, Article  of the  Constitution, which guarantees freedom of speech. Justice Shah upheld in substance the

 

Ibid., at p. . PLD  SC .

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Martin Lau

decision of the Federal Shariat Court but reiterated that in its reliance on Article  it had over-stepped its jurisdiction. However, despite Justice Shah’s formalism there was no doubting that gradually the decisions of both the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court created distinctive Islamic rights which, if breached by legislation, would render these laws liable to be invalidated. From the mid-s even the Shariat Appellate Bench of the Supreme Court was willing to declare that as a general principle any law which did not afford an opportunity to be heard before any of his rights were affected to his detriment by governmental action, was as a matter of principle repugnant to Islam because: However, on principle, we would not hesitate in laying down the rule that all these limitations on human rights must be sub-ordinated to the most fundamental of all the Human Rights in Islam, the one which cannot be abridged, namely the right to justice.

More concretely, Justice Afzal Zullah laid down that [. . .] This Court has now made it quite clear that any provision of law where under someone can be harmed or condemned without affording such a person an opportunity of defence against the said action, is against the Qur’anic Commands as supplemented and interpreted by the Sunnah of the Holy Prophet.

v. conclusion The relationship between constitutionally guaranteed fundamental rights and Islamic judicial review clauses is complex. In the case of Pakistan many decisions enforcing fundamental rights against the state also refer to principles of Islamic law though the latter do not form the legal basis for the decision by themselves. Rather, these references to Islam add an indigenous and religious ‘flavour’ to a human rights jurisprudence which

 Federation of Pakistan v. General Public PLD  SC , at p. , per Afzal Zulla. See also Justice Zullah’s statement that ‘The Qur’an and Sunnah are full of injunctions emphasising undiluted justice, with its much more pronounced importance in our polity, as compared to Western jurisprudence.’ Abdul Wajid v. Federal Government of Pakistan PLD  SC , at p. .  Province of Sind v. Public at Large PLD  SC .

Human Rights, Natural Justice and Pakistan’s Shariat Courts  is otherwise informed by principles of constitutional law which are secular and in many instances comparable to the human rights jurisprudence of other jurisdictions. However, there have also been clashes between constitutionally guaranteed human rights and Islamic law, the most noticeable in respect to the constitutionally guaranteed right to freedom of religion. The case concerned the constitutional validity of a criminal law which imposed severe restrictions on the members of the minority Ahmadiyya sect to exercise their freedom of religion. Thus, the law imposed criminal sanctions on any member of the sect to call himself a Muslim and made it a criminal offence for Ahmadiyyas to proselytize. In a controversial decision the Supreme Court of Pakistan held that this law was not contrary to Islam. This was in itself not surprising but in a second step the Supreme Court held that the scope of fundamental rights guaranteed by the constitution was determined by Islamic law. This elevation of Islamic law as a direct source of constitutional law capable of restricting the scope of fundamental rights has not been followed in other decisions. On the contrary, in a recent decision the Supreme Court for the first time invalidated as unconstitutional a law under which one of Pakistan’s provinces had tried to set up an Islamic ombudsman and a religious police. The bill had been passed by the provincial legislative assembly of the North West Frontier Province and was awaiting the assent of the President. The Supreme Court held that whilst such a religious police might indeed be in accordance with Islam it was not in conformity with the provisions of the Constitution. Inter alia the Supreme Court held that the bill, if it became a law, would create a new, parallel, system of criminal law and the provision of the so-called Hisba bill were ‘vague, overbroad, unreasonable based on excessive delegation of jurisdiction, denying the right of access to justice to the citizens and attempting to set up a parallel judicial system.’ The interaction and relationship between constitutionally guaranteed rights and Islamic law is problematic. As could be seen in the case of Pakistan, there are a number of cases in which the Supreme Court and the Federal Shariat Court used principles of Islamic law to enhance fundamental rights and to invalidate statutes which were in breach of these principles.

 Zaheeruddin v. The State  SCMR .  At the time of writing the case has not been reported but the decision can be found on the website of the Supreme Court of Pakistan at http://scp.com.pk.

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Martin Lau

However, there are also numerous clashes and contradictions between some principles of human rights, especially in respect of the legal status of women, the right to freedom of religion, and the prohibition of cruel and inhumane punishments, and principles of Islamic law. How courts should resolve these conflicts is unclear and has remained unresolved.

chapter thirteen

Women, Islamisation and Human Rights in Pakistan: Developing Strategies of Resistance Siobhán Mullally* Tensions have arisen at various points in Pakistan’s constitutional history between the guarantee of equality between women and men, on the one hand, and the dictates of Islamisation, on the other. This chapter explores these tensions and the strategies adopted by feminist movements in challenging religious claims that deny gender equality. As many Muslim feminists have highlighted, there are many and varied interpretations of the Shari’ah; there are progressive and conservative interpretations of Islam. Measures taken in the name of Islamisation in Pakistan, however, have threatened gender equality and denied women’s equal human rights. Conversely, steps taken to ensure greater equality between women and men have been condemned as un-Islamic. Conflicts have arisen primarily in matters relating to the family, sexuality and reproduction, matters that, within international human rights law, have frequently been defined as private, religious or cultural and beyond the tests applied to spheres defined as public or political. Most recently conflict has arisen in relation to attempts to reform the law of rape, with Islamist parties resisting proposals to remove rape from the scope of the Hudood laws and instead to bring it within the scope of the secular penal code. The reform proposals, proposed in the Protection of Women (Criminal Laws Amendment) Bill, , have led to heated conflicts between conservative Islamist parties seeking to preserve

* Senior Lecturer, Faculty of Law, University College Cork, Ireland. I am grateful to Kamran Arif for helpful comments and suggestions, in particular, on the case-law discussed in this paper. Earlier drafts of this paper were presented at the British Institute of International Law, Religion and Human Rights Conference (London, February ) and at the Feminist Legal Theory project, Emory University, USA. I am grateful to the participants at both conferences for their comments and questions. Thank you to Susan Breau and Javaid Rehman for their patient and careful editing of this collection. Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –



Siobhán Mullally

Hudood laws, on the one hand, and human rights advocates calling for the application of a secular penal code, on the other. Conflicts such as these raise questions as to whether constitutional guarantees of equality between women and men and the State’s obligations under international human rights law trump’ religious claims, and what strategies are to be adopting by feminists movements in responding to religious claims. Posing these questions raise difficulties for feminist movements, given the concern, particularly amongst differencefeminisms, to explode the myth of the unitary category ‘woman’ and to recognize the significance of differences between women, including differences arising from religious affiliations. The language of ‘trumping’ suggests a triumphalism, a demarcating of clear boundaries between those inside and outside, that is antithetical to feminism – conceived of as an inclusive, emancipatory movement. In negotiating conflicting claims, feminist movements in Pakistan have drawn on a wide range of strategies. Some have adopted ‘insider methodologies’, renegotiating inherited religious traditions and appealing to an egalitarian Islam. Others have adopted secularist strategies, refusing to limit their claims to the confines of religious discourse. Although feminist movements have sought to avoid the language of ‘trumping’, common to the strategies adopted is a willingness to subject religious claims to questioning and scrutiny and to invoke universal principles of gender equality to limit the scope of such claims. This process of questioning has focused, in particular, on the demarcation of boundaries between the public and the private, the political and the non-political.

 See: ‘A Victory for Pakistan’s Women’ Editorial, The Washington Post, August rd ; Asian Centre for Human Rights, Weekly Review,  September , ‘Appeasing the Mullahs: Protection of Women (Criminal Laws Amendment) Bill  of Pakistan’; ‘Pakistan Delays Rape Reform Plans’, Wed. th Sept , http://news.bbc.co.uk//hi/ south_asia/.stm ( November ).  See: S.S. Ali, Gender and Human Rights in Islam and International Law (The Hague, Kluwer, ); S.S. Ali, ‘Using Law For Women in Pakistan’, in A. Stewart (ed.), Gender, Law and Justice (London, Blackstone, ), at pp. –; S.S. Ali, ‘Development of the International Norm of Non-Discrimination on the Basis of Sex: An Evaluation of Women’s Human Rights in Islam and International Law’, in A. Stewart (ed.), Gender, Law and Social Justice (Blackstone, London, ), at pp. –; S.S. Ali, ‘Law, Islam and the Women’s Movement in Pakistan’, in S.M. Rai (ed.), Gender and Democratisation. International Perspectives (Routledge, London, ), at pp. –; F. Shahid et al. (eds.), Shaping Women’s Lives: Laws, Practices and Strategies in Pakistan (Shirkit Gah, Lahore, ); F. Zafar, Finding our Way: Readings on Women in Pakistan (ASR, Lahore, ).

Women, Islamisation and Human Rights in Pakistan  The demarcation of the public and the private has been at the core of Pakistan’s frequently contested process of nation-building. In his now infamous inaugural speech to Pakistan’s Constituent Assembly, Pakistan’s first Prime Minister, Muhammad Ali Jinnah, spoke of the ‘withering away’ of religion as a political concern. Religion, caste or creed, he said, had nothing to do with the business of the state. In course of time, he said, ‘Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense [. . .] but in the political sense as citizens of the State’. This vision has yet to be realised. Even within Jinnah’s speech, however, we see the potential for tension between religious claims and the pursuit of gender equality. His vision of ‘the political’ did not include the regulation of intimate relations. Intimate relations were presumed to fall within spheres ‘legitimately pertaining to religion’. Unlike the Indian Constitution, Pakistan’s constitutional text does not aspire towards a uniform civil code. The limiting of women’s status and roles in the name of Islam served to support the fragile process of nation-building. Attempts to ‘Islamise’ the State in Pakistan provide an archetypal example of the dilemmas that face a legal system in attempting to adjudicate between competing and sometimes conflicting rights claims. Both the right to freedom of religion and the right to non-discrimination on the basis of sex are enshrined as fundamental rights in the Constitution. Article  guarantees equality before the law and prohibits discrimination on the basis of sex. Article  protects the right of every citizen to profess, practice and propagate their religion, subject to ‘law, public order and morality’. In addition, the Preamble provides that Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam. To date these norms have co-existed uneasily. Attempts to resolve conflicting claims within the legal system have been fraught with difficulty. These difficulties have been exacerbated by the lack of consensus surrounding the role of Islam within the

 Constituent Assembly Debates, Vol. , No. , pp. –.  Per Shri K.M. Munshi, Member of the Constitution of India Drafting Committee of the Constituent Assembly (Constituent Assembly Debates (India) Vol. VII, pp. –, quoted in V.N. Shukla’s Constitution of India (th ed.) by M.P. Singh (Eastern Book Company, New Delhi, ).  On India’s aspirations towards a uniform civil code, see: S. Mullally ‘Revisiting the Shah Bano case: Feminism and Multicultural Dilemmas in India’, in ()  Oxford Journal of Legal Studies .

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constitutional framework of Pakistan. Questions have arisen, in particular, as to the relationship between the Shari’ah, the constitutional guarantee of equality and religion-based systems of personal law (broadly defined as the law governing family relations). These questions are not, of course, unique to Pakistan. As Ayelet Shachar notes, various religious (and national) communities have used marriage and divorce regulation in the same way that modern states have used citizenship law: ‘to delineate clearly who is inside and who is outside of the collective’. In Pakistan, religion-based personal laws have long served this demarcating function. i. the role of islam in pakistan’s constitutional framework Successive constitutions in Pakistan have tried, not always with a great deal of success, to define and demarcate the boundaries within which the “Injunctions of Islam” were to be applied. Although Pakistan came into being to provide a separate homeland for Indian Muslims, the precise role that Islam was to play within the constitutional framework of the State was unclear. Many Muslim groups in the Indian subcontinent were hostile to the Pakistan movement because of its leaders’ secular aspirations. Despite the fact that the call for a separate Muslim state reflected the secular aspirations of the Pakistan movement, Islam was increasingly evoked as a legitimising, if tenuous, ideology for Pakistani unity and integrity. In pre-partition India, Islam was a communally based religion that had come to serve as an ethnic marker for the Muslim community. In the case of Pakistan, it became integral to nationhood itself.

 A. Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge University Press, Cambridge, ), p. .  G.W. Choudhury, Constitutional Development in Pakistan (Lowe & Brydone, London, ); A. Jalal, The Sole Spokesman: Jinnah, The Muslim League and the Demand for Pakistan (Sange-meel Publishers, Lahore, ); C.H. Kennedy, ‘Repugnancy to Islam – Who Decides?: Islam and Legal Reform in Pakistan’ ()  ICLQ ; See generally: S.S. Ali and J. Rehman, Indigenous Peoples and Ethnic Minorities in Pakistan: Constitutional and Legal Perspectives (Curzon Press, London, ); R. Mehdi, The Islamization of the Law in Pakistan (Curzon Press, London, ); F. Rahman, ‘Islam and the Constitutional Problem of Pakistan’ () XXXII Studia Islamica .  D. Kandiyoti (ed.), Women, Islam and the State (Macmillan, Basingstoke, ); V. Moghadam, ‘Patriarchy and the Politics of Gender in Modernising Societies: Iran, Pakistan and Afghanistan’ ()  International Sociology .

Women, Islamisation and Human Rights in Pakistan  Debates surrounding gender equality and religious-cultural differences have a long and troubled history in India. Colonial rulers viewed Indian women as dependent subjects, tied to the claims of their husbands, families, communities. Victorian feminists also contributed to the portrayal of the Indian woman as a dependent subject. As feminists, their own claims to political agency were supported by what they claimed as a special moral responsibility to ‘save’ the downtrodden women of the colonies. Indian women appeared as the natural and logical ‘white woman’s burden’. The claim of Victorian feminists to speak for Indian women was replicated in the claims of many Indian nationalists who saw their political roles as crucially bound up with improving the status of Indian women and safeguarding their honour against the polluting forces of the West. For many nationalists, the home, and women’s place within in it, was reified as a kind of inner space, within which colonial hegemony could be challenged and denied. Colonial rule was portrayed as an interruption in the authentic life-story of the Indian nation. Within the private, domestic sphere, women were charged with safeguarding that story, becoming the bearers of culture, the repository of traditions. Many women were complicit in this idealisation of Indian womanhood, supporting nationalist claims that ‘their’ religion or culture treated women with greater respect than did the cultures and traditions of the West. As Uma Narayan notes, gender came to play a role in the ideological service of both colonial Empires and of Third World nationalist movements, ‘helping to position Western and nonWestern women against each other as competing cultural embodiments of appropriate femininity and virtue’. Many women participated in the Pakistan movement. However, postpartition they were to find themselves the casualties of communal politics. The regulation of women’s roles and conduct served to mark Pakistan as a separate national entity, reinforcing its claims to nationhood and to a political destiny distinct from that of its predominantly Hindu neighbour, India. The conflation of gender roles with national identity was not, of course, a post-colonial phenomenon. The Warren Hastings Plan of  in India provided that Hindus and Muslims in the Indian sub-continent were to be

 U. Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminism. (Routledge, London, ), p. .  Ibid., p. .  Ibid., p. .

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governed by their own laws in disputes relating to inheritance, marriage, caste and other religious usages and institutions. In , succession and inheritance were added to this list. In all other matters, the courts acted, ‘according to justice, equity and good conscience’. The reception of secular and western laws into other spheres of the legal framework created a sharp dichotomy between systems of personal law and the general law applying irrespective of religion. For the colonial rulers, maintaining separate systems of personal law was administratively convenient. The division between public and private spheres underpinning the Hastings Plan was a familiar one. It reflected a ‘cult of domesticity’ that permeated much of the British legal system. It also reflected the peculiarly western liberal tradition that viewed the privatising of religion as essential to a modus vivendi between competing conceptions of the good life. Religious differences were tolerated by a state that claimed to be neutral between the private religious beliefs and practices of individual citizens. In the context of colonial rule, this division between the public and the private created difficulties for the state. The colonising state could not command a ‘sense of belonging’ amongst the colonised. This ‘sense of belonging’ developed instead within the confines of religious communities. As a result, political identities were increasingly forged along communal lines. Personal laws played a key role in demarcating the boundaries of communal and gender identities, becoming highly contested sites of political struggle. As Sangari notes, Hindu and Muslim women increasingly came to be defined as ‘boundary markers’, leading to minutely defined, stringent controls on women’s behaviour, their roles and status. These controls  Although the courts followed British models of adjudication and procedure, the plan had provided for Hindu and Muslim experts (Pandits and Maulvis respectively) to instruct the courts as to the nature of the Hindu or Muslim law, whenever a matter of Hindu or Muslim law come to be decided upon. The Pandits and the Maulvis were bound by the ‘laws of the Shastras’ in the former case and ‘the laws of the Koran’ in the latter case. In  this Regulation was replaced by Section  of Regulation IV to read ‘Hindu laws’ and ‘Mohammedan laws’. See generally, M. Anderson, ‘Islamic Law and the Colonial Encounter in British India’, in C. Millat and J. Connors (eds.), Islamic Family Law (Graham and Trotman, London, ) p. .  Section  of the  Regulation. See generally, D. Pearl, A Textbook on Muslim Personal Law (nd ed.) (Croom Helm, London, ) p. .  See, for example, the Indian Penal Code (); Code of Criminal Procedure (); Code of Civil Procedure ().  K.K. Sangari Politics of the Possible: Essays on Gender, History, Narratives, Colonial English. (Anthem Press, London, ) p. .

Women, Islamisation and Human Rights in Pakistan  were exercised particularly within the domestic sphere, where colonised communities continued to maintain a degree of autonomy or ‘freedom’ from colonial rule. For many of the leaders of the Pakistan movement, however, religious-cultural identities were not central to the process of nation-building. In his Presidential address to the All-India Muslim League in , Mohammed Iqbal first put forward his proposal for the creation of a separate Muslim state. Although he rejected the duality of church and state as a peculiarly western concept, he distinguished between Islam, conceived as the legal basis of the state, and a theocracy. In his view, the creation of an autonomous Muslim state would not mean religious rule. This vision was taken up by Mohammad Ali Jinnah. Jinnah spoke of the ‘withering away’ of religion as a political concern. Religion, caste or creed, he said, had nothing to do with the business of the state. Ultimately, however, the accommodation of religious-cultural claims meant compromising on the place of religion within Pakistan’s constitutional framework. Zafrullah Khan, Pakistan’s first minister for Foreign Affairs argued that to exclude religion from the sphere of politics failed to grasp the full significance of religion and put too narrow a construction on the functions of religion. One of those functions was to support the process of nation-building. Islam served to distinguish Pakistan from its predominantly Hindu neighbour state, India. It also served to mask the ethnic, linguistic and socio-economic divisions in Pakistan’s diverse polity. The first significant step in the framing of a constitution for Pakistan was taken by the Constituent Assembly in March , when it passed a resolution on the ‘Aims and Objects of the Constitution’ – the Objectives Resolution. This resolution, which subsequently became the Preamble to Pakistan’s three successive Constitutions (,  and ), provided that Muslims would be enabled to, ‘order their lives in the individual and collective spheres in accord with the teaching and requirements of Islam’. However, although the Objectives Resolution was referred to by the courts as the ‘corner-stone of Pakistan’s legal edifice’,

 Constituent Assembly of Pakistan Debates. . Vol. V, No. , p. , cited in G.W. Choudhury, Constitutional Development in Pakistan (nd ed.) (Lowe & Brydone, London, ), p. .  Constituent Assembly of Pakistan Debates, . Vol. V, No. . pp. –. The structure and phrasing of the Resolution has similarities to the Preamble of the Irish Constitution, Bunreacht na hÉireann.

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embodying the ‘spirit and fundamental norms of the constitutional concept of Pakistan’, it was not accepted as a supra-constitutional document nor even as a justiciable provision. The  Constitution declared Pakistan an Islamic Republic and set out the role of Islam within Pakistan’s constitutional framework. Article  of the Constitution provided that the legislature would bring all laws into conformity with the ‘Injunctions of Islam’ and prohibited the enactment of any law repugnant to Islam. The legislature, however, was to retain strict control over the pace and direction of this Islamisation process. The question of repugnance to Islam was to be determined solely by the National Assembly. No role was envisaged for the judiciary in this process. There was also recognition of the diversity within Islam, particularly within the field of personal law. A note of explanation inserted into the  Constitution allowed for differences of interpretation of the Qur’an and Sunna as between different Muslim sects, thereby ensuring that the Islamisation process would respect differences between Muslims in the field of personal law. Constitutional provision was also made to exempt the personal laws of non-Muslims from any process of Islamisation, again recognising the diversity within the Pakistani polity. As we shall see, however, this concern to accommodate religious-cultural claims led to a deeply gendered citizenship, as Pakistani women’s legal identity was increasingly defined by their communities of origin. The  Constitution initially excluded any reference to the need for legislation to conform to the Shari’ah or to an Islamisation process. However, following protests from the National Assembly, the Islamic provisions of the  Constitution were reinserted. Despite this compromise, however, the role of Islam continued to be curtailed. This position was maintained by the  Constitution. For the first time, however, Islam was declared to be the state religion. The privatisation of religious identities, carefully nurtured by the colonial rulers, was no longer tenable in a state scarred yet again by partition and in need of a unifying national ideology. A conservative nationalism was to provide the sense of belonging that had

 See Asma Jilani v. The Government of the Punjab, PLD  SC .  See note of explanation attached to article  of the Constitution of Pakistan, .  See: First Amendment Act, . The First Amendment reintroduced the word ‘Islamic’ into the title of the state. Pakistan again became the ‘Islamic Republic’.

Women, Islamisation and Human Rights in Pakistan  been absent in East Pakistan (Bangladesh). The appeal to Islam, however, served only to highlight the tensions within Pakistan’s constitutional text. Reconciling the establishment of Islam as the state religion with the constitutional guarantees of equality and religious freedom was to continue to raise conflicting claims. The potential for conflict can be see in the sphere of Muslim personal law, contested throughout Pakistan’s constitutional history by reformists, revivalists and feminists alike. ii. the separate sphere of muslim personal law The expression ‘Muslim Personal Law’ (MPL) may have a number of different meanings. In its commonly understood sense, it refers to the religious or Divine law of Muslims by which they believe themselves to be governed as a matter of faith. However, it is also used to refer to all statutory laws applying only to Muslims. The scope of MPL in this second sense is based on the terms of the Warren Hastings plan. The desire to develop a uniform system of law in India had seen the codification of criminal law, the law of contract and the law of evidence. Personal laws in the areas laid down by the Hastings plan, however, continued to be excluded from the general law. Because personal laws were intertwined with religious identities, any attempt at large-scale reform was viewed as a threat and likely to disrupt the colonial project. The colonial rulers were willing to sacrifice reforming measures that might bring about greater equality for women. This willingness reflects, yet again, the kind of ‘traffic in women’ that so frequently accompanies the accommodation of religious-cultural claims. Demarcating the sphere of personal law would also have reflected the kind of public / private divisions that were familiar to western legal systems, based, as they were, on a firmly entrenched ‘cult of domesticity’.

 See generally: G.W. Chaudhry, ‘Bangladesh: Why It Happened’ ()  International Affairs ; R. Jahan, Pakistan: Failure in National Integration (Columbia University Press, New York, ). On the roots of conservative nationalism generally, see: D. Miller, On Nationality (Clarendon Press, Oxford, ). For a discussion of conservative nationalism and its impact on minority rights, see: M. Malik, ‘Minority Protection and Human Rights’, in T. Campbell, K.D. Ewing and A. Tomkins (eds.), Sceptical Essays on Human Rights (Oxford University Press, Oxford, ) at p. .  See E. Zafar, Constitutional Law of Pakistan, Vol. II. , p. .  See Federation of Pakistan v. Mst. Farishta PLD  SC .

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Codification would also have proven difficult given the variations in customary practices between different Muslim communities. The Warren Hastings Plan allowing for the application of religious personal laws had proven difficult to implement because of the diversity within religious practices. As a result, towards the end of the nineteenth century, there was a shift from religious personal law to custom as the ‘rule of decision’ in disputes relating to personal law. In a dispute concerning the Khoja and Memon communities in Bombay, Chief Justice Perry concluded that if a custom had been proven to exist, ‘from the time whereof the memory of man runneth not to the contrary’, if it was not injurious to the public interest, and if it did not conflict with any express law of the ruling power, such a custom would be enforced by the court regardless of the general Muslim law to the contrary. The reference to the memory of man reflects the patriarchal nature of many customary practices, as women’s memories were either ignored or silenced. The limits imposed by the public interest did little to safeguard gender equality, as public interest was defined more by reference to the smooth running of the colonial enterprise rather than with the protection of women’s human rights. Enforcing custom as the rule of decision allowed for diversity within personal laws. The fragmentation inherent within this practice, however, did not suit the demands of a nationalist movement. The All-India Muslim League sought to codify Muslim personal law and, in doing so, hoped to unify Indian Muslims around a distinct religious-cultural identity. The administration of the Shari’ah by a non-Muslim colonial power and its balancing against local customs and usages had transformed personal law into a ground for organised political struggle. Codification, a trend initiated by the British, was now perceived by Muslim leaders as a necessary step in asserting and protecting a separate Muslim identity. The All India Muslim Women’s Conference also supported the calls for codification of personal laws, arguing that customary practices in many areas of the Indian

 See Ali, Gender and Human Rights () above n. , pp. –.  Section  of the Punjab Laws Act . See: The Bombay Regulation IV of ; The Punjab Laws Act IV of ; The Bengal, Agra and Assam civil courts Act VIII of . The leading case concerning the applicability of customary practices is a decision involving the Khoja and Memon communities given in Bombay in  (See  Perry’s Oriental Cases ) and discussed by Pearl, above n. , at p. .  Cited in Pearl, above. n. , at p. .

Women, Islamisation and Human Rights in Pakistan  sub-continent stood in ‘marked contrast to the fuller rights bestowed [. . .] by the Shari’ah’. The Muslim League’s demands for the codification of the Shari’ah culminated with the enactment of the  Muslim Personal Law (Shari’ah) Application Act, extending the application of MPL to the whole of India. The Act provided that in all matters covered by the Act, MPL was to replace custom as the ‘rule of decision’. The struggle for the statutory enforcement of MPL continued after independence. A series of Shari’ah Acts were enacted by Pakistan’s provincial legislatures. In  these Acts were amended and consolidated in one comprehensive piece of legislation, the West Pakistan Muslim Personal Law (Shari’ah) Application Act, . Unlike the previous Shari’ah Acts, however, the  Act was made subject to the provisions of any enactment in force at that time. This provision ensured protection for the  Muslim Family Laws Ordinance (MFLO), promulgated only one year previously and condemned by many as un-Islamic. The MFLO was introduced, following recommendations for reform by the Commission on Marriage and Family Laws, to ensure that women were given their ‘proper place in society according to the fundamentals of Islam’. For the Commission, working within the ‘fundamentals of Islam’ was not a problem. In its view, MPL was a ‘growing organism’, that had become a conservative and rigid force under colonial rule, failing to respond to ‘progressive forces’ and ‘changing needs’. The Commission’s report included many proposals and recommendations for reform, leading ultimately to the adoption of the  MFLO. A strong note of dissent, however, was entered to the Commission’s final report by Maulana Ihtehshamul Haq, signalling the beginning of a controversy that was to plague reforming forces for many years to come.

 See: Statement of Objects and Reasons, Muslim Personal Law (Shari’ah) Application Act, , Gazette of Pakistan  Part V, p. ; M Anderson, ‘Islamic Law and the Colonial Encounter in British India’, in Millat and Connors (eds.), above n. .  The  Act was followed in  by the West Punjab MPL (Shari’ah) Application Act and in  by the MPL (Shari’ah) Application (Sind Amendment) Act. Both these Acts extended the scope of MPL to include testate succession and questions relating to agricultural land.  West Pakistan Muslim Personal Law (Shari’ah) Application Act, , s.  Report of the Commission on Marriage and Family Laws. Gazette of Pakistan, Extraordinary, June   (Majority report) , pp. –.  Ibid., p. .  Gazette of Pakistan Extraordinary,  August  (note of dissent) .

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Ultimately, the concern to placate dissenting voices greatly weakened the impact of the  MFLO as a reforming measure. The Ordinance imposed procedural restrictions on polygamy and the power of talaq, leaving untouched the discrimination inherent within both practices. Despite these shortcomings, however, the Ordinance was welcomed and jealously guarded by women’s rights activists. From the outset, it was labeled as ‘unIslamic’. A resolution proposed in the National Assembly condemned the Ordinance as contrary to Islam. Although the resolution was not carried, the label remained. Several petitions were brought before the courts challenging the Ordinance as being repugnant to Islam. In both the  and the  Constitutions, however, the Ordinance was granted a ‘protected’ status, excluding it from any constitutional challenge invoking fundamental rights. In Shaukat Hussain v. Rubina, Justice Tanzil-ur-Rehman of the Karachi High Court argued that article  of the Constitution, requiring all laws to be brought into conformity with Islam, had been flouted by the protection given to the Ordinance. The protected status given to the Ordinance amounted, he argued, to a suspension of fundamental rights, in particular, the right to religious freedom. The protected status of the Ordinance guarded against challenges claiming a denial of religious freedom. A fragile compromise was thus achieved. It was a compromise, however, that was to remain constantly under threat. Under General Zia’s Islamisa-

 See generally: J.L. Esposito, ‘Muslim Family Law Reform in Pakistan’ ()  Journal of Malaysian and Comparative Law ; D. Pearl, Family Law in Pakistan () Journal of Family Law, .  Under the Ordinance polygamy is prohibited unless the prior permission of an Arbitration Council has been received (s.). The Council may grant permission if it is satisfied that the proposed marriage is ‘necessary and just’ (s.()). Where the existing wife or wives have granted permission for the marriage, the Council will usually permit the marriage to go ahead. Some restrictions were also placed on what were perceived as being too facile pronouncements of divorce by the husband using his power of talaq. The Ordinance requires that notice of the pronouncement of talaq must be provided in writing to the Arbitration Council (a.). The pronouncement of talaq does not become effective until the expiration of  days from the day on which notice is delivered. However, although a failure to comply with the notification requirements under the Ordinance may render a husband liable to payment of a fine or a term of imprisonment extending up to one year, it does not affect the validity of the divorce. The restrictions, therefore, are procedural only and the substantive issue, namely, the dissolution of the marriage is not affected.  See, National Assembly Debates,  March, .  Article ()(ii) and Schedule III of the  Constitution; Article ()(b) and Schedule I, Part II of the  Constitution.  PLD  Karachi .

Women, Islamisation and Human Rights in Pakistan  tion programme, Justice Tanzil-ur-Rehman’s words were to find support, as Islamisation brought with it an increasingly homogenised Islam and further constraints on women’s claims to equal citizenship. iii. islamisation: ‘chador aur chardiwari’ The Islamisation of Pakistan’s legal system received a new impetus under General Zia ul-Haq. On the assumption of the office of Chief Martial Law Administrator in July , Zia ul-Haq suspended the fundamental rights chapter of the  Constitution, ordered that the Constitution be to be held in abeyance and proclaimed Islamisation as his prime objective. The regulation and definition of women’s legal status was quickly identified as central to the achievement of this objective. Legal measures to control female sexuality and preserve women’s modesty ensured a rallying of support from the forces of conservative nationalism. Recognising the instrumental value of such support, Zia embarked on a programme of Islamising Pakistan’s inherited criminal codes. The MFLO’s modest reforms were also to come under threat as Zia promised to restore the sanctity of the chador aur chardiwari. Viewed in the light of subsequent developments in Afghanistan, Zia’s programme of Islamisation was a modest one. For women, however, it was to mark a shift towards a conservative nationalism that would limit the potential of rights-based discourse in Pakistan for many years to come. One of the first steps taken by General Zia was the adoption of the Hudood Ordinances. The Ordinances were adopted with the stated objective of ‘Islamising’ Pakistan’s criminal justice system. Under the Ordinances, a woman’s testimony cannot be taken into account if a court wishes to impose a strict hadd punishment. This silencing of women’s voices  Enforcement of Hadd (Prohibition) Order (IV of ); Offences Against Property (Enforcement of Hudood) Ordinance (VI of ); Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of ); The Execution of the Punishment of Whipping Ordinance (IX of ); the Offence of Zina (Enforcement of Hudood) Ordinance (VII of ). See generally: A Jahangir and H Jilani, The Hudood Ordinances: A Divine Sanction? (Rhotas Books, Lahore, ). Hudood is an arabic word referring to the Limits and Punishments defined by Allah.  A hadd punishment is one ‘the measure of which has been definitely fixed in the Qur’an or Sunnah’. Tazir is a punishment other than hadd and under general Islamic jurisprudence, the Court is allowed discretion both as to the form in which such punishment is to be inflicted and its measure. The Hudood Ordinances, however, depart from general

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assumes particular significance under the Offence of Zina (Enforcement of Hudood ) Ordinance, . Zina is defined as wilful sexual intercourse between a man and woman who are not validly married to each other. The criminalisation of zina has greatly complicated prosecutions for zinabil-jabr (rape) – also governed by the  Zina Ordinance. Complainants of rape now face yet another hurdle. If a court finds that the complainant consented to sexual intercourse, the charge may be changed from one of rape – zina-bil-jabr – to one of zina, and the complainant herself becomes the accused. If the woman is unable to prove her allegation of rape, her complaint may be treated as a confession to the offence of zina. Pregnancy is taken as further evidence that zina has been committed. In a number of rape trials, the woman complaining of rape has been convicted of zina because she could not prove that her ‘unexplained’ pregnancy was the consequence of rape. The Zina Ordinance clearly conflicts with Pakistan’s constitutional guarantee of equality. The role of the equality norm within Pakistan’s Constitution, however, is a contested one. Given the constitutional requirement

Islamic jurisprudence in this respect and make provision for both the form and measure of the punishment.  Offence of Zina (Enforcement of Hudood) Ordinance, , s..  To attract the punishment of hadd for zina-bil-jabr (rape), the evidence submitted may only be in one of two forms, either: (a) the accused confesses to the commission of the offence or (b) at least four Muslim adult male witnesses give evidence as eye-witnesses to the actual act of penetration. The court must be satisfied that they are truthful persons and abstain from major sins (kabair).The woman making the complaint is excluded from giving evidence. Expert opinion, medical evidence and documentary proof is also excluded. If the required standard of proof for hadd is not met, the accused my still liable to tazir. Under tazir the standard of proof is entirely a matter of discretion for the judge. Most rape trials are tried under tazir, given the almost impossible standard of proof for hadd punishments.  See, generally: Jahangir and Jilani, above n. . See also, Human Rights Watch. World Report: Pakistan, . Available at http://www.hrw.org/wrk/asia/pakistan.html ( March )  See, for example, Safia Bibi NLR  SD  and Shabbir Ahmed PLD  FSC .  The ‘Islamisation’ of the laws of evidence led in  to the Qanun-e-Shahadat Order, article () of which provides that in matters relating to financial or future obligations, legal instruments must be attested by two men or one man and two women. Critics argue that the Order is based on a mistaken interpretation of the Quranic verse II:. There is also a jurisprudential debate as to whether this particular Qur’anic verse has been superseded by later revelations concerning women’s legal competence in evidentiary matters. See generally: Ali, Gender and Human Rights () above n. , pp. –.

Women, Islamisation and Human Rights in Pakistan  that all laws should be brought into conformity with Islam, it is unlikely that the Hudood Ordinances would be struck down as discriminatory and contrary to the guarantee of equality. Zia ul-Haq, nonetheless, took steps to deny the possibility of such a challenge. The Eighth amendment to the Constitution, inserted on the revival of the  Constitution, protected the Ordinances from challenge ‘in any court on any ground whatsoever’, thus ensuring that Zia’s legacy would survive long after his demise. Under General Zia’s Islamisation programme, the pluralism inherent within Pakistan’s system of religious personal laws was also to come under attack. In line with article  of the Constitution, personal laws were initially shielded from the Islamisation process and placed outside the jurisdiction of the newly established Shari’ah courts. This ensured protection for differing interpretations of the Shari’ah and for the personal laws of religious minorities. Indirectly, it also ensured protection for the  MFLO, shielding the Ordinance from the consequences of being labelled ‘un-Islamic’. This protection, however, was to come under threat as General Zia’s Islamisation programme extended to constitutional reform. On the revival of the  Constitution in , a new provision, Article -A, was added to the Constitution, providing that the Objectives Resolution would be elevated from a preambular to a substantive provision. The precise import of this new provision was unclear. Those adhering to a conservative nationalist line were quick to argue that the Objectives Resolution had acquired a supra-constitutional status. Constitutional provisions, fundamental rights guarantees and MPL were all to come under threat, as conservative nationalists invoked the Resolution to support an extended programme of Islamisation. In Mirza Qamar Raza v.

 Eighth Amendment Act (XVIII of ), s.().  One of the first steps taken by Zia ul-Haq, was the establishment of Shari’ah courts. The Constitution (Amendment) Order,  established Shari’at Benches in each of Pakistan’s High Courts and a Shari’at Appellate Bench in the Supreme Court with exclusive jurisdiction to hear petitions challenging ‘any law or provision of law’ as being repugnant to the ‘Injunctions of Islam’. P.O. No.  of . Under the Constitutional (Amendment) Order, , the Shari’at Benches of the High Courts were replaced by a single Federal Shari’at Court (FSC). P.O. No.  of . In  the FSC was granted an additional suo moto power to examine any law with a view to determining its compatibility with Islam. Constitution (Second Amendment) Order,  (P.O. No.  of ), s. . These additional judicial powers were to place the judiciary at the heart of the Islamisation process.  See Dr Mahmood-ur-Rahman Faisal v. Govt. of Pakistan  SC .  Revival of the Constitution of  Order,  (P.O. No.  of ).

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Tahira Begum and others, Justice Tanzil-ur-Rehman in the Karachi High Court, held that article -A gave the Supreme Court and the High Court’s power to review any aspect of MPL to determine its compatibility with the requirements of Islam. The MFLO, although protected from challenge under the fundamental rights chapter, was, according to Justice Tanzil-urRehman, open to challenge under article -A. He went on to strike down several provisions of the Ordinance as being repugnant to Islam. A more cautious Supreme Court, however, rejected this supra-constitutionality doctrine, pointing out that the establishment of the Shari’ah courts had already created an effective, albeit, limited mechanism for the Islamisation of the legal system. In Hakim Khan and others v. Govt of Pakistan, the Supreme Court again urged judicial restraint, warning against, ‘the euphoria for instant Islamisation of Constitution, Government and Society’. More recently in Muhammad Ishaque v. Manzooran Bibi, the Supreme Court again affirmed the protected status of the MFLO and in Abdul Waheed v. Asma Jehangir reconfirmed the limits placed on the jurisdiction of the Shariat courts in matters relating to MPL. The limits placed on the jurisdiction of the Shari’ah Courts placed some constraints on the pace and scope of Islamisation. Attempts by General Zia to extend the jurisdiction of the Shari’ah Courts ultimately failed to survive his unexpected death in . In , Nawaz Sharif’s Government introduced the Shari’ah Act, claiming to continue Zia’s legacy of islamisation. The Act, however, simply reaffirmed the supremacy of the Shari’ah in Pakistan’s legal system. It left intact the restrictions on the Shari’ah Courts and also provided that women’s constitutional rights would not be affected in any way. The precise import of this legislative guarantee was, and remains, unclear. Given the uncertainty surrounding the role of Islam within Pakistan’s constitutional framework, the protected status of MPL and the ideology of separate spheres permeating the legal system,

 PLD  Karachi .  Mst Kaneez Fatima v. Wali Muhammad and another PLD  SC .  PLD  SC , p. .  PLD  Supreme Court , per Karamat Nazir Bhandari, J.  PLD  Supreme Court . Muslim Personal Law cannot be examined by the Federal Shariat Court and Muslim Personal Law in Article B of the Constitution means (i) statutory law of Muslims; and (ii) it is personal law of a particular sect. If these two conditions are not present, the matter can be examined by the Federal Shariat Court, per Karamat Nazir Bhandari, J., p. .

Women, Islamisation and Human Rights in Pakistan  the potential for conflict between feminism and religious-cultural claims remains a constant threat, despite legislative reassurances to the contrary. In , this threat raised its head again when Nawaz Sharif attempted to bring forward yet another Shari’ah Act, proposing a constitutional amendment and a revival of General Zia’s Islamisation programme. The proposal was viewed by many as an opportunistic attempt to distract attention from Nawaz Sharif’s dwindling political fortunes. The Fifteenth Amendment Bill received the approval of the lower house in Parliament but failed to secure the necessary two-thirds majority in Senate. Sharif ’s support for the Taleban regime in neighbouring Afghanistan and his suggestion that Pakistan should follow the Islamic Emirate’s example of swift justice, had provoked widespread concern amongst human rights activists. Ultimately, however, his political posturing failed and a military coup in October  brought General Musharraf to power. Pakistan’s brief flirtation with democracy had failed yet again. iv. negotiating conflicting claims: the role of human rights discourse The coming to power of the Taleban in Afghanistan coincided with Pakistan’s ratification of the  United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The rise of the Taleban in Afghanistan represented a victory for a conservative nationalist Islam. Given political alliances at the time, it was a victory that could easily have spilled over into Pakistan’s legal system. Feminist movements in Pakistan were justifiably concerned, therefore, that Pakistan’s ratification of the Convention should not be accompanied by an ‘opt – out’ clause. The reservation entered by Pakistan to the  United Nations Convention on the Rights of the Child (CRC), appealing to ‘Islamic laws and values’, added further fuel to this anxiety. In , Pakistan’s Commission on the Status

 Fifteenth Amendment to the Constitution Bill, .  See, for example, the joint written statement submitted to the fifty-fifth session of the UN Commission on Human Rights by Franciscans International, the Commission of the Churches on International Affairs of the World Council of Churches and the World Alliance of Reformed Churches. UN Doc. E/CN. //NGO/,  January .  The full text of the reservation read: ‘Provisions of the Convention shall be interpreted in the light of the principles of Islamic laws and values.’ This reservation was subsequently withdrawn on the rd July, . See: United Nations Treaty Collection.

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of Women had recommended ratification of CEDAW without reservation. The Report’s criticism of the status of women in Pakistan, however, had caused some disquiet. As a result, publication of the Commission’s Report was withheld. Debate on ratification, nonetheless, continued in other Government Departments. In , the Cabinet Secretariat (Women’s Division) recommended ratification of the Convention subject to a reservation which clearly stated that Pakistan would accept only those provisions of the Convention that were compatible with the Qur’an. The Government of Pakistan was to be ‘the sole judge of . . . whether such repugnancy exists’. The Ministry of Foreign Affairs responded that such a reservation would be incompatible with the object and purpose of the Convention. However, it agreed that the substantive provisions of the Convention were, ‘not entirely consistent with the Constitution of Pakistan, the tenets of Islam, nor in keeping with the current programme of Islamisation of laws’. In its view, the Convention had been used to criticise, not only the position of women in Islamic states, but also ‘the very fundamentals of the Islamic faith’. Ignoring egalitarian traditions within Islam and Pakistan’s own fundamental rights jurisprudence, the Ministry dismissed the Convention as an instrument of western women’s rights activists that failed to take account of diverse customs, religious and ethical perspectives. The issue of ratification came to the fore again in , this time as part of the preparations for the Fourth World Conference on Women to be held in Beijing. The Minister for Women’s Development complained that Pakistan’s non-ratification was creating ‘international embarrassment’. The Ministry for Religious Affairs recommended ratification subject to a general reservation that the Convention would be accepted only to the extent of its compatibility with the Constitution and ‘the religious beliefs of the majority

Declarations and Reservations, available at: http://www.unhchr.ch/html/menu/b/treaty_ asp.htm. See further below n. .  Government of Pakistan, Report of the Pakistan Commission on the Status of Women (Government of Pakistan, Islamabad, ).  Government of Pakistan, Ministry for Foreign Affairs, The UN Convention on the Elimination of all Forms of Discrimination Against Women: Working Paper (Government of Pakistan, Islamabad, ), p. .  Ibid., cited in Ali, Gender and Human Rights () above n. , pp. –.  Ibid.  Ibid.  Ibid., p. .

Women, Islamisation and Human Rights in Pakistan  population of Pakistan’ – the majority population being Sunni Muslims. In addition, the Ministry suggested that reservations should be entered to specific provisions of the Convention, including, articles  and . Those lobbying in favour of an unequivocal ratification, including the Ministry for Women’s Development, argued that the Convention’s standards were in keeping with Islam and that no such reservations were necessary. The Government suggested ratification subject to a reservation ‘opting – out’ of article (f ) of the Convention, requiring States parties to modify or abolish law, regulations, customs and practices, which constitute discrimination against women. The Ministry for Women’s Development and NGOs lobbying in favour of ratification objected to these proposals, arguing that Islam, properly understood, was compatible with the Convention. It was a strategy that had met with some success in relation to children’s rights and the CRC. Pakistan’s reservation to the CRC, invoking the principles of Islamic laws and values, was withdrawn, following recognition by the Government that ‘practically no provision of the Convention comes into direct conflict with any of the major precepts of Islam’. Ultimately, a compromise was arrived at. Pakistan ratified CEDAW on the th March, , subject to a general declaration invoking ‘the Constitution of the Islamic Republic of Pakistan’. This general declaration raises a number of questions, not least of which concerns the precise role of the Shari’ah within Pakistan’s constitutional framework.

 See S.S. Ali, A Comparative Study of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Shaheen Press, Peshawar, ), p. .  Above n. , p. .  See: Pakistan’s initial report under the CRC, UN Doc. CRC/C//Add., para. . of the Report. See also para. . In its reply to the issues raised by the Committee on the Rights of the Child, Pakistan stated that its reservation to the Convention was under review. Written answers from the Government of Pakistan to the List of Issues (CRC/C..WP. ) forwarded by the Committee in connection with the Initial Report of Pakistan (CRC/C// Add.). Reply to List of Issues: Pakistan. //, para. . In its Concluding Observations, the Committee stated that the ‘broad and imprecise nature of the reservation’ raised ‘deep concern’ as to its compatibility with the object and purpose of the Convention. (UN Doc. CRC/C//Add.. para. ).  See United Nations Treaty Collection. Declarations and Reservations, available at: http://www.unhchr.ch/html/menu/b/treaty_asp.htm. A reservation was entered to Article  of the Convention (providing for the referral of disputes to arbitration or, failing that, to the International Court of Justice).

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As we have seen, the constitutional guarantee of equality has frequently lost out to the dictates of political expediency and religious-cultural claims. Subjecting CEDAW to the requirements of constitutional law, already problematic from the point of view of treaty law, leaves the pursuit of gender equality vulnerable to religious claims and the political agendas of conservative nationalists. In its initial report to CEDAW, the Government of Pakistan argues that the Declaration was carefully drafted so as to ensure compliance with the ‘object and purpose’ of CEDAW. Difficulties in implementing the Convention, they argue, are not to be attributed to the Declaration but rather to the ‘inevitable’ challenges facing any State party in meeting CEDAW standards. Despite these reassurances, Pakistan’s declaration has attracted objections from a number of states, namely, Austria, Finland, Germany, the Netherlands and Norway. The objections are similar in form and express concern, in particular, at the ‘general and unspecified limits’ of the declaration and the lack of clarity concerning the obligations accepted by Pakistan under CEDAW. The Ministry of Women’s Development, following the strategy adopted to remove the State’s initial reservation to the CRC, has called on the Government to withdraw its declaration under CEDAW. As yet, this call has not been answered. Reflecting a concern to avoid ‘gender trouble’ at home, the Government notes that the declaration is a compromise between those who oppose ratification of CEDAW and those calling for its ratification and full implementation. Here, we see that the declaration mechanism serves the purpose of facilitating wider participation within the human rights treaty system. Without this mechanism ratification might not have taken place. We also see, however, the willingness of the Government to compromise on the pursuit of gender equality so as to placate political opponents and, in particular, the religious right in Pakistan. These compromises are not, of course, unique to Pakistan. Despite many protests from the CEDAW Committee, reservations continue to fragment and undermine the integrity of CEDAW’s non-discrimination regime. On the fiftieth anniversary of the Universal Declaration of Human Rights, CEDAW issued a statement highlighting the adverse impact of

 The full text of the objections are available at: http://www.un.org/womenwatch/ daw/cedaw/reservations-country.htm.  See generally: S. Mullally Gender, Culture and Human Rights: Reclaiming Universalism (Hart Publishing, Oxford, ), chapter .

Women, Islamisation and Human Rights in Pakistan  reservations on international human rights law. The Committee’s statement highlights the threat that reservations pose to the entire human rights regime, the limits such reservations place on the efficacy of international human rights standards and the mandate of treaty monitoring bodies. The CEDAW Committee has, in recent years, adopted a strong universalistic stance towards women’s human rights, rejecting appeals to religious-cultural beliefs that seek to justify inequalities in domestic law and practice. The UN Special Rapporteur on religious intolerance has also supported this universalistic stance, holding that religious norms relating to the status of women are dynamic and should not be put forward as a justification for reservations to CEDAW or other treaties. This universalistic stance is mirrored in legal instruments such as the  Vienna Declaration and Programme of Action, the  Declaration on the Elimination of Violence Against Women and the Beijing Declaration and Platform for Action.

 ‘Statement on Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’, adopted by the Committee on the Elimination of Discrimination Against Women, Report of the Committee on the Elimination of Discrimination Against Women (Eighteenth and Nineteenth sessions) G.A.O.R. Supplement No.  (A///Rev.) ch. . At its sixth meeting, CEDAW adopted General Recommendation , which expresses concern at ‘the significant number of reservations that appeared to be incompatible with the object and purpose of the Convention’. General Recommendation , Report of the Committee on the Elimination of Discrimination Against Women, Sixth Session,  G.A.O.R. Supp. No. , para. , UN Doc. A// (). CEDAW also requested the UN to ‘promote or undertake studies on the status of women under Islamic laws and customs and in particular on the status and equality of women in the family . . . taking into consideration the principle of El Ijtihad in Islam’. The request provoked considerable controversy at ECOSOC’s next meeting and lead to further accusations of cultural imperialism and religious intolerance. Bangladesh’s delegate to the Economic and Social Council urged ‘the greatest caution in using the Convention as a pretext for doctrinaire attacks on Islam’. (These comments were made following CEDAW’s criticisms of Bangladesh’s initial report under the Convention.) As a result of this controversy, ECOSOC recommended in its Resolution / to the General Assembly, that no further action be taken on CEDAW’s request. See also: General recommendation No.  (eleventh session, ), Reservations to the Convention, G.A.O.R. Supp. No.  UN Doc.A//; General recommendation No.  (thirteenth session, ), Equality in marriage and family relations, paras. –. G.A.O.R. Forty-ninth Session. Supp. No.  UN.Doc. A//.  See generally: UN Special Rapporteur on Religious Intolerance: Civil and Political Rights, Including Religious Intolerance. Report submitted by Mr Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution /, UN. Doc. E/CN. //;  Feb , paras. – and paras. –. See also: UN Doc. E/CN. //, paras. –.  Adopted  December , G.A.Res. /, UN Doc. A//.  Adopted  June , UN Doc. A/CONF./.

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The Vienna Declaration and Programme of Action states that ‘the universal nature of these rights and freedoms is beyond question’. The Declaration continues: While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

This commitment to the universality of human rights is reiterated in the Beijing Platform for Action. The Political Declaration adopted as part of the Beijing + five review process, affirms the commitment to achieving universal ratification of CEDAW. The Secretary-General’s Beijing plus ten review calls for ‘urgent efforts’ to achieve universal ratification of CEDAW and withdrawl of reservations. The Political Declaration adopted at the forth-ninth session of the UN Commission on the Status of Women, , marking the Beijing plus ten review process does not restate any commitment to universal ratification of CEDAW, but notes simply that the Beijing Declaration and Platform and the standards set by CEDAW are ‘mutually reinforcing’. Ensuring that the commitments made at Beijing were safeguarded was a significant step in itself, reflecting the ongoing fragility of international standards on women’s human rights. Against this background, the problem of reservations to CEDAW persists. In carrying out its monitoring role, the CEDAW Committee has adopted an increasingly universalistic stance, challenging religious-cultural claims made by states. It has highlighted the political nature of appeals to Islam made by reserving states and the possibility of more egalitarian interpretations of Islam, giving support to subaltern voices within reserving states.

 United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted  June , part , para. .  Fourth World Conference on Women, Declaration and Platform for Action,  September , UN doc. A/CONF. / (), para. .  UN Doc. E/CN. // Report of the Secretary-General on the Review of the implementation of the Beijing Platform for Action and the outcome documents of the special session of the General Assembly entitled ‘Women : gender equality, development and peace for the twenty-first century’, para. .  Commission on the Status of Women: forty-ninth session, th Feb.–th March, . UN Doc. E/CN. //L..

Women, Islamisation and Human Rights in Pakistan  This universalistic stance can also be seen in the Committee’s General Recommendation No. , adopted in response to the number of reservations to article . The Recommendation affirms the status of article  as a core principle of CEDAW and calls on states to ‘resolutely discourage’ any notions of gender inequality that are rooted in private law or custom, and to ‘gradually progress’ to a stage where reservations will be withdrawn. Rejecting fundamentalist or other extremist views that encourage a return to ‘old values and traditions’, the Committee concluded that reservations to article , whether lodged for traditional, religious or cultural reasons, were incompatible with the Convention and therefore impermissible. The universalistic stance adopted by CEDAW is mirrored in the strategies adopted in a number of recent cases by one of Pakistan’s superior courts, the Lahore High Court. It is a stance that is also reflected in the calls for legal reform in Pakistan, in particular, in calls for repeal of the Hudood Ordinances and responses to so-called ‘honour crimes’. v. an egalitarian islam?: the lahore high court and resistance strategies Conflicts between religious-cultural claims and the pursuit of gender equality have been played out in a number of recent cases in Pakistan. Many of the conflicts arising have centred on women’s freedom to choose a spouse, to marry and to found a family. The Zina Ordinance has further criminalised the expression of women’s sexuality, creating added difficulties for women seeking to exit from the ties of family and community. The competing traditions defining the scope and limits of women’s rights in Pakistan can be seen in the Saima Waheed case (Abdul Waheed v Asma Jehangir, PLD  Lah. ). Saima Waheed was from an educated middle-class background. An undergraduate student at the Government College, Lahore, she entered into a marriage with her one of her college lecturers without the consent of her parents. Her parents disapproved of the marriage and she fled to a woman’s refuge to escape their hostility. Her father immediately filed criminal charges against the refuge alleging that his daughter had been abducted and also arguing that Saima’s marriage was void ab inito because it lacked his (the wali’s) consent. Saima, in turn, petitioned the  

Above n. . Above n. . para. .

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court seeking a declaration upholding the validity of her marriage. The case attracted considerable media attention, both nationally and internationally. Ultimately, the case turned on the necessity of the wali’s consent and the recognition of an adult Muslim woman’s independent legal personhood. Statutory law inherited from the colonial era pointed to Saima’s capacity to contract a valid marriage without the consent of her wali. The Court, however, choose to resolve the dispute by appealing to the Shari’ah and, in doing so, highlighted the many competing interpretations of Islam available in the context of any jurisprudential debate. The majority judgment, while lamenting the influence of western liberal individualism in Pakistani society, concluded that the Shari’ah recognised women’s full legal capacity and, in doing so, extended far beyond the limits of the inherited common law. The dissenting judgment entered by Justice Ihsan ul-Haq Chaudhary appealed to a protective Shari’ah, one that allowed Muslim women a limited legal capacity only. Rejecting the contention that the Shari’ah allowed a Muslim male or female to marry without the consent of a guardian, he invoked his role as a ‘national judge’ and ‘custodian of the morals of Pakistan’s citizens’ (pp. –). Chaudhary J.’s appeal to the ‘national’ reveals a search for an ‘authentic’ or ‘organic’ Islam. Ultimately in this case, a more egalitarian Islam won out. The Court emphasised the importance of cultural membership, solidarity and communal values. It also emphasised the need to protect Pakistan’s cultural traditions against an encroaching western, liberal individualism. However, the Court’s majority judgment ensured that the ties of family and community could not deny Saima Waheed’s right and freedom to marry a spouse of her own choosing. A woman’s freedom to marry and choose a spouse was again at issue before the Lahore High Court in Humaira Mehmood v State (PLD  Lahore ). This time, Humaira Mehmood’s marriage against the wishes of her parents, led to proceedings being initiated against her under the Zina Ordinance. Quashing the criminal proceedings, the Lahore High Court concluded that a sui juris woman’s entitlement to contract a marriage of her own free will was a settled proposition in Islam. The Court also concluded that a marriage ceremony (Nikah) performed under coercion had no legal validity. In support of its findings the High Court cited the constitutional guarantee of equality, the State’s duty to protect the institution of marriage and the family, and the requirements of international human rights law. In particular, the Court cited article  of the  UN Women’s Convention, and the  Cairo Declaration on Human Rights in Islam,

Women, Islamisation and Human Rights in Pakistan  declaring women’s equal right to human dignity. Humaira Mehmood had sought a release from the ‘high walls of a feudal bondage’, exercising her right of exit and disassociation. The Court recognised this right, choosing an egalitarian Islam over the claims of Humaira’s family. In Muhammad Siddique v State, the Lahore High Court was faced with a triple murder, committed by Muhammad Siddique in defence of his family’s ‘honour’. Muhammad Siddique’s daughter had married against the wishes of her father. Muhammad Siddique registered a case against his daughter and her husband under the Hudood Ordinances, claiming that their marriage, which was contracted without his consent, was invalid. On the pretence of coming to a compromise on these proceedings, he sought a meeting with his estranged daughter, her husband and their six month old baby daughter. Having secured the meeting, he murdered all three. The High Court rejected his defence of ‘grave and sudden provocation’ and his appeal to the necessity of defending his family’s honour. There was, the Court said, nothing religious about his crime and nothing honourable either. It was ‘male chauvinism and gender bias at their worst’. A woman’s right to marry was recognised, the Court pointed out, not only by Islam but also by the Constitution of Pakistan. Honour crimes, the Court concluded, stemmed from prejudices that were not country specific, region specific or people specific. Rejecting Muhammad Siddique’s appeals to the sanctity of family honour, the Court adopted an uncompromising universalist stance. No tradition, they said, was sacred, no convention indispensable, if it did not stand the test of, ‘the fundamentals of a civil society generally expressed through law and the Constitution’. The strategies adopted by the High Court reflect a concern to mediate between the global and the local. In the cases discussed above, the Court adopted an ‘insider methodology’, renegotiating inherited religious traditions, drawing on human rights norms as a normative justification for its conclusions. The Court’s strategy is one that is pursued by many feminists within Pakistan. It is a strategy that highlights both the possibility and the necessity of defining the limits of religious claims. Human rights norms play a crucial role in this process, providing supports to those whose claims might otherwise be lost within a web of competing religious/cultural claims.

  

Muhammad Siddique v. State,  PLD . Ibid., p. . Ibid., p. .

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These cases are, however, limited examples. The pursuit of gender equality continues to be contested. One of the most widely publicised honour crimes in recent years, was the killing of Samia Sarwar in her lawyer’s office on the th April . The women’s refuge where Saima had sought protection was run by two of Pakistan’s leading feminist lawyers, Asma Jehangir and Hina Jilani. Samia was seeking a divorce from her abusive husband. Her family, angry at the dishonour brought to them by their daughter, arranged for her to be murdered. The Peshawar Chamber of Commerce, chaired by Saima’s father, and local ulema in Peshawar (Islamic scholars), publicly stated that Saima’s murder was carried out in accordance with local religious and tribal traditions. In August , just three months after the murder took place, Pakistan’s Upper House, the Senate, refused to pass a resolution condemning the killing of women in the name of family honour. In Pakistan, as elsewhere, a gendered division between public and private spheres has served to shield and protect abusive, violent practices. As Amnesty International has argued, until Pakistan’s government takes seriously its obligation under article  of CEDAW, to ‘modify the social and cultural patterns of conduct of men and women’, women in Pakistan will ‘continue to pay the price of their families’ honor with their freedom and their lives’. The recent rape case of Mukhtar Mai highlights, yet again, the difficulties

 Asma Jehangir and Hina Jilani established AGHS, the largest free legal aid centre in Pakistan which provides safe shelter for women fleeing violence. In , Asma Jehangir was appointed UN Special Rapporteur on Extra Judicial Executions. In August , Hina Jilani was appointed the Special Representative of the Secretary-General on the situation of Human Rights Defenders.  See: Amnesty International USA, Women’s Action Network, April  – Action on Pakistan. Available at: http://www.amnesty-usa.org/ainews/pakistan/pakistan. html ( April ).  See: Report of the special rapporteur on extra-judicial, arbitrary and summary executions, Ms. Asma Jahangir, submitted to the fifty-sixth session of the Commission on Human Rights. UN Doc. E/CN. //,  January , para. . See also: ‘Pakistan fails to condemn “honour killings”’, Tuesday rd August , available at http://www.bbc. co.uk. See also: SIGI (Sisterhood is Global Institute), Urgent Action Alert, st August, , available at: http://www.sigi.org/Alert/pak.htm ( April ).  See article  of CEDAW and Amnesty International USA, Pakistan: Violence against Women in the Name of Honour New York: Amnesty International USA; , available at: http://www.amnestyusa.org/countries/pakistan/reports/honour/overview.html See also: Amnesty International. Violence Against Women on the Increase and Still No Protection. AI Index: ASA //,  April, .

Women, Islamisation and Human Rights in Pakistan  in securing legal remedies for gender-based violence in Pakistan and the continuing trade on women’s ‘honour’, sanctioned by communal claims. On the nd June, , Mukhtar Mai was raped by a gang of fourteen men, allegedly on the orders of a village council (Panchayat), in revenge for an earlier police complaint submitted by Mukhtar Mai’s family’s following a sexual assault on her  year old brother. The case has attracted widespread international attention but has fallen victim to a series of jurisdictional conflicts within Pakistan’s legal system. The case continues to fall foul of jurisdictional conflicts. On the th June , the Supreme Court suspended the acquittals of the five men convicted, ordering that they and eight others found not guilty at the original trial be held pending retrial. Despite these conflicts and delays, Mukhtar Mai has succeeded in overcoming her initial positioning by the international media as a ‘victim subject’, becoming an activist and campaigner for women’s human rights, claiming agency against discriminatory laws, patriarchal traditions and ‘protectionist’ movements that seek to limit her freedom of movement and her political voice. The claims of an exceptional woman, however, will not be sufficient to challenge the layers of gender subordination that allow for an ongoing trade in women’s ‘honour’ in Pakistan. Mukhtar Mai’s case has captured the attention of the international media. Few women, however, succeed in claiming public agency or in achieving legal remedies for the rights violations that occur on a daily basis sanctioned by families, communities and traditions. vi. concluding remarks Religious-cultural claims within Pakistan continue to resist the application of human rights principles to relations within the family and the domestic sphere. This resistance has led to state-sanctioned discrimination, given legal effect in the Hudood Ordinances, and to the extremes of honour

 See: Human Rights Watch ‘The Jurisdiction Dilemma’ available at: http://hrw.org/ english/docs////pakist.htm, published in Dawn March  .  This term is borrowed from Ratna Kapur: R. Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International / Post-Colonial Feminist Legal Politics’ ()  Harvard Human Rights Journal .  See: ‘Ban on Rape Victim Leaving Pakistan’ Monday June , , The Guardian.  See: Human Rights Commission of Pakistan, statistics on honour crimes, available at: http://www.hrcp-web.org/Women.cfm ( April ).

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crimes against women. In , a Commission of Inquiry for Women identified customary practices and cultural traditions as amongst the ‘most lethal forces’ impacting on women’s dignity and security in Pakistan. The Commission made a series of recommendations for legal reform and concluded by urging decision-makers to prioritise the issue of women’s rights, ‘not as a favour or protective gesture but as a fundamental inalienable right’. In , the National Commission on the Status of Women recommended the repeal of the Hudood laws noting the discriminatory nature of the laws and their denial of equal citizenship to women. In its Combined Initial, Second and Third periodic reports under CEDAW, the Government argues that a lack of consensus on the fate of the Hudood laws makes reform or repeal difficult. Feminist activists, both at national and international levels, have called for repeal of the Hudood Ordinances. Recent proposals for reform, the Protection of Women (Criminal Laws Amendment Bill), , have again fallen victim to religious claims from conservative Islamist parties. The Bill, proposing to remove the crime of rape from Hudood law and place it under Pakistan’s coexistent and overlapping secular penal code, has met with widespread resistance. When the Bill was tabled in the National Assembly on  August , it was promptly rejected by the opposition Muttahida Majlis-i-Amal (MMA). The Pakistan Muslim League (Nawaz) joined the MMA, accusing the Government of ‘following a Western agenda to secularise Pakistan’. As originally drafted, the Bill proposed putting the offence of rape into the secular penal code where normal rules of evidence apply. It proposed to: end the requirement of male eyewitnesses to the crime of rape; increase the burden of proof against persons accusing a woman of adultery; proscribe the death penalty in cases of gang rape; make it a crime to publish the name of a rape victim; criminalize sex with a girl under the age of ; and introduce a prison sentence of up to  years for the crime of trafficking in women for purposes of prostitution. The Government, however, anxious to placate religious parties has revised the proposal. A compromise draft presented to Parliament proposed that rape would fall under both Islamic and secular penal codes. Human rights activists have argued that such a compromise will lead only to confusion and conflicting jurisprudence, with rape survivors losing out in attempts by powerful religious lobbies to manipulate the often weak judicial system.  Report of the National Commission on the Status of Women (Govt of Pakistan: Islamabad, August, ).

Women, Islamisation and Human Rights in Pakistan  Fro the moment, despite promises of reform, the Ordinances remain, yet another example of the Government’s willingness to engage in a ‘trafficking of women’ to safeguard its political position. The reform proposals also sought to silence women such as Mukhtar Mai, to prevent her and other women from speaking to the press, in the guise of protecting the identity of rape victims. The proposed Bill introduced a new offence under Section .B of the Pakistan Penal Code which provides that ‘Whoever publicises any case of zina or rape whereby the identity of any woman or her family member is disclosed shall be punished with imprisonment which may extend to six months or fine or with both’. The proposal has been opposed by Pakistan Peoples Party and others, who argue that a rape survivor must have the right to speak to the press, if she wishes. This concern reflects the necessity of drawing on media support, particularly the international media, to challenge the limits of patriarchal communities. Against this background, the enabling conditions necessary to renegotiate the troubled legacies of successive programmes of Islamisation do not exist. As Uma Narayan points out, the pursuit of gender equality can only succeed if women are assured of an equal right to participate in the definition of fundamental rights and in the renegotiation of religious – cultural norms. Given the ongoing legacy of Islamisation, extreme poverty and a culture of impunity where gender-based violence occurs, the background conditions for equal participation do not yet exist. Recent years have witnessed limited reforms, notably the Criminal Law (Amendment) Act, , amending the Pakistan Penal Code and the Code of Criminal Procedure and introducing, for the first time, specific penalties for ‘honour crimes’. As commentators have noted, however, such crimes, as crimes against the human body, remain subject to the laws of Qisas and Diyat (allowing for retribution and payment of ‘blood money’ or compensation). As many honour crimes are committed by family members, criminal sanction is frequently avoided by the payment of compensation or a willingness to ‘forgive’ on the part of surviving family members. Human

 See: Women Living Under Muslim Laws ‘Pakistan: No Compromise on Murder’ th October, , available at: http://www.wluml.org/english/newsfulltxt. shtml?cmd%B%D=x-– ( April ).  See: Qisas and Diyat Ordinance  and Qisas and Diyat Ordinance (II of ); See also: Shirkat Gah Women’s Resource Centre Don’t Let Them Get Away With Murder (Lahore, ).

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rights advocates in Pakistan note that impunity continues to be the single most important factor encouraging honour crimes. The Government, given its own contested claim to legitimacy, remains reluctant to challenge the legacy of Islamisation or to further provoke fundamentalist movements in Pakistan. This reluctance ensures that compromises such as those enshrined in the Qisas and Diyat Ordinances, will remain for sometime to come. It also ensures an ongoing willingness to compromise in the pursuit of gender equality. Lost within such compromises is the recognition of women as bearers of rights, with equal rights to participate in the definition of religious-cultural norms. Lost also is a recognition of difference. Feminists, Islamic reformists and secularists continue to be marginalised and excluded from a state that claims to guarantee equality to all. The rise of the religious right in Pakistan is evidence of what many commentators have identified as a ‘mullah-military’ alliance, an alliance that reflects the willingness of both ‘mullahs’ and the military in Pakistan to curb democratic deliberation. This alliance also reveals the limits of General Musharaff ’s so-called policies of ‘enlightened moderation’, policies that are frequently subordinated to the demands of the religious right and to expediencies of the so-called ‘war on terror’. The increasingly politicised nature of Islam in Pakistan has subordinated women’s human rights to political expediency and to cultural claims. The ‘othering’ of feminist discourse, combined with increasing polarization between ‘Islam’ and ‘the West’, creates significant obstacles for both global and local feminist struggles. Pakistan’s geo-political positioning within the ‘war on terror’ serves only to reinforce such obstacles.

 See: A.D. Hasan, ‘Pakistan’s moderates are beaten in public’, International Herald Tribune, June th , reporting on the beating of Asma Jahangir, UN Special Rapporteur on Freedom of Religion and her sister, Hina Jilani, UN Special Rapporteur on the situation of Human Rights Defenders.

chapter fourteen

Nation-Building in an Islamic State: Minority Rights and Self-Determination in the Islamic Republic of Pakistan Javaid Rehman* i. introduction In any debate concerning the Sharia (Islamic law), minorities and the right to self-determination, Pakistan presents a unique though unfortunate example. This is a State whose raison d’être was to protect not only the existence but also the political and economic interests of the Muslim minorities of the Indian Sub-Continent. Pakistan was meant to be the ultimate realisation of the right of self-determination in so far as Muslims of South-Asia were concerned. However, in the campaign for Pakistan, neither the parameters of the right to self-determination nor the minority concerns were assessed appropriately. The emphases on an Islamic identity not only led to the creation of an anomalous and artificial State, but the urgency and resolve to build a Nation State resulted in the official rejection of ethnic, linguistic and cultural identities. The Bengalis, alongside the Sindhis, Baluchis and

* Professor of Law, Brunel Law School, Brunel University, London.  See J. Rehman, The Weaknesses in the International Protection of Minority Rights (Kluwer Law International, The Hague, ); L. Binder, Religion and Politics in Pakistan (University of California Press, Berkeley, ); C.M. Ali, The Emergence of Pakistan (Columbia University Press, New York, ); A. Banuazizi, and M. Weiner (eds.), The State, Religion and Ethnic Politics: Afghanistan, Iran and Pakistan (Vanguard Press, Lahore, ); S.J. Burki, and C. Baxter, Pakistan under the Military  Years of Zia-ul-haq (Westview Press Pakistan, Lahore, ); A. Gledhill, Pakistan: The Development of its Laws (Stevens & Sons Ltd., London, ); A. Kamal, Political and Constitutional Dilemmas (Pakistan Law House, Karachi, ); A. Kazi, Ethnicity and Education in Nation-Building: The Case of Pakistan (University Press of America, Lanham, ); A. Khan (ed.), Islam, Politics and the State: The Pakistan Experience (Zed Press, Lahore, ).  S.S. Ali and J. Rehman, Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives (Routledge-Curzon Press, London, ), at p. ; N.H. Shah ‘Islamization of Law in Pakistan’ () P.L.D. Journal .  See J. Rehman, ‘Minority Rights and the Constitutional Dilemmas of Pakistan’ ()  Netherlands Quarterly of Human Rights, pp. –. Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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Pakhtuns were denied an appropriate expression of ‘internal’ self-determination. In their despondency, racial and ethnic minorities rebelled although it was only the Bengalis who were able to succeed in attaining independent Statehood. The separation of East Pakistan in December  was the first case of a successful secession of the post-colonial era. While the prognosis of the debacle of East Pakistan was disastrous, the tragedy of Bengal only hardened the resolve of the political and military elite to build a Nation State. In such an exercise, ethnic and minorities were forcibly assimilated into a ‘Pakistani culture’ and deliberate efforts were made to exterminate religious minorities. Pakistan’s Islamisation process which supplemented the Nation-building project has resulted in considerable violations of the rights of religious minorities. The pursuit of the ‘war on terror’ has engineered further and more substantial risks for minority rights. Not only has it provided a carte blanche to the existing military regime to continue with violations of individual and collective rights but also the growth of anti-western sentiment has generated greater extremism and radicalisation of the society. Within the context of a State built exclusively around a religious identity, the chapter aims to analyse persisting tensions that exist in Pakistan, between ideals of Nation-building on the one hand and values of self-determination and minority rights on the other. The chapter is divided into six sections. After this introductory section, the next section, section II, analyses issues arising out of an anomalous and artificial Pakistan. It examines the implications of a religious divide upon minority rights both prior to the secession of East Pakistan and in the truncated Pakistan since . Section III focuses on the complex relationship of the application of the Sharia and Nation-building strategies within the constitutional and legal framework of Pakistan. The final section, section IV provides a number of concluding comments.

 J. Rehman, ‘Re-Assessing the Right to Self-Determination: Lessons from the Indian Experience’ ()  Anglo-American Law Review, pp. –.  T. Gurr, Minorities at Risk: A Global View of Ethnopolitical Conflicts (United States Institute of Peace Press, Washington DC., ), at ; R. White, ‘Self-Determination: Time for a Reassessment’ ()  NILR , at p. ; V.P. Nanda, ‘Self-Determination in International Law: Tragic Tale of Two Cities – Islambad (West Pakistan) and Dacca (East Pakistan) ()  AJIL , at p. .

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ii. minority rights in the creation of an anomalous pakistan a. Attempting a Religious Divide and Implications for Minorities The right to self-determination has formed a prominent theme in the ancient political and constitutional history of the Indian Sub-Continent. As the colonial phase drew towards a close, the British imperialist masters were faced with a complex and competing set of demands for self-determination. The Muslims of British India feared submission and discrimination by an overwhelming Hindu majority. There was a risk that Muslim minorities would be assigned a permanent second-class citizenship once independence had been achieved. A federated (though united) India was proposed by Dr Mohammed Iqbal in his famous Allahabad address of December  in the open session of All India Muslim League. The first concrete plans for partition of India, were presented by Chaudhari Rahmat Ali in – who subsequently proposed three Muslim States – one roughly corresponding with the present day Pakistan (though including the whole of Kashmir), a second consisting of Bengal and Assam, and a third one in the South called Osmanistan and comprising of Hydrabad. There nevertheless remained considerable ambiguity over the constitutional claims put forward by representatives of the Muslim communities, and it was not up until  that the Muslim League – the party which by that time had come to represent the majority of Muslims of India – espoused a possibility of partition. Accordingly, the famous Lahore Resolution of  March,  (mistakenly exulted in Pakistan as the Pakistan Resolution) stated: [t]hat geographically contiguous units be demarcated into regions which should be constituted with such territorial re-adjustments as may be necessary, that the areas in which the Muslims are numerically in a majority as in the North-West and Eastern Zones of India should

 See K. Aziz, The Making of Pakistan (Islamic Book Services, Lahore, ); L. Ziring, Pakistan: The Enigma of Political Development (Westview, Dawson, ); L. William, The State of Pakistan (Faber, London, ).  K. Azfar ‘Constitutional Dilemmas in Pakistan’ in S.J. Burki and C. Baxter (eds.), Pakistan under the Military  years of Zia-ul-Haq (West view Press Pakistan Book Corporation, Lahore, ), –, at p. ; M. Munir, From Jinnah to Zia (Vanguard, Lahore, ), at p. .

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Javaid Rehman be grouped to constitute independent states in which the constituent units shall be autonomous and sovereign.

The Resolution failed to address whether India was to be partitioned along communal lines in order to create independent States and if so how many new States were to emerge. There remained a profound uncertainty as to the future of India, and its religious minorities’ rights until the eve of Independence. The failure to reach an agreement over the confedral plans as put forward by the Cabinet Mission, squandered the last opportunity of savouring a united India. The implications of a religious divide in the heterogeneous India were not taken seriously – although it was to be the necessary consequence of the much-hypothesised Two Nation Theory. While the Muslims led by Mohammed Ali Jinnah and the Indian National Congress under Nehru did not envisage mass population transfers, the British government aggravated the situation by expediting the partition plan, hence depriving the provincial and federal governments of protecting religious minorities and rehabilitating the refugees. The partition, a tragedy unrivalled in modern history, was destined to have grave consequences for the religious minorities of South Asia. The incision of India was both arbitrary and ‘unforeseen in magnitude, unordered in pattern, unreasoned in savagery . . . as many Indian would lose their lives in that swift splurge as Americans in four years of combat in World War II’. Partition acted as a catalyst for a brutal and savage religious conflict giving rise to the ‘largest inter-country transfer of population in the twentieth century’. Almost a million people were killed during this period;

 Italics Added.  J. Rehman, ‘Self-Determination, State-Building, State-Building and the Muhajirs: An International Legal Perspective of the Role of the Indian Muslim Refugees in the Constitutional Developments of Pakistan’ () () Contemporary South Asia –, .  K. Sipe, Karachi’s Refugee Crises: The Political, Economic and Social Consequences of Partition Related Migration (University Microfilms, Ann Arbor, ), at p. .  See J. Rehman and N. Roy, ‘South Asia’ in Minority Rights Groups (eds.), World Directory of Minorities (Minority Rights Group, London, ), at p. .  L Collins and D Lapierre, Freedom at Midnight (Collins, London, ), .  E. Haque, The Dilemma of Nationhood and Religion: A ‘State of Art’ Review of Research on Population Displacement Resulting from the Partition of the sub-continent, Paper presented at the fourth Research and Advisory Panel conference on Forced Migration (IRAP) University of Oxford, Oxford, England, – Jan, , ; W. Wilcox, Pakistan: The Consolidation of a Nation (Columbia University Press, New York and London, ), at .

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approximately eight million Muslims migrated from India to Pakistan, while there was a similar exodus of Hindus and Sikhs from Pakistan to India. Everywhere in India and Pakistan, religious minorities become victims of a campaign of physical extermination and genocide; their harrowing stories have filled volumes. Describing some of the incidents that took place in Punjab, the worst affected province, Professor Leo Kuper, writes: In the village of Kahuta, where two thousand Hindus and Sikhs and Muslims lived in peace, a Muslim Horde had set fire to the houses of Sikhs and Hindu quarters with buckets of gasoline. Entire families were consumed by the flames. Those who escaped were caught, tied together, soaked with gasoline and burnt alive like torches. A few Hindu women, yanked from their beds to be raped and converted to Islam, had survived; others had broken away from their captors and hurled back into the fire to perish with their families.

Reflecting on the overall position, a former Chief Justice of Pakistan writes thus: Hindus and Sikhs who had stayed behind in Pakistan were converted and circumcised. Abducted women had been impregnated and given birth to children. The same was the case with Muslims in East Punjab, when the women were evacuated. Some of them left the children thus begotten behind; others carried their children with themselves, but no place in society.

There is presence of evidence of imputability of the public officials within the governments of India and Pakistan, in the persecution and genocide of their religious minorities. The Law enforcement agencies that were assigned the task of protecting refugees and religious minorities, having been infected by communal hatred became parties to the massacres and plundering of property. In Pakistan, millions of Hindus and Sikhs were forced to flee from their homes. In Punjab and Sindh, the urge to drive

 B. Whitaker et al., The Biharis in Bangladesh (Minority Rights Group, London, ), at p. .  L. Kuper, Genocide: Its Political Use in the Twentieth Century (Yale University Press, New Haven and London, ), at .  Munir, above n. , .  Personal interview with Air Marshall (Retd) Zafar A Chaudhry-former chief of Pakistan Air force; See also J. Rehman, ‘The Role of the International Community in

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them out was augmented by the greed of taking-over lands and properties left by their fleeing victims. The Governments of India and Pakistan had promised to protect the lives and properties of their religious minorities, a view subsequently reaffirmed by the  treaty between the two States. However, in a number of instances, the properties taken away from Hindus and Sikhs were arbitrarily distributed amongst political supporters. Furthermore, large settlements of refugees were established despite resentment on the part of the local population. Although both the governments of Pakistan and India promised to undertake strict measures to ensure the protection of their minorities, their acts failed to put these intentions into practice. Both States denied having any involvement into the genocidal conflict. There were no serious investigations, and no trials were held for involvement of individuals in acts of genocide. The creation of an anomalous and artificial Pakistan was also to have serious long-term consequences on the position of religious minorities of the entire Indian sub-continent. The disputes and concerns over the treatment of Kashmiri Muslim minority at the hands of the Indian government is one painful legacy of the partition. There were other casualties as well – the Sikh minority was to suffer enormously as a consequence of the events of . Many of the Hindus, Muslims and Sikhs who survived the holocaust, were separated from families and friends and found themselves on the ‘wrong’ side of the divide. The geographical boundaries of Pakistan also provided a ready source of friction with the neighbouring Afghanistan. Notwithstanding, the drawing of the Durrand line in , Afghanistan

Protecting the Physical Existence of Minorities: A Case-Study of Pakistan’ ()  Liverpool Law Review, pp. –.  UNTS ,  (th April) .  F. Ahmad ‘The Rise of Muhajir Separatism’ ()  Journal of Asian and African Affairs –, at p. ; T. Wright Jr ‘Center-Periphery Relations and Ethnic Conflict in Pakistan: Sindhis, Muhajirs and Punjabis’ () Comparative Politics –, .  Personal interviews by the author.  See J. Rehman, Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order (Hart Publishing, Oxford, ), pp. –; A. Lamb, Kashmir: A Disputed Legacy, – (Roxford Books, Hertingfordbury, ); A. Azmi, Kashmir: An Unparalleled Curfew (Panfwain Printing Press, Karachi, ); T. Ataöv, Kashmir and Neighbours: Tale, Terror, Truce (Ashgate, Aldershot, ).  See C. Shackle, The Sikhs (Minority Rights Groups, London, ).  A. Ahmed, ‘Refugee Voices: Memories of Partition ’ () () Journal of Refugee Studies –.

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had retained claims to the North West Frontier Province of Pakistan. The population of that province, the Pakhtun, although Sunni Muslims were ethnically affiliated to a substantial proportion of the population within Afghanistan. The claims were therefore put forward of denials of the rights to self-determination in so far as the Pakhtuns of Pakistan were concerned. The Pakhtunistan issue was eventually to subside in , when the Soviet invasion forced % of the total Pakhtun population in Afghanistan into Pakistan as refugees. This mass influx of the Afghan refugees included many members of Afghanistan’s own minorities and repressed communities such as the Hazara Shias, women and Children. Many of these refugees have settled in Pakistan and the presence of these ‘new’ minorities has exacerbated Pakistan’s existing religious and ethnic tensions. The political and military tragedy confronting Afghanistan since  September has meant further wave of refugees who are likely to remain permanently within the borders of Pakistan. b. The Ethnicity Debacle – Bengali Self-Determination and Pakistani Nation-Building Pakistan emerged in August  as an independent State, though it was anomalous both in its geography as well as in the composition of its political leadership. Any attempts at establishing complete religious homogeneity failed miserably, resulting in an artificial bifurcation of religious, ethnic and linguistic communities on both sides of the divide. The Bengalis, Punjabis and the Kashmirs were divided into India and Pakistan; the Baluchis and the Pakhtuns were segregated into Iran and Afghanistan. East Bengal (subsequently renamed East Pakistan) comprised of % of the population of Pakistan and was segregated from Western Pakistan by  miles of hostile territory of India. Thus divided into two halves, the western part (subsequently named as the West Pakistan) was closer to the States of

 Indeed Afghanistan was the only State to cast a negative vote to Pakistan’s admission to the United Nations. See L. Dupree ‘Pakistan and the Afghan Problem’ in C. Baxter and S.R. Wasti (eds.), Pakistan: Authoritarianism in the ’s (Vanguard, Lahore, ), pp. –.  See P. Thornberry et al. (eds.), World Directory of Minorities (Minority Rights Group, London, ).

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Middle-East and the eastern part (renamed as East Pakistan) had a greater affinity with Far East. As discussed already, the division of British India – a negation of the principle of uti possidetis – was achieved at a great human suffering. Unfortunately, the establishment of Pakistan did not resolve the debate on minority rights. Independence was to signal the re-emergence of bitter ethnic rivalries. The most prominent and longstanding of the confrontations was between the politically and economically dominant Punjabis against the weaker and culturally more distinct Bengalis. The Bengalis felt that they were being discriminated politically, economically and linguistically. They had very little share in the politics of the country. For much of its independent existence, the politics of Pakistan has been dictated by the military generals. The Bengalis lamented the fact that their overall representation in Pakistan’s military was less than %. Despite being in an overall majority of the population of Pakistan %, their language was side Rehman, above n. , pp. –.  The origins of the principle of uti possidetis could be traced back to the early nineteenth century, whereby the newly independent successor States of the former Spanish Empire in South and Central America were considered to have inherited the administrative divisions of the colonial empire as their new territorial boundaries; International Law (Cambridge, Cambridge University Press, ), –; The doctrine has come to be accepted as having universal significance and global application; in essence the application of the principle meant that the demarcations of boundaries under the colonial regimes corresponded to the boundaries of the new States that emerged. See Article () of the OAU Charter; Principle III of the Helsinki Final Act ,  ILM ; Article  ()(a) VCLT ,  UKTS, , Cmnd ; Article  of the Vienna Convention of State Succession in Respect of Treaties   ILM ,  AJIL . For judicial acknowledgement of the principles see Frontier Dispute Case (Burkina Faso v. Mali)  ICJ Reports ; G. Naldi, ‘The Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Uti Possidetis in an African Perspective’ ()  International and Comparative Law Quarterly, ; Temple of Peach Vihar Case (Merits) (Cambodia v. Thailand  ICJ Rep , , ; Rann of Kutch Arbitration ,  ILR , ; Guinea-Guinea Bissau Maritime Delimitation Case  ILR , , ; Arbitration Tribunal in Guinea-Bissau v. Senegal,   ILR , ; Land, Islands and Maritime Frontier Case: El Salvador v. Honduras (Nicaragua Intervening)  ICJ Rep , ; also see Sovereignty over Certain Frontiers (Belgium v. the Netherlands) ICJ Rep , , in particular Judge Moeno Quitana’s dissenting opinion, ; Avis Nos.  and  of the Arbitration Commission of the Yugoslavia Conference,  ILM , ; Taba Award (Egypt v. Israel)  ILR ,  in particular arbitrator Lapidoth’s dissenting opinion; also see J. Klabbers and R. Lefeber ‘Africa: Lost between Self-Determination and Uti-Possidetis’, in C. Brölmann, R. Lefeber and M. Zieck (eds.), Peoples and Minorities in International Law (Martinus Nijhoff Publishers, Dordrecht, ), pp. –.  See C.H. Kennedy, ‘Policies of Ethnic Preference in Pakistan’()  Asian Survey , at p. .

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lined in favour of Urdu, the language adopted by the political and militarily dominant Punjabis and Urdu-Speaking refugees from Northern India (the Muhajirs). The cultural affinity and relative harmony between Hindu and Muslim Bengali communities was an issue that was exploited. There was concern at the Hindu cultural and linguistic influence over East Bengal. General Ayub Khan (–), as head of the State actively blamed the ‘Hindu cultural and linguistic influence’ for the East Bengalis to have had ‘all the inhibitions of downtrodden races [who] have not yet found it possible to adjust psychologically to the requirements of the new born freedom’. The Bengali traditional costume, Sari, was condemned as obscene and the Bengali language was declared ‘unIslamic’ – the use of Bengali language provided conclusive evidence of the vile and profane cultural and linguistic influence of the Hindus upon a predominantly Muslim East Bengal. The Bengalis also felt that their resources were being exploited by the Punjabis. Years of repression and military dictatorship foreclosed opportunities of dialogue, negotiation and redress of grievances. The Bengalis established a nationalist forum, the Awami League. The Awami League espoused Bengali self-determination based on ethnicity; it was a struggle of the Bengali Hindus and Muslims alike against what they perceived as the oppression of the Punjabi-Pukhtun dominated military of West Pakistan. The ultimate product of this conflict was a nine-months civil war, which led to a brutal pattern of genocide. It is estimated that between one to three million Bengalis were killed in this conflict, the civil war creating nearly ten million refugees. After the nine-month civil war and ultimate Indian invasion, the Bengalis managed to attain an independent Statehood. The establishment of Bangladesh was controversial. A number of commentators have treated Bangladesh as a sui generis unit, appropriate for secession and

 M.A. Khan, Friends Not Masters (Oxford University Press, Lahore, ), p. .  For a detailed consideration of the Bengali grievances see R. Jahan, Pakistan: Failure in National Integration (Columbia University Press, New York, ); G.W. Choudhury, ‘Bangladesh: Why it Happened’ ()  International Affairs, ; O. Noman, Pakistan: A Political and Economic History Since  (Kegan Paul International, London, ).  International Commission of Jurists, The Events of East Pakistan : A Legal Study (Geneva, ), p. ; V.P. Nanda, ‘A Critique of the United Nations Inaction in Bangladesh’ ()  Denver Law Journal ; J. Salzberg, ‘UN Prevention of Human Rights Violations: The Bangladesh Case’ ()  International Organisation ; also see T.M. Franck and N.S. Rodley, ‘The Law, the United Nations and Bangladesh’ ()  Israel Year Book of Human Rights .

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independent Statehood. However, international law and the community of nation States showed great reluctance to acknowledge the Bengali claim to self-determination. Notwithstanding irrefutable evidence of gross violations of human rights and genocide, the international community was unwilling to accept that Bengalis could secede in the name of self-determination. Ultimately it was the strength of the Bengali resistance and the military support of the Indian government, which helped, produce the first case of successful secessionist movement in the post-colonial era. The discussion is open to debate, although the argument may seem persuasive that the Bengalis were ‘Peoples’ in international law, entitled to the right to self-determination. As a consequence of its anomalous physical location of geographical affinity with the hostile, aggressive and bullish neighbour, East Bengal could effectively claim secession. The case of Bangladesh is nevertheless exceptional. For most part, international law refuses to interfere in the State-centric, often repressive assimilative nation building strategies – the cases of Kurds of Iraq, Turkey and Iran, the Kashmiris of Pakistan and

 ‘[Pakistan]’s status [as a metropolitan State and outside the ambit of Chapter XI] at least in , was not quite so clear, for several reasons. In the first place, East Bengal probably qualified as Chapter XI territory in , if one applies the principle applied by the General Assembly in  as relevant in determining the matter. According to Principle IV of Resolution  (XV) a territory is prima facie non-self-governing if it is both geographically separate and ethnically distinct from West Pakistan; moreover the relation between West Pakistan and East Pakistan, both economically and administratively, could fairly be described as one which ‘arbitrarily place[d] the latter in a position of subordination. It is scarcely surprising then that the Indian representative described East Bengal as, in reality, a non-self-governing territory. In any case, and this point is perhaps as cognet, it is hard to conceive of any non-colonial situation more apt for the description ‘carence de souverainete’ than East Bengal after  March ’. J. Crawford, The Creation of States in International Law (Clarendon Press, Oxford, ), at p. .  Salzberg, above n. , p. ; also see Rehman, above n. .  See T.M. Franck and N.S. Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’ ()  American Journal of International Law .  International Commission of Jurists, The Events of East Pakistan  (Geneva, ), at ; also see Professor Nanda’s special features which ‘legitimised’ the Bengali struggle for self-determination; Nanda, above n. , at pp. –.  Smaller Kurdish communities could also be found in Syria, Lebanon and states of former Soviet Union; D. McDowall, The Kurds (MRG, London, ); H. Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press, Philadelphia, ), –.

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India, the Sikhs of Indian Punjab, the Tamils of Sri Lanka, the Biharis of Bangladesh, the Tibetans of China, the non-Arab indigenous Africans of Southern Sudan, can be deployed to substantiate this argument. c. Ethnic, Linguistic and Cultural Minorities and the Truncated Pakistan In the truncated Pakistan several attempts have been made by the disgruntled ethnic, linguistic and cultural minorities to assert a right to selfdetermination. In each instance, without the support of the international

 A. Lamb, Kashmir: A Disputed Legacy, – (Roxford Books, Hertfordshire, ); S. Ganguly, ‘Avoiding war in Kashmir’ () Foreign Affairs (), –; A. Azmi, Kashmir An Unparalleled Curfew (Panfwain, Karachi, ); A. Varshney, ‘India, Pakistan and Kashmir: Antinomies of Nationalism’ (),  Asian Survey –; R. Wrising, ‘Kashmir Conflict’ in C. Kennedy (ed.), Pakistan  (OUP, Karachi, ) –; A. Khan, ‘The Kashmir Dispute A plan for regional co-operation’ ()  Col. JTL –.  Y. Malik, ‘Democracy, the Akali Party and the Sikhs in Indian Politics’ in D Vajpeyi and Y Malik (eds.), Religious and Ethnic Minority Politics in South Asia (Rivedale Company Publishers, Glendale, ), –; C. Shakle, The Sikhs (Minority Rights Group, London, ); Hannum, above n. , –; also see AI ‘An Unnatural fate’ ASA //.  W. Schwarz, The Tamils of Sri Lanka (Minority Rights Group, London, ); Hannum, above n. , –; P. Hyndman, ‘The  Convention Definition of a Refugee: An Appraisal with particular reference to the case of Sri Lankan Tamil Applicants’ ()  HRQ, –; R. Oberst, ‘Tamil Militancy and Youth insurgency in Sri Lanka’ in Vajpeyi and Malik (eds.), above n. , –; AI, Sri Lanka, ASA //, .  Whitaker, above n. ; for a background analysis of the issues Rehman, above n. , –.  S.P. Subedi, ‘The Right of self-determination and the Tibetan People’ in D. Kritsiotis (ed.), Self-Determination: Cases of Crisis: A Collection of Essays (Hull University Press, Hull, ), –; International Commission of Jurists, The Question of Tibet and the Rule of Law (Geneva, ); C. Mullin and P. Wangyal, The Tibetans Two Perspectives on Tibet-Chinese Relations (Minority Rights Group, London, ), Amnesty International, People’’ Republic of China Repression of Tibet –, ASA //, .  C. Eprile, Sudan: The Long War (Institute for the Study of Conflicts, London, ); G. Morrison, The Southern Sudan and Eritrea: Aspects of Wider African Problem (Minority Rights Group, London, ); Hannum above n. , –; see also Amnesty International, Sudan, AFR //, ; D. Kritsiotis, ‘Uti Possidetis in the Sudan: An African Crisis in Perspective’ in Kritsiotis, above n. , –.  P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, ); J Rehman, International Human Right Law (London, Longman, ) pp. –; on the relationship between minorities and self-determination see P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’ ()  International and Comparative Law Quarterly .

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community, the powerful military of Pakistan has been able to suppress such demands. The claims brought by the Pakhtuns are not radically different from those of their former compatriots, the Bengalis. They want a federal State, which guarantees cultural and linguistic autonomy. However, the Federal government has constantly subverted constitutional principles and negated the doctrine of rule of law. The dismissals of the elected governments of North Western Frontier Province (NWFP) and Baluchistan led to a civil war, which lasted for four year (–); dissent and civil unrest has continued throughout the military rule of General Zia-ul-Haq (–) and General Pervaiz Musharraf (–). Amidst the several troubling ethnic conflicts of Pakistan, at least two continue to pose serious geo-political concerns. These emerge from the Sindh and Baluchistan provinces. The issue of the rights of Baluchis has received a renewed significance as a consequence of the ‘war on terrorism’ since  September . The Baluchis are the indigenous peoples of Baluchistan, which is split between the Pakistani province of Baluchistan and Iranian Baluchistan, with the majority of the Baluch people residing in the Baluchistan province of Pakistan. Baluchistan is the largest of all provinces of modern-day Pakistan making up nearly two-fifths of the entire country. The enormity of its size, contrasts strikingly to its low percentage of population and economic destitution, particularly in comparison to the Punjabi, Sindhi and Pathan compatriots. According to the most recent population census held in , the total population of Baluchistan consisted of . million out of the total Pakistani population of . million. The current population of Baluchis in Pakistan is  R.G. Wirsing, The Baluchis and Pathans (Minority Rights Group, London, ), p. ; According to Baloch, ‘The Pakistani armed forces suffered about  to  casualties. The number of guerrillas and their casualties is not reliably known. Thousands of civilian Baluch were killed in the military action and in the bombardments by Pakistani Air Force and thousands migrated to Afghanistan or took refuge in Sind’ I. Baloch, ‘The Baluch Question in Pakistan and the Right to Self-Determination’, in W.-P. Zingel and S.Z.A. Lallemant (eds.), Pakistan in its Fourth Decade (Deutsches Orient-Institut, Hamburg, ), –, at p. .  S. Harrison, In Afghanistan’s Shadow Baluch Nationalism and Soviet Temptations (Carnegie Endowment for International Peace, New York, ), at ; S. Harrison ‘Ethnicity and the Political Stalemate in Pakistan’ in A Banuazizi and M Weiner (eds.), The State, Religion and Ethnic Politics: Afghanistan, Iran and Pakistan (Vanguard Press, Lahore, ) at .  Government of Pakistan, Population and Housing Census of Pakistan, : Provisional Results (Government of Pakistan, Islamabad, ), at p. .

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estimated as . million. These figures approximate the Baluch population to be around % of the total population of the country. Baluch nationalists claim that deliberate government policies have resulted in underestimation of indigenous peoples. It is also the case that indigenous Baluchis have been swamped by ‘outsiders’ even within their own homelands. The socio-economic conditions of the Baluchis are abysmal with over % living below the poverty line. Baluchis do not form a homogeneous group, branching out as the Makrani or western Baluchis in Pakistan and south-western Afghanistan, the Sulemani or eastern Baluchis in Iran, and the Brahuis of the central Kalat plateau of Pakistani Baluchistan. The latter speak the Brahui language, which though not related to Baluchi has certain resonances with that language. Baluchis are largely Sunni Muslims followers of the Hanafi school. Although there is considerable controversy surrounding their origins, according to popular Baluchi legends they migrated northward from Aleppo (in modern Syria) for pastureland and fresh water during the Arab conquests of the ninth century, travelling along the southern shores of the Caspian Sea and subsequently settling in what is now Iranian and Pakistani Baluchistan by the fourteenth century. Baluchi nationalists point to their largely independent history spreading over several centuries. Afghans, Persians and Sikhs, all made repeated though unsuccessful attempts to establish complete control over Baluchistan. The British gained control over a considerable proportion of the region during the nineteenth century, at first through political agreements and subsidies negotiated with Baluchi leaders, and by the s through direct territorial control or through influence over the princely states. Even then, Baluchis enjoyed considerable autonomy. Their customary ‘tribal’ law, for instance, was retained and enforced by ‘tribal councils’ under the authority of the Frontier Crimes Regulation (FCR).

 S.A. Zaidi ‘Regional Imbalance and the National Question in Pakistan-Some Indications’ E&PW (), –.  R.G. Wrising, The Baluchis and Pathans (Minority Rights Group, London, ) ; A. Ahmed, ‘The National Question in Baluchistan’, in S.A. Zaidi (ed.), Regional Imbalances and The National Question in Pakistan (Vanguard Press, Lahore, ), pp. –, at p. .  Wirsing, above n. , p. ; S.S. Harrison, ‘Ethnicity and the Political Stalemate in Pakistan’, in A. Banuazizi and M. Weiner (eds.), The State, Religion and Ethnic Politics: Afghanistan, Iran and Pakistan (Vanguard Press, Lahore, ), p. .

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In historic terms, the Baluchis have experienced considerable internal strife and bitter feuds and have been unable to present a united political front. One key exception was in the eighteenth century, when successive rulers of the Baluchi principality of Kalat forged political unity throughout most of the Baluchi area. Since that period the Khanate of Kalat has remained a symbol of Baluchi nationalism. Indeed, prior to the independence of India there were serious possibilities of Baluchis being accorded self-rule under the inspirational leader of the Khan of Kalat. According to an agreement reached between the British and Pakistan governments on  August : ‘The Government of Pakistan recognizes the status of Kalat as a free and independent state which has bilateral relations with the British Government, and whose rank and position is different from that of other Indian states.’ Eleven days later the Khan of Kalat declared the independence of Kalat, a decision endorsed by the Kalat Assembly. While the newly formed government of Pakistan immediately repudiated the declaration of independence, amalgamation with Pakistan or the dismemberment of Kalat was unacceptable to the Khan. Ignoring these political aspirations, the Pakistan authorities relied heavily on the decision of Baluchi leaders in Quetta on  June  to merge with Pakistan, deliberately concealing the fact that these leaders had been appointed by the British, and their assembly’s decision related to the small tract of land known as British Baluchistan. Baluchi rulers remained unhappy with Pakistan’s interference in what they regarded as their domestic affairs, and they continued to be rebellious. Despite constant threats of coercion, and actual use of force, only in  did the rulers of these independent territories formally agree to cede their states. The element of a probable claim of secession on the part of Khan of Kalat was used as a major issue, which led to the abrogation of Pakistan’s first constitution in October , the arrest of the Khan, and the promulgation of martial law. Recent Baluchi history in Pakistan is marked by the major rebellion of – against the government of Pakistan. This followed increasing centralization of power despite numerous assurances of devolution set out

 Article ; cited in I. Baloch, ‘The Baluch Question in Pakistan and the Right to Self-Determination’, in W.-P. Zingel and S.A.-Z. Lallemant (eds.), Pakistan in its Fourth Decade (Deutsches Orient-Institut, Hambeurg, ), –, p. .  Cited in Harrison, above n. , at p. .

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in the new Pakistani constitution of , drafted following the secession of East Pakistan. The new constitution contained various guarantees of the rights of ethnic minorities, reaffirming their separate legal status and right to their own language and culture. The government of Zulfikar Ali Bhutto, however, disregarded these guarantees, and the provinces became increasingly subordinate to central authority. The crisis erupted when Bhutto dismissed the coalition government of Baluchistan in  on the grounds of its alleged encouragement of a secessionist movement, smuggling and opposition to modernization. Opposition leaders were arrested and jailed, and in  the sardari ‘tribal chief’ system was abolished. Meanwhile the war had escalated; by  there were reported to be as many as , Baluchis fighting some , government troops. It is estimated that over , insurgents and , government troops were killed, and large quantities of livestock were destroyed, while the interruption of food supplies to civilians in insurgent-controlled areas caused great suffering. Some Baluchi rebels surrendered under a general amnesty; others fled to Afghanistan, where they were housed in government camps. The insurgency continued fitfully until the fall of the Bhutto government in  and the subsequent release of jailed leaders of the region. Throughout the military rule of General Zia (–) and the governments of Benazir Bhutto (–, –) and Nawaz Sharif (–)(–) Baluchi demands centred around political and economic autonomy. They demanded a readjustment of power, with the federal government in control of only defence and foreign affairs and the province having unfettered authority over provincial matters. The project of nationbuilding however resulted in armed insurrection led by Bugti and Marri

 The Government of Pakistan, The Constitution of the Islamic Republic of Pakistan,  (Karachi, Government of Pakistan Printing Press, ).  Article , for instance, provided ‘any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose’. According to article , State shall discourage parochial, racial, tribal, sectarian and provincial prejudices amongst the citizens. Article  committed the State to eradicate economic and social inequality among various regions, with Article  requiring all sections of the state to participate in the employment of armed forces. While Article  reaffirmed the separate legal status of tribal areas under Frontier crimes regulations, Article () provided the right of Provincial Assemblies to adopt measures for the teaching, promotion and use of a provincial language in addition to Urdu, the National language. See the Constitution of Pakistan, .  Baloch, above n. , –, .

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tribes. Notwithstanding substantial claims of autonomy, the current Federal government of General Pervaiz Musharraf has a complete stranglehold over the provincial affairs of Baluchistan. Considerable violence erupted after the disclosure of the rape of Dr Shazia Khalid in Sui in January . Since that period the unrestrained use of force by the Frontier Core and the military has resulted in significant bloodshed, extra-judicial killings, torture and arbitrary arrests. One prime and recent example of the brutality of the Pakistan military forces was the killing of the  year Baluch veteran leader Nawab Akbar Bugti on  August . Several hundred people have been arrested and detained with fear of violence and political unrest engulfing the whole of the country. The conflict of Baluchistan has received heightened national and international attention since the commencement of the so-called ‘war on terror’. Despite accusations and spurious claims by General Musharraff ’s military government against the Baluchis as agents of Al Qaida, the grievances harboured by the Baluch stem essentially from their economic deprivations. Baluchistan has economic resources which the successive Federal governments have exploited without either a due acknowledgement of Baluchistan’s contribution to the national economy or its recompense in monetary or financial measures. Natural gas deposits were found in the Sui area in  and in Pirkoh in . The natural gas deposits of Baluchistan cater in a very large measure to the running of industries, factories, businesses and for usage in predominantly domestic usage in all of the provinces of Pakistan. The Baluch nationalists claim that the royalties received from these projects are next to negligible. In common with other indigenous peoples, the Baluch also feel that their land and territory have been taken over by outsiders who are politically and economically more powerful. The Federal government under President Pervaiz Musharraf (–) has put forward plans to construct a deep seaport at Gwadar and establish road links with Afghanistan and Central Asia. The Federal Government’s claim that these developments will bring greater prosperity to the people of Baluchis are refuted by the Baluch tribal leaders who consider this as

 BBC News, ‘Unrest after Pakistan Rebel Death’  August  http://news.bbc. co.uk//hi/world/south_asia/.stm .  See H. Vacher, ‘Ethnicity and the National Question in Pakistan: The Example of Baluchistan’ in R.H. Barnes, A. Gray and B. Kingsbury (eds.), Indigenous Peoples of Asia (Association for Asian Studies, Ann Arbor, MI, ), pp. –.

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new variant of economic and political exploitation. In order to enquire in to the grievances and claims advanced by Baluch leaders, the former Prime Minister Chaudhary Shujaat Hussain on  September  set-up a special Parliamentary Committee (unanimously approved by both Houses of Parliament). The overall mandate of the Committee was ‘to examine the current situation in Baluchistan and make recommendations thereon’. The establishment of the committee, which was further sub-divided into two committees – one headed by Senator Wasim Sajjad and the other by Mushahid Hussain Syed – represented positive steps. The two sub-committees presented a number of recommendations in March  which included the assurances by the Federal government to make payments of all arrears on gas royalties, greater investment to elevate unemployment, poverty and under-development in the province, the withdrawal of Frontier constabulary and coastguard from interior Baluchistan, and the shifting of the head-office of the Gwader Port Authority (GPA) from Karachi to Gwadar. None of these recommendations have been taken further by the Federal government – instead, reliance has been placed on coercive means such as arrests and detentions of dissident Baluchi nationalists. The heavy handed tactics currently being deployed by the Musharraf government under the pretext of ‘war-on-terror’ has resulted in enormous human suffering in Baluchistan and the Tribal belt surrounding the province. Since  December , Pakistan military has launched full-fledged operations in Kohlu and Dera Bugti. The military has been reportedly using jet fighters and helicopters gun ships in its operations to attack suspected hideouts of combatants Marri and Bugti tribesmen in Kolhu and Dera Bugti respectively. According to the Human Rights Commission of Pakistan (HRCP), as many as  persons have been killed and  have been injured in military operations in Dera Bugti from last week of December  till  January . Eighteen people including  suspected members of the Balochi armed opposition groups and six security personnel have been reportedly killed from – January . There were also reports of extra-judicial

 Human Rights Commission of Pakistan, Human Rights Violations: Conflict in Baluchistan – A Report of the Fact – Finding Missions (December –January ) (Dot-Links Printers, Lahore, ), at p. .  Ibid.  Ibid., at p. .  Ibid., at p. .

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Javaid Rehman

killings of the detainees by the law enforcement agencies. The Military government is claiming that Baluch and Pakthun tribesmen are harbouring Al-Qeeda militants in Tribal areas of South Waziristan, a claim vigorously denied by the tribes’ people. If the Baluch conflict could be described as one whereby an indigenous minority group is attempting to preserve its existence and identity, issues arising out of Sindh reflect greater complexity. Not only is the Federal State involved in an assimilative national-building project, there are at least two key protagonists – the Sindhis and the Muhajirs – with varied and conflicting visions of the right to self-determination. After the partition of India, the Muhajirs in their millions converged to the big cities of Sindh and Punjab. With a largely urban background, the Muhajirs took over some of the best lands left by the fleeing Hindus and Sikhs. The Muhajirs were politically astute and many of the political elite was Muhajirs. After the establishment of Pakistan, the Sindhi language was replaced by the Muhajir language, Urdu at the provincial level. As examined subsequently, the Muhajirs were able to exploit these advantages in gaining access to higher education and having disproportionate representation in the civil services and Pakistan’s military. Immediately after partition, Karachi was detached from Sindh and made into a federal district. The consequences were enormous, resulting in the abolition of Sindhi within Karachi’s federal offices, the replacement of Sindhis with Urdu speaking office workers, the closing down of the Sindhi department at the University of Karachi and a ban on the use of Sindhi in university examinations in Karachi. The Muhajir identity was quickly established within the new State and they emerged as the ruling ethnic group. They were educationally far superior,

 On the historical aspects of Sindh see Dr Khuhro’s excellent works; H. Khuhro (ed.), Sindh Through Centuries (OUP, Karachi, ); H Khuhro, The Making of Modern Sind (Indus Publishers, Karachi, ); also see M. Rahman, Land and Life in Sindh: Pakistan (Ferozsons Pvt Ltd., Lahore, ).  B. Ali ‘Sind and Struggle for Liberation’ E&PW  March , –, ; ‘Economic Reasons for Ethnic Clashes’, October-November , Muslim India, January , –.  A. Salim, Sulagta Howa Sind (Jang Publishers, Lahore, ); A.J. Siddique, Muhajir Quamiat (Shibal Publishers, Karachi, ); M. Ali, Sindh Khamoshi Ki Awaz (Urdu) (Fiction House, Lahore, ); K. Athar, MQM Ki Khani, Altaf Hussain Ki Zubani Safar-i-Zindgani (Jang Publishers, Lahore, ).  K. Callard, Pakistan: A Political Study (Allen and Unwin, London, ), pp. –.  In the early years they had a literacy rate of  percent.

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considered them culturally superior, their new home city was consolidated as the country’s capital and above all they had taken a leading role in its creation. For many of the initial years of Pakistan’s existence, the Muhajirs (who were over represented in the political, bureaucratic and military setup) supported the centralized ‘One-Unit’ system and emphasized upon the value of having one language as the official language of Pakistan. The Muhajir political strength was reflected through its domination of the Muslim League, the party that had spearheaded the Pakistan movement. The Muslim League leaders took an assimilationist position, and pursued strategies, which were arbitrary and contrary to the principles of the rule of law. There was also an absence of constructive policies, with the League attempting indefinitely to ‘cash-in on the popular patriotism and the gratitude on the part of electors for having achieved Pakistan’. Ultimately the failure to produce a leadership conscious of the demands of other ethnic and linguistic communities led to the downfall of the Muslim League. During the s and s there emerged a considerable influence of Punjabis and Pakhtun over the military and politics of Pakistan, leaving the Muhajirs in a relatively subordinate position. As far as the Sindhis were concerned their cause was championed by Zulfiqar Ali Bhutto, an indigenous Sindhi and Pakistan’s first elected Prime Minister (–). Prior to his coming into power, the Sindhis had made substantial claims of discrimination. They had claimed a lack of representation at the provincial and federal levels, as well as exclusion from institutions of higher education. Acutely aware of the Sindhi grievances, the Bhutto government tried to reduce the provincial alienation. To improve the Sindhi proportion in the civil service, lateral entry programmes were introduced. To help increase the number of indigenous Sindhis . percent seats was reserved for them in the federal bureaucracy. To curb bogus domiciles the Provincial Assembly passed an ordinance laying down strict rules for the definition of a ‘rural Sindhi’. The Sindh Permanent Residence Certificates Rules, which came into operation in , provide for the most thorough scrutiny of an individual’s credentials. Direct District

 K. Azfar, ‘Constitutional Dilemmas in Pakistan’, in S.J. Burki and C. Baxter (eds.), above n. , p. .  See C.H. Kennedy, ‘The Politics of Ethnicity in Sindh’ ()  Asian Survey, . On the subject of Quota system in Pakistan also see the chapter by Lau.  See C.H. Kennedy, Bureaucracy in Pakistan (Karachi, Oxford University Press, ), pp. –.



Javaid Rehman

Magistrates were asked to follow a rigorous procedure, a comprehensive exercise which, despite provincial courts’ consolatory intervention, was bound to benefit the indigenous Sindhis at the expense of Urban Muhajirs. More importantly, many Sindhis were appointed to national and provincial offices. Indeed, the ‘nationalistic’ agenda of Bhutto was targeted at the Muhajir entrepreneurs of Karachi and aimed at redressing the balance in favour of the Sindhis. Many in the Muhajir camps bitterly detested these moves on the part of the Prime Minister, perceiving them as attempts to promote the interests of Sindhis, at the expense of Muhajirs. It was then the turn of the Muhajirs to put forward claims of discrimination, persecution and political repression. Not unexpectedly a strong contingent of Muhajirs took an active part in the civil unrest during , culminating in the successful military coup of General Zia-ul-Haq. However, while the General’s -year military rule can generally be regarded as favourable to the Muhajirs, they could never reoccupy their initial domineering and authoritative position. It is interesting to note the provisions of the Muhajir Charter of Demands Karadad-i-Maquasid () which can be treated as their expression of the right to self-determination. These demands included inter alia: () Adequate representation in provincial as well as federal government departments on the basis of population. () Only those persons should be treated as domiciled (in Sindh) who have been living (there) for the last twenty years and who spent their earnings in the province. () Only the real Sindhis including Muhajirs should be given the right of voting. () Seat reservations for Muhajir students in colleges should be on the basis of their population. () Pakistanis from Bangladesh should be allowed to settle in Pakistan. () Outsiders should not be allowed to buy any property in Sindh; allotments already made should be cancelled. () Local bus services (mainly owned by Pathans and Afghans) should be nationalised; police officers, and mostly Punjabis and others accused of persecution of Muhajirs should be arrested.

 J.D. Akhtar, ‘Civil Polls Results Sharpen Ethnic Clashes in Pakistan’ () Organiser (December ), .

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A number of demands presented by both the Sindhis and the Muhajirs coincide. The Sindhis as well as the Muhajirs make substantial allegations of discrimination and persecution. Their grievances are largely directed at the Punjabis who dominate the bureaucracy and the armed forces. While the military coup in October  was led by General Pervaiz Musharraf (himself a Muhajir) the persistent bias towards the Punjabis and the Punjabi dominated vision of nation-building have exacerbated provincial tensions. There is a common concern expressed by Sindhis and Muhajirs on several issues including the lack of regional and provincial autonomy and continuous interference from Islamabad in the affairs of Sindh. Sindhis and Muhajirs also demand a ban on further settlements of Punjabis and Pakhtuns and insist that restrictions ought to be placed on the sale of properties and allotment of businesses to those not domiciled in the province. Having said that, there are also considerable differences between the indigenous Sindhis and the immigrant Muhajirs on several key issues. These include, firstly that of the status of Urdu, the official and national language. The Muhajirs wish to maintain the existing status of Urdu. The Sindhis, on the other hand, want to replace Urdu by Sindhi language. The next divisive issue concerns that of affirmative action policies which since the period of Prime Minister Bhutto have tended to favour the Sindhis. The Sindhis want to have this system expanded so that they receive a greater share of jobs in the provincial services and institutions of higher education. The Muhajirs oppose this view and want to have the existing set-up replaced by another system that would give them preferential treatment in the bureaucracy and in higher educational institutions. Finally, there is the controversial issue of further repatriation of Biharis from Bangladesh. The Muhajirs claim that nearly all of the , Biharis have a right to be settled in Pakistan. This, however, is unacceptable to indigenous Sindhis, who fear an influx of Biharis in the Sindh province, resulting in the complete loss of their cultural and linguistic identity. Indeed, the issue of the Biharis – which has been a sticking point in efforts to reach any agreement between the political parties of Pakistan –, contributed to the downfall of

 ‘A Plea for Peace and Amity in Sindh’ () Dawn,  (March).  ‘Pakistan-Language Riots in Sindh’ Keesings Contemporary Archives  October pp. –, ; ‘Tackling the Sindh Situation’ Frontier Post ––.  J. Rehman and N. Roy, ‘South-Asia’ in above n. , – at p. ; B. Whitaker et al., above n. ; Keesings Contemporary Archives .



Javaid Rehman

Benazir Bhutto’s government (–) and that of Mian Nawaz Sharif (–). In the early s, less than one thousand Biharis were settled in Punjab (Okara). Although this settlement, as well as future settlements was designed to be in Punjab, such a move provoked immense hostility from the Sindhis. No further settlements have thus far been possible. Serious tensions and frustrations nevertheless prevail. In March , during his visit to Bangladesh, the former Prime Minister Mian Nawaz Sharif faced protests and demonstrations. Nawaz Sharif, fearful of internal opposition, could not put forward any concrete plans for resolving the Bihari issue. He confined himself to saying that Pakistan was concerned for the Biharis only on humanitarian grounds, and not because it regarded them as citizens of Pakistan. There is considerable sympathy for resolving the Bihari issue in the present military government of General Musharraf (–) added to which is the fact, that Muttahida Qaumi Movement (MQM) remains an ally of the federal government. However, Muttahida Qaumi Movement continues to disagree with President Musharraf on Kala Bagh dam project alleging that this project is prejudicial to the interest of the people from smaller provinces. Both MQM and Sindhi nationalist parties have claimed a major victory in the decision made by the Federal government in January  to suspend Kala Bagh project for the foreseeable future. The past decade – has witnessed an increasing amount of targeted-killings and kidnapping in Urban Sindh particularly in Karachi, which has affected both the Muhajirs and Sindhis. iii. islam, the sharia and nation-building The nation-building project has been heavily reliant upon the Islamization of society and the enforcement of Sharia. In effect this has meant the politicisation of religion and forced assimilation of ethnic as well as religious minorities. Notwithstanding the enormous reliance placed upon Islam and the two-nation theory as raison d’etre, it was ironic that the political leaders who lead campaign for Pakistan did not belong to any orthodox

 ‘Bangla-Pakistan Row Over Deportation’. India Abroad,  December ; ‘ More Deported from Pakistan’ Bangladesh Observer,  November ; Rehman and Roy, ‘South-Asia’ in P Thornberry et al. (eds.), above n. , at .  Rehman, above n. , pp. –; J. Rehman and N. Roy, ‘South-Asia’ in P. Thornberry et al. (eds.), above n. , pp. –.

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Islamic ranks. They were western educated liberals such as Mohammed Ali Jinnah with the vision of establishing a tolerant and democratic society with freedom of religion and constitutional rights of minorities as its corner stone. In the light of this apparent contradiction, the Islamiscits parties such as the Jamat-e-Islami had opposed the creation of Pakistan. They were critical of Jinnah, whom they saw not as a Muslim leader but as a political opportunist. Despite the narrow mindedness of the fundamentalist parties, there was significant credibility in their complaint. From the outset, Pakistan’s political leaders were faced with an ideological dilemma over the role of Islam in a modern democratic State – a dilemma termed by one commentator as ‘ideological schizophrenia’. This schizophrenia has persisted for the past sixty years with the political and military leaders of Pakistan having been unable to assign Islam an appropriate role within the constitutional framework. The approach in the initial years of independence was to adopt a liberal framework in which all religious communities could be accommodated. Mohammed Ali Jinnah, the founder of Pakistan, in his first address to Pakistan’s Constituent Assembly noted: [I]f you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations, there will be no end to the progress you will make . . . I cannot emphasise it too much. We should begin to work in that spirit and in the course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community – because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on . . . will vanish.

As discussed in an earlier section, the nation-building project was subjected to a serious blow through the secession of East Pakistan. Chastened by the debacle of December  in which the State lost over half of its population, Pakistan’s political and military elite renewed and reinvigorated their efforts

 O. Noman, Pakistan: A Political and Economic History since  (Kegan Paul International, London, ), at –; Rehman above n. , at .  Noman, above n. , at, p. .  M.A. Jinnah, Constituent Assembly of Pakistan, Debates Vol. , XX,  August .

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Javaid Rehman

with an almost exclusive reliance upon Islamic ethos. Pakistan constitutional law was seen as drifting towards an Islamisation of laws even during the years of Prime Minister Bhutto although it was during the  year rule of General Zia-ul-Haq that Nifaz-e-Islam (the application of Sharia) became the central plank of governmental actions. The Islamisation process coincided with increasing curtailment of fundamental rights and repression of religious minorities. General Zia-ul-Haq, who came into power through a military coup, made his primary objective the enforcement of Sharia and reforming the society in accordance with (what he perceived as) the tenets of Islam. His Islamisation of the laws however proved extremely detrimental and discriminatory towards the religious minorities in a number of respects. One of the primary ways in which discrimination has been perpetuated against religious minorities is through the induction of separate electorates. Separate electorates are a mechanism whereby separate electoral colleges are established for Muslims and non-Muslims. At the national, provincial and local levels, religious minorities were assigned a fixed number of seats in which to elect their own representative or representatives. Members of religious minorities were, however, excluded from voting or contesting for positions in the constituency of residence. Drawing parallels with the communal electorates as adopted by the British in the Indian Sub-Continent in the early part of the twentieth century, the introduction of separate electorates was justified by General Zia’s Government as being in the wider interests of religious minorities. However, the system was based neither on the consent nor the involvement of the religious minorities; it was enforced in the face of bitter opposition from the religious minorities of Pakistan. This scheme set non-Muslims apart from fellow citizens and has made the representation of their interests extremely difficult. A non-Muslim minority Parliamentar-

 W.L. Richter, ‘The Political Dynamics of Islamic Resurgence in Pakistan’ ()  Asian Survey, at ; C.H. Kennedy ‘Islamization and Legal Reform in Pakistan, –’ ()  Asian Survey, at .  For a detailed analysis of the mechanism and the consequences of the system of separate electorate see C.N. Shakir, An Apartheid Mode of Separate Electorates: A Report (Airex Printers, Lahore, ).  See N. Baber, ‘Religious Discrimination: In the Name of the Law’, in M. Aslam (ed.), Herald (Annual Number, ), pp. –, at p. ; Rehman, above n. , pp. –.  See International Commission of Jurists, Pakistan: Human Rights after the Martial Law (Geneva, ), p. .

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ian was expected to represent the interests or highlight concerns of fellow non-Muslims, many of whom reside hundreds of miles away. On the other hand, in view of the insignificance in so far as non-Muslim minority votes were concerned, the system ensured that representatives of the main political parties exhibited no concern for their non-Muslim constituents. The policy was particularly detrimental to the interests and beliefs of all minorities, though it came upon particularly harshly upon the Ahmadiyyas. The Ahmaddiyyas is a political group, which was declared as non-Muslims in  because of a debate about their belief principally in relation to the finality of prophet Mohammed (MPBH). Ahmadiyyas have challenged this official imposition of a status of being non-Muslim. However, with the induction of the separate electorates they were forced into either identifying themselves as non-Muslims (and register themselves as non-Muslims) or to refrain from whatever democratic channels that were left available. Persistent campaigns by religious minorities led to an acknowledgement of the deficiencies in the system by successive governments of Mr Nawaz Sharif, Benazir Bhutto and General Pervaiz Musharraf (–). The present military ruler, General Musharraf, under in the post –  September  environment announced the abolition of separate electorate system. In the Federal and Provincial elections held on  October , carefully controlled by military, non-Muslims were allowed to vote alongside Muslims. Despite the formal abolition of the separate electorates, the system has re-emerged in a different format. As reported by Christian Solidarity Worldwide in its reports of September  during the local elections held in Pakistan during August/September  separate voting lists were deployed for non-Muslim minorities. The Ahmaddiyyas were in particular singled

 For a consideration of the Ahmadiyya beliefs see S. Lavan, The Ahmadiyya Movement: A History and Perspective (Monhar Book Service, New Delhi, ); Z. Khan, Ahmadiyya: The Renaissance of Islam (Tabshir Publications, London, ); C.H. Kennedy, ‘Towards the Definition of a Muslim in an Islamic State: The Case of Ahmadiyya in Pakistan’ in D Vajpeyi and Y Malik (eds.), above n. , pp. –.  Dr I.A. Ayaz, Ahmadiyya Muslim Association, The Persecution of Ahmadi Muslims in Pakistan, Report submitted at the fourth session of the Working Group on Minorities (Geneva, ), at p. .  Christian Solidarity World wide, Voice for the voiceless (London, September ) http://www.csw.org.uk/documents/visit/doc/Visit%report%–%Pakistan%Septemb er%.doc ; ‘We are concerned to hear that despite the restoration of the Joint Electorate; elections continue to be organized using separate voting lists. We therefore urge the Pakistani Government to introduce joint voting lists’. Ibid.,

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Javaid Rehman

out with the Election Commission issuing a separate list for Ahmadiyya voters for the Local Bodies elections. A blatant violation of the principle of joint electorate, this was an effort on the part of the executive bodies to forcibly exclude Ahmadiyyas from the election processes. Another mode of repressing religious minorities has been through the usage of offences relating to religion in the Pakistan Penal Code. The first amendment to Chapter XV of the Penal Code was made in , with the incorporation of section -A. The section provides as follows: whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Muminees), or members of the family (Ahle-bait) of the Holy Prophet (peace be upon him) or any of the righteous Caliphs (Khulafa-e-Raashideen) or companions (Sahaaba) of the Holy Prophet (peace be upon him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.

In , further measures were introduced through Ordinance  which inserted section -B into the Penal Code. Section -B provides for the following additional offences: Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur’an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.

In , Ordinance XX inserted section -B and section -C to the Penal Code. Ordinance XX was targeted specifically at the Ahmadiyya community, and has had the most tragic impact on their fundamental right to existence and identity. An additional offence under section -C of using derogatory remarks in respect of the Holy Prophet was inserted in the Penal Code in . A subsequent amendment to section -C made the death penalty mandatory for anyone defiling the name of the Prophet Mohammed. Through the Qisas and Diyat Ordinance , the maximum punishment for breaching section -A was increased from two to ten

p. ; J. Rehman, ‘South-Asia’ in R. Green (ed.), State of World Minorities (Minority Rights Group International, London, ), –, at p. .  Ibid., at p. .

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years. The overall impact of these laws, it must be emphasised, has been deeply disturbing and regrettable; not only have they produced a culture of religious intolerance, bigotry and fanaticism; they also deter any form of rational and tolerant expression on matters pertaining to religion. There is now an environment which inculcates a sense of fear; any criticisms of existing political and socio-economic evils within the ‘Islamic’ State could be taken by the religious extremists as having contravened the blasphemy laws. Under the anti-blasphemy laws cases have been registered against non-Muslim minorities as well as Muslim men and women. The situation is so venomous and poisoned that even a recommendation to reconsider the existence of these laws evokes risks of serious recriminations and therefore any official proposal of repeal appears highly unlikely. Benazir Bhutto, during her tenure as Prime Minister (–), proposed procedural reforms and indeed since  stricter rules in prosecuting under the anti-blasphemy laws have been applied. However, Benazir Bhutto was faced with serious criticism and opposition by religious groups. Some religious groups passed a fatwa calling for the death of those who propose change or the repeal of any of the anti-blasphemy laws. The U-turn by Pakistan’s military government on the subject of modifying the anti-blasphemy laws confirms the present government’s unwillingness or inability to secure minority protection. President Musharraf ’s government has brought about minor procedural changes to the anti-blasphemy laws, whereby no police office below the rank of superintendent of the police to investigate allegations related to S. of the Pakistan Penal Code. The veneer of change is hopelessly inadequate: Religious minorities continue to be victimised and frequently charged on flimsy, insubstantial and uncorroborated evidence. Furthermore, S. offences form only one element of the whole gamut of anti-blasphemy laws confronting the non-Muslim communities of Pakistan.

 See PPC S.-A (as amended). Text in Punjab Law House, The Major Acts (Lahore, Punjab Law Publications, ), p. .  K. Boyle and J. Sheen (eds.), Freedom of Religion and Belief: A World Report (Routledge, London, ), p. .  BBC World Service – South Asia, Pakistan’s Blasphemy Law U-turn Internet edition, http://www.bbc.co.uk/hi/english/world/s/w, London,  May, .

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Javaid Rehman

An additional discriminatory mechanism was the introduction of the Hudood ordinance by the late General Zia-ul-Haq. These Hudood Ordinances consist of the Prohibition (Enforcement of Hadd ) Ordinance ; the Offence of Zina (Enforcement of Hadd) Ordinance ; the Offences against Property (Enforcement of Hadd) Ordinance ; and the Offence of Qazf  (Enforcement of Hadd) Ordinance . The Hudood Ordinances reinforce criminal laws for offences in relation to having sex outside of marriage, false imputation of rape and property related offences. The Hudood Ordinances were to be enforced with barbarous punishments of Rajm (stoning to death) and public whipping. The apparent rationale for the introduction of the Hudood Ordinances had been to bring Pakistan’s penal law in conformity with the Sharia. Notwithstanding the State’s commitment of non-imposition of an exclusively Islamic code on non-Muslims, these Ordinances for most part also control the activities of non-Muslims alongside the majority Muslims. The implementation of the Hudood Ordinances has had seriously damaging consequences on all sections of Pakistani society. Women and religious minorities have in particular, been targeted and victimised as a result of these Ordinances. Non-Muslims under these Ordinances remain liable to suffer from punishments such as physical amputations, whipping

 On  February  (th Rabi-ul-Awwal  AH, the anniversary of the Prophet Mohammed’s birthday), President General Zia-ul-Haq introduced a number of penal laws, which collectively are known as the Hudood Ordinances; See Rehman, above n. , at –.  Arabic word, meaning: ‘limit’. The term is used for prescribing punishments for the offences for which limits have been defined in the Quran and the Sunna.  Arabic word, meaning: illicit sexual relations i.e. sexual intercourse between persons not married to each other. The following acts are, inter alia, covered by the offence – adultery, fornication, prostitution, and homosexuality.  Arabic word, meaning: false imputation of adultery.  Ss. , , and  of the Offence of Zina (Enforcement of Hadood) Ordinance   See s.  of the Offence of Zina (Enforcement of Hadood) Ordinance  and the Execution of the Punishment of Whipping Ordinance .  See A. Jahangir and H. Jilani, The Hudood Ordinance: A Divine Sanction (Rhotas Books, Lahore, ).  See Report of the Commission of Inquiry for Women (Islamabad, Pakistan) ; also see the Report on Hudood Ordinances,  (Chair: Justice (R) Majida Rizvi) (Islamabad, Pakistan, ).  See H. Jilani and E. Ahmed, ‘Violence Against Women: The Legal System’ in S. Goonesekere (ed.), Violence, Law and Women’s Rights in South Asia (Sage, London, ), at .

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etc. for various offences related to theft, whipping for having committed zina and death or whipping in case of zinabiljabar and Qazf. The imposition of the Hudood Ordinances, an exclusively Islamic code, on non-Muslims is also discriminatory in the manner of its application. As a prerequisite for the application of Hadd punishment, strict evidential requirements must be satisfied. To satisfy the evidentiary requirement of theft or qazf, ‘two adult Muslim witnesses who are truthful persons and abstain from major sins’ are required to provide the evidence or the accused makes a confession. In order to establish the offences of adultery, fornication or rape, ‘four adult Muslim male witnesses who are truthful persons and abstain from major sins’ must provide eyewitness evidence of the act of penetration. In accordance with these requirements, while Muslims can give evidence against non-Muslims, non-Muslims are barred from giving evidence against an accused who happens to be a Muslim. Thus a Muslim can commit serious offences (e.g. rape) but would escape the Hadd punishment if the witnesses happen to be non-Muslims. The harsh evidentiary requirement of the Huddood offence is almost always impossible to establish, which allows Pakistan’s court the discretion to apply the less strenuous standards under the discretionary Tazir jurisdiction. Women and religious minorities nevertheless are victimised even in the context of discretionary Tazir jurisdiction. The absence of legally valid evidentiary requirements to establish zinabiljabar leads to an inevitable assumption that any pregnancy has arisen out of sexual intercourse. Furthermore, even acquittal against charges of zina or zinabiljabar, effectively renders women stigmatised and their presence unacceptable in the wider society. Pakistan government, led by President Pervaiz Musharraf, has made some amendments to the Hudood laws and proposed changes to substantive and procedural law relating to Hudood and rape convictions in Pakistan. On  July , through a Presidential Ordinance, General Musharraf allowed several hundred women hitherto charged with adultery under Hudood laws and other minor offences under criminal laws to obtain bail from

 Arabic word, meaning: rape.  See S(b), Offences Against Property Ordinance ; S(), Prohibition Order ; S(c), Qazf Ordinance .  S(b), Offence of Zina Ordinance, .  International Commission of Jurists, above n. , p. .  See A. Quraishi, ‘Her Honor: An Islamic Critique Of The Rape Laws Of Pakistan From A Woman-Sensitive Perspective’ ()  Mich. J. Int’l L. .

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jails until the prosecution could furnish evidence against them in court of law. Furthermore, and more significantly during August  the Federal cabinet approved a draft of amendments to the Hudood Ordinances under the ‘Women Protection Bill’. These draft proposals aim firstly to remove the almost impossible evidentiary requirement of producing four male witnesses in rape cases and secondly to regard sexual intercourse with a girl under the age of  (regardless of her consent) a rape offence. Notwithstanding the support from the government as well as from the President, August and September  have already witnessed considerable opposition. There are already reports that the government has dropped the proposed rape offence for girls under the age of  due to opposition from Islamist parties. It may well be that this government, like many of its predecessors would be unable to reform a law, which continues to violate the fundamental human rights of women. Given the existing extremism, growing radicalism with in the society, the reform of Hudood laws within Pakistan is likely to remain a controversial and volatile subject. iv. conclusions Notwithstanding an almost exclusive focus on the unifying force of religion, and in the process politicisation of Islam, Pakistan in reality has failed to emerge as a nation-State. Using Rupert Emerson’s terminology, the State merely resembles a ‘nation in hope’. Pakistan was a union of otherwise disparate peoples; Kashmirs, Punjabis and Bengalis divided between India and Pakistan, Pakhtuns split between Pakistan and Afghanistan and Baluchis between Iran Afghanistan and Pakistan. Each community having a different language, culture and tradition found the others at different levels of social, political and economic development. Pakistan also had a significant propor-

 ‘Pakistani Women get Reprieve but Laws Remain Inimical’ http://www.dw-world. de/southasia/pakistan/...html .  The Telegraph, ‘Pakistan is Divided over Rape Law Reform’  August  http:// www.freerepublic.com/focus/f-news//posts  Ibid.  See Dhimmi Watch, ‘Debate Continues on Reform of Rape Laws in Pakistan’  August  http://www.jihadwatch.org/dhimmiwatch/archives/.php  R. Emerson, From Empire to Nation: The Rise to Self-Assertion of Asian and African Peoples (Harvard University Press, Cambridge, Mass., ), p. .

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tion of religious minorities with aspirations of autonomy and self-determination. On their part, Pakistan’s political and military elite failed to make adequate efforts of constitutional and legislative accommodation through strategies of federalism or religious, linguistic and cultural autonomy. As this chapter has exemplified, the politicisation of religion alongside ruthless assimilationist strategies have led to a substantial violations of individual and groups rights in Pakistan. It is not being suggested here that an Islamic system of government is per se antithetical to core value of human rights and constitutional development. To the contrary, there is much in common with the liberal interpretations of the Sharia (Islamic law) and modern human rights law. The path to constitutionalism represents the sole prospect of forging cohesion and building a viable State. As a first and immediate step, Pakistan needs to re-implement the unadulterated version of the  Constitution, with its provisions of fundamental rights, and recognition of ‘internal selfdetermination’ through religious and provincial autonomy. Ideals of rights, both of the individual and the group emanate from principles of the rule of law and are secured by constitutional guarantees. Individual and collective rights imbibe claims of a tolerant environment and rest on a platform of representative and democratic institutions.

 For a discussion of the debate on the compatibility of human rights with the Sharia see J. Rehman, ‘Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities’ ()  International Journal on Minority and Group Rights, pp. –.

part five

Islam, Minorities Rights and the Implications of /

chapter fifteen

Multiculturalism and Extremism: International Law Perspectives Dr Alexandra Xanthaki* i. introduction Multiculturalism has widely been used as a tool of analysis since the s; yet, the definition has always been elusive. As a whole, multiculturalism is a concept that recognises and celebrates cultural identities. According to Parekh, it is about ‘cultural diversity or culturally embedded differences’. Multiculturalism formally recognises rights to cultural groups and/or its members; for example, groups have their Parliament or their bodies and special measures ensure that the individuals within the minority groups are treated more favourably than those of the dominant group in certain areas. As a state policy, it involves rethinking the national story and national identity; understanding that all identities are in a process of transition; developing a balance between cohesion, equality and difference; addressing and eliminating all forms of racism; reducing material inequalities; and building a pluralistic human rights culture. Whereas toleration allows minorities to exercise their culture as long as they do not affect the majority, multicultural policies demand equal respect for all minority cultures and can so require the distribution of political and economic resources in such a way as to sustain and ensure the future of minority cultural communities. Several commentators have recently claimed that policies of multiculturalism are to blame for the rise of extremism and even for terrorist

* Senior Lecturer in Law, Brunel Law School, Brunel University, London.  D. McGoldrick, ‘Multiculturalism and Its Discontents’ in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples and Self-Determination (Martinus Nijhoff Publishers, London, ), pp. – at .  B. Parekh, Rethinking Multiculturalism, Cultural Diversity and Political Theory d edition (Palgrave Macmillan, London, ), p. .  The Future of Multi-Ethnic Britain: The Parekh Report (London, ).  J. Johnson, ‘Why Respect Culture?’ ()  American Journal of Political Science – at . Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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attacks experienced in the United Kingdom. Opponents of multiculturalism argue that such policies contribute to extremism, because they lead to the segregation of groups. They insist that religious and cultural attachments should remain in the private sphere and should not be supported and encouraged by the state. Multiculturalism is also accused of ignoring the national identity; even more so, of inciting disrespect towards it. The argument goes that individuals are encouraged to feel Muslim or Bangladeshi, Greek or Jewish, but not British; and the state does not focus on protecting their Britishness, but focuses on protecting – through unjustified affirmative action – the different racial identities. Therefore, many critics of multiculturalism endorse integration, a policy that tolerates racial difference, but aims towards the building of a common identity, in this case the British identity. This paper addresses the criticisms that the multicultural ideal currently faces by employing current international law. If international law is the system of rules and principles that govern the international relations, its normative directions on the issue cannot be ignored, especially since Britain has signed and ratified most relevant conventions. ii. autonomy and the neutral state Liberals often express their fears about the recognition of cultural membership and usually focus on the argument that such recognition strips away the individual from her autonomy. In liberal thought, human beings are conceptualised as fundamentally autonomous agents; they must remain free to act in accordance with their own rationality and their independent notion of what is good and valuable without the influence of cultural frameworks. Free choice must not be compromised. The attachment to one cultural framework, some believe, encourages blind fanaticism and ultimately strips away the members of groups of their free and informed decisions. However, in a globalized world, it is unrealistic to expect an uncompromised degree of autonomy. The individual does not live in her own glass

 For example, in the UK context, see G. Kepel, ‘Europe’s answer to Londonistan’ Open Democracy,  August ; W. Pfaff, ‘A monster of our own making’ Observer,  August ; ‘When multiculturalism is a nonsense’ Financial Times,  August .  M. Dixon, Textbook on International Law (Blackstone Press Ltd., London, ), p. .  See J.S. Mill, On Liberty ().

Multiculturalism and Extremism: International Law Perspectives  bubble protected by any influence; every day, she comes in contact with various opinions, different views and approaches. Indeed, it is doubtful whether a system of individual rights can sufficiently protect this notion of autonomy: Taylor and Kymlicka uphold that moral autonomy can only be developed through a self-understanding that can only be sustained in interaction with others. According to Taylor, the autonomous, self-determining individual needs a social matrix that promotes in practice this exact idea of autonomy and gives opportunities for the individual to practice and develop her autonomy. Kymlicka argues that each person needs the security of the cultural framework from which she makes her choices. Cultural membership seems crucial to the development and ultimately the autonomy of the individual. McDonald maintains that we cannot perceive ourselves away from the allegiances we belong to, such as family, community, nation or people; we cannot see ourselves only as ‘me’ and not as ‘us’. According to him, the attachments we have to our culture are ‘constitutive ends’, ends that constitute the persons we are. Living by these attachments is essential in understanding ourselves. In general, communitarians believe that our attachment to a community is not necessarily a voluntary one and that the social attachments that determine the self are not necessarily chosen ones. Cultural allegiances go beyond values we happen to believe and hold; beyond the obligations we voluntarily incur and the ‘natural duties’ we owe to human beings as such; they are the core of who we are. MacIntyre clarifies that one’s life can only be understood by looking at one’s actions within a story, but one’s narrative meets the narratives of other people who also come to be a part of the one’s narrative. It is the community and its

 C. Taylor, ‘Atomism’ in S. Avineri and A. De-Shalit, Communitarianism and Individualism (Oxford University Press, Oxford, ), – at p .  W. Kymlicka, Liberalism, Community and Culture (Oxford University Press, Oxford, ), p. .  M. McDonald, ‘Should Communities have Rights? Reflections on Liberal Individualism’ ()  Canadian Journal of Law and Jurisprudence –, at .  M. Sandel, ‘The Procedural Republic and the Unencumbered Self ’ in S. Avineri and A. De-Shalit, Communitarianism and Individualism (Oxford University Press, Oxford, ), pp. – at p. .  Ibid., p. .

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culture that sets up the form and shape as well as the circumstances and the background of these narratives. International law has tentatively accepted the importance of culture for the individual and humanity. The  UNESCO Declaration of the Principles of International Cultural Co-operation has declared the respect that nations should have to ‘the distinctive character of each culture’; furthermore, the  UNESCO Declaration on Cultural Diversity has noted that culture is at the heart of contemporary debates on identity and social cohesion and has linked the protection of culture to human rights. The  UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore specifically protects the culture of sub-national groups. However mainly human rights instruments protect the culture of the individual; for example, the Convention on the Rights of the Child states that education must develop respect for the child’s ‘own cultural identity, language and values’ as well as for ‘the national values of the country in which the child is living’. Within this framework, the position of the neutral state that enforces only basic individual rights and where collective rights are seen as inherently political becomes difficult to maintain today. In essence, the traditional liberal approach suggests that individual rights must be promoted within an essentially neutral and non-virtue promoting state. However, such a position has been accused of being ‘strongly supportive of an abstract or acultural individualism’ and of ignoring the realities of current societies. The neutral state approach promotes blindness to group differences and encourages a rather outdated outlook on societies as homogeneous. It maintains the traditional distinction between the individual and the state; further it derives from a notion of ‘monotheism of the state’, recognising unlimited sovereignty of the state.  A. MacIntyre, After Virtue: A Study to Moral Theory (Duckworth, London, ), p. . Nevertheless, MacIntyre limits these narratives to the family, the tribe and the neighbourhood, rather than to the state, the nation or the class. See A. MacIntyre, ‘Justice as a Virtue: Changing Concepts’ in Avineri and De-Shalit, above n. , pp. –.  Preamble, para. .  Article ..c of the Convention on the Rights of the Child.  W. Kymlicka, ‘Liberal Individualism and Liberal Neutrality’ ()  Ethics – at .  McDonald above n. , at p. .  V. Van Dyke, ‘The Individual, the State and Ethnic Communities in Political Theory’ ()  World Politics – at .

Multiculturalism and Extremism: International Law Perspectives  In actual truth, a state cannot be neutral. In the face of unequal circumstances between the majority and minorities, unequal opportunities and unequal treatment, state neutrality is in effect an affirmation of the way of life, the choices and the ideas of the dominant group and an oversight of the other groups. The neutral state does not promote justice; rather, it maintains the status quo. Members of cultural groups do not have the same opportunities to live and work in their own culture and make their own choices to the same degree as the members of majority cultures. The only way to rectify their disadvantage is by providing them with special rights. Then, they will be given similar degree of opportunities as members of the majority culture. Thus, special rights are accepted in order to ensure equality of circumstances and redress the vulnerability of non-dominant groups. Within this context, the question is shifted from whether the state must take a position by recognizing collective rights to which position the state will take, the position of the dominant group by maintaining a seemingly neutral position or the position of the vulnerable groups by recognising collective rights in an attempt to redress the balance. In the case of the UK, the argument put forward that sub-national groups have been given too much control seems quite weak. The state cannot stay neutral when minorities are being discriminated against. And indeed, this is still the case. For example, some minorities in the UK still have lower levels of economic activity than the majority; more unemployment; and lower incomes than the national average. Muslims, the group largely blamed for extremism currently in the UK, represent % of the UK population, being the largest faith after Christians. Studies demonstrate that discrimination against this religious group has recently been very

 See also C. Taylor, ‘The Politics of Recognition’ in A. Gudmann, Multiculturalism (Princeton University Press, Princeton, ), p. .  A. Addis, ‘Individualism, Communitarianism, and the Rights of Ethnic Minorities’ ()  Notre Dame Law Review – at p. .  Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland. //, UN Doc. CERD/ C//CO/ (Concluding Observations/ Comments).  Office of National Statistics, ‘Profiles’, available on the ONS website at http://www. statistics.gov.uk/census/profiles/uk.asp ( July ), (hereafter, UK  National Census, Profiles).  Office of National Statistics, ‘Profiles’, available on the ONS website at http://www. statistics.gov.uk/census/profiles/uk.asp ( July ), (hereafter, UK  National Census, Profiles).

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high. Muslim children experience high levels of risk factors associated with child poverty: % of them live in overcrowded accommodation; % live in households without central heating; and % of them are growing up in households where there are no adults in employment. Muslims are three times more likely to be unemployed than Christians; have the lowest levels of health among all groups living in the UK and the highest level of disability. Positive measures are the only way to eliminate such discrimination. Indeed, international law has accepted special measures as legitimate means by which to approach equality. The Permanent Court of Justice made in its Advisory Opinion the distinction between formal equality (ultimately, the neutral state thesis) and substantial equality (attempted by the recognition of collective rights) and advocated for the latter. International norms prescribe positive measures in order to push minorities to reach the standards set in general human rights. The prevailing of the provisions on minorities, such as article  of the ICCPR and the United Nations Declaration on Minorities point in this direction. In its General Comment, the Human Rights Committee has made clear that tolerance and non-discrimination are not adequate measures to fulfil article  of the ICCPR. The International Convention against All Forms of Discrimination encourages special measures ‘to ensure the adequate development and protection of certain racial groups and individuals belonging to them’. Although states have traditionally been reluctant, special measures have become more acceptable. Thornberry asserts that the non-discrimination legal formation is becoming more sensitive to issues of culture and identity.  T. Modood, R. Berthoud, J. Lakey, J. Nazroo, P. Smith, S. Virdee and S. Beishon, Ethnic Minorities in Britain: Diversity and Disadvantage (Policy Studies Institute, London, ); also Open Society Institute, Muslims in the UK: Policies for Engaged Citizens (Open Society, London, ).  Muslims in the UK: Policies for Engaged Citizens. The report was presented by Home Office Minister Fiona Mactaggart MP on Monday nd November , at an event where speakers included Trevor Phillip (CRE), Iqbal Sacranie (Muslim Council of Britain) and Polly Toynbee (Guardian), pp. –.  See SPCIJ, Series A/B, No. , .  General Comment (), Human Rights Committee Report A// (), Volume I, –.  Article . and . of the Convention.  P. Thornberry, ‘Ethnic Dimensions of International Human Rights’ in A. Hegarty and S. Leonard (eds.), Human Rights: An Agenda for the st Century (Cavendish Press, London, ), – at p. .

Multiculturalism and Extremism: International Law Perspectives  The U.K. system allows for positive measures in limited occasions. According to the  Race Relations Act, employers can take positive action, but not directly establishing measures of positive discrimination to prevent discrimination or reverse past discrimination. Although these measures should have a positive effect, in practice, their narrow scope, their limited use and – in the case of Muslims – their racial, rather than religious focus – have restricted their positive effects. Also, following the Macpherson Report’s finding of ‘institutional racism’ in the Metropolitan police, the  Race Relations (Amendment) Act imposed a duty on public authorities in carrying out their functions to ‘have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity and good race relations between persons of different racial groups’, also requiring them to draw up equality schemes, enforceable by the Commission for Racial Equality. However, in contrast with the Northern Irish provisions, all these measures are recognized as being applicable to racial minorities, rather than to religious minorities. Recent EU instruments, which allow for greater differentiation in policies to help disadvantaged groups and which include the prohibition of religious discrimination in employment and training, have not had the expected results in the UK policies. As Barrows and Robison note, ‘so far, the United Kingdom has not acted upon this invitation; the religion and belief, and sexual orientation regulations, enacted in partial implementation of the Framework Directive, go only slightly further than the RRA in authorizing affirmative action’. The European Convention on Human Rights, similarly, permits some affirmative action to secure substantive rather than merely formal equality; similarly,  A. McHarg and D. Nicholson, ‘Justifying Affirmative Action: Perception and Reality’ ()  Journal of Law and Society – at p. .  Ss. – ERRA.  The Northern Ireland Act  promotes equality of opportunity between people of different religious belief, while the Fair Employment and Treatment Order  specifically employs the term ‘affirmative action’ to ensure ‘fair participation’ in employment and allows for a wider spectrum of action to be taken in order to promote and protect non-discrimination.  Employment Equality (Religion or Belief ) Regulations , S.I. , Employment Equality (Sexual Orientation) Regulations , S.I. , implementing Directive // EC, OJ L /,  December ; s. (A) RRA, implementing Directive //EC, OJ L /,  July ; Employment Equality (Sex Discrimination) Regulations , S.I. , implementing Directive //EC, OJ L/,  December .  N. Burrows and M. Robison ‘Positive Action for Women in Employment: Time to Align with Europe?’ ()  Journal of Law and Society  and .

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the  Human Rights Act has required courts to interpret all legislation in the light of the open-ended prohibition on discrimination contained in Article  of the European Convention on Human Rights. Still, the UK has not taken full advantage of these provisions through its legal instruments and judicial mechanisms. In this respect, multiculturalism has not gone too far, as the Chairman of the Committee for Racial Equality suggested; on the contrary, it has not gone far enough. iii. challenges to national identity and international law Multiculturalism is also accused of devaluating national identity. In a paper in Financial Times, Martin Wolf concluded that multiculturalism’s alleged departure from the core political values that must underpin Britain’s community ‘is dangerous because it destroys political community . . . (and) demeaning because it devalues citizenship. In this sense, at least, multiculturalism must be discarded as nonsense’. Trevor Phillips, the Chairperson of the Commission for Racial Equality, suggested that multiculturalism has brought us in a position of racial segregation, where ethnic groups within London and the UK live in separate entities with no interaction with each other. ‘In recent years’, he said, ‘we’ve focused far too much on the ‘multi’ and not enough on the common culture’. It cannot be denied that multiculturalism challenges the monotheism of the state by, among others, recognising various allegiances other than allegiance to the state. The monotheism of the state has also been undermined by recent developments in international law: For example, the number of entities that enjoy legal personality – if only for some purposes – is being expanded. Currently, non-state entities such as inter-governmental organisations, regional organisations, non-self governing territories, liberation movements and insurgent communities, non-governmental organisations, corporations and autonomous local administrations can act to some

 For example, In the Matter of an Application by Mark Parsons for Judicial Review [] NIQB . The Court of Appeal later also rejected the argument that the provision breached Art.  in [] NICA .  ‘When Multiculturalism is a Nonsense’ Financial Times,  August   ‘After /: Sleepwalking to segregation’, Commission for Racial Equality,  September .

Multiculturalism and Extremism: International Law Perspectives  extent as agents in international law. Also, a legal status is recognised to many sub-state communities in Cyprus, Bosnia, South Africa and the former USSR, while state practice includes constitutional arrangements that recognise autonomous regimes and wide collective rights to subnational groups. Moreover, international instruments recognise that although sharing the state’s national identity, citizens have in most cases other loyalties as well. These loyalties may lie in groups smaller than the state such as families, local communities; ethnic, religious and cultural groups, as well as groups bigger than the state, such as transnational communities, regional organisations (e.g. the European Union) or even the international society. All these groups represent a series of multiple loyalties that the individual has and incorporate various cultures that influence the individual. More and more, international standards endorse the idea of multiple loyalties and encourage the diversity of cultures. The  UNESCO Declaration on Cultural Diversity notes that culture is at the heart of contemporary debates on identity and social cohesion and affirms that respect for the diversity of cultures is necessary for international peace. The Declaration goes on to say that the diversity of cultures is as important as biodiversity for nature. It views the defence of cultural diversity as ‘an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples’. The text supports cultural pluralism and links the protection of culture to human rights. However, it also makes clear that in case of conflict, individual rights prevail: ‘No one may invoke cultural diversity to infringe upon

 I. Brownlie, Principles of Public International Law (Clarendon Press, Oxford, ), pp. –.  For a discussion on these cases, see B.G. Ramcharan, ‘Individual, Collective and Group Rights: History, Theory, Practice and Contemporary Evolution’ ()  International Journal of Group Rights –.  V. Van Dyke, ‘Human Rights and Rights of Groups’ ()  American Journal of Political Science –; also V. van Dyke, ‘Justice as Fairness: For Groups?’ ()  American Political Science Review –.  Preamble, paragraph .  Preamble, paragraph .  Article .  Article  of the Declaration.  Article .

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human rights guaranteed by international law, nor to limit their scope’. The  UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore also protects the culture of sub-national groups, while the UNESCO Declaration on Race and Racial Prejudice establishes the responsibility of the state to protect human rights and fundamental freedoms on an equal footing for all individuals and groups. Maybe more importantly for this debate, current human rights standards adopt an approach that recognises and celebrates elements of different cultures. For example, the Convention on the Rights of the Child states that education must develop respect for the child’s ‘own cultural identity, language and values’ as well as for ‘the national values of the country in which the child is living’. The Madrid Declaration on Religious Education also proclaims that the child must not be exposed to intolerance in the name of her religion. Other instruments protect the cultures of vulnerable groups. Articles  and  of the Convention on the Prevention and Punishment of the Crime of Genocide enumerate those acts that constitute genocide ‘when intended to destroy, in whole or in part a national, ethnical, racial and religious group’. So in general, international law gives the individual a central role, but also protects her as a member of groups, such as the family, ethnic, national, religious and linguistic groups, nations (peoples) and even the continent and the world. Even though

 Article  of the Declaration. This limitation will be analysed later in this chapter.  Art.  para.  of the Declaration.  Article ..c of the Convention on the Rights of the Child.  Article . of the Universal Declaration and article  of the International Covenant on Civil and Political Rights proclaim that ‘the family is the natural and fundamental group unit of society and is entitled to protection by Society and the State’.  Such as article  of the International Covenant on Civil and Political Rights and the United Nations Declaration on Ethnic, National, Religious or Linguistic Minorities.  Such as the right to self-determination, see Article  of the International Covenant on Civil and Political Rights and article  of the International Covenant on Economic, Social and Cultural Rights; the right of peoples to peace, see United Nations Declaration on the Right of Peoples to Peace; the right to economic, social, cultural and political development, see United Nations Declaration on the Right to Development.  The existence of regional human rights instruments recognises that continents have specific cultures. For example, article (a) of the Statute of the Council of Europe proclaims that the aim of the organisation is ‘. . . to achieve greater unity between its Members for the purpose of safeguarding and realising the ideals and principles which are their common heritage . . .’ [emphasis added].  Thus, the right to the common heritage of the mankind.

Multiculturalism and Extremism: International Law Perspectives  most of these rights are formulated in individual terms, ‘it is hard to see how one could avoid the collective dimension to some of them’. In other words, international law recognises that a Muslim woman being raised in Wales has been exposed to the specific culture of her Muslim family, the Welsh culture, the UK culture and arguably the European culture and has also been exposed to some loosely understood norms of the international community; thus, the international culture (for example the international culture of human rights). Some United Kingdom policies seem to endorse this model. For example, in education, state policies allow for extra teaching for children whose first language is not English; provisions for children to study their mother tongue at secondary level as part of the National Curriculum; allowances for minorities to set up their own schools with the help of the Local Authorities. And of course, the multicultural thrust is obvious in the anti-discrimination legislation, which irrespective of all its weaknesses, prohibits direct and indirect discrimination, harassment and victimization. Specifically with respect to Muslims, government policy has in the last few years started to address discrimination and disadvantage experienced by Muslims as a group, with adjustments to meet specific needs of Muslims. For example, the Treasury has changed rules on Stamp duty to allow financial institutions to offer Sharia mortgages and loans; the Home Office has set up in  a Faith Community Unit which includes within its remit engaging with Muslim communities, while in  the state also established a stop and search action team. But these have been only recent measures that have not yet completely taken off. More such initiatives need to be adopted. Modood notes: . . . the United Kingdom initially offered its Muslims a formal equality but is not yet willing to acknowledge in its institutional and legal arrangements the existence of a Muslim community (. . .) The question of the interrelationship between equality and pluralism has come to the foreign British race relations and is one on which Muslims have increasingly focused.

 Ramcharan, above n. , at p. .  T. Modood, Multicultural Politics: Racism, Ethnicity and Muslims in Britain (Edinburgh University Press, Edinburgh, ), p. .

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Can the recognition of groups other than the state, the recognition of multiple identities undermine the national identity? I argue that this is not the case. Gilroy seems to agree with me. He believes that the widespread perception is as follows: If Brits are to be united and robust in the face of terror, Islam, unwanted immigration and European meddling, we must now become fundamentally and decisively the same. The militarization of everyday life and the elevation of security over the other functions of government, particularly when they are associated with the comfort blanket of imagined monoculture, help to secure that result.

If anything, it is the single culture model that runs to the danger of inciting extremism. The idea of a single culture excludes the group from the ideas of other cultures and perpetuates the false perception that cultural membership is pre-determined and firmly fixed. Groups become rigid and pushed into mutually exclusive oppositions. The approach of ‘otherness’ generally denies the particularities of the various groups and overlooks variations among the individuals belonging to the same group. It leads to the fear of the other group (xenophobia), nationalism and incites discourses about the purity and virtue of a particular group and its culture. Unfortunately, several studies confirm the exclusion of the Muslim minority in the UK. In addition to the on-going discrimination against Muslims and the lack of formally recognising them to the same level as racial minorities are recognised, it is beyond any doubt that Muslims are excluded from the mainstream society. Their disproportionate representation in most deprived urban communities and their concentration in the poorest areas of cities are indicative of their marginalisation. Attitudes and treatment based on stereotypes and prejudices are common forms of discrimination. Alexander suggests that Muslim young men have emerged as the new ‘folk devils’ of popular and media imagination, being represented

 P. Gilroy, ‘Multiculture in Times of War’, Paper delivered on  May  at the LSE, London.  I.M. Young, ‘Together in Difference: Transforming the Logic of Group Political Conflict’ in Will Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, Oxford, ), pp. –.  Office of National Statistics, Focus on Religion, London, ONS, , p. , available at http://www.statistics.gov.uk/downloads/theme_compendia/for/FocusonReligion.pdf (accessed  October ), (hereafter, ONS, Focus on Religion).

Multiculturalism and Extremism: International Law Perspectives  as the embodiment of fundamentalism. To be a British Muslim is defined ‘solely in terms of negativity, deprivation, disadvantage and alienation’. They are not only seen as ‘dangerous individuals’ with the capacity for violence or terrorism, but also culturally dangerous, as threatening the British way of life/ civilization. For example, discussions about Muslim/Asian gangs often focus on their extremism and fanaticism, but [erase] structural disadvantages and inequalities of power, and [render] invisible and silent the processes of racism, racial disadvantage and violence.’ Other studies have picked up stereotypes about British Muslim women as both oppressed and powerless. The continuing discrimination and exclusion of certain groups from the mainstream society would go to some extend to explain the radicalisation in Europe: individuals coming from oppressed groups, groups that are excluded from the public life are more likely to alienate themselves even more, to create a completely separate system and to try to undermine the state’s sovereignty. I would argue that the  London attacks have some links to the practices of discrimination embedded in society and did not stem from the right of individuals to maintain and develop their culture. The anger of the individuals who committed these acts was not the result of being allowed to develop their cultural characteristics, but at least partly the result of their continuing exclusion by the state and its citizens. Modood reminds us of the ‘ethnicity paradox’, the term American sociologists Park and Thomas used for their conviction that allowing ethnic communities to take root and flourish in the new soil was the most satisfactory way of promoting long-term integration and participation in the institutions of the wider American community. Modood notes: Allowing more space to ethnic communities to do their own thing enables them to become a feature of the new society and creates a

 C. Alexander, The Asian Gang, Ethnicity, Identity, Masculinity (Berg, Oxford, ), at p. .  C. Alexander, ‘The Asian Gang: Contesting Britishness’ / Connections, http:// www.cre.gov.uk/publs/connections/articles/wi_asiangang.html.  C. Dwyer, ‘Negotiating diasporic identities: young British South Asian Muslim women’ ()  Women’s Studies International Forum –.  T. Modood, A. Triadafyllidou and R. Zapata-Barrero (eds.), Multiculturalism, Muslims and Citizenship, A European Approach (Routledge, London, ).

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Mason notes that ‘a sense of belonging to a polity can provide the basis for patriotism understood simply as the love of its central institutions and practices’. According to him, a person has a sense of belonging to a polity, when she can identify with most of its major institutions, perceives them as valuable, conducive to their flourishing, reflective of her concerns; ultimately, when she has the ability to find her way around them and to experience participation in them as natural. This is not how the Muslim minority currently feel in the UK. In , the British Home Office Citizenship Survey indicated that one third of Muslims felt that the Government was doing too little to protect the rights of minorities in the UK. Levels of dissatisfaction were higher among young Muslims (– years old). Research conducted prior to September ,  found that Muslims are the most likely to report unfair treatment in their job. Another survey suggests that after September the th, % of Muslim respondents reported being subjected to Islamophobia; % felt they had been perceived and treated differently. iv. multiculturalism and segregation An element that has largely been neglected is that exclusion is possible within a diverse environment. Indeed, the mere recognition of multiple identities does not lead to a truly multicultural society, as segregation can surface through measures aimed at the protection of the groups’ distinctiveness. Multiculturalism is not about segregation; this is a false implementation of the concept. Multicultural policies do not support the co-existence of various cultures as separate entities that happen to exist and develop independently within the state. Studies have shown that maintaining separate and mutually exclusive systems does not protect the

 Ibid., Modood, above n. , p. .  A. Mason, ‘Political Community, Liberal Nationalism and the Ethics of Assimilation’ ()  Ethics – at .  Ibid., p. .  D. Kostakopoulou, ‘Thick, Thin and Thinner Patriotisms: Is This All There Is?’ () Oxford Journal of Legal Studies –.  Open Society Institute, Muslims in the UK, above n. , pp. –.

Multiculturalism and Extremism: International Law Perspectives  minorities in question; on the contrary, it contributes to the exclusion of these groups and the worsening of the tension and hostility between the various groups of the society. Young has emphasised that difference is not to be perceived as exclusion. Although primarily interested in social groups, her approach is very helpful for cultural groups. She views different groups as: . . . overlapping, as constituted in relation to one another and thus, as shifting their attributes and needs in accordance with what relations are salient. In my view, this relational conception of difference as conceptual helps make more apparent both the necessity and possibility of political togetherness in difference.

In Young’s model, difference does not mean otherness, or exclusive opposition, but rather specificity, variation, heterogeneity. Different groups potentially share some attributes, experiences or goals. Their differences will be more or less salient depending on the groups compared and the purposes of the comparison. The characteristics that make one group specific and the borders that distinguish it from other groups are always undecidable. Yet, all groups understand themselves as participants in the same society, subjects to inter-action, exchange and inter-dependency. The interaction causes, sometimes, friction and conflicts that are resolved following institutions and procedures of discussion that all participants have accepted as legitimately binding. It is important that the groups are not pushed towards a forged cultural consensus or a symbolic order. The groups are heterogeneous and have a differentiated place in public

 P. Wilkens, ‘European Integration and Roma: Postnational Pluralism or Lingering Liminality?’ Paper presented for the Conference ‘Immigration in Cross-National Context: What are the implications for Europe?’ June –, , Luxembourg.  T. Hadden, ‘Integration and Separation: Legal and Political Choices in Implementing Minority Rights’ in Ghanea and Xanthaki (eds.), above n.  at p. .  I.M. Young, ‘Together in Difference: Transforming the Logic of Group Political Conflict’ in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, Oxford, ), –, p. .  M. Schulte-Tenckhoff, ‘The Right of persons belonging to minorities to enjoy their own culture’, Working paper submitted to the  working group on minorities, UN Doc. E/CN. /Sub./ AC.//WP. , paras. –.  G. Delanty, ‘Re-inventing Community and Citizenship in the Global Era: A Critique of the Communitarian Concept of Community’ in E. Christodoulidis (ed.), Communitarianism and Citizenship (Ashgate, Aldershot, ), pp. – at p. .

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life. Young calls this model ‘the heterogeneous public’ and encourages this model of multiculturalism. The recent UNESCO World Commission Report emphasises the importance of pluralism and political democracy. The idea of pluralism is realised through the various provisions on participation of minority groups to the decision-making process of the (democratic) society they live in. The UN Declaration on Minorities proclaims that members of minorities have the right to participate effectively in decisions at the national and, where appropriate, regional level. More and more international norms encourage the interaction of the various groups existing in the same state. The  UNESCO Declaration of the Principles of International Cultural Co-operation declares that ‘. . . in their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind’. The Declaration makes clear that cultural co-operation, aiming at the mutual benefit of the nations practising it, is a right and a duty for all peoples and nations and should be exercised in a spirit of broad reciprocity. All nations must respect the distinctive character of each culture, while promoting their enrichment in an atmosphere of friendship and peace. The UN Declaration on Minorities also stresses the need for mutual knowledge and understanding between minorities and the majority within the state (article .). Both the Framework Convention on National Minorities by the Council of Europe and

 World Commission on Culture and Development, Report: Our Creative Diversity, Chapter II, p. . UNESCO organised in January  the colloquium ‘Towards a constructive pluralism’ where the idea of pluralism was discussed in depth. See http://www.unesco. org/culture/culturalpluralism/html_eng/overview.ht.  See for example, article  of the  Council of Europe Framework Convention for the Protection of National Minorities; also para.  of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE ().  Article . of the UN Declaration on Minorities.  The Framework Convention for the Protection of National Minorities refers to ‘a pluralist and genuinely democratic society’ as the model to be achieved and emphasises in the preamble that ‘that the creation of a climate of tolerance and dialogue is necessary to enable cultural diversity to be a source and a factor, not of division, but of enrichment of each society’. Thus, the convention urges members of both minority and majority groups to learn more about their respective histories, traditions, languages and cultures (Article .). This reflects one of the elements that Parekh in his  report on Multicultural Britain suggests as very important.  Article . of the Declaration.  Articles – of the Declaration.

Multiculturalism and Extremism: International Law Perspectives  the OSCE Copenhagen Document re-assert the importance of the spirit of tolerance and intercultural dialog, mutual respect and understanding that should exist among the minorities and the majority. The idea of reciprocity among cultures is also emphasised in the comment of the Committee on Human Rights in relation to the protection of cultural rights: The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. [emphasis added]

The reaffirming of a plural, inclusive, British identity that can be relevant to British Muslims is critical to isolating and defeating extremism; it is this policy that promotes the British identity. Minorities must be included in all aspects of society as equal partners. Multiculturalism is about a dialog process that includes different elements of the society, a process where groups are conceived as equal partners rather than mere negotiators or imitators of the dominant groups. Addis has made the distinction between two forms of pluralism: paternalistic pluralism and critical pluralism. In paternalistic pluralism, minorities are viewed as the ‘others’ and their rights are protected as a means to ‘save’ them from the majority, while in critical pluralism, minorities are seen as partners in the evolution of the society. The state actively engages in a dialog with minorities in order to find the best way and resources to make minority cultures flourish. Moreover, the state creates institutions that enable the rest of the population to open itself up to all groups, by accepting them all as dialog partners. In Britain, Muslims are still to be considered as equal partners in the evolution of the society. Expecting minorities to accept the ‘British way of life’, a phrase often heard by officials and the public, really translates to excluding them from taking part in the shaping of this society, excluding them from changing and bringing new values to the British culture.

 Article . of the  Council of Europe Framework Convention for the Protection of National Minorities and paragraph  of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE ().  General Comment no.  () on Article , UN Doc. CCPR/C//Rev./Add.,  April .  A. Addis, ‘Individualism, Communitarianism, and the Rights of Ethnic Minorities’ ()  Notre Dame Law Review –.  Ibid., at p. .

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Accepting exactly what they have found: this is what is required of them. Trevor Phillips was right to say that the common British identity should be strengthened, but in the evolution of this identity minorities have an important role to play through political bodies, including pressure groups, consultative bodies, party political influence etc. It is disheartening to see that especially after //, statements focused on what Muslim groups should do to eradicate extremism, rather than what the state can also do to help improve the Muslims’ lives within the UK. These statements stress overly that minorities must not forget that ethnic and religious groups also have obligations. International law facilitates groups to protect their rights; at the same time though it stresses that minorities must perform these rights in an orderly and peaceful manner within the rule of law and democracy and with respect to the existing system of international law. Principle  of the  CSCE Geneva Meeting of Experts on National Minorities affirms that persons belonging to a national minority will enjoy the same duties as the rest of the population; thus, their communities must respect their individual rights. The text urges members of minorities to claim rights through the parliamentary and legal systems and to use peaceful methods; they should be guided by the principles of dialog and consultation in pursuing their rights. Equally important is the interaction of the group with the other segments of the society. Indeed, ethnic and religious groups should also try to participate in the life and evolution of society as a whole, rather than be introvert and exclusive of ‘outsiders’. Groups must endorse dialog and acknowledge that together with the national culture, their culture will also evolve. Dialog leads to revisibility and re-evaluation of the group culture, which according to Kymlicka, are important processes that can lead to mutual corrective engagements. Through dialog group members are challenged to accommodate in their own world the objective reality of wider groups they belong to. They interact, exchange ideas and benefit from the

 For example, in a statement, Tony Blair said that ‘it was down to the moderate Muslims to stand up to extremism’, ‘Muslims must rule out extremism’ BBC News,  July .  Ramcharan, above n. , at p. .  M.M.M. Estebanez, International Organisations and Minority Protection in Europe (Turku/Abo: Abo Akademi, ), p. .  W. Kymlicka, above n.  at p. .

Multiculturalism and Extremism: International Law Perspectives  cultures of other groups rather than just from their own culture exclusively. Waldron cautions that there is a contradiction between the evaluations that Kymlicka’s revisibility condition leads to and the secure cultural framework Kymlicka aspires to. He maintains that genuine evaluations can only take place when the individual and the culture are vulnerable to challenges and comparisons from outside; thus, when they are not secure; otherwise, the evaluations have no practical effect, as there is no basis for an informed and sensible choice. I cannot see the contradiction between feeling secure in a cultural framework and be open. Security does not mean isolation, neither does it mean stagnation. On the contrary, it seems to me that if cultures are respected and celebrated, they become more open and more willing to re-evaluate practices and values. It must be recognised that the re-evaluation of cultural practices contributes to the evolution of the culture, avoids its stagnation and makes it more relevant to the needs and realities of today’s society. Of course, who represents whom in this dialog is a fundamental issue; it is also an issue relevant to the Muslim minority within the UK. The modalities of ensuring full participation and real representation is a difficult one; however, one should thrive to make all voices heard, particularly the voices of the vulnerable members of the group. Kukathas points out the differences and conflicts of interests that could exist within any one group. He notes that when elites are confronted with modernisation, they often develop distinct interests from the masses and in some cases they abuse the masses for personal ends. If the decision about the illiberal practice is made by the elite, it may not reflect all sections of the group and thus could lead to further illiberal results.

 J. Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ ()  University of Michigan Journal of Law Reform –, as reprinted in Kymlicka, The Rights of Minority Cultures, pp. – at p. .  J.T. Levy, ‘Sexual Orientation, Exit and Refuge’ in A. Eisenberg and J. Spinner-Halev (eds.), Minorities Within Minorities, Equality, Rights and Diversity (Cambridge University Press, Cambridge, ), pp. –.  C. Kukathas, ‘Are there any cultural rights?’ ()  Political Theory – at .

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Alexandra Xanthaki v. what if the group endorses segregation?

As mentioned earlier, international provisions envisage groups as forms of concentric circles around the individual. Apart from her own attributes and choices as an independent agent, the person is also influenced by her immediate group (such as her family), peer group (such as the local group), ethnic, religious and cultural group, her nation (peoples), state, continent/ region and finally, loosely by the main culture we all share as citizens of a common world. The closer the circle to the person, the more influence it has on her. In order to protect the individual, all the various ‘circles’ – loyalties – around her need to be protected. Thus, international law includes a different set of protection for the individual, but also her family, ethnic, cultural or religious group, the society she lives in, and finally the culture of her region and the culture of the world itself. All these groups represent a series of multiple loyalties and their lives and choices represent a mixture of characteristics of the above communities. The existence of regional human rights instruments recognises that regions also have, or can develop, specific cultures. For example, article (a) of the Statute of the Council of Europe proclaims that the aim of the organisation is ‘. . . to achieve greater unity between its Members for the purpose of safeguarding and realising the ideals and principles which are their common heritage . . .’ [emphasis added]. This model prevents possible conflicts between many interests. If cultures are not seen as antagonistic, but as complimentary of each other within the same society that respects and celebrates their differences and if interaction among them is encouraged, then changes could be instigated. If the individual is open to influences by several cultural frameworks, then conflicts will be resolved through the process of re-evaluation of the cultural practices by the group itself. The problem occurs when the group is not open to other influences, the individuals of the group are not open to other cultural frameworks and thus, the revisibility process is not initiated. Unfortunately, some members of vulnerable and excluded groups reject mainstream society and become very insular. When this rejection involves the violation of human rights, then some commentators argue that the values of the national society must prevail. Conflicts between

 R. Alexy, ‘Individual Rights and Collective Goods’ in C. Nino (ed.), The Ethics of Human Rights (Oxford University Press, Oxford, ), pp. –.

Multiculturalism and Extremism: International Law Perspectives  rights and interests is a common phenomenon in human rights; apart from the general distinction between derogatory and non-derogatory rights, no pre-determined hierarchy exists. Any such conflicts between rights, principles and norms are generally solved on an ad hoc basis, after taking into account various considerations. A system that ignores the widespread voices for cultural recognition because of its perceived inconsistency with western liberal theories strikes me of cultural imperialism. Such a direction justifies the complaints of vulnerable societies that international law has done nothing to salvage them and much to damage them; it is law that promises liberation, but oppresses. The major challenge of current human rights is not to implement the priority of the national society over the communities; but rather, to devise a fair way of preserving the core values of both sides whilst they coexist in harmony. Is this possible? International law seems to suggest so. The model of concentric circles highlights the existence of ‘a wider circle’, common values that are more or less common for the whole humanity; otherwise called ‘international public reason’. These values are expressed in the international decisions, including treaties, customary law, general principles and soft law. In other words, the international community operates as a society of societies with its own public culture and conception of public reason. These values include the non-derogable human rights, such as the right to life and prohibition of torture. No cultural practices and beliefs can violate the core of these values. However, some practices do not violate the core of such values and could prevail. This will necessarily be an ad hoc decision, where all elements, interests and rights are taken into account. In making these decisions, several principles must apply. In Lovelace, Kitok  and Länsman, the Human Rights Committee asked for the existence of a reasonable and objective justification for the prevalence of one right over

 P. Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, ), p. .  A. Eisenberg, ‘Context, Cultural Difference, Sex and Social Justice’ ()  Canadian Journal of Political Science – at .  E. Kelly, ‘Justice and Communitarian Identity Politics’ ()  The Journal of Value Enquiry –.  Ibid.  Communication No. /; views in UN Doc. A// ().  Communication No. /; views in UN Doc. A// ().  Communication No. /; views in UN Doc. A// ().

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the other; consistency with human rights instruments; the necessity of the restriction; and proportionality. It is argued that the complete neglect of one right – be it collective or individual – for the safe realisation of the conflicting right would in most cases violate the principle of necessity. vi. conclusions Criticisms against multiculturalism have been mainly based on a model that ignores the interaction between groups. Although in the UK cultural groups are able to live side by side to each other, they do not always mix with each other. Combined with discrimination against them, deep suspicion and continuing prejudices, this has lead to the ghettoisation of some groups. Segregation is not healthy for the group itself, nor is it healthy for the society. Blaming the group for separatist and ultimately extremist beliefs when the state and its policy-makers have done little to make these groups feel comfortable within the state and its institutions seems to perpetuate rather than solve the problem. Multiculturalism is not the problem; real multiculturalism, properly conceived and effectively implemented is the solution. A policy of multiculturalism where minorities are not discriminated against, different cultures are celebrated and minorities are recognised as equal partners in the evolution of the British state and the British identity is, I believe, still the only answer to extremism.



For more discussion on these cases, see Thornberry, above n. , pp. –.

chapter sixteen

Prayers, Planners and Pluralism: Protecting the Rights of Minority Religious Groups Alice Diver and John Thompson* We need to address the problem of places of worship acting as focus points for extremist activity.Ψ

i. introduction The concept of religious freedom frequently looks to a wide range of ‘facially neutral’ domestic measures for its translation into an effective right to worship freely; it is not surprising that such local-level regulations tend to favour the majority population and are perceived by disaffected minorities as yet another institutionalised aspect of unspoken ethno-cultural prejudice. The right to engage in worship is frequently vetoed by the various bureaucratic institutions that serve as focal points for economic and political power within Western jurisdictions. Where the State’s permission is required to use or acquire land on which to construct sacred premises, religious freedom may be further constrained by administrative adherence to Eurocentric or overtly secular policies; such provisions are, in turn, often subject only to lax judicial scrutiny. Whether case law concerns the hurried passing of ad-hoc bye-laws designed to prevent minority religious rituals in Florida, the citing of parking ordinances to prevent minority students

*

School of Law, University of Ulster (Magee). (UK Home Office Consultation Doc. ‘Preventing Extremism Together: Places of Worship’ October th ).  G. Moon and R. Allen ‘Substantive Rights and Equal Treatment in Respect of Religion and Belief: Towards a Better Understanding of the Rights and Their Implications’ EHRLR () , –.  Such as local authorities; See F. Raday ‘Culture, Religion and Gender’ ()  International Journal of Constitutional Law, –.  Church of the Lukimi Babalu, Aye Inc v. City of Hialeah ()  L Ed d . Ψ

Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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using a Mississippi campus building for prayer, the ‘grandfathering’ of local cemeteries in favour of Judaeo-Christian burials or the open-ended delays and moral panics surrounding planning permission for a Northern Ireland Mosque, the act of public worship by minority groups seems to present a worrying challenge to majority populations and ruling elites. The modern inequities of Western statutory frameworks and local government policy are therefore perhaps aimed at quietly perpetuating those colonial ‘blemishes of the past’ which sought active ‘Christianisation’ of ethnoreligious minority groups. ii. religious persecution as a means of social control throughout history The difficulties faced by ethno-religious minority groups seeking to establish a right to either create or acquire a place to worship publicly within Western legal frameworks, are not unique to modern society. Governments have long focused disapprovingly on any minority belief system capable of remaining hidden away from ‘the supposed sophistication of the cities’ or which provided people with some degree of control over their own lives. The traditions of Gnostic Manachaeism, Catharism, and Knights Templar all suffered under Ecclesiastic and State scrutiny, whilst the active persecution of such minorities was condoned by ‘blind-eye turning’ ruling elites. In A.D. , for example, Theodosius I declared that members of such sects were

 Islamic Centre of Mississippi Inc v. City of Starkville ()  F.d  (th Cir. ).  Mount Elliott Cemetery Association v. City of Troy  F.d  – (th Cir. ).  See A. Chrisafis, ‘Racist War Of The Loyalist Street Gangs: Orchestrated Attacks on Minorities Raise Fears Of Ethnic Cleansing’ Ireland correspondent, Saturday January , , available at http://www.guardian.co.uk/race/story/,,,.html accessed ..; Response of the Northern Ireland Human Rights Commission to the Consultation on Political Party Advertising (March ) para.  available at http://www.nihrc.org/ documents/landp/.doc accessed ..; NIHRC ‘Hate Crime in Northern Ireland’ – Speech to Seminar ‘Combating Racially Motivated Crimes Through Legislation’, Dublin .. available at http://www.nihrc.org/documents/speeches/Hate_Crime_.pdf accessed ..  S.J. Anaya, Indigenous Peoples In International Law (Oxford University Press, Oxford, ), at p. .  P.J. Ball, ‘Persecution of the Supernatural’ in Capella Natural Magic (); pp. – ‘the word ‘pagan’ originally meant ‘beyond the city’.

Protecting the Rights of Minority Religious Groups  without civil rights and incapable of bearing witness to legal contracts; in a move which presaged the confiscation of defendants’ real and personal property during the sixteenth-century English witch trials, any document signed by a ‘heretic’ was held to be void in law. Papal Inquisitors in th century Germany sought the removal from society of any ‘negative elements’ to maintain Catholicism’s superiority and to prevent some ‘ultimate treason’ which non-believers (i.e. all those they regarded as ‘pagan’) were apparently likely to perpetrate against the majority population. Colonial settlers revived Roman doctrines of jus gentium to wage brutal ‘just wars’ of religious persecution against indigenous populations; a wide range of human rights abuses resulted, not least within the context of massacre, land seizure, extinguishment of non-Christian customs and religions, and an ongoing legacy of ‘cultural genocide’. At the same time, Elizabethan social policy-makers created moral panics over the increasing consumption of finite social welfare resources by immigrant settlers or nomads; repatriation of ethnic minorities was called for, with notions of the parasitic ‘sturdy beggar’ promoted in both popular culture and legislation. This mode of ‘Social Darwinism’ was underpinned by Eurocentric bias towards ‘civilized’ forms of property occupation and usage, such as feudal tenure and freely alienable estates and interests. Settler-imposed, capitalist ideals further strengthened this ‘individualistic orientation of

 G. Scarre, Witchcraft and Magic in th and th Century Europe; Studies in European History (Macmillan, London, ), at p. .  Ibid., p. .  Divine doctrine (e.g. Spain’s Encomienda) allowing missionaries to invade and seek religious conversions see Anaya, below note , pp. –.  See S. Pritchard (ed.), Indigenous Peoples, The United Nations and Human Rights (Federation Press, Sydney, ), pp. –.  See A.F. Kinney, Rogues, Vagabonds And Study Beggars: A New Gallery Of Tudor And Early Stuart Rogue Literature Exposing The Lives, Times, And Cozening Tricks Of The Elizabethan Underworld (Amherst, Boston, ) (in particular the work therein of J. Awdesley, The Fraternity of Vagabonds () or T. Harman, A Caveat or Warning for Common Cursitors, Vulgarly Called Vagabonds () which inspired both the ‘Statute Of Artificers’  and the ‘Poor Law’ of  respectively.  H. Spencer, ‘Progress: Its Law and Causes’ (April ) The Westminster Review, Vol. , pp. –; see also C. Samson, ‘Rights as the Reward for Simulated Cultural Sameness: The Innu in the Canadian Cultural Context’ in J.K. Cowan et al. (eds.), Culture and Rights: Anthropological Perspectives (Cambridge University Press, Cambridge, ), –.  See P. Coughlan, Property Law (Gill and MacMillan, Dublin, ), pp. –.

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Anglophone countries’; maximisation of land values through ‘enlightened’ economic practices of crop cultivation or forest harvestry became a moral imperative. The preference for economically rewarding and morally ‘worthy’ individual endeavours was but one manifestation of colonial supremacy however. Where the dominant population saw its culture as being materially and spiritually superior to that of all other groups, acts of persecution were vindicated as being necessary to usher in ‘a new era of progress and prosperity’ for conquered beneficiaries. The loss of sacred native title was thus offset by the ‘gift’ of religious redemption and eternal salvation (with the incidental avoidance of further bloodshed) for example via Requerimiento’s ritual of conversion to Christianity. The resulting ‘contrivance of sameness’ led to overt strategies of assimilation which have arguably dominated social policy ever since. As Heraclides noted, such systems of highly ‘institutionalised rewards’ tend to induce pronounced displacement of religious and cultural identity among ‘beneficiaries’, creating deliberately weakened and ‘dispersed enclaves’ or ‘haphazard aggregations’ of ethno-religious communities

 H. Hannum, ‘The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples and the Right to Autonomy’ in E.L. Lutz et al. (eds.), New Directions in Human Rights (University of Pennsylvania Press, Philadelphia, ), pp. –.  See J.A. Fuentes ‘Protecting the Rights of Indigenous Cultures under the Current Intellectual Property System; Is It a Good Idea?’ () () JMLS Review of Intellectual Property Law at p. .  See S. Perkins,‘Researching Indigenous Peoples Rights Under International Law’ () – Revision of Paper presented to the Annual Meeting of the American Association of Law Libraries ().  A. Heraclides, The Etiology Of Succession In The Self-Determination Of Minorities in International Politics (British Library, London, ); See also S.E. Merry, Changing Rights, Changing Culture in R.A. Wilson (ed.), Human Rights, Culture and Context-Anthropological Perspectives’ (Pluto Press, London, ), pp. –.  See Samson, above n. .  See A.E. Daes, Protection of the Heritage of Indigenous People, Report as Special Rapporteur and Chair to the Working Group on Indigenous Populations) UN, New York and Geneva, ).  See Heraclides, above n.  (i.e. such as the induced ‘sedentarization’ of nomadic peoples in return for welfare payments).  D. Johnson, Native Rights as Collective Rights: A Question of Group Self-Preservation in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, Oxford, ), at p. .

Protecting the Rights of Minority Religious Groups  rather than distinct, culturally autonomous (and thus potentially rightsbearing) minority groups. Practices of dispersal and displacement were not limited to land claims and issues of cultural identity however, nor were they the sole preserve of the ‘New World’ territories. As Oba noted recently in relation to Nigeria, colonial powers classified Islamic law as merely customary, thereby diminishing its former status as a ‘complete, self-sufficient and self-regulating legal system’; ‘Christianity-based’ common law was promoted instead to protect imported Western values and preserve secular State priorities relating to culture, language, and perhaps most significantly, feudal methods of property succession. Likewise, in relation to Sweden, Ritzén has outlined the traditional insecurity and low cultural status of the Muslim minority, as evidenced by their lack of places of worship, schools and local cemeteries. Deliberate ‘Christianisation’ has been a key factor, with the Muslim community coerced towards Western norms of formal church congregation and patterns of worship; most significantly, the main vitiating factor has been that of ‘local opinion working against any building of mosques, and political delays when it came to matters of city planning’. This particular stumbling block appears frequently; the delay principle, whether or not accompanied by heightened community fears, has been highly effective in controlling both the allocation of community resources and the granting of substantive rights of citizenship. In sum, where ‘religious pluralism . . . compound(s) ethnic pluralism’ it promotes institutionalised prejudice. Secular states may easily draw upon dominant, traditional ideologies to justify the discriminatory rationing of resources against a rising tide of domestic equality provisions, even those that are apparently underpinned by human rights principles or

 A.A. Oba ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’ ()  ICLQ, .  See dicta of Summers L.J. in Bowman v. Secular Society [] AC  on the ‘essential Christianity’ of common law, good government and ‘heathen communities’ generally pp. –.  K. Ritzen ‘Swedish Encounters with Islam’ () Centre for the Study of Islam and Christian-Muslim relations, Birmingham CSIC Papers No. .  J. Alwall ‘Religious Liberty in Sweden: An Overview’ ()  Journal of Church and State ; See also J.S. Nielsen, Muslims in Western Europe (Edinburgh University Press, Edinburgh, ), p. .  See Oba, above n. .

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international law. Likewise, the ‘fundamental clash of world views’ which exists between many religions and cultures over modes and sites of worship, provides for an almost unassailable form of social control by ruling elites. Domestic legislation seems increasingly immune to minority challenges on human rights grounds, given the non-intervention norm and the wide margin of appreciation afforded to states on non-secular matters. iii. ‘freedom to worship’ as a human right Freedom of religious worship is a well-established theoretical principle of both regional and international human rights instruments. The Universal Declaration of Human Rights (), The International Covenant on Civil and Political Rights (), and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief () all bear witness to the apparently ‘sustained concern’ of the international community. Regional documents, such as the European Convention on Human Rights () and the American Convention on Human Rights () closely echo their international counterparts in aim, language and scope. All acknowledge the difficulties in distinguishing between ‘religious and ethnic conflicts and those of other kinds, particularly political and ethnic’. To this end, they are sensitively drafted, aimed at

 J. Githiaga ‘Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge’ () () Murdoch University Electronic Journal of Law available at http://www. murdoch.edu.au/elaw/issues/vn/githaiga.html  H.J. Heintz ‘The Protection of Indigenous Peoples under the ILO Convention’ in Bothe et al. (eds.), Amazonia and Siberia: Legal Aspects of the Preservation of the Environment and Development in the Last Open Spaces (Graham and Trotman, London, ), pp. –.  Res A (III) Article .  Res A (XXI) Article .  Res / Article .  K. Musalo ‘Claims for Protection Based on Religion or Belief ’ ()  International Journal of Refugee Law, .  See Article ; Courts tend to focus however on the rights contained in article  (‘fair trial’), or occasionally on article  (‘freedom of expression’), article  (‘freedom of association’). See for example Serif v. Greece ( E.H.R.R. )  Dec  on the potential for overlap between such provisions.  Ibid., Article .  A. Amor (Special Rapporteur) Civil and Political Rights, including Religious Intolerance Report submitted in accordance with Commission on Human Rights resolution / UN Doc E/CN. //.

Protecting the Rights of Minority Religious Groups  subtle encouragement of tolerant regimes, ‘effective consensus’ and some form of ‘benevolent neutrality’ on the part of domestic draughtsmen. There is however increasing political awareness of the analytical complexity which surrounds modern claims to religious freedom; as instances of genocide, dramatic ‘ethnic cleansing’ and overt religious persecution under totalitarian regimes arguably become less frequent, they are being replaced by domestic cases of subtle persecution via identity suppression. Durham noted succinctly that it is often these bureaucratic roadblocks which cumulatively have the effect of significantly impairing religious liberty. These can take the form of denying or delaying registration (granting entity status) and obstructing land use approvals.

The more subtle forms of religious discrimination tend to slip through the widely drafted provisions of the main international instruments, which, in fairness were aimed at protecting refugees and preventing a repeat of the religious massacres of the last century. The wording of Article  UDHR (protecting freedom of ‘thought, conscience and religion’) clearly reflects the negotiations which led to it, when secular compromise was reached regarding the right to adhere to any or indeed no religious faith. The principle was subsequently confirmed by Strasbourg as being as much a ‘precious asset for atheists, sceptics and the unconcerned’ as it would be for the devout worshipper. Likewise, the ICCPR fails to fully define either ‘religion’ or ‘belief ’, relying instead upon its General Comments and Special Reports for interpretative guidance. In effect, States are required to negatively protect their citizens by refraining from actively coercing or

 C. Durham ‘Perspectives on Religious Liberty: A Comparative Framework’ in J. Van der Vreyer, and Witte (eds.), ‘Religious Human Rights in Global Perspective’ (Martinus Nijhoff Publishers, Boston, ), at p. .  See Amnesty International website http://web.amnesty.org/library/index/ENGIOR  accessed at ..  See Durham, above n. .  See the  Refugee Convention,  Protocol RESOLUTION  (XXI) available at http://www.unhcr.ch/cgi-bin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id =bcaa accessed ...  See Moon and Allen, above n. .  Kokkinakis v. Greece ()  EHRR  at .

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threatening them either into or out of any one particular faith or preference for non-belief. The freedom to actually create a place in which members are free to worship in public may come within the protection of Article  UDHR, which theoretically encompasses all acts integral to expressions of belief within its non-derogable provisions. The distinction it makes between public and private worship however, is significant. Article () provides only qualified protection in relation to freedom of worship in public. This particular right, unlike that which protects the sacred forum internum of individual personal thought and private modes of worship, can be subject to domestic curtailment provided such provisions have been correctly prescribed by law, and deemed necessary for a fixed but widely drawn range of purposes. These include the maintenance of public order, safety, health, and morals or the preservation of the rights or fundamental freedoms of others. The list is sufficiently comprehensive to provide an effective ‘get out clause’ for most Western states facing charges of religious discrimination, as can be seen from relevant domestic jurisprudence, which often turns on the issue of defining fair and just proportionality. Article  of the European Convention on Human Rights () is similarly drafted; its first paragraph protects the private, individualised aspects of religious worship, namely ‘the core of the right; the right to think freely and hold personal beliefs.’ The communal aspect is however limited by the public interest qualification of its second paragraph. Whilst outright harassment on the grounds of a person’s beliefs is proscribed by Article (), State persecution can ‘take less obvious forms,’ such as ‘unfavourable treatment as a result of the negative attitude of State authorities’. This is supported by The UNHCR Guidelines on International Protection () where it was admitted that,

 See General Comment  adopted by the Human Rights Committee under Article , paragraph  of the ICCPR’ UN Doc CCPR/C//Rev./Add. ( Sept. ).  See for example Love Church v. City of Evanston,  F. Supp. ,  (ND Ill. ); Midrash Sephardi Inc v. Town of Surfside  US App LEXIS  (th Cir.April , ); Cottonwood Christian Center v. Cypress Redevelopment Agency  F.Supp. d  (C.D. Cal. ).  S. Naismith ‘Religion and the European Convention on Human Rights’ Human Rights and UK Practice Vol.  (), p. . See also Darby v. Sweden rd October  A wherein this principle was endorsed.  Ibid.

Protecting the Rights of Minority Religious Groups  the existence of legislation on religious freedom does not of itself mean individuals are protected. In many cases, such legislation may not be implemented in practice or custom or tradition may, for instance, in practice override this.

Significantly, jurisprudence involving Article  generally centres upon the less obvious forms of religious discrimination. The Bulgarian Government’s treatment of Jehovah’s Witnesses for example, included a refusal to recognise their faith as an official religion, passive tolerance of overtly hostile media coverage and dispersal of their religious gatherings. This eventually resulted in a ‘Friendly Settlement’ between the parties, with the State undertaking to accommodate the beliefs of the minority group in relation to both military service and blood transfusions. The French Government however, by including Jehovah’s Witnesses on their list of ‘dangerous’ sects, was able to set in place a variety of legal measures (such as planning permission refusals and denial of the right to hold leasehold interests) to prevent the groups’ public manifestations of belief; as ever, the need to maintain public order was cited. The application was ultimately deemed inadmissible with the issue of domestic incompatibility unfortunately sidelined; whilst impugning Parliament’s motives in passing the legislation (and while it was concerned to settle the social issue) the Commission seemed most keen to avoid implying any ‘risk of victim-hood’ on behalf of the applicants, which would have enabled their case to proceed. The use of article  (‘non-discrimination’) in conjunction with article  has also seen a degree of ‘inconsistent’ interpretation by the European Court. In Canea Catholic Church v. Greece () for example, the Court did not discuss whether article  had been violated but referred instead to the ‘fair trial’ provisions of article ; the case focused on the administrative question of the church’s ability to possess ‘legal personality’ rather than on

 UNHCR Guidelines on International Protection: Religion-Based Refugee Claims Under article a() of the  Convention and/or the  Protocol Relating to the Status of Refugees Hcr/Gip// th April  IJRL   at .  Khristianko Sdruzhenie, Svideteli na Iehova v. Bulgaria No. /. See also Commission Report of // (Friendly Settlement) DR .  Federation Chretienne des Temoins de Jehovah de France v. France No. /; See Human Rights case digest , vol. , no. –, pp. –().  J. Martinez-Torron ‘The European Court of Human Rights and Religion’ in R. O’Dair and A. Lewis, Law and Religion: Current Legal Issues (Oxford University Press, London, ), p. .

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the more contentious issues of members’ rights to worship within a sacred space. Given that a wall surrounding the cathedral was demolished (and an overlooking window created by neighbouring landowners) some discussion of Article  rights would have proved useful. Similarly, in Manoussakis v. Greece the issue of delay over an application by Jehovah’s Witnesses was raised. Although the Greek Constitution precludes active proselytism (and domestic legislation therefore forbids the opening of a place of worship without express permission from local authorities) the European Court found a violation of article  on a threefold basis: namely that the local authorities had excessive discretion in relation to the decision on whether there was a need for the place of worship; that no time limit applied; and the established church (Greek Orthodox) had been unfairly involved in the application process. As has been noted, protection against direct State interference does little to prevent those forms of indirect religious discrimination that may arise out of secular provisions aimed, for example, at preserving public order, health and safety or the general wellbeing of citizens. If however, as Naismith has argued, the emphasis in the interpretation of Article  has been on pluralism and tolerance of other people’s views rather than on the protection of the specific religious beliefs of individuals.

It is also perhaps because the Convention is itself a secular instrument, underpinned by the twin democratic principles of free association and general consensus. This deliberative model of democracy requires rational discussion of political issues however, with its ‘cardinal features being the principles of equality, inclusion and eventual agreement’. Both the UN Commission and the UN Declaration on Minorities have endorsed the

 / [] ECHR  ( September ).  See also Kokkinakis v. Greece  May ; Larissis v. Greece  Feb ; see also Greek Helsinki Monitor Human Rights Group Report on ‘Religious Freedom in Greece’ Sept  http://www.greekhelsinki.gr/bhr/english/organizations/ghm_mrgg_religious_freedom_.rtf accessed ...  See Naismith, above n. .  See S. Wheatley ‘Deliberative Democracy and Minorities’ ()  European Journal of International Law, at .

Protecting the Rights of Minority Religious Groups  democratic framework for the resolution of cultural conflicts; it remains to be seen however whether democracy at the level of local governments reflects this as reality. It would appear that the essential democratic principles of ‘time and goodwill’ frequently succumb to prejudicial tactics of political delay and public suspicion, neither of which furthers the cause of protecting religious freedom. This is especially true of those jurisdictions where legal privilege has long elevated the Christian majority above the rigours of property law and planning policy. iv. religious land use refusals within the united states The system of planning permission used by many States has been described as promoting ‘heavy handed application of discriminatory zoning ordinances (and) tactics of subterfuge and delay’. The issues are often indistinguishable from those raised within European jurisdictions, with both residential and urban areas pleading problems of potential noise or nuisance to limit or prevent religious building development, and with rural areas arguing the need to protect and preserve the environment or their agricultural character against an ‘invasion’ by outsiders. The Religious Land Use and Institutionalized Persons Act () (‘RLUIPA’) largely parallels the United Kingdom’s Human Rights Act ; it places an onus upon local authorities (and hence upon the judiciary) to be mindful of citizens’ fundamental rights to the free exercise of religious belief. This piece of legislation codifies five judicial ‘bedrock principles’ of religious land use jurisprudence, namely the equal treatment of religious institutions; non-discrimination; that religious institutions may not be completely excluded from any jurisdiction, nor subjected to unreasonable restrictions, nor placed under substantial

 Preamble to E/CN. /RES// adopted th March ; UN Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, Preamble to the GA Res / th December .  See Wheatley, above n. .  K. Hasson, ‘Religious Land Use & Institutionalised Persons Act: A Primer for Houses of Worship, Religious Leadership & Laity’ in K. Masugi (ed.), Faith Based, Not Bureaucracy Bound: How Religious Institutions Can Fight Government Regulation (Claremont, California, ), pp. –.  See ‘Religious Liberty Protection Act Of  Hearings Before The Subcommittee On The Constitution Of The Committee On The Judiciary’ – (House Of Representatives, One Hundred Fifth Congress, Second Session) H.R.  June  And July , , Available At http://Commdocs.House.Gov/Committees/Judiciary/Hju./Hju_.Htm.

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burdens in relation to the exercise of their religion. Taken at face value, its provisions apparently demand the levels of administrative fairness and equity enunciated by the Supreme Court in Employment Div. v. Smith which confirmed that no form of religious practice should be singled out by legislators; instead all must be accorded equality of treatment alongside secular activities. This is especially important in relation to religious land usage, cultural expression and group assembly especially since the establishment of the need for clear ‘facial neutrality’ in W. Presbyterian Church Bd. of Zoning Adjustment. To invoke the Act’s protection however, claimants must also clearly demonstrate that their right to worship has been ‘substantially burdened’ by the actions of State authorities. In Cottonwood Christian Center v. Cypress Redevelopment Agency, for example, such ‘burdening’ was deemed to occur only where ‘substantial pressure’ had been placed upon the worshipper to ‘modify his behaviour and to violate his belief ’. Once the presence of a ‘substantial burden’ is established, the RLUIPA then places a clear onus upon the State to show that any limitation of religious freedom is justified by an over-riding ‘compelling interest’ of the State, which must itself be of ‘the highest order’. In language reminiscent of European jurisprudence (if slightly more dramatic) this has been held to include only those interests which would prevent ‘clear and present, grave and immediate danger to public health, peace and welfare’. Thus the ‘community concerns’ of local residents (who, as in Northern Ireland, invariably tend to represent the majority population in terms of race, ethnicity and Christian belief ) have frequently been included within this definition; in cases such as First Assembly Church of God of Naples v. Collier County ‘great community distress’ over health and safety issues held sway. As

  US. , –.   F. Supp. ,  (DDC) ; See also Church of the Lukumi Babalu Aye, Inc v. City of Hialeah  US  () in relation to interpretation of the ‘equal terms’ provision of the Act.   USCA §  cc (a) ().   F.Supp. d  (C.D. Cal. ).  See Sherbert v. Verner  US ,  () for definition of ‘compelling interest’ as one which creates a ‘serious need’ for such action, where ‘paramount interests’ are endangered.  Wisconsin v. Yoder  US ,  ().  First Covenant Church v. City of Seattle  P. d ,  (Wash ).   F.d ,  (th Cir. ).

Protecting the Rights of Minority Religious Groups  Langlois has noted, worries over mundane issues such as the ‘prevention of crime, noise and litter’ may also conceivably be covered by the loosely drafted and widely interpreted ‘public welfare’ heading. In fairness, an evaluation of all potentially discriminatory measures must occur. This takes the form of ‘strict scrutiny’ by the judiciary who must critically and fairly assess the ‘proportionality’ of domestic legislation to ascertain whether or not a potential breach of fundamental rights may somehow be justified under the ‘compelling interest’ rule. Moreover, it was clearly established in Cottonwood that by actively preventing the building of a place of worship, State authorities had fundamentally inhibited worshippers from exercising their faith freely. The difficulties associated with overcoming a series of legislative and interpretative hurdles to establish a right to build a non-Christian place of religious worship however, are evidenced by a number of recent decisions. In Midrash Sephardi Inc v. Town of Surfside, a local zoning scheme which restricted a Jewish congregation to a particular district was found to violate the ‘equal terms’ provision of the RLUIPA but not to create or place a sufficiently substantial burden upon the group’s freedom to worship. Similarly in Congregation Kol Ami v. Abington Township, Jewish worshippers found themselves having to carry the burden of proof in relation to the question of permitted usage, whilst the Court failed to even address their claim under the RLUIPA. In St Constantine and Helen Greek Orthodox Church Inc v. City of New Berlin members of the Greek Orthodox Church failed in their bid (despite citing a statutory right to free exercise) to relocate their chapel to an industrial area of Wisconsin, where other churches had been allowed to go as of right, because of apparent fears that the property might become open to industrial usage. Likewise, in Konikov v. Orange County, the Court found that no violation of the RLUIPA had

 M.Langlois ‘The Substantial Burden of Municipal Zoning: The Religious Freedom Restoration Act as a Means to Consistent Protection for Church-Sponsored Homeless Shelters and Soup Kitchens’ ()  Wm and Mary Bill Rights J,  at p. .  See Love Church v. City of Evanston  F. Supp. ,  (ND Ill. ).  See Cottonwood above n.  at p. .  Midrash Sephardi Inc v. Town of Surfside  US App LEXIS  (th Cir. April , ).   F.d (d Cir.).  Sts Constantine and Helen Greek Orthodox Church Inc v. City of New Berlin US District Ct E.D. Wisc #:–cv-–JPS (//).

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occurred when a Jewish shul was forced to obtain permission to operate within a private home in a residential area. The ‘compelling interest’ in this case was held to be that the State had an all-encompassing, over-riding duty to enforce its zoning requirements. Decisions such as these sit uneasily alongside the basic reasoning behind the first federal appellate decision to find that municipal zoning was indeed capable of violating fundamental Constitutional freedoms. In Islamic Centre of Mississippi Inc. v. City of Starkville, Muslim students applied for permission to use premises near their campus as a Mosque. Perennial concerns over parking and traffic congestion unsurprisingly surfaced to deny their application. When the students pleaded a straightforward violation of their Constitutional rights under the First and Fourteenth Amendments the District Court wryly observed that the students’ ability to ‘turn towards Mecca and pray at specified times’ had not been infringed, nor had their ability to buy cars and travel to a place of worship somewhere ‘outside the Starkville city limits’. On appeal however, Justice Rubin overturned this ruling and highlighted the wider social implications which surround public acts of religious worship, where, each worshipper communicates to outsiders the identity of the group and his own identity as a member of it, a form of self-expression. Ritual preserves evidences and perpetuates faith . . . neighbors’ negative attitude or fears . . . are not a permissible basis . . . for differentiation between familiar and unfamiliar religions.

Further recognition of the political factors surrounding control of land use came in , where Justice Rubin’s ruling was clearly endorsed in relation to the contentious rituals surrounding the Santeria religion; here Justice Kennedy demonstrated an awareness of the potential for inherent legisla-

  F.Supp d  (MD Fla. ).  See the First Amendment which states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ’.   F .d  (th Cir. ) at .  Ibid., para. . See also D. Levine who noted that Justice Rubin ‘spent virtually his entire life as a Jew in overwhelmingly Christian areas of Louisiana . . . (he) knew well the messages that such establishments send to members of the religious group, as well as to the community at large, about the identity of the group . . . (under) cover of neutral government purposes.’ D. Levine ‘Seven Virtues of Judging: Alvin Rubin’s Civil Rights Opinions’ (–)  La. L. Review  at .

Protecting the Rights of Minority Religious Groups  tive bias and bigotry by stressing that the law must maintain an impartial, supervisory role in such cases. He noted that, those in office . . . must ensure that the sole reasons for imposing the burdens of the law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.

Herein lies the rub however; convoluted Eurocentric systems of ‘protection’ for religious freedom, as enshrined in domestic legislation (whether enforced through judicial review or via a process of pre-enactment ‘strict scrutiny’) frequently fail to address the central issues of concern for minority groups such as clearly juridical rights to identity, culture and social welfare. Traditional pre-occupation with the ‘deserving’ nature of claims to access physical resources such as real property must also be addressed, alongside subconscious fears of non-Western traditions and beliefs. Whilst the invisible freedom to hold private beliefs appears to be an absolute right, the visible freedom to actively express one’s beliefs through public worship involves a worrying range of political and legal hurdles, which ‘facially neutral’ yet profoundly secular Western judiciaries seem unable or perhaps unwilling to address. v. the concept of ‘sacred places’ within the united kingdom Judicial pronouncements upon places of worship frequently require judges to apply objective secular logic to questions of highly subjective, private ‘metaphysical realities’. Although Barshack has suggested that ‘wherever the sacred appears it claims dispensation from the law’, the legal concept of sanctity appears as prone to Western influence as the notion of the worthy

 Church of the Lukimi Babalu Aye Inc v. City of Haleah ()  L Ed d ; Santaria is practised by the mainly Cuban descendants of the Yaruba tribe of Africa-blending tribal religion with that of Catholicism and carrying out occasional ritual sacrifice of animals.  See also Mount Elliott Cemetery Association v. City of Troy  F.d , – (th Cir. ) in relation to the ‘grandfathering’ of cemeteries in favour of Judaeo-Christian burials.  P. Edge, ‘The Construction of Sacred Places in English Law’ ()  Journal of Environmental Law, at .  L. Barshack ‘The Holy Family and the Law’ ()  IJLP&F at .

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use of property or space. The definition of the sacred space in English law is by tradition fairly vague. Spiritual spaces may arise spontaneously as event-based shrines or they may be constructed and then granted sacred status by law. The dominant tendency however (echoing, until very recently, most domestic provisions on incitement to racial hatred and blasphemy) has been to benefit the established Christian faiths via a system of statutory ‘ecclesiastical privileges’ for registered religious sites. These privileges include exemption from the usual strictures on land use, more flexible forms of building control regulation and more generally favourable outcomes in relation to planning permission applications to alter, construct or change the usage of premises. Although domestic judiciaries are beginning to acknowledge and accommodate other denominations, the Church of England has largely retained its traditional position of gaining ‘the most significant protection in English Law’. Thus, domestic courts seldom define what exactly constitutes a place of worship. In R v Registrar General, ex parte Segerdal it was suggested that some form of ‘reverence to a deity’ was necessary. This may be slightly at odds with the all-embracing principles enshrined in provisions such as the deliberately non-theistic article  UDHR, but the dicta at least suggests an increased tolerance towards non-Christian faiths. In  Parliament indirectly touched upon this issue, during a debate on how ‘religion’ might best be generically defined. It was suggested that worship required one’s beliefs to have ‘derived in whole or in part from a book revealed by God to one of his messengers’. This sort of limitation would appear to conflict

 See Jackson and Henrie ‘Perception of Sacred Space’ () JCG , , –.  See for example The Places of Worship Registration Act .  See M. Gerrard ‘Religion and the Law’ Law Society Gazette () ..  See for example Re Tonbridge School Chapel (no. ) []  All ER ,  WLR ; Northaven District Council v. Secretary of State for the Environment & Ors [] JPL ; Ludkin (Valuation Officer) v. Trustees of Anjuman-E-Islhahul Musilimeen of UK [] RA ; R (Bello) v. London Borough of Lewisham [] EWCA Civ. , [] JPL , [] LLR .  M. Hill, Ecclesiastical Law (Butterworths, London, ), pp. –.  K. Last ‘The Privileged Position of the Church of England in the Control of Works to Historic Buildings: the Provenance of the Ecclesiastical Exemption from Listed Building Control’ ()  CLWR, .  See Edge, above n. .  []  All ER  per Lord Denning at .  See Lord Ahmed, Hansard HL, th October , column ; cited by Moon and Allen, above n. .

Protecting the Rights of Minority Religious Groups  directly with Strasbourg jurisprudence which established that States have no legal discretion whatsoever to ‘determine whether religious beliefs or the means used to express such beliefs are legitimate’. Thus, as Edge noted (albeit in relation to sacred Christian premises), The ability of a religious community to designate a place as sacred, particularly as a place of worship, has been seen as one of the keystones of religious liberty.

He links the advantages firmly to secular benefit however; these include factors such as increased social inclusion, reinforcement of one’s identity, and the generation of both ‘social capital’ and ‘leverage capital’ which generally accompanies the collective exercise of religious freedom. For minority ethno-religious groups, these forms of social benefit are essential to basic survival. Social capital provides a network of local community support and ultimately seeks to inform policy-makers of minority needs; leverage capital provides a valid platform for marginalised group members to avail of beneficial opportunity and perhaps ‘change their life chances’ for the better. Although domestic judiciaries are unlikely to recognise the receipt of spiritual wisdom as a juridical benefit, they may concede that ‘moral support, access to spiritual teachings and shared religious activities’ are acceptable quasi-secular resources, highly relevant for increasingly disenfranchised minority religious or immigrant groups.’ The main difficulty with this line of reasoning, however, lies in the fact that the distribution of social resources often hinges upon demonstrating a high degree of autonomous physical space within the majority community’s perceived territorial area. This leads to a visible, possibly contentious expression of the minority community’s presence. In turn, this tends to invoke an incongruous assortment of legal doctrines such as domestic property law, public order regulations and government ‘guidance’ on land use; these exert considerable influence over what would otherwise be a non-secular decision-making process. Given that the underlying social

     ()

Manoussakis v. Greece () EHRR  at para. . See Edge, above n. . A.C. Carmella ‘Religion as a Public Resource’  Seton Hall LR () . See Edge, above n. . G. Smith ‘Religion as a Source of Capital in the Regeneration of East London’  Rising East  p. .

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issues are increasingly subsumed within wider arguments over the role of ‘outsiders and dissidents within community space’, it is unsurprising that lengthy discussions of what exactly constitutes legal ownership of property often pervade legal discourse. As expected, domestic judiciaries frequently prefer to fall back upon traditional Western definitions and concepts. As Edge stresses, Law engages most comfortably with places that have concrete boundaries rather than those whose boundaries are less clearly defined or more permeable.

Where the concept of ‘sacred space’ requires translation into actual physical space however, most minority groups will be unable to demonstrate either legal or equitable ownership; immigrant or displaced peoples clearly cannot cite connection to traditional, territorial lands. To compound this further, they almost invariably lack an over-seeing ‘kin nation’ willing to express its protective concern for their welfare. These factors frequently combine to justify policy decisions aimed at preventing assertions of the rights of minority communities to physically occupy public space. This is at odds with the suggestion that incorporation of the ECHR might yet lead to, a shift in legal culture in relation to the amount of evidence disclosed by public authorities, including a move towards the provision of reasons demonstrating the alleged justification for interference with Convention rights.

Given that within the United Kingdom, public land usage is subject to a system of domestic Development Plans and to the granting of localized Planning Permission, there appears to be a degree of confusion over the

 Ibid.  See Edge, above n. .  See C.J. Lamer’s ‘continuity’ test for native ‘culture’ which centres upon occupancy of land and continuity of use in R v Van der Peet []  CNLR at .  See B. Thom ‘Rising to the Test: Meeting Lamer’s Tests for Aboriginal Rights and Title after Delgamuukw’ – paper presented to Canadian Anthropology Society ().  N. Whitty et al., Civil Liberties Law: The Human Rights Act Era (Oxford University Press, Oxford, ), at p. .

Protecting the Rights of Minority Religious Groups  actual extent of State obligations within this area. In Bovis Homes Ltd v. New Forest District Council () for example, the Court appeared to imply that Article () was largely irrelevant in relation to planning permission, given that administrative decisions have little to do with either civil rights or moral obligation. As in other Western jurisdictions, contentious procedures will almost invariably be judicially sanctioned if they are aimed at the protection any of the following; public safety, the economy, public health or morals. The potential for Convention incompatibility occurs where, for example, adequate reasons for refusal of permission have not been given or where any suggestion of personal prejudice or a conflict of interest has arisen. Northern Ireland’s Planning Appeals Commission has clear links to central government; recent jurisprudence suggests that judicial reluctance to intervene remains a key factor. In Foster (re Application for Judicial Review) for example, the Northern Ireland High Court appeared to accept that article () was largely irrelevant in matters of domestic planning or land usage. As Carswell LCJ noted in Re Stewart’s Application for Judicial Review, ‘the issues in planning decisions lie at the judgment and discretion end of the spectrum’. Where these issues have the potential to affect Convention freedoms such as the right to worship, free association and the expression of cultural or religious identity, persuading local authorities to operate within the spirit of human rights instruments remains a key priority. As long as local politicians retain a degree of influence over planning or policy decisions (for example, via their ability to subject planning applications to open-ended

 See for example, James v. United Kingdom () EHRR  where the court appeared to suggest that unless administrative decisions are ‘manifestly without reasonable justification’ they should be allowed to stand, even if they conflict with existing policies; Bryan v. United Kingdom, where, the ‘quasi-judicial’ character of domestic planning decisions was clearly highlighted via ‘the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission . . . to uphold the principles of openness, fairness and impartiality’ [] JPL  at . See also article  Planning (NI) Order  which contrasts with s. of The Town and Country Planning Act  (applicable to England and Wales) – this section arguably requires planners to adopt a much narrower plan-led approach unless strong material considerations demand otherwise. In Bryan v. United Kingdom, for example, the ‘quasijudicial’ character of domestic planning decisions was clearly highlighted.  [] EWHC  at .  Foster Re Application for Judicial Review [] NIQB  ( January ).  NI  at .

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delay or to ignore media-led waves of moral panic against minority groups) majority populations may continue to expect both sympathetic hearing and generally favourable outcomes in matters to do with planning policy. vi. conclusions Domestic regard for international human rights principles may perhaps best be gauged by an examination of local government policies on fundamental freedoms such as the right to religious worship. As long as the ‘compelling interests’ of the majority population (such as concerns over public order, noise, nuisance or traffic levels) continue to constrain or over-ride the fundamental freedoms of vulnerable minorities, Western judiciaries will continue to be perceived as having favoured the maintenance of institutionalized bias over equality. Similarly, by focusing upon religious ritual and non-traditional land usage, future legislative reforms might avoid strict judicial scrutiny; if however, the proposals permit domestic land use policies to be ‘twisted and construed to condone . . . prejudice’ then judicial reluctance to intervene may amount to legally sanctioned ‘Christianization’ of minorities. As Habermas has suggested, the notion of tolerance may manifest itself in two very different forms. The first consists of a ‘mere toleration of outsiders, who are nevertheless considered inferior’ whilst the second has its roots in ‘mutual recognition and mutual acceptance of divergent worldviews’. Only the latter can create an equitably pluralist society where minority religions and democracy may both flourish.

 Under the recently shelved Terrorism Bill , a ‘Restriction of Use’ Order might have eventually allow for ‘temporary closure of parts or all of the premises’, whether or not a successful police prosecution had first been obtained i.e. for failure to comply with the terms of a ‘Requirement Order’ whereby persons having ‘control’ of the premises would be personally required to put an end to occurrences of ‘extremist behavior’.  E.O. Benito (Special Rapporteur), Elimination of all Forms of Intolerance and Discrimination based on Religion or Belief, Study Of The Current Dimensions Of The Problems Of Intolerance And Of Discrimination On Grounds Of Religion Or Belief (st August ) E/CN. /Sub.//.  J. Habermas ‘Intolerance and Discrimination’ ()  International Journal of Constitutional Law at .

Protecting the Rights of Minority Religious Groups  Given that many of the issues surrounding religion ‘are often inextricably intertwined with ‘non-religion’ factors’ government attitudes towards minority rights to public worship reveal much about a state’s colonial history, lingering prejudices and modern social welfare systems, which may still be aimed at the harsh assimilation of ethnic difference. If the concept of cultural rights is frequently used as ‘a fig leaf for religion’ then perhaps Western religious piety towards the use of sacred spaces has been similarly seized upon by domestic policy-makers as ‘a mask for prejudices which intrinsically have nothing to do with religion’. In the aftermath of ‘/’ and ‘/’, forms of worship which fall outside typically white, Judaeo-Christian models are increasingly coming to be regarded as ‘doubly deviant’, with their minority status compounded by media-led moral panics over the latest ‘folk devil’. Judicial discourses aimed at conserving finite domestic resources offer little comfort, and at times seem blatantly geared towards preserving majority cultural traditions and secular values, by shielding them behind the wide, immunising margin of appreciation which has developed around religious issues generally. Although case law on religious land use refusals is sparse, it is far from insignificant. A number of common themes emerge in relation to wider issues of international law, such as the debate over collective and individual rights, the juridical nature of the right to express one’s socio-cultural

 See K. Musalo ‘Claims for Protection Based on Religion or Belief ’ ()  International Journal of Refugee Law, .  See Raday, above n. .  See Benito, above n. , at para. .  See A. Bottoms. ‘Sexism and the Female Offender’ (Gower Publishing, Sydney, ).  See S. Cohen, Folk Devils and Moral Panics (MacGibbon and Kee, Oxford, ).  See H. Steiner and P. Alston, International Human Rights in Context: Law, Politics and Morals (OUP, Oxford, ), pp. –; see also J. Martínez-Torrón, ‘The European Court of Human Rights and Religion’ in R. O’Dair and A. Lewis (eds.), Law and Religion: Current Legal Issues (OUP, Oxford, ), pp. –.  See for example Kokkinakis v. Greece ()  EHRR ; Church of the Lukimi Babalu Aye Inc v. City of Haleah ()  L Ed d ; Re Tonbridge School Chapel (no. ) []  All ER ,  WLR ; Northaven District Council v. Secretary of State for the Environment & Ors [] JPL ; Ludkin (Valuation Officer) v. Trustees of Anjuman-EIslhahul Musilimeen of UK [] RA  and R (Bello) v London Borough of Lewisham [] EWCA Civ. , [] JPL , [] LLR .  See T. Hadden ‘The Pendulum Theory of Individual, Communal and Minority Rights’ () Critical Review of International Social and Political Philosophy at p. .

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identity, and the discriminatory treatment faced by minorities within Western states generally. Integrationist strategies have continued to inform and influence local authority policies and wider public opinion, and appear to be underpinned by a historical preference for Anglo-European modes of feudal ownership and by narrowly defined capitalist notions of what constitutes a ‘deserving’ land user’. Such ideologies have insulated a number of domestic provisions which might otherwise have been deemed to constitute racial discrimination, if not indirect ethno-religious persecution. This narrow area of jurisprudence also holds relevance for related issues such as immigration and nationality law, or the right to access limited resources such as housing or education with a degree of cross-fertilisation having occurred. Such links and overlaps are rarely symbiotic however; cases involving socio-cultural rights of expression provide little guidance on the specific right to religious expression through the act of public worship. Similarly, non-indigenous minorities such as immigrant or nomadic groups will have derived little comfort from the ‘landmark’ native title decisions of Delgamuukw or Mabo v. Queensland  on the right to occupy or use sacred sites. Because they lack the requisite traditional link to the area where they hope to settle and pray, non-indigenous minority groups cannot demonstrate the clear ‘causal nexus’ needed to establish a

 See A.H. Robertson and J.G. Merrills, Human Rights in the World (Manchester University Press, Manchester, ), pp. –.  See for example Hallam v. Avery []  WLR ; Hampson v. Department of Education and Science []  AC .  See J. Githiaga ‘Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge’ () () Murdoch University Electronic Journal of Law; K. Puri ‘Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action’ () Intellectual Property Journal ; A. Diver ‘A Just War: Protecting the Cultural Property Rights of Indigenous Peoples’ Indigenous Law Bulletin () () at p. .  See Commission decision Dec. Adm. /, Dec. Adm / and Rep. Com. /  where tax exemptions granted to ‘established’ (i.e. majority) churches were held not to constitute discriminatory treatment.  See R v. CRE, ex parte Hillingdon Borough Council [] AC .  See Mandla v. Dowell Lee [] AC .  See Lovelace v. Canada No R / UN GA; R v Sundown ()  SCR ; R v Van der Peet []  C.N.L.R.; R v Seward []  C.N.L.R. .  Delgamuukw []  C.N.L.R.  Mabo v. Queensland ()  CLR .  See J. Borrows, ‘Frozen Rights in Canada: Constitutional Interpretation and the Trickster’ () () American Indian Law Review –; See also H. Hannum, ‘The

Protecting the Rights of Minority Religious Groups  juridical right to spiritual expression. Equally, discourse on asylum claims or religious persecution cannot be easily applied to the more ‘every day’ aspect of worship within Western jurisdictions given their association with high thresholds of ‘torture, inhuman or degrading treatment’. Equally, the qualified nature of many socio-economic rights further stretches the margin of appreciation to a point where their principles can be easily sidelined by Western judiciaries. The Government’s recent Consultation Document ‘Preventing Extremism Together: Places of Worship’ (‘PET’ – October ) sought to justify even more stringent limitations on minority religious freedoms by ostensibly linking attendance at Mosques to terrorist intent and extremist behaviour and by declaring the ‘need to address the problem of places of worship acting as focus points for extremist activity’. Although places of worship ‘of whatever faith’ were referred to, the Consultation Document’s questions clearly highlighted Non-Christian premises by placing emphasis upon ‘temporary meeting rooms’ and ‘faith schools’. Most worrying is the fact that either of these terms may be interpreted as including prayer meetings that take place within private dwellings; indeed, if ‘terrorist threats’ are deemed capable of arising from any activity which potentially advances a ‘political, religious or ideological cause’, then personal acts of worship may be equally open to legal scrutiny.

Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples, and the Right to Autonomy’ above n.  at pp. –.  See K. Musalo ‘Claims for Protection Based on Religion or Belief ’ () International Journal of Refugee Law at p. .  See article () ECHR; and the Council of Europe’s Race and Ethnic Origin Directive //EC (which studiously avoids any mention of religious discrimination).  See R (Bello) v. London Borough of Lewisham [] EWCA Civ. , [] JPL , [] LLR .  .. – the document does not refer specifically to Mosques but rather to ‘all places of worship’; it is apparently aimed at preventing terrorist training, and incitement to hatred See Paragraphs –. available at www.http:/security.homeoffice.gov.uk/ counterterrorism-strategy/preventing extremism accessed ...  See s. of the Terrorism Act  for definition.  Preventing Extremism Together-Places of Worship – Home Office Consultation Document .. – accessed .. at http://www.homeoffice.gov.uk/documents/consprev-extreme  Ibid., para.  Question D.  Amnesty International noted in relation to the United Kingdom’s  Terrorism Bill ‘the definition is vaguely worded and could be used to prosecute supporters of social and political movements, for example, anti-nuclear campaigns. The lack of a clear definition

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In fairness, the Working Groups set up under the ‘PET’ Consultation have now been disbanded (November ) and their recommendations put to both the Government and community leaders; a self-regulating body made up of Mosques and Imams has recently been launched (‘MINAB’) together with a number of ‘outreach’ initiatives, including a communityled ‘good practice guide’ for mosques. Whilst recommendation  of the report refers specifically to the ‘supporting’ of places of worship it unfortunately places the onus for this upon the Muslim community itself rather than on the State. Given that the ‘PET’ initiative has itself now been moved in a cabinet reshuffle to the Department for Communities and Local Government (‘DCLG’), it seems that the rights of minority groups to avail of or possess places of worship will remain subject to the vagaries of local democracy for some time yet. Until it is accepted that the denial of sacred space to any ethnic or religious minority group constitutes a highly counterproductive withholding of identity rights, secular benefit and a visible, substantive ‘badge’ of citizenship, then policy-makers and local representatives cannot claim to have achieved effective pluralism. Land-use refusals, media-led moral panics and indefinite delays in relation to planning permission may yet come to be regarded as a form of ‘second-generation’ persecution, open to international censure. Until then, the thinning veneer of ‘facial neutrality’ looks set to remain a worrying mask for much deeper-seated fears and prejudice within Western societies.

gives cause for concern because the decision to bring a prosecution for such offences leaves scope for political bias’: Available at http://web.amnesty.org/library/index/engeur accessed ... See also United Kingdom: Summary of concerns raised with the Human Rights Committee, AI Index: EUR // (November ), pp. –; United Kingdom: Briefing on the Terrorism Bill, AI Index: EUR // (April ).  The Mosques and Imams National Advisory Board (MINAB) saw input from the Muslim Council of Britain (MCB), the Muslim Association of Britain (MAB), the Al Khoei Foundation, and the British Muslim Forum (BMF); a series of Scholars’ Roadshows and regional Forums against extremism and Islamophobia are also in progress.  Also mentioned is the enactment of Part  of The Equality Act  which should extend the law on religious discrimination to cover provision of goods, facilities, services and public functions. Section  of the Act will make it unlawful for a public authority exercising a function to ‘do any act which constitutes discrimination’ which may prove relevant to members of the public wishing to challenge Planning Permission decisions.

chapter seventeen

‘Are You a Protestant or a Catholic Muslim?’ The Path of Muslim Integration into Northern Ireland Victoria Montgomery* i. introduction Research into issues surrounding integration is nothing new. From Jews, to Afro-Caribbeans ‘we’ have always questioned the compatibility of different peoples with ‘our’ way of life. In recent years the focus of such concern has centred on Muslims living in the West. Indeed, since / there has been a massive increase in debate and commentary as to whether Islam is compatible with European values, or if Muslims can be integrated at all. Increasingly this discourse is focusing on examples of radical or extreme Islam, which are then used as a starting point to discuss the issue of Islam and integration. Such an approach is entirely misleading and ignores just how multifaceted the process of integration is. It also ignores the context in which these cases of extremism take place. The London bombings may highlight the alienation of some sections of the Muslim community in Britain, but this should not be the paradigm with which to view Muslims in Northern Ireland (NI). Integration is above all, context dependent. Created by the Government of Ireland Act (), NI is an administrative region and one of four constituent parts of the United Kingdom. It is a small unit with less than two million inhabitants, where minority ethnic communities number little more than % of the population. Yet the question of how to live with difference is one that has preoccupied NI for decades and longer. NI is perhaps one of the starkest and most well known examples of how problematic identity issues can be. It is an entity which has been blighted by more than three decades of low level

* School of Politics at Queen’s University Belfast, Northern Ireland.  The Northern Ireland Census () found that ethnic groups other than ‘white’ numbered , or less than % of the population. While that figure has undoubtedly risen, the numbers of minority ethnic people in NI are still very low. Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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violence, the origins of which can be traced back more than  years. A slight majority of the population are Unionists who wish to remain a part of the United Kingdom, but a significant minority known as Nationalists would prefer to be a part of a united Ireland. These two views are linked to deeper cultural divisions. Unionists are predominantly Protestant, whilst Nationalists are predominantly Roman Catholic. Thus, in its simplistic form we have a division between the Nationalist Roman Catholic minority and the Unionist Protestant majority, and by extension, the divisions and the problems in NI generally, are popularly viewed within a religious paradigm. While religion may not be the whole or even primary explanation, it has become such an important dynamic in the conflict because it is an indicator of a political attitude or identity. Yet where do Muslims fit in, if at all? This chapter will consider the path to integration for Muslims in NI, including the public process of integration, the perceptions of the wider society and of course the role of Muslims themselves in the integration process. Since integration has been so profoundly affected by / and events since, it is also important to consider the impact of this in NI. However, before any of this can be attempted, an overview of what integration actually means is necessary. ii. what is integration? Integration: an absolute positive that will cure inter-group tensions and obliterate ‘home-grown’ terrorist threats, if only it could be achieved. Of course this is somewhat an exaggeration of the terms of the debate, but integration is the buzzword of the moment, especially with regards to Muslim minorities in the West. However, not everyone is speaking the same language when they talk about integration. Outrage, discomfort, indifference or celebration are reactions that may accompany the sight of the hijab in NI, but none of these are incompatible with the concept of integration; it simply depends on what you mean by this. Assimilationism, the liberal approach and multiculturalism are all theories and policies that deal with pluralism or diversity within society. Ultimately they are each trying to engender a common sense of belonging and loyalty between citizens, as well as to the state itself, but each has different priorities and takes a different approach, with the consequence that each produces a different type of integration. However, such conceptual ambiguity has spilt over into analyses of how ‘integrated’ Muslim communities are in the West. Therefore, a brief dis-

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cussion of the underlying assumptions of the main models of integration is needed to clarify exactly what integration means. a. Assimilationism Assimilationism is a theory of integration that has come back into vogue in recent times. In the wake of the / bombings in London, difference in general and Islam in particular has become associated with distrust and political subversion in many European states. As such, policies that encourage particular identities are being rejected, accused of encouraging segregation and separation between citizens. Assimilationism, which sees societal cohesion as best achieved through the dilution or even eradication of particular identities, is more in tune with current anxieties over some sort of Muslim fifth column in the West. Modood defines assimilationism as a process, ‘. . . where the desired outcome for society as a whole is seen as involving least change in the ways of doing things for the majority of the country and its institutional policies’. Therefore, the onus for integration is put on minorities who must ‘fit in’ or at the very least outwardly conform to the political and social culture of the state. Assimilationism is seen to provide a strong glue to bind the nation. Unequivocal acceptance and identification with the nation as a prelude to belonging and participation within society will undoubtedly inculcate a strong sense of national identity and political unity, a unity which will have positive consequences in economic and social terms as well as politically. The idea then, in ignoring particular identities is not necessarily to denigrate those identities, but to remove potential barriers to interaction and thus, integration. However in such a context, public expression of a particular identity may jeopardise the ability of a person or group to participate in and be accepted as part of society. Consequently, a scenario is possible where assimilationism far from creating a united citizenry is actually actively marginalizing a particular group. A system that vigorously contests collective identities will struggle to resolve collective discrimination or group disparities of wealth. This is  A. Hossani, ‘Beyond the Multicultural Ghetto’ Open Democracy [online] ( September ) ( March ).  T. Modood, ‘Remaking Multiculturalism after /’ OpenDemocracy [online] ( September ) ( October ).

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a problem that has been increasing in recent years. Where once minorities would have had little option but to conform or be isolated, advances in communication and travel have meant that minorities are better able to resist assimilation. And it is not just technology that has hindered the assimilation project; the growing importance of human rights discourse in recent years has meant that cultural identity is increasingly seen as an inalienable personal human right. Hence, it is increasingly untenable to expect people to identify solely with the state. Therefore, in order for the state to still command loyalty it must be able to find a way of combining itself with other competing identities held by its citizens. b. The Liberal Approach to Integration The liberal approach to integration does have common ground with assimilationism; the key similarity being that in the so-called public sphere – the sphere of law, economics, and services – universalism is relied upon to ensure equality. However, where it differs is that it is not uncomfortable with citizens having multiple identities. In fact, such diversity can even be celebrated. As Wieviorka points out, it is a theory and policy that is based on tolerance, so accepts and allows for specifity in the private sphere and does not entirely preclude it from the public sphere as long as such differences do not cause any problems in society. In this way it has overcome many of the shortcomings in the assimilationist model of integration. Particular identities, especially religion, are not going to disappear and the liberal approach allows for this. Consequently, particularity is not automatically synonymous with disloyalty. By accepting the existence of different groups in society this model also engages with issues of equality and nondiscrimination on a collective as well as individual basis. It requires some degree of commonality and assimilation, but still accepts the presence of difference, and is therefore assumed to be the most hospitable political

 R. Poole, Nation and Identity (Routledge, London, ), p. .  Melotti, ‘International migration in Europe: social projects and political cultures’ in T. Modood and P. Werbner (eds.), The Politics of Multiculturalism in the New Europe (Zed Books, London, ), – at .  M. Wieviorka, ‘Is Multiculturalism the Solution?’ () ,  Ethnic and Racial Studies –.

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theory to diversity. And yet, what initially seems a fair balance between commonality and difference is seriously compromised by the fact that it is based on a strict public/private divide, which many theorists strongly dispute. States are not culturally neutral and consequently, the culture of the state will tend to reflect that of the majority community. Minorities then are not being asked to integrate into a neutral political culture, but rather to conform to the status quo. As such, the public space begins to work as ‘a gag rule’ to exclude matters of concern of those marginalized from it, so that integration involves a challenge to the existing boundaries of publicity. If Muslims do try to integrate as Muslims and add their own values to the public sphere they are seen to be making excessive and ‘foreign’ demands. The liberal approach does try to mitigate the inherent tension between particularity and commonality, and it does succeed to a degree. Yet, because of the de facto structural privilege of the majority community it is a policy of integration that has encouraged particular identities on the one hand and then marginalized them on the other, causing resentment and frustration. Consequently, there has been a greater demand in recent years for an ‘identity model’ of integration that concedes public recognition to minority groups. c. Multiculturalism A multicultural policy of integration is characterised by the public recognition of previously privatised identities with recognition working equally for collectivities as well as individuals. Modood’s definition of multiculturalism underlines this. He defines it as, ‘the challenging, dismantling, and the remaking of public identities in order to achieve an equality of citizenship that is neither merely individualistic nor premised on assimilation. However, it is a model that in a very short space of time has gone from being

 B. Parekh, Rethinking Multiculturalism: cultural diversity and political theory (Palgrave, Basingstoke, ), p. .  Consider the work of A. Gutmann, Multiculturalism: examining the politics of recognition (Princeton University Press, Princeton, ), and M. Malik, ‘Muslims and Participatory Democracy’ in Siddique Seddon et al. (eds.), British Muslims: loyalty and belonging (Islamic Foundation, Leicester, ), pp. –.  T. Modood, ‘The Place of Muslims in British Secular Multiculturalism’ in N. Alsayyad and M. Castells (eds.), Muslim Europe or Euro Islam: politics, culture and citizenship in the age of globalization (Lexington Books, Oxford, ), – at p. .  See Modood, above n. .

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considered as the path to integration, to being vilified and implicated in the / terrorist attacks. So what has produced this change in the assessment of multiculturalism? Multiculturalism is taking the idea of legitimising difference in society to another level beyond the liberal approach. It is no longer about simply tolerating difference, but is about respecting such differences. If difference is viewed as foreign or deviant it can never be accepted or integrated, so identities must be taken out of the private sphere and become an integral part of the public identity of a state. Thus, it is a rejection of assimilationism’s one-way relationship where the burden for integration is placed solely on minorities. However, the experience of multiculturalism is that it has the potential for many outcomes, not all of them positive. While certainly the inclusive nature of society is more likely to engender greater participation from all groups, the issue of public recognition of minority identities is a complex one. Feuchtwang for example, points out that the idea of integration working differently for different groups presupposes the existence of already classified groups, each with distinct characteristics and identities. Yet there is no such thing as a homogenous group in society. Muslims in NI for example, are comprised from different nationalities, generations, classes and religious doctrines. Recognising difference is a difficult process in any society, so then how then do we recognise difference within difference? The issue of public recognition has also been problematised by the consideration of which rights can actually be accommodated. Although desirable within this model of integration, not all minority rights engender integration and unity within society. As Levy notes, an identity claim is not a substitute for an argument – we have to consider the impact on all of society. Segregated education is a case in point. The experience of NI is that segregated education has under-pinned wider societal segregation, with the result that society is divided in almost all aspects of life. If integration is to be based on respecting and accommodating difference there has to be common spaces where interaction between citizens can take

 Reactions of various theorists and commentators in the wake of / cited in reference Ibid.  S. Feuchtwang et al., ‘Tariq Modood’s multicultural project’ Open Democracy [online] ( October ) ( October ).  J. Levy, The Multiculturalism of Fear (Oxford University Press, Oxford, ), p. .

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place. It is not enough for communities to identify with a state; they also must identify with one another. Unfortunately multiculturalist societies are frequently made up of disparate collectivities, which vie for recognition and resources and interact little with one-another. Multiculturalism then, like assimilationism and the liberal approach, has also not managed to the balance tension between commonality and difference within society. d. Measuring Integration In considering integration it is first and foremost necessary to recognise that the path to integration and integration itself can take different forms. Secondly, and of crucial importance is the fact that to date, no model of integration has been entirely successful; there are problems associated with all types. Even in Canada, which had seemed the pinnacle of successful multiculturalism in action, a group of Canadian Muslims have recently been charged with offences related to an alleged plot to storm parliament and behead the prime minister. However, the analysis above has revealed the key issues in the integration conundrum. Identity is important for humans. It gives us a sense of worth, belonging and acceptance so it is morally indefensible and unworkable to expect an Islamic identity for example, to simply disappear. Particular identities must be given some place in society, although this is not straightforward. Too little and it will cause resentment and marginalisation of minorities; too much and it may encourage segregation. Neither scenario is conducive to integration. Integration can also not be viewed as being about solely culture and identity. Tariq Ramadan for example, warns against ‘Islamicising’ every problem when the real issues for Muslims in Europe are to do with jobs and discrimination. Yet concentrating exclusively on socio-economic indicators will also not engender integration. After all, the / bombers in London were far from deprived. Thus, any policy of integration must fulfil and balance out a whole range of

 D. Lak, ‘Testing times for Canadian tolerance’ BBC News [online] ( June ) ( August ).  Cited in R. Bechler, ‘Democracy, Islam and the Politics of Belonging’ Open Democracy [online] ( March ) ( April ).  G. Younge, ‘Please stop fetishing integration. Equality is what we really need’ The Guardian [online] ( September ) <www.guardian.co.uk/Columnists/Column/,,,.html> ( October ).

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needs: economic, political cultural and social, the consequences of which must be considered for society as a whole and not solely in terms of one particular group. Finally, the self-definition of a state must change to allow integration. If difference or immigration for that matter is seen as something exceptional, then a sense of belonging within the state will not be able to foster diversity. Therefore, in considering the integration of Muslims in NI, it should not be a question of picking our favourite policy of acculturation and determining how NI fares against this. Rather, it would seem more useful to consider integration as a three-way relationship involving the majority community, the state and Muslims, where each has to make an effort to further integration. As such, the analysis of the integration of Muslims in NI begins with the public process of integration. iii. the public process of integration Although integration is a three-way relationship between the state, majority community and minority group in question, the most important of these is the input from the state. It is only action from the state that can equalize or ameliorate a group’s socio-economic or political position in society, thereby allowing them to participate more fully. It is only the state that can defend a minority against systematic mechanisms of discrimination and exclusion, and of course enact penalties to discourage such behaviour from the wider society. And, it is only the state that can affirm the positive place of a minority community within society, and thereby legitimise their difference. Undoubtedly then, it is the state that must take the lead in the integrative process. Publicly integrating Muslims in NI involves many facets, including the identity of the state, the public visibility of Muslims, legislation, consultation and interaction with Muslims and the role of the political establishment in NI. It is under these headings that the public process of integration shall be considered. a. Identity in NI Unsurprisingly in a divided context such as NI, national identity is a highly contentious issue that cannot help but be affected by the sectarian nature of society. NI may be an integral part of Great Britain and therefore British in legal terms, but in reality the identity of the province is keenly disputed, with the result that a large minority of people in NI would profess an Irish instead of a British identity. Yet, how far can Muslims identify

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with either of these? Britishness and Irishness in NI are not the same as Britishness in the rest of the UK or Irishness in the Republic of Ireland. They are oppositional identities that have been forged in relation to oneanother so that notions of Britishness and Irishness in NI have remained locked into the disputed status of the province. They are ethnic identities that are closely bound up with religion: a British identity held primarily by Protestants, and an Irish identity held primarily by Catholics. Therefore, the fact that they are underpinned by religious affiliation makes it difficult for Muslims to identify fully with either. The manifestations of these identities are also deeply problematic for Muslims or minorities generally. Benedict Anderson argues that in a multicultural society unity can only be achieved through symbols and rituals so that each citizen imagines himself or herself connected to all fellow citizens. NI has symbols and rituals in abundance but these are to be found solely within particular communities. Parades, commemorations, wall murals, painted kerbstones, songs, flags, sports, language and even the choice of morning newspaper make up a system of cues, symbols and manifestations of Britishness or Irishness, which are by their very nature exclusive. Consequently, symbolism in NI, far from uniting citizens, functions as a means of boundary maintenance to create both a sense of hostility outwards and a sense of community inwards, with community being very narrowly defined. Of course it could be argued that a ‘Northern Irish’ identity could be put forward as a common identity that everyone could share. However, it is an identity whose meaning is yet to be fully articulated and to date, most people would still pick a British or Irish identity over a Northern Irish one. This is a situation that is unlikely to change very much as long as the sectarian divisions in society are maintained. Thus, until the ethnic basis of identity in NI is undermined, Muslims will only be able to profess a national identity in a nominal or legal sense.

 Cited in E. Frazer, The Problems of Communitarian Politics (Oxford University Press, Oxford, ), p. .  In the Northern Ireland Life & Times Survey (NILT) () % of respondents classed themselves as Northern Irish. <www.ark.ac.uk/nilt//Political_Attitudes/IDENTITY.html> ( August ). The same question was asked in the  NILT survey with only a slight increase (%) declaring a Northern Irish identity. <www.ark.ac.uk/nilt// Political_Attitudes/IDENTITY.html> ( August ).

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b. The Public Visibility of Muslims in NI Such complications surrounding national identity should not however, preclude Muslims from becoming an integral and valued part of Northern Irish society and public life. Yet, minorities generally are virtually absent from the public sphere, making their recognition and acceptance by wider society more difficult. McGill’s study in  found that there were only  minority ethnic police officers. This figure has risen but only slightly to  in March . In fact, out of  minority ethnic people to apply to the Police Service of Northern Ireland (PSNI) since the Patten report made changes to policing in the province, only four have been admitted. It is disturbing that equality within the police force has become one of increasing Catholics, at the expense of other under-represented sections of society. As David Ford remarks, If we are to move towards a shared, pluralist and integrated society, it is important that we do not engineer artificial outcomes solely for the sake of a perceived parity between two sections of our community. Continuing this trend, the annual reports of the Office of the Commissioner for Public Appointments in NI (OCPANI) show that since  no minority ethnic persons have been appointed as a chairperson to a public body, and over the same period of time only nine have been appointed as members of a public body, out of a total of  appointment and re-appointments made. Unsurprisingly there are no Muslim politicians in NI. Yet, to feel a sense of being a part of the state requires participation in the state apparatus, particularly in positions of power or highly visible jobs such as in the media. As Maalouf argues, everyone must be able to recognise themselves in society. Moreover, greater visibility of Muslims in public life in NI should engender more acceptance of them by the wider community, consequently breaking down stereotypes and

 P. McGill and Q. Oliver, A Wake-Up Call on Race: implication: Implications of the Macpherson Report for Institutional Racism in Northern Ireland (Equality Commission NI, Belfast, ), at p. .  D. Ford, ‘Targeted PSNI Recruitment Better than Unfair Quotas’ The Alliance Party [online] ( February ) <www.allianceparty.org/news/.html> ( April ).  Ibid.  Office for the Commissioner for Public Appointments in Northern Ireland [online] ‘Tenth Report /’. ( August ).  A. Maalouf, On Identity (Harvill, London, ), p. .

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increasing inter-community interaction. Thus, the invisibility of Muslims in NI is deeply problematic to processes and policies of integration. c. Legislative Accommodation The most potent means a state has to promote, protect and help integrate minorities is through legislation. Good relations within society can certainly be promoted by many other initiatives, but it takes legislation to guarantee equality and criminalize discriminatory forms of behaviour. Due to discrimination on sectarian grounds, NI has a history of equality legislation. In addition to this, the NI Act (), which came in the wake of the Good Friday peace agreement, has given equality issues further impetus by establishing the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission. However, full protection on the grounds of colour, race, nationality and ethnic and national origin, did not come about until  with the enactment of the Race Relations (NI) Order,  years after the first race relations legislation came about in the rest of Britain. Yet, this piece of legislation still withholds protection from groups such as Muslims who are defined by reference to religious belief. Discrimination and abuse on religious grounds can be dealt with by ‘The Public Order (NI) Act () and the Fair Employment and Treatment (NI) Order  (FETO). FETO makes it unlawful to discriminate against someone on the grounds of religious belief or political opinion and places a number of significant duties on employers that are not found in other anti-discrimination legislation in either NI or Great Britain. The Public Order legislation contains provisions that make it a criminal offence to incite or arouse fear of racial and religious hatred. However, neither pieces of legislation have provided complete protection for Muslims. As McGill points out fair employment legislation has not created equality in NI. Any positives that have come about have been due to a strong monitoring system, which only concentrates on the Protestant/Catholic context. There are also significant problems with the Public Order legislation. The Order does not contain provisions to make it an offence to use or display signs or words likely to cause harassment, alarm or distress to a person  The Equality Commission for Northern Ireland [online] ‘Equality Law’ <www. equalityni.org/ftp/yourrights/equality_law.htm> ( August ).  Above n. , at p. .  Ibid.

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within sight or hearing. Thus, the efficacy of the legislation in combating Islamophobia is clearly suspect. Also, similar to FETO, it is legislation that seems to be focusing on divisions between the two main communities, being barely used beyond sectarianism. Therefore, despite the positive steps made in equality legislation in NI, there are clearly still gaps and problems. The legislation does not encompass all situations where discrimination or harassment can occur; with the obvious potential that Northern Irish citizens, particularly those from minority ethnic or religious communities, could be suffering discrimination without any legal protection or redress. It is also the case that legislation is not being used effectively. Latif points out that the Protection from Harassment (NI) Order  could have been used during the Mosque dispute in Craigavon, where intimidation reached such a peak that Muslims were fearful to leave their homes. Thus, it is not just an issue of having legislation but of having legislation that works and in the case of NI is not assumed to relate to only the two main communities. d. Public Consultation and Interaction with Muslims in NI Consultation with minorities is a valuable process, which builds trust and understanding and as such, is vital in a plural society. In NI, Section  of the NI Act () places a statutory obligation on government departments and public bodies in conducting their duties to promote equality of opportunity and good relations between people of different religious beliefs, political opinion or racial groups. This would seem to suggest the need for consultation and interaction with minorities to fulfil these requirements. Yet, Connolly and Keenan’s report found that there was a general lack of understanding among service providers in NI of both the nature and the extent of racism in the province. This meant that there was a limited conception of what strategies would be required to tackle inequalities, with a  The Northern Ireland Office. ‘Race Crime and Sectarian Crime Legislation in NI: a summary paper’ (November ) ( August ).  G. White, ‘Law, Policing and the Criminal Justice System’ in P. Hainsworth (ed.), Divided Society: ethnic minorities and racism in Northern Ireland (Pluto Press, London, ), – at p. .  N. Latif, ‘Hate Crime in Northern Ireland’ The Northern Ireland Human Rights Commission (NIHRC) [online] ( June ) <www.nihrc.org.dms.data/NIHRC/attachments/dd/files//Hate_Crime_.pdf> ( August ).

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general philosophy in evidence of ‘treating everyone the same’. Although this difference-blind approach may appear fair, it is in fact failing to take into account the particular circumstances or needs of minorities. The result is that there is currently a general lack of consideration for the practical, cultural or religious needs of minorities in NI. Mann-Kler’s study clearly highlights the difficulties minority ethnic people in NI are coming up against with regards to services, education and policing issues. Many people were uncertain of even the range of services available to them, while language issues and a lack of interpreters have placed an unfair burden on children who have found themselves acting as interpreters for their parents. Un-met needs such as halal food, access to female doctors and greater provision of multi-faith prayer rooms were highlighted by Bangladeshis in NI. Indeed, most people in Mann-Kler’s study had experienced a lack of correct hospital foods. Ignoring basic religious requirements such as this is totally unacceptable. A failure to recognise and/or meet basic dietary and religious observance can add to a sense of exclusion and precludes people’s full participation in society. Education in particular is an area where there has been an absence of consistent consultation or policy provision for Muslims. The culture specific curriculum in NI does not reflect the growing multiculturalism within society. Gallagher and Leitch for example, found that more than % of teachers could not talk about Ramadan, and % of teachers had received no information on minorities as part of their training. It should not be surprising then, that the Islamic religion is not taught to the same degree as Christianity in NI. Consequently, this may result in a sense of inferiority amongst Muslim children and will inhibit them from expressing a positive Muslim identity out of fear of being different. If asked, schools will provide

 P. Connolly, ‘Executive Summary of Connolly & Keenan (), Tackling Racial Inequalities in NI: structures and strategies’ ( August ).  D. Mann-Kler, Out of the Shadows: An Action Report into families, Racism and Exclusion in Northern Ireland (Equality Commission NI, Belfast, ), p. .  D. Holder, y Years Seen but Not Heard: A Listening Session with the Bangladeshi (Sylheti) Community in Northern Ireland (MCRC, Belfast, ), p. .  See Mann-Kler, above n. , at p. .  P. Connolly, Race and Racism in Northern Ireland: a Review of the Research Evidence (OFMDFM, Belfast, ), p. .  T. Gallagher and R. Leitch, Education and Ethnic Minorities in Northern Ireland: A Survey of teachers (Commission for Racial Equality NI, Belfast, 1999), pp. 1–3.

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halal food but at present there is no policy regarding other issues that may affect Muslim children, such as wearing the hijab, or compromising on uniforms. However, more recently there has been signs of progress in the form of a ‘Good Relations policy and strategy’ document. This has been drafted to further equality of opportunity and good relations within schools, with special consideration being given to minority ethnic communities. To date however, this strategy has not been put into practice, and if it is to succeed minority issues need to be given greater priority than has previously been the case. Another critical area where consultation and interaction must take place is between the Muslim community and the police. Since Muslims are under-represented within the PSNI, consultation is even more important in order to build up confidence and trust. Over recent years minority ethnic groups have strongly criticised the police in NI, with prominent voices in the Muslim community stating publicly their lack of faith in the ability and intention of the PSNI to tackle racism. However, as with other public bodies in NI, the PSNI have been reviewing their relationship with minorities in NI. Information on reporting and getting help with hate crime is now available in several languages including Urdu and Arabic. The PSNI have also implemented a Multicultural Advisory Group to consult with members of minority ethnic communities and more focus has been placed on human rights training. In addition, Minority Liaison Officers (MLO’s) receive training in religious diversity. They act as a primary contact for minority ethnic communities and now visit all victims of hate crime. Other progressive initiatives are also pending such as community surgeries, station visits for young people from minority ethnic backgrounds and posters containing the photos and contact details of MLO’s in each area, to try and make contacting the police easier and less intimidating. While such initiatives are welcome, the key to increased confidence in the police is to

 My thanks to the Belfast Education and Library Board for providing this document.  See Latif, above n. .  The Police Service of Northern Ireland (PSNI), ‘Hate Crime’ PSNI [online] <www. psni.police.uk/index/hate_crimes/racial_harassment.htm> ( August ).  PSNI, ‘New Directions: a human rights and racial equality focus on policing with ethnic minority communities’ PSNI [online] (October ) <www.psni.police.uk/latest_new_directions_report_with_cover.pdf> ( July ).  My thanks to Constable Sam Campbell, central Minority Liaison Officer, South Belfast, for information given regarding work of MLO’s and pending initiatives.

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get more Muslims in the ranks and of course systematic training for all personnel and not just MLO’s. e. Political Discourse The public integration of minorities is not simply an impersonal process through means such as legislation or pursuing policies of affirmative action in employment. Through political parties and politically elected representatives it is possible to gauge how important minority issues are and how welcoming a society is towards minorities living there. In the case of NI, the political establishment has sidelined minorities and their concerns in favour of sectarian political issues. Only one MP, Unionist William Ross, even participated in the House of Commons debate that brought the race relations legislation to NI, and he incidentally was against it. The Unionist side of politics in NI has often been accused of being less open or inclusive. In , a Democratic Unionist Party (DUP) councillor refused to accept a gift to the Ballymena council from the Muslim community stating, “I do not believe in the Islamic faith or their traditions and I am suspicious because of the attacks on New York and Washington over six months ago. A lot of people in the United States and elsewhere have been slaughtered by them. It was also Unionist councillors who opposed the building of a Mosque in Craigavon, although much of this opposition was tied into the divided nature of life in NI. There was for example, a fear that the Protestant identity of the area in which the Mosque was to be built would be diluted. Also, support for the Mosque from Sinn Fein played a key role in Unionist opposition, with a feeling that Sinn Fein was using the Mosque to score points against Unionists. Despite this poor record towards minority issues, there have been some positive movements from Unionist parties in recent years. The loyalist Progressive Unionist Party (PUP) for example acted as a mediator in areas where problems had occurred for minority ethnic

 P. Hainsworth, ‘Politics, Racism and Ethnicity in Northern Ireland’ in P. Hainsworth (ed.), Divided Society: Ethnic Minorities and Racism in Northern Ireland (Pluto Press, London, ), pp. – at .  BBC News [online], ‘Unionists Outrage Local Muslims’ ( March ) <www. news.bbc.co.uk//hi/northern_ireland/.stm> ( September ).  G. Marranci, ‘Constructing an Islamic Environment in Northern Ireland’ ()  Built Environment  at p. .  Ibid.

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groups. They translated their literature into the main minority languages and even had a spokesperson for minority issues. The Nationalist side of the political divide is viewed as being more receptive to minority issues and certainly solid links exist between Sinn Fein and the Belfast Islamic Centre (BIC). However, overall the Nationalist performance in terms of minority issues has been far from perfect, with Nationalist MP’s being severely criticised by Traveller community groups for not taking enough action on behalf of Travellers living in their areas. Far from leading the way, the increased interest in minority ethnic affairs has come in the wake of the mobilisation of minority ethnic groups, the introduction of legislation, and the increased media coverage of racial incidents. Basically, the lack of real political settlement has continued the political indifference to minority ethnic issues by all political actors of whatever community. f. The Public Performance of Integration The role of the state should never be under-stated. It is only through legislation, monitoring, training and consultation that Muslims and other minorities in NI will be able to participate fully in all aspects of life. To date however, performance in these areas has been patchy to say the least. Section  has prompted many public bodies to take steps to be more responsive to minority needs, but on the whole minority issues are simply not a major priority in NI. The sectarian nature of Northern Irish society is still the main focus of legislation, monitoring and equality. Thus, the lack of any final lasting peace settlement means that although equality and human rights issues have been mainstreamed, they have been suspended within the two-communities paradigm. iv. the popular process of integration Clearly the disputed nature of the self-definition of the state has made it difficult for Muslims to fit into the current formations of Britishness or Irishness, based as they are on political affiliations that are intimately linked to being either Protestant or Catholic. However, even without the strong link between religion and national identity, growing manifestations of racism

 Hainsworth, above n. , at p. .  Ibid.

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and xenophobia have undermined a sense of belonging for Muslims in NI. Incidences of prejudice and racism have been increasing so much in recent years that Robbie McVeigh declared NI the ‘race hate capital of Europe’. Ultimately such prejudice undermines the process of integration. a. The Origins of Popular Prejudice If prejudice against ‘outsiders’ exists, which it certainly does in NI, it is important to understand its origins. Prejudice in NI must first of all be considered in a historical context. History informs stereotypes with colonialism in particular reinforcing racist ideologies. Colonialism is not some ancient practice of a bygone era; it is a recent history of exploitation, the patterns of which retain their meaning in the contemporary context. Ireland may have been a British conquest but the Empire had significance beyond this in Ireland. In a strange twist of fate the Irish were in a curious position of being both colonisers and colonised since there was a strong Irish diaspora in most colonies, empowered above the native people. Ireland also has a strong history of religious imperialism. Such experiences and accompanying attitudes have undoubtedly been repatriated to Ireland and internalised. In fact, up until rather recently it was still common to hear about ‘Collections for Black Babies’ in churches throughout Ireland. Therefore, the colonial legacy in NI has not only informed relations between the two main communities, but also relations between minorities and the majority community. In fact, throughout Irish history there has been hostility towards outsiders, which cannot be contributed to any one religion or community. Anti-Jewish boycotts and significant racism against the travelling community highlight how Ireland is a region that has struggled to deal with difference. Much of this in NI can be contributed to the strength of community and sectarian divisions in society. As shown earlier, identity in NI is an extremely divisive issue, and decades of violence

 Cited in BBC News [online], ‘Spate of Race Attacks Condemned’ ( June ) ( June ).  K. Woodward, Understanding Identity (Arnold, London, ), p. .  R. McVeigh, ‘There’s no Racism because there’s No Black People Here’ in P. Hainsworth (ed.), Divided Society: Ethnic Minorities and Racism in Northern Ireland (Pluto Press, London, ), – at p. .  Ibid., at .

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have only served to intensify the ethnic components of identity on both sides of the divide. The result has been that the two main communities have become effectively segregated and inward looking. In the context of such strong communal identities, anyone who is not a part of ‘your’ community is considered to be an outsider, and will potentially encounter marginalisation and prejudice. Muslims encounter various types of prejudice to do with skin colour, ethnicity and religion and while these various prejudices are related and mutually reinforcing, they cannot be separated from the more organic sectarian prejudice in NI. Sectarianism and racism are closely related and actually reinforce one another. Both involve the categorization of society and the inability to cope with difference. And, it is not just indirectly that sectarianism has affected Muslims in NI. There is a tendency within NI to import or hijack relevant symbols in an attempt to project commonality with political situations elsewhere. The most widely used of these is the Israeli/Palestinian conflict. Nationalist areas fly the Palestinian flag, while Loyalist areas fly the Israeli flag. Therefore, Muslim identification with the Palestinian people has meant that although not wanting to be, they have become involved in sectarianism in this rather unexpected way. Consequently, Muslims may be considered as being more ‘Nationalist’, which obviously is counter-productive to furthering Muslim integration with the Protestant community. However, prejudice cannot be blamed entirely on historical legacy or consequences of sectarianism. NI has not experienced the same levels of immigration, and so has been disproportionately influenced by asylum and race debates going on in Britain and Europe. The terms of these debates have been diffused by the British media, where narrow and partisan reporting has labelled minority and Muslim issues as problematic. Thus, a negative framework for considering these issues has been established in NI. Media in NI has also not been exempt from such negative and damaging reporting patterns. Studies examining the representation of minorities within the media in NI have found reporting on such issues to be minimal, and where it does occur, it

 Ibid., at .  J. Brewer, ‘Sectarianism and Racism and Their Parallels and Differences’ () ,  Ethnic and Racial Studies  at p. .  McVeigh, above n.  at .

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tends to be about bad news, thus reinforcing negative stereotypes. Such pejorative reporting trends are particularly problematic in societies such as NI where communities are so insular. The  NI Life & Times Survey (NILT) found that only % of people are in regular contact with Muslims, making the media their main source of information on Islam. Thus, since objective knowledge of, and interaction with Muslims is minimal, the media has the capacity to define the terms in which they should be considered and ultimately has the ability to reinforce existing prejudices. b. Prejudice Against Muslims in NI Evidence of prejudice today within Northern Irish society is extensive. Corrigan’s study found how being stared at is a form of discrimination many Pakistani Muslims feel; is specific to NI due to the small numbers of minorities living there. Although often not malicious in intent, being stared indicates difference. It has also made many Muslim women reluctant to wear the hijab as this would make them stand out even more. However, more sinister forms of prejudice are also present. A study by Connolly & Keenan found that % of respondents would not want a South Asian person marrying into the family, one third would not want them as a colleague and one quarter would not want them to live in their area. The NILT survey carried out in  is the most recent study into social attitudes towards minorities in NI, and the results indicate that prejudice has far from diminished. One fifth of respondents described themselves as prejudiced, with % even admitting to have directly abused someone

 L. Fawcett, Press Reporting on Minority Ethnic Issues and Racism in Northern Ireland (Equality Commission NI, Belfast, ), p. .  NILT  <www.ark.ac.uk/NILT//Minority_Ethnic_People/Index.html> ( August ).  Ibid.  P. Hartmann and C. Husband, ‘The Mass Media and Racial Conflict’ in D. McQuail (ed.), Sociology of Mass Communications (Penguin Books, London, ), pp. – at .  M. Corrigan, A Sociological Study of Pakistanis in Northern Ireland (Queen’s University, Belfast, ), p. .  Ibid.  P. Connolly and M. Keenan, Opportunities For All: Minority Ethnic People’s Experiences of Education, Training and Employment in Northern Ireland (National Statistics Department, Belfast, ), p. .

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on account of their skin colour or ethnicity. With respect to Muslims specifically, negative stereotypes seem to have become entrenched in Northern Irish thinking. % of people agreed with the statement ‘Muslims treat women as inferior’ and only % disagreed. Also, only % of respondents agreed with the statement, ‘I admire the ancient religion of Islam’. If such sentiments are expressed in everyday interactions, then Muslims will surely feel alienated within society. Such attitudes have been translated into actual incidences of abuse. Irwin & Dunn discovered that % of Pakistanis living in NI had been verbally abused and % had been physically abused. Such physical abuse has increasingly been aimed at Muslim women wearing the hijab. Indeed, the growing number of racist incidents directed at all minorities in NI has gotten progressively worse since the  ceasefires. Racist incidents reported to the police increased by % between January  and December , with this upward trend continuing over recent years. In / racially motivated crime in NI increased by .% on the previous year, with violent crime accounting for .% of the total. The PSNI have also begun recording crimes with a faith or religious motivation. During /,  such crimes were recorded with .% of these being violent crimes. While no figures exist to show exactly how many of the victims of these crimes were Muslims, it is indisputable that Muslims do suffer all kinds of abuse including violence on account of being ‘different’. While it would be wholly inaccurate to paint all Northern Irish people as racists, racism and prejudice are clearly problems in NI, which are sadly growing at an alarming rate. The root cause of prejudice has undoubtedly much to do with the historical development of sectarianism in NI, so that racism can be seen as an extension of the exclusivist, insular attitudes that

 NILT  <www.ark.ac.uk/NILT//Minority_Ethnic_People/Index.html> ( August ).  Ibid.  Ibid.  G. Irwin and S. Dunn, Ethnic Minorities in Northern Ireland (Centre for Study of Conflict University of Ulster, Coleraine, ), p. .  Cited in P. Connolly, Race and Racism in Northern Ireland: a Review of the Research Evidence (OFMDFM, Belfast, ), p. .  PSNI, ‘Hate Incidents and Crime’ PSNI [online] <www.psni.police.uk/index/statistics_branch/pg_crime_stats.htm> ( August ).  Ibid.

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led to the troubles. Contemporary issues such as the asylum debate and events since / have only reinforced these prejudices. The consequences of such negative attitudes and actions are far-reaching, especially with regards to integration. An attack on one person because of their particular identity will heighten fear and concern within their whole community. This has implications for the wider society since contact is reduced between communities, reinforcing a sense of difference for all. A society that contains insular and separate communities whether they are Muslim, Protestant, Catholic or other, will not be able to engender a common sense of belonging and therefore, can never be considered integrated. v. muslim integration into ni Although the Muslim community cannot integrate unless it is permitted, the path to integration is also influenced by factors specific to the Muslim community itself, including size, social and religious organisation and also positive action towards participation in Northern Irish social and public life. The integration of Muslims in NI has been affected by the small size of the community, impacting on their patterns of settlement, religious organisation and choice of language. In , the then President of the BIC estimated the number of Muslims in NI to be about , a figure which with immigration and natural growth will obviously be higher now. Yet despite such growth the Muslim community in NI is still tiny. As such, Muslims are not residentially and geographically bounded, as is the case in England. This has both positive and negative consequences for integration. The fact that they live amongst the wider society means they are more likely to interact with non-Muslims. However, their isolation from one another means that they are not politically confident enough to assert their presence, or to lobby the local political establishment. Such small numbers spread throughout society also makes Muslims largely invisible within Northern Irish society, with the result that they are still treated as outsiders or immigrants to the state. Demographic makeup has also influenced the issue of language for Muslims in NI. Smaller numbers have meant that there is a different religious and social organization for Muslims in NI than is the case

 E. Longley and D. Kiberd, Multiculturalism: the view from two Irelands (Cork University Press, Cork, ), at p. .  Marranci, above n. , at p. .

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in England or most of Europe. In Europe greater numbers have facilitated the tendency of Muslims to split into subgroups, but in the BIC and the Northern Ireland Muslim Family Association (NIMFA), where prayers are also held, all nationalities share the same space. Therefore, in an effort to ensure unity, English is privileged, a trend that is again in opposition to that which occurs elsewhere. Of course part of the reason for privileging English has been to do with the divided nature of society in NI. Muslims are aware of the problems that minority languages have caused between Protestants and Catholics and do not want to create any negative stereotypes of their own community. Whatever the reason, this is hugely important for integration, as language is the key means of participating within society. The potential for integration is also influenced by socio-economic status. A sense of being a part of society and participating in it is more likely with greater affluence. Although Muslims in Europe tend to suffer from low pay and poor employment opportunities, this trend is not so evident amongst Muslims in NI. Many Muslims who settled in NI did so for business reasons or were studying and so, remained. As such, Irwin & Dunn’s study showed that there were high proportions of Pakistanis within professional (%) and managerial classes (%). However in contrast to this, only % of Pakistani women in NI were found to be economically active, which will obviously have implications for these women in terms of their contacts with the wider community. Socio-economic, religious and demographic make-up and organisation of the Muslim community in NI has facilitated greater integration, although of course this is not the same for all Muslims and especially for women who have traditionally remained within the home. Of course, it is not just a matter of living and working within the wider society that will facilitate greater integration for the Muslim community. For  G. Marranci, ‘We Speak English: language and identity processes for Northern Ireland’s Muslim community’ () ,  Language and Culture  at p. .  Ibid., at pp. –.  G. Younge, ‘Please stop festishing integration. Equality is what we really need’ The Guardian [online] ( September ) <www.guardian.co.uk/Columnists/Column/ ,,,.html> ( October ).  T. Modood, ‘Muslims and European Multiculturalism’ Open Democracy [online] ( May ) <www.opendemocracy.net/debates/articles-––.jsp> ( May ).  G. Irwin and S. Dunn, Ethnic Minorities in Northern Ireland (Centre for Study of Conflict University of Ulster, Coleraine, ), pp. –.  Ibid.

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Muslims as a community and not simply as individuals to be considered as an integral part of NI, links must exist between Muslim community groups and wider society. Muslim representatives such as the BIC, NIMFA and Al- Nisa Association are regularly asked to take part in consultations, and frequently do so. The Al-Nisa annual report (–) for example, has eleven pages full of consultations, representations with external organisations and networking events they have taken part in, in an attempt to make Muslim women’s voices heard in NI. NIMFA regularly hosts the Interfaith Forum, which is consulted on a wide range of issues including education and policing. Also, Muslim community groups frequently host open days and awareness events. If anything groups such as NIMFA do not have the personnel or financial resources to take part in all the consultations and events they are asked to participate in. Thus, to increase the links that Muslims have with both public bodies and the wider society more funding is needed. Yet despite the various links that have been established, the Muslim community in NI has not mobilised to become a visible pressure group. They have little or no involvement in local politics and have not been visibly lobbying the political establishment to further some of their needs, which are clearly not being met. Corrigan argues that in terms of Pakistani Muslims in NI, there is a major reluctance to become politically active due to a fear that increased visibility will lead to greater vulnerability. This reflects the isolation that many minorities experience in NI. It also goes some way to explaining why despite Muslims being a vibrant and growing community, who actively participate in society, they have been reticent about any outward or visible displays of Islam or an Islamic identity in NI. The only thing that identifies the semi-detached house in Belfast as the BIC is a sign that can be easily removed, and was in fact removed after attacks on the house in the aftermath of /. Moreover, the current prayer facilities in NI are totally inadequate for the size of the community. Yet despite planning permission being given for a Mosque to be built in the Craigavon area, the community has been reluctant to

 My thanks to Mrs A.S. Khan MBE and the Al-Nisa Association N.I. for their information concerning Al-Nisa events and activities.  My thanks to Mr Hassan Mansour and the Northern Ireland Muslim Family Association (NIMFA) for their information regarding NIMFA events and activities.  See Corrigan, above n. , at p. .  See Marranci, above n. , at p. .

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begin this project due to hostile opposition from Protestant councillors and the local community in which it was to be built. Thus, in spite of the attempts that Muslim community leaders have made to establish links with wider society, the establishment of an Islamic presence in NI has been problematised by the political situation. A distinct Muslim voice, political participation and even building a Mosque require a degree of visibility that engenders a sense of insecurity for Muslims in NI. vi. ideology of fear The path to integration for Muslim communities living in the West cannot be considered without taking into account the new global situation since the terror attacks in America in . These attacks were the starting point for a new chapter in Muslim/Western relations, where events in Bali, Madrid, Kenya, London, Afghanistan, Iraq, Palestine and now Lebanon have created a mutually reinforcing relationship where simultaneously we are all targets, victims and aggressors. Even a glance at the news since / shows that discrimination, harassment and attacks on Muslims in Europe have increased massively, as has the sense of injustice within Muslim communities. Rattansi points out that this post-/ context has brought about a rise of a vocal militant Islam inimical to the safety of the West, which in turn has created a perception of all minority cultures as being seamless and illiberal. Indeed, such a cycle of mistrust and grievance has built up within the Muslim/West relationship, that Tariq Ramadan is concerned about the emergence of an ‘ideology of fear’. It is an ideology that he describes as being devoid of ideas but based on emotions and a binary vision of ‘us and them’. This ‘us versus them’ paradigm has made Muslims the focus of national concern and debate within Western states. In particular, there is increased scrutiny and concern over transnational Muslim relations and links. As immigrants to much of Europe, Muslims links to other countries have always existed. However, such links have

 A. Rattansi, ‘New Labour, new assimilationism’ Open Democracy [online] ( March ) <www.opendemocracy.net/articles/View.jsp?id=> ( March ).  Cited in R. Bechler, ‘Democracy, Islam and the Politics of Belonging’ Open Democracy [online] ( March ) ( April ).  Ibid.

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become more multiple and sustained thanks to technological advances in recent decades, facilitating a global sense of community. Technology has not only engendered a global awareness and connection between Muslims, but has also kept Muslims in the West abreast of events and tragedies that have befallen Muslim communities elsewhere, which in turn has helped to foster a sense of anger and injustice against the West. However, this global Islamic identity, manifested in protests over the Satanic Verses, or the recent Danish cartoon controversy, has become more visible precisely at a time when there is an unprecedented globalised anxiety over the threat of Islamist extremists in Europe. Thus, discourse that continually calls on Muslims to tackle extremism and condemn terrorism is the result of a spiralling suspicion of Muslims in the West, which in turn is a source of alienation for Muslim communities. Of course undoubtedly the greatest source of alienation and frustration for Muslims is the issue of Western foreign policy or involvement in the Muslim world. The ongoing conflict in Iraq has cost the lives of more than , Iraqi civilians. Western controlled media does not tend to give extensive coverage to the death toll, but Al-Jazeera and Al-Arabiya TV channels, watched by millions of Muslims in Europe does detail the true extent of the carnage. Allegations involving the desecration of the Qu’ran, American ‘shock and awe’ tactics which fill the hospitals and morgues, prisoner abuse in Abu Ghraib prison in Iraq and of course, anti-terror legislation, which in practice is indirectly targeting Muslims, have all furthered and reinforced a perception of persecution within the Muslim community. So although Tony Blair may argue that the ideology

 Tony Blair has made several speeches this year calling on the Muslim community and Muslim leaders to do more to stop Islamist extremism. Consider H. Mulholland, ‘We must defeat ideas of extremists, says Blair’ ( July ) The Guardian [online] <www. guardian.co.uk/terrorism/story/,,.html> ( July ); P. Wintour, ‘Blair says Muslim leaders must do more’ The Guardian [online] ( July ) <www.guardian.co.uk/ terrorsim/story/,,.html> ( July ).  P. Rogers, ‘The threads of war’, Open Democracy [online] (6 July 2006) <www. opendemocracy.net/conflict/war_threads_3713.jsp> (10 July 2006).  Ibid.  J. Gray, ‘Power and Vainglory’ The Independent (London, United Kingdom,  May ), p. .  S. Marsden, ‘Top Asian policeman condemns anti-Muslim terror laws’ The Independent [online] ( August ) <www.news.independent.co.uk/uk/legal/article. ece> ( August ).

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of the extremists rests on a ‘false’ sense of grievance against the West, a specific world-view that sees a plot by the West to dominate the Muslim world has struck a chord with millions of people because it is essentially embedded in partial truths. Despite this, Britain is doggedly refusing to accept any link between its foreign policy and the growing resentment of Muslims within Britain’s borders; much less that foreign policy could possibly have been a motivating factor for the / suicide bombers. Yet such a position is contrary to the results of numerous surveys conducted since the bombings. One such survey carried out by the Federation of Student Islamic Societies (FOSIS) of which the Islamic Student Society of NI (ISSNI) is a signatory; found that the most cited reason for the attack amongst Muslim students was Iraq followed by foreign policy generally. In contrast, the Home Office analysis of the attacks concentrates on the socio-economic issue, highlighting in particular the marginalisation of the communities where the suicide bombers came from. This is important but integration is more than socio-economic marginalisation or discrimination, and as the post-/ context demonstrates, it is also more than the sum of what happens locally. All of this may seem somehow far removed from what is a tiny state on the periphery of mainland Europe but it is a context that has not by-passed Northern. a. NI & the Ideology of Fear The situation in NI is quite different to that in England or France for example. NI has not suffered any Islamist terrorism; it does not contain so-called Muslim ghettoes and apart from the anti-war demonstrations, where non-Muslims were more numerous, the Northern Irish public has not been confronted with the sight of Muslim protest. However, NI has not been entirely exempt from the growth of Islamist radicalism that has occurred elsewhere. Recently an Algerian man, Boutras Abbas, was jailed  P. Wintour, ‘Blair says Muslim leaders must do more’ The Guardian [online] ( July ). <www.guardian.co.uk/terrorsim/story/,,.html> ( July ).  P. Rogers, ‘The threads of war’ Open Democracy [online] ( July ). <www. opendemocracy.net/conflict/war_tjreads_.jsp> ( July ).  Ibid.  FOSIS [online], ‘The voice of Muslim students: executive summary’ (August ) <www.fosis.org.uk/sac/ExecutiveSummary.pdf> ( October ).  P. Rogers, ‘London’s Intelligence Failure’ Open Democracy [online] ( May ) <www.openDemocracy.net/conflict/intelligence_.jsp> ( May ).

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for six years on terrorist offences, and another man from the Philippines was remanded in custody in  on charges of aiding a South East Asian terrorist network linked to Al-Qaeda, although he has since been released. In fact, within the island of Ireland as a whole there has been concern at the alleged growth of extremism in the region. Undoubtedly this has added another dimension to NI’s already prevalent security identity. The increasingly stringent terrorism legislation is after all as applicable to NI as it is in the rest of Britain. Despite this, there is no evidence of any generalised fear in NI that the state may be targeted by Islamist extremists; although this should not be taken to mean that the post-/ context has had no discernible consequences on attitudes in NI. A series of questions linked to the post-/ context were asked in the  NILT survey. The responses highlight the distrust and negativity with which many people in NI view Muslims. Only % of people thought that Muslim leaders had made an effort to stop extremism and only % of people disagreed with the statement, ‘It is right to be suspicious of Muslims’. The suspicion, distrust and negativity that surrounds Muslims and Islam in NI will impact on how accepted Muslims feel and their own sense of belonging. Moreover, such prejudicial attitudes can quite easily turn to violence, and certainly did so in the aftermath of / with many Muslims in NI being verbally abused in the street and attacks on the Islamic Centre. However, this only deals with the impact of the post-/ context on non-Muslim attitudes in NI. Just as vital is how Muslims in NI have reacted to global events. For Muslims in NI a more universalistic sense of Islamic identity certainly exists. Although the Muslim community contains several generations, it is still quite young and as such, there are high numbers of first generation immigrants. Consequently, Muslims in NI have strong links with Muslims in other countries, a trend which is reinforced by continual immigration. In addition to these familial links with Muslims abroad, the

 H. McDonald, ‘Security Fear as al-Qaeda Suspect is held in Belfast’ The Observer [online] ( February ) <www.observer.guardian.cp.uk/uk_news/story/,,,. html> ( June ).  NILT  <www.ark.ac.uk/NILT//Minority_Ethnic_People/Index.html> ( August ).  Ibid.  Ibid.  BBC News [online] ‘NI’s Muslims fearful after US attacks’ ( September ) <www.news.bbc.co.uk//hi/northern_ireland/.stm> ( September ).

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patterns of religious organisation have also contributed to a more global sense of Muslim identity. As remarked upon previously, at the BIC all nationalities and both Sunni and Shi’a encompass the same socio-political space. What this means is that the Muslim identity in NI has not been divided by national or doctrinal difference. Undoubtedly then, Muslims in NI have not only an interest in the situation of Muslims elsewhere, but also have a sense of loyalty and concern towards them. Muslims in NI may not be visibly as politically mobilised as Muslims in England for example, but the active participation of many Northern Irish Muslims in anti-war protests to do with Iraq and Lebanon and their organisation of charity collections for Muslims overseas certainly indicates that they are as concerned about global events in the post-/ world as Muslim communities elsewhere. Thus, it is clear that identity, community and loyalty are now transnational, so to ignore global events and influences is to take a blinkered view of the paths and pitfalls to integration and to ignore how processes of global interconnectedness impact on public awareness. vii. conclusions It is undeniable that the post-/ context has increased polarisation between Muslims and non-Muslims precisely at a time when greater interaction is needed. It has provided a lens through which all events and social experiences are filtered, so that this ideology of fear pervades relations between Muslims and non-Muslims, be it at a local national or international level. In NI / has only served to intensify the stereotyping of the Muslim community. The latest plans to introduce passenger profiling on airplanes will only heighten prejudice against Muslims in a state such as NI where they are largely invisible and there is little intercommunity contact. Although it is a situation that is beyond the control of any community in NI, it does serves to highlight how education and cultural awareness are of such importance, in order to mitigate the consequences of this. However, the path to integration of Muslims in NI has been affected more by the sectarian nature of society than /. The divi-

 Marranci, above n.  at p. .  C. Wilpert, ‘Ethnic and Cultural Identity: Ethnicity and the Second Generation in the Context of European Migration’ in K. Liebkind (ed.), New Identities in Europe: Immigrant Ancestry and the Ethnic identity of y Youth (Gower, Aldershot, ), – at p. .

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sions within NI have meant that integration policies have focused almost exclusively on Protestants and Catholics. Up until at least the collapse of the Stormont government in  the policy for dealing with the divisions in Northern Irish society was a curious mix of assimilation and separation. The political system allowed for no special rights or difference, but there were pluralist structures in education and sport. The more recent British and Irish government led attempts at peace including the Anglo-Irish Agreement (), the Framework Document () and most recently the Good Friday Agreement (), have all been based on the identity model, related to the Hegelian idea that identity is constructed through a process of due recognition. The Good Friday Agreement in particular has been put forward as ‘the embodiment of multiculturalism’, with its emphasis on multicultural values such as linguistic diversity, parity of esteem, reconciliation, equality, full and equal legitimacy, and the strengthening of human rights. Undoubtedly the Good Friday Agreement has created new opportunities for promoting the rights and equality of all communities in NI. Human rights, equality of opportunity and the promotion of good relations within society are issues that are now being discussed more frequently and are being incorporated into the agendas of public bodies such as the PSNI and the Department of Education. And yet, despite its potential it is simply another agreement that embodies bi-culturalism. In fact it did not even mention other minorities living in the province, when more than one fifth of the population does not belong to either the Protestant or Catholic tradition. Issues to do with recognition, linguistic and cultural rights, equality and symbolism have been discussed debated and resolved within the two traditions paradigm. It is hardly surprising then, that legislation, which could protect Muslims from discrimination and abuse, is being used primarily to protect the two main communities. And, it is not just legislation. This focus on solely Protestants and Catholics has allowed public representatives and service providers to ignore the exclusion of minorities, which as Crowley and McLaughlin argues, puts them in ‘a double bind of

 A. Buckley, Symbols in Northern Ireland (Queen’s University, Belfast, ), p. .  Cited by Mary McAleese in E. Longley and D. Kiberd, Multicutluralism: the View from Two Irelands (Cork University Press, Cork, ), at vii.  M. Nic Craith, Plural Identities: Singular Narratives: The Case of Northern Ireland (Berghahn Books, Oxford, ), p. .

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invisibility and marginalisation’. Monitoring for example is an effective means of highlighting the under-representation of particular groups within specific employment sectors or industries. Yet, monitoring is only required for the two main communities in NI, as though labels such as Catholic and Protestant are the only fault-lines along which inequality and prejudice are being fought over. Thus, multicultural values such as recognition, mutual respect and parity of esteem that have become so important in NI have not been significantly extended to minority communities. The bi-cultural emphasis on policy, focus and legislation in NI is also not solving the divisions within society. Indeed, it is actually serving to reify such divisions and is therefore diminishing the opportunity to build a new inclusive identity, which could encompass all races and religions in society. Therefore, identity and life generally in NI remains the exclusive domain of a particular community, which has had far-reaching consequences for integrating Muslims. The strength of community in NI is in a sense a double-edged sword, with both Northern Irish friendliness and Northern Irish racism originating from it. This explains how Muslims can have good relations with the rest of the community in NI, and simultaneously suffer abuse. Sectarianism has also created boundaries in NI that are not easily transgressed. They are most obvious in the spatial segregation that has accompanied sectarianism in NI. Through the flying of flags, and painting of kerbstone and murals, the religious homogeneity of a particular neighbourhood is maintained. As such, Muslims are constantly vulnerable in whatever area they live. Their reluctance to challenge this system by building a Mosque in the face of opposition or even display Islamic symbols is quite understandable. Thus, to allow the full integration of Muslims into NI the sectarian divisions present must be removed and an overarching identity or community established. To date however,

 E. O’Broin, ‘Living Between Green and Orange’ in E. Crowley and J. MacLaughlin (eds.), Under the Belly of the Tiger: Class, Race, Identity and Culture in the Global Ireland (Irish Reporter Publications, Dublin, ), pp. – at .  Ibid., at .  G. Boucher, ‘Irish Acculturation Ideologies: Mixing Multiculturalism, Assimilation and Discrimination’ in M. MacLaughlin and M. O’Connell (eds.), Cultivating Pluralism (Oak Tree Press, Dublin, ), pp. – at p. .  Jamal Iweida, the former President of the BIC states that relations between Muslims and the rest of the community in NI are very very good. Cited in A. McKernon, ‘Mosque comes under fire’ The Irish News (Belfast, Northern Ireland,  September ), p. .

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little effort has been exerted on creating new symbols or institutions, which are not part of the political troubles in NI. Despite the pessimism of much of this chapter, it should be stated that Muslims have become integrated into NI. They participate in the economic and social life of the province; they attach great importance to speaking English; they live in harmony with their neighbours and are a growing and vibrant community. However, much of their integration has been on an individual as opposed to community basis. Muslim community groups are building good links with other organisations, but as a community they have yet to put down roots in the form of a Mosque or display any visible manifestations of an Islamic identity. The sectarian and disputed nature of life and identity in NI has precluded this. Until this changes and an inclusive identity is created, Islam and thus Muslims as a community will continue to be viewed as something foreign to NI.

chapter eighteen

Religion, Minority Rights and Muslims of the United Kingdom Javaid Rehman* i. introduction Professor Joseph Kunz once remarked that ‘[h]e who dedicates his life to the study of international law is sometimes struck by the appearance as if there were fashions in international law just as neckties’. Minority rights, as a subject has a strong sense of déjà vu about it – the examination of the rights of minorities, which was a fashionable preoccupation of the League of Nations, for a considerable after the birth of the United Nations remained absorbed into the wider aspiration of the protection of individual human rights. At the beginning of the new Millennium and with the commencement of ‘war against terror’, the fashions of international law appear to have changed with minorities once more a focal point of debate and examination. There is nevertheless one significant difference: the debate on minority rights (certainly within Western Europe, the United Kingdom and the United States) is about the dangers emanating from members of a particular minority – the Muslims. The official State responses are that the threat from radical Islamic extremists is substantial and is likely to dominate global political and legal developments for the foreseeable future. Amidst the global threat from Islamic extremism, an examination of the position of British Muslim minority is of significant value. British Muslims have been under the spotlight since the tragic events of  September . Right-wing racist elements within the society suggest that British Muslims are followers of an aggressive religion advocating recourse to violence, terrorism and destruction; they are in the words of Nick Griffin, the Leader

* Professor of Law, Brunel Law School, Brunel University, London.  J. Kunz, ‘The Present Status of International Law for the Protection of Minorities’ ()  American Journal of International Law, –, . Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –

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of British National Party followers of a ‘wicked and vicious faith’. It is also the case that there is a growth in Islamophobia, highlighted not only by the surge in stop and searches of Muslims but also by such instances as the refusal of air passengers to board a flight from Malaga to Manchester alongside two Asian Men on  August, . During the course of the twin conferences (March  and January ), there have already been several references to Islam, Muslims and Terrorism: It would appear that on a number of occasions, there has been an overlapping cross-referencing of Muslims as terrorists and criminals. In legal literature as well as societal discourses prefacing Islam with terrorism is not uncommon. In an environment of immense sensitivity, any discussion on the contemporary position of Muslims is enormously controversial. The overall objective of the present paper is to critically examine the position of Muslim minorities within the United Kingdom. The chapter considers a number of issues and concerns encountered by the Muslim minorities both historically as well as post  July . The chapter is divided into six sections. After these introductory remarks, section two presents a historical overview of Muslim minorities in the United Kingdom. Section three examines the practices and policies of the successive British governments and the factors that have led to disenchantment, discrimination and aggravation. Sections four and five focus specifically upon the implications of  September  and  July bombings respectively. As the chapter examined, since July  atrocities, substantial concerns has been expressed by the British government over the growth of extremism and radicalization; many of the legislative initiatives are ill-advised though there have been a few constructive initiatives such as the establishment of working

 ‘Tough Hate Race Laws Considered’, BBC, 11 November 2006, http://news.bbc.co.uk/ lhi/uk_politics/6137722.stm (last visited 10 March 2007). ‘Many horrific acts have been, and continue to be carried out in the name of Islam, just as they have been in the name of Christianity. But unlike Islam, Christianity does not justify the use of all forms of violence. Islam does’. P. Sookhdeo ‘A Religion that sanctions violence’ Daily Telegraph (London, United Kingdom,  September ) ; for a detailed consideration of the issues see J. Rehman, Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order (Hart Publishing, Oxford, ).  The Independent ‘Anger as “mob” forces Muslim men off aircraft’  August  http://news.independent.co.uk/uk/transport/article.ece .  H. Ansari, Muslims in Britain (Minority Rights Group, London, ), at p. .

Religion, Minority Rights and Muslims of the United Kingdom  groups under the umbrella of ‘Preventing Extremism Together’. The final section, section VI provides a number of concluding observations. ii. the united kingdom, minorities and muslims – a historical overview Amidst the imperialist and colonial experiences of the United Kingdom, minorities have featured significantly. The United Kingdom, itself a unitary and centralized state, represents a union of diverse peoples that has over centuries been a battleground for competing claims inter alia of the Scots, the Welsh, the Irish, and the English. In addition, the United Kingdom also exercises international jurisdiction over the off-shore Islands of Channels Islands and the Isle of Man. The last quarter of the previous century which brought a significant change in the constitutional arena has also transformed the political landscape for regional, racial and religious groupings of the United Kingdom. The United Kingdom’s accession to the European Union and devolution through the Scottish Parliament, the Welsh Assembly and the (currently stalled) Northern Ireland Assembly has had significant constitutional implications although the debate over

 See Report of the Working Groups, ‘Preventing Extremism Together’ August – October  http://raceandfaith.communities.gov.uk/raceandfaith/reports_pubs/publications/ race_faith/PET-working-groups-aug-ct?view=Binary .  See P. Thornberry, ‘Rights of Minorities’ in D.J. Harris and S. Joseph (eds.), The International Covenant on Civil and Political Rights (Oxford University Press, Oxford, ), –; T.K. Hervey, ‘Which Rights, Whose Rights? The identification and Protection of Minorities in British Law’ in J. Packer and K. Myntti (eds.), The Protection of Ethnic and Religious Minorities in Europe (Åbo Akademi University Institute for Human Rights, Turku/Abo, ), pp. –; S. Poulter, Asian Traditions and English Law: A Handbook (Trentham, Stoke-on-Trent, ).  D.C.M. Yardley, Introduction to British Constitutional Law (Butterworths, London, ); A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (Longman, London, th ed. ).  Ibid., at p. . The Island of Ireland remains partitioned between the Republic of Ireland and the United Kingdom, with the six northern counties forming part of the United Kingdom. The Northern Irish situation and the on-going struggle of the Catholic minority of Northern Ireland represent an enduring constitutional conflict. For an overview see J. Rehman, ‘Autonomy and the Rights of Minorities in Europe’ in S. Wheatley and P. Cumper (eds.), Minority Rights in the New Europe (Maritnus Nihjoff Publishers, The Hague, ), pp. –.



Javaid Rehman

sovereignty and autonomy continues. Added to this milieu are United Kingdom’s ‘new minorities’: communities which were either brought by the English as part of Slave trade, or were subsequently allowed to immigrate intermittently from the former colonies. In an arena of conflicting claims over autonomy and rights, these ‘new minorities’ have had a problematic existence; establishing and retaining a ‘Muslim’ identity has been particularly contentious. The Muslims of the United Kingdom represent a diverse group – an assortment of various races, nationalities and traditions. Their migratory and location patterns have also been varied with some of the earliest, more settled immigration having taken place over one hundred and fifty years ago. These earlier, albeit limited settlements took place in the cities of Liverpool, Cardiff, Manchester, South Shield and the east end of London. From the early part of the nineteenth century up until the end of the Second World War () there were very limited, often uncoordinated waves of Muslim settlements. It was only during the late s to early s that increasing demands for labour prompted significant large-scale workers to come to the United Kingdom. This class of economic migrants hailed principally from the commonwealth countries such as India and Pakistan. They were unskilled workers with no or very low levels of education. Upon arrival, these Muslim migrants faced issues of joblessness, and more significantly braced alarmingly high levels of racism and social exclusion. The successive restrictive legislation in the shape of Commonwealth Immigrants Act , Commonwealth Immigrants Act , and Immigration Act

 See the European Communities Act ; Scotland Act ; Government of Wales Act ; Northern Ireland Act .  B. Anderson ‘Western Europe’ in P. Thornberry et al. (eds.), World Directory of Minorities (Minority Rights Group, London, ), pp. –, at .  Ibid.  Ibid.  This was a pattern followed in the larger economies of Western Europe. See S. Knights, ‘Religious Symbols in the School: Freedom of Religion, Minorities and Education’ ()  European Human Right Law Review,  at p. .  The Act was aimed at restricting immigration from South Asia and the Caribbean. It subjected all Commonwealth citizens to immigration control, save those who were British Citizens and those holding British Passports. See Bradley and Ewing, above n. , at p. .  The  Act was aimed to restrict large-scale immigration from Kenya. The operation of the Act provided for further limitations of entry for non-resident British passport holders. For details see I.A. Macdonald and F. Webber, Immigration Law and Practice in

Religion, Minority Rights and Muslims of the United Kingdom   respectively curtailed the growth of migrants while at the same time raising genuine concerns about race relations in the United Kingdom. Indeed, elements contained within the  Act, became the subject of criticism and legislative action for supporting certain communities and groups at the expense of others. Successful challenges were launched against the United Kingdom before the European Human Rights institutions. Bradley and Ewing make the valid point that: The elaborate concept of patriality was subject to much criticism. Foremost was the criticism that patriality did not extend to persons who, like the East African Asians, were [citizens of commonwealth country] but had no country to which they might go other than the United Kingdom. For this reason the United Kingdom government could not ratify the fourth protocol to the European Convention on Human Rights, which declares that ‘no one shall be denied the right to enter the territory of which he is a national’. Patriality was also criticized for including citizens of other Commonwealth countries at least one of whose parents had been born in the United Kingdom; this rule favoured those of British origin from countries such as Australia, Canada and New Zealand, exposing the  Act to the charge that it was racially motivated.

The migrant Muslim community remained an isolated segment of the wider British society, unable and unwilling to integrate into the mainstream of majority ethos. Typical of a beleaguered minority group, these settlers tended to establish their own associations with their social activities being confined to religious institutions such as the mosques. In a society challenging the prevailing social and moral values, this generation of Muslims felt vulnerable and exposed; conservatism and religious orthodoxy were adhered to rigidly and staunchly. A conscious decision to become permanently settled within the United Kingdom provoked substantial challenges of integration and assimilation – these challenges have probably been more

the United Kingdom (LexisNexis Butterworths, London, ); A. Dummett and A. Nicol, Subjects, Citizens, Aliens and Others (Weidenfeld & Nicolson, London, ).  See D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford University Press, Oxford, ), at p. .  See East African Asians v. UK  EHRR  (); Abdulalziz, Cabales and Balkandali v. UK A ()  EHRR .  Bradley and Ewing, above n. , at p. .

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Javaid Rehman

acute for the first generation of Muslims who are born and raised in the British society, though at the same time feeling pressured to maintain a religious and cultural identity. Ever since the atrocities of  September , the British government has consistently suggested the presence of a substantial risk to British citizens domestically and British interest overseas. The sources of threat, according to the government, emanates from extremist elements from within the Muslim communities of the United Kingdom. If the primary actors in the ‘war on terror’ are from within the Muslim communities, it is critical to measure up the composition, attributes and nature of the communities posing such a threat. The British Muslims population consists of .% of the total population. The  United Kingdom National Census introduced for the first time, tabulation based on religious denomination. According to the census there are . million Muslims in the United Kingdom, a figure that in  equates to approximately  million. The United Kingdom Muslims hail principally from Asian ethnic background (%): over a million coming from Pakistan, Bangladesh or India. In , % were Pakistanis, % Bangladeshi, % Indian and % of other Asian

 ‘Islamic Terrorism’ has been high on the political agenda. On  March  Prime Minister Tony Blair noted ‘It is monstrously premature to think that the threat has passed . . . A short while ago, during the war, we received specific intelligence warning of a major attack on Heathrow’. Cited in Intelligence and Security Committee, Report into the London Terrorist Attacks on  July  (Presented to Parliament by the Prime Minister by Command of Her Majesty May ) http://www.libertysecurity.org/IMG/pdf/isc_july_ report.pdf ; On  August , the Home Secretary, issued a Statement with a warning that ‘I have made clear repeatedly that there is a continuing threat to the UK, which has remained high for some time’ Cited in Intelligence and Security Committee, at p.  above. In March , M warned that ‘the most significant threat to the UK and to UK interests overseas comes from Al Qaida and associated networks. The Threat is real and serious . . . we know that British and foreign nationals belonging to Al Qaeda cells and associated networks are currently present throughout the UK, that they are supporting the activities of terrorist groups . . . ‘cited in Intelligence and Security Committee ibid at ; On  August , the British Authority claimed (and arrested  Muslim men) on suspicion of plotting to blow up cross-Atlantic flights. See The Guardian, ‘Terror Plot: Pakistan and al-Qaeda links revealed’  August , .  Figures derived from  National Census, the total population of the United Kingdom was ,,. http://www.statistics.gov.uk/default.asp.  UK  National Census, Religion in Britain, http://www.statistics.gov.uk/cci/nugget.asp?id= .  UK  National Census, Ethnicity and Religion, http://www.statistics.gov.uk/cci/ nugget.asp?id= .

Religion, Minority Rights and Muslims of the United Kingdom  ethnic background. There are % Muslims with Black African origins. % Muslims currently living in Great Britain were born in UK, while % were born in Pakistan, % in Bangladesh, % in Africa and % in Turkey. British Muslims also have youngest age profile of all faith groups in the country, with the  census confirming that one-third of all Muslims were under the age of . The average age of Muslims in contemporary Britain is . Although primarily an urban population, Muslims have tended to concentrate in larger urban cities with over % residing in Greater London. Almost one-third of all Muslim are based in Yorkshire, west-midlands and Manchester area. Within west-midlands, Muslims account for % of the total population of the city of Birmingham whereas almost half of all the Pakistan and Bangladeshi community of Yorkshire are concentrated in Bradford. Within Scotland, nearly half of Muslims are located in Glasgow, while the almost exclusive focus of  strong Muslim community of Northern Ireland is upon Belfast. Over the past two decades there has been a drop in migrant worker settlement from Pakistan and Bangladesh, though significant secondary migration has taken place through family and marriage re-settlement. There has also been a noticeable increase in the number of Asylum-seekers and refugees entering the United Kingdom from countries with heavy preponderance of Muslim population such as the former Yugoslavia, Afghanistan and from the Middle East. Muslims within Britain have historically been staunch Labour party supporters and were also featured in the transition from the ‘old’ to ‘new’ Labour Tony Blair’s tutelage. The first term of Prime Minister Blair and his foreign policy initiatives such as the intervention in Kosovo and attempts at securing a viable State for the Palestinians were attractive to the Muslims. The commencement of the ‘war on terror’ related policies at home and his unabashed and unquestioned pursuit of US foreign policy objectives have changed all that – a switch of Muslim voting patters from May  to May  General Elections is a striking reflection of these changing attitudes.

 J. Nielsen, Muslims in Western Europe (Edinburgh University Press, Edinburgh, ), at .  Ibid., at .  The  General Election and the Labour victory also coincided with the election of the first Muslim Member of Parliament, Mohammad Sawar from Glasgow Central constituency. Currently there are four elected Muslim Members of Parliament. Ibid., at p. .

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Javaid Rehman

In recent times, the Muslim minorities in the United Kingdom have become relatively well-established with a noticeable improvement in their socio-economic and educational standards. There is a presence of British Muslims in many walks of the life. A survey conducted in  estimated that there are as may as  Muslim millionaires in the United Kingdom. Despite this notable improvement in the living and educational standards of the first generation of these migrants, on the whole, British Muslims continue to suffer from ‘unemployment, poor working conditions, poverty, poor and overcrowded housing, poor health, and low educational qualifications’. A majority of the Muslim population is likely to be living in rented, often substandard accommodation. More than two-thirds of the entire Muslim women population remains economically inactive, the highest number in any faith group. Muslim men continue to be least likely to obtain managerial and professional jobs and predominate in low-skilled vocations. On average, Muslim households continue to have a larger proportion of members and there is greater evidence of child poverty and domestic violence. More than two-thirds of the Muslim women population remains economically inactive, the highest number in any religious group. Facing what can be described as the ‘double-minority’ syndrome, many Muslim women face pressures of compliance with the community norms of traditional upbringing and social behaviour. Muslim women face substantial health crises; while middle age women suffer from long-term debilitating problems, women of all ages face persistent neglect and lack of adequate medical treatment including family planning. Enforced marriages, domestic violence and ‘honour-killings’ phenomenon has a presence within Asian and in particular Pakistani and Bangladeshi communities. There is nevertheless a major dilemma for the younger generations of British Muslims. As  The Guardian, ‘ Muslims Make Millions’  February .  H. Ansari, above n. , at p. .  Ibid., at p. .  For a recent example see BBC News http://news.bbc.co.uk//hi/england/london/ .stm ‘Two Given Life for Honour Killing’ ; Timeonline ‘Boyfriend was Stabbed  Times in “honour killing”, Court Told’  October  http:// www.timesonline.co.uk/article/,,–,.html ; Also see, Islam (A.P.) v. Secretary of State for the Home Department Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals) HL ( March ) http://www.publications.parliament.uk/pa/ld/ldjudgmt/jd/islam.htm .

Religion, Minority Rights and Muslims of the United Kingdom  Muslims, but citizens of a non-Muslim State, they passionately assert their Islamic identity and are determined to preserve their traditional cultural and religious values. Heavily burdened with religious and community loyalties, the support of Kashmir, Palestine and Iraqi self-determination remains high. Pointing towards a historic pattern of exclusion and discrimination, Muslims claim that although born and raised in this country, their position and standing in British society remains unassured, ostracized and unwanted. The substantial claims of discrimination and neglect at home, and a problematic and religiously unacceptable foreign policy needs a searching examination. iii. concerns and grievances The Muslim minorities of the United Kingdom have a range of concerns and grievances. Many of these are a consequence of neglect and ostracism on the part of successive British administrations, while others emanate because of substantial cultural, religious and ethical differences between the Muslims minorities and the majority of the British population. The many significant areas of concern include absence of a comprehensive legislative framework to protect religious discrimination and religious sentiments, inadequate protection from Blasphemy laws, and other forms of exclusions and discrimination. For British Muslims a matter of substantial disquiet is the failure of law to protect individuals from discrimination based on religious grounds. In a historic development of discrimination laws in Britain, a particular emphasis has been placed on race and ethnicity. Under English law, a series of legislation has been adopted to curb various forms of discrimination based or race, colour and ethnicity. The Race Relations Act  regards ‘racial group’ as ‘a group of persons defined by reference to colour, race, nationality or ethnic or national origins and references to a person’s racial group refer to any racial group into which he falls’. Further changes and improvement to the race discrimination

 See P. Thornberry, ‘Rights of Minorities’ in Harris and Joseph (eds.), above n. , –, at p. .  See A. Mccolgan, Discrimination Law: Text, Cases and Materials (Oxford, Hart Publishing, ).  Race Relations Act , S.(). Mccolgan, above n. , pp. –.

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Javaid Rehman

law were conducted through the Race Relations (Amendment) Act . The race discrimination legislation, within England does not per se cover discrimination on religious or political grounds. The boundaries between race, ethnicity and religion are fluid, and as consequence of this fluidity, whilst adherents of some religions such as Judaism and Sikhism have been accorded protection under this legislation, Muslims are not considered a racial or ethnic group and are therefore unable to rely upon the existing race discrimination legislation. As a religious minority, excluded from a comprehensive legislative protection, Muslims demand a comprehensive law outlawing all forms of religious discrimination. There have been some, albeit limited developments to address Muslim concerns. The Employment Equality (Religion or Belief ) Direction prohibits direct and indirect discrimination, harassment and victimization on grounds of religion and belief with respect to employment and vocational training; legislation applies to higher education institutions, which provide higher educations. It nevertheless remains the case that unlike Northern Ireland, English law does not provide a comprehensive cover for religious discrimination. Related to the issue of discrimination is the more specific concern emanating from restrictive and arbitrary approaches adopted towards blasphemy laws in the United Kingdom. In its current form, the common law offence of Blasphemy is confined to the vilification, ridicule or use of defamatory language of Christian faiths. In order to conduct the offence of blasphemy there is no requirement of establishing intent to blaspheme and in this regard, extraordinarily as a criminal law offence, this is one of strict liability. It is sufficient that the offending materials were blasphemous and that there was intent to publish. Its non-applicability to Islam

 Race Relations (Amendment) Act  http://www.opsi.gov.uk/ACTS/acts/ .htm .  S.H. Bailey, D.J. Harris and D.C. Omerod, Civil Liberties: Cases and Materials (London: Butterworths, th edn. ), at p. .  See Mandla v. Dowell Lee [] A.C. ; Seide v. Gillette Industries Ltd [] IRLR ,  EAT.  Employment Equality (Religion or Belief ) Regulations  (SI /).  On the position of Northern Ireland See Fair Employment and Treatment (Northern Ireland) Order  (as amended).  See Criminal Law: Offences against Religion and Public Worship, Law Commission Report No.  () para. . (ii).  Ibid.

Religion, Minority Rights and Muslims of the United Kingdom  emerged as a substantial issue during a campaign to have the novel Satanic Verses banned and its author Salman Rushdie tried for Blasphemy. The Salman Rushdie affair, as it came to be known, attracted global attention after the fatwa (legal opinion) by the late Ayatollah Khomeini sentencing Rushdie to death penalty. Khomeini’s fatwa provided substantial ammunition to the critics of Islam who argued Islam as a religion, which abhorred free speech and was a religion propagating violence and murder. However all efforts to have the publication banned or prevent the sale of the book were unsuccessful. Nor was there any success in having Salman Rushdie prosecuted for blaspheming the Islamic faith. Recourse to legal remedies proved ineffective in the United Kingdom. Attempts to bring out a private prosecution were unsuccessful in the United Kingdom in R v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury, while the European Commission on Human Rights struck out an application as manifestly ill founded since Article  of European Convention on Human Rights did not provide absolute protection against religious sensitivities. Such discrepancy in the application of laws (towards religions) has not only infuriated the Islamic community, but has also been the object of criticism by human rights scholars. Professors Bailey, Harris and Jones make the striking remark that: Ex p Choudhury raises a question that has become increasingly relevant as the United Kingdom has become a more multi-religious society. Is it defensible that in R v. Lemon the publisher of a poem that offended Christians could be guilty of blasphemy when in Ex p Choudhury the publishers of a novel that contained passages that were at least equally offensive to Muslims could not? The Law Commission addressed this question in their  Report when recommending the abolition of the offences of blasphemy and blasphemous libel (the written form of blasphemy).

 See S. Rushdie, Satanic Verses (New York, Viking Penguin Inc., ).  See C.P. Munro, ‘Prophets, Presbyters and Profanity’ () Public Law ; P. Kearns, ‘Obscene and Blasphemous Libel: Misunderstanding Art’ Criminal Law Review () ; P. Kearns, ‘The Uncultured God: Blasphemy Law’s Reprieve and the Art Matrix’ European Human Rights Law Review () , at .  Bailey, Harris and Omerod above n. , –.  []  All ER , []  WLR , Queen’s Bench Divisional Court.  Choudhury v. UK No. /,  HRLJ  ().  Bailey, Harris and Omerod, above n. , at pp. –.

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Javaid Rehman

Similarly according to Professors Ghandhi and James: The injustice of preserving the status quo is manifest. The publication in September  of Salman Rushdie’s book The Satanic Verses, as is very well known, caused outrage among both British and non-British Muslims. Copies of the book were burned publicly across the world. Riots in the Indian sub-continent resulted in deaths. The Ayatollah Khomeini issued his notorious fatwa, which is still in existence. Yet the Divisional Court concluded that, inter alia, the blasphemous libel of Allah (Almighty God), the prophet Ibrahim, Muhammad the Holy Prophet of Islam and the religion of Islam was not an offence known to English law. The damage done by this book to interdenominational harmony was enormous and its effects are still being felt by the author today. Yet, by contrast, an insignificant -minute video Visions of Ecstasy which would probably have passed into a minute and unnoticed public circulation if the Board had decided not to ban it, was entitled to the protection of the full panoply of the English law of blasphemy. Such disproportionality brings the law into disrepute. The alternatives are extension to other religions (discussed above) or complete abolition.

Since , under Tony Blair’s premiership, the Labour government had been attempting to introduce legislation to outlaw religious hatred. The Racial and Religious Hatred Bill as introduced in the Parliament suffered from significant difficulties. Its attempt to fuse threatening words and behaviour against unbeliever with abusive or insulting words raised considerable opposition. The path of the Racial and Religious Hatred Bill in the Parliament, especially in the House of Lords, has been rocky. It was amended significantly and the government’s attempt to resurrect some of the provisions failed in February  before legislation was finally

 S. Ghandhi and J. James, ‘The English Law of Blasphemy and the European Convention on Human Rights’, European Human Rights Law Review () , – at  (footnotes omitted).  See the Guardian, ‘Religious Hatred Bill: The Price in not Right’,  January , at p. ; The Times, ‘Religious Hate Bill Lost after Blair Fails to Vote’,  February  at p. .  Racial and Religious Hatred Act , http://www.opsi.gov.uk/acts/acts/b.htm ( February ) .

Religion, Minority Rights and Muslims of the United Kingdom  adopted. In its current form the law is vague and ambiguous. The Act ambiguously deals with defining ‘religious hatred’, which means ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief ’. No definition is provided as to the meaning of ‘religious belief’. According to S.B a person commits an offence if he uses ‘threatening words or behaviour or displays any written material which is threatening’, with the intention of stirring up religious hatred. With an inherent lack of clarity, the legislation is a recipe for divisions and tensions. While, the new legislation, ostensibly, is introduced to provide a more adequate cover to Muslims religious minorities, there is a real danger of increasing convictions being brought against Muslims. The legislation is divisive and presents a further risk to community relations. As the former Archbishop of Canterbury Lord Carey noted ‘[the Act] has the potential to drive a wedge between the Muslim community and the rest of us’. Muslim communities have also expressed concerns over the implications of criminal laws such as those incorporated in the Anti-Terrorism, Crime and Security Act (). This Act has created a new category of religiously aggravated offences, amidst fears that this provision may in fact be used to prosecute Muslims. A further complication arises as a consequence of differing modes of dress code, dietary requirements, prayers and religious festivities. A hugely divisive subject has been the wearing of headscarves within educational institutions and at workplace. While many institutions, particularly schools tolerate the wearing of hijab, there is nevertheless considerable amount of controversy and resistance as to the extent to which Muslim girls can cover their bodies. In a recent case, a female Muslim pupil Shabana Begum challenged a decision of her school for refusing to allow her the wearing of

 Ibid.  Ibid.  The Guardian, ‘Christian Group May Seek Ban on Qur’an’,  October .  In advancing this point, Professor Walker notes ‘one strongly suspects that the passage of such an offence in Britain would be more likely in the atmosphere prevailing after  September to provoke prosecutions of Muslims than those speaking against their faith’. C.P. Walker, Blackstone’s Guide to the Anti-Terrorism Legislation (Oxford University Press, Oxford, ), at p. .  See Open Society Institute, Muslims in the UK: Policies for Engaged Citizens (Budapest, Open Society Institute, Budapest, ), at –.

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Javaid Rehman

Jilbab. Muslims also feel aggrieved at the insensitivity of the wider British society towards their religious obligations such prayers, fasting and religious holidays. A particular source of difficulty has been attempts by Muslims to take time-off to offer prayers especially during Friday afternoons. Legal challenges have proved unsuccessful in British courts, as well under the European Convention on Human Rights. There is a frustration that the identity and character of Muslims is often pre-judged on the basis of stereotypical images rather than as individual citizens. iv. policies and practices of engagement and conflicting positions since  september  Increasing amount of Islamophobia has been encountered since the tragic events of /. Muslims, in particular the minority communities in Europe, United States and Australia were made victims of ‘Islamophobia’. The concern, for the Muslim diasporas in Europe and the United States has been so grave that in its fifty-ninth session the United Nations Human Rights Commission requested the Special Rapporteur on the contemporary forms of racism, racial discrimination, xenophobia and related intolerance to examine the situation confronting the Muslims and Arabs peoples all over the world regarding physical assaults and other forms of attacks against their place of worship, cultural places, businesses and properties since the events of  September, . The tragic events of / placed a heavy

 See R (on the application of Begum (Shabana) v. Head teacher and Governors of Denbigh High School) [] EWCA Civ. ; []  FCR . R (on the application of Begum (by her litigation friend, Rahman) Respondent)) v. Head teacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15.  See Ahmad v. Inner London Education Authority [] QB , []  WLR , []  All ER  (Court of Appeal); Also see the Home Office Report, Religious Discrimination in England and Wales (London, ). Cf. Yassin v. Northwest Home Care Ltd CRE Rep , p.  Ind. Trib. (which awarded compensation to a Muslim for having been dropped from sales representative training programme because of the need to have half an-hour off for Friday prayers).  See Ahmad v. UK ()  EHRR .  Islamophobia has been defined as ‘dread or hatred of Islam – and, therefore, fear or dislike of all or most Muslims’ The Runnymede Trust, Islamophobia: A Challenge for Us All (London, ), .  See Commission on Human Rights, Sixtieth Session, Annotations of Provisional Agenda E/CN.//I/Add. para. ; for further analysis see J. Rehman ‘Islamophobia after /: International Terrorism, Sharia and Muslim Minorities of Europe – The Case of the United Kingdom’ European Yearbook of Minority Issues (/)  at .

Religion, Minority Rights and Muslims of the United Kingdom  burden on British Muslims: in the approaches adopted both in the media and often in political rhetoric, Muslims found their loyalties tested and were made to renounce violence and terrorism more than any of the other minorities. There were also some irresponsible statements, such as the one made by former Prime Minister Margaret Thatcher for her accusation of Muslim priests for not condemning enough the events of / or the observations made by the Italian Prime Minister about the superiority of the western civilization vis-à-vis the Islamic world. a. Bombing Campaign in Afghanistan and Guantánamo Detention Centre The international community led by the United Nations was at the forefront of condemnation of the crimes conducted on /. The United Nations General Assembly as well as the Security Council adopted a series of Resolutions. The United Kingdom – with its own citizens having been murdered – very rightly supported the international community in condemning the atrocities. However, in its keenness to express solidarity with the United States, the British government also undertook certain extra-ordinary steps. This was evident both in the United Kingdom’s unequivocal support for a military campaign against Afghanistan in October , as well as bringing out further stringent anti-terrorist domestic legislation. While the United

 Ansari, above n. , at pp. –.  ‘We must be aware of the superiority of our civilization, a system that has guaranteed well-being, respect for human rights – and in contrast with Islamic countries – respect for religious and political rights. Islamic civilization is stuck where it was fourteen hundred years ago’. Italian Prime Minister, Silvio Berlusconi, comments made in Berlin,  September . These comments have been cited extensively: see A Palmer, ‘Is the West Really Best’ Sunday Telegraph (London, United Kingdom,  September ) ; A Osburn, ‘On the Brink of War: Reaction – Scorn Poured on Berlusconi Views – European and Muslim Leaders Express Disgust’ The Guardian Newspaper (London, United Kingdom,  September ) at ; BBC News ‘EU deplores “Dangerous” Islam Jibe’ ( October ).  See General Assembly Resolutions: Condemnation of Terrorist Attacks in the United States of America A/RES// ( September, ); Measures to Eliminate International Terrorism A/RES// ( December, ); For Security Council Resolution See S/RES/() Condemning the Terrorist Attacks of  September,  in New York, Washington D.C., and Pennsylvania United States of America, Adopted by the Security Council at its th meeting ( September ); Security Council Resolution S/RES/ (), Adopted by the Security Council at its th meeting ( September ).  See http://www.pm.gov.uk/files/pdf/culpability_document.pdf.  See Anti-Terrorism, Crime and Security Act .

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Javaid Rehman

States, United Kingdom and their allies claimed that the bombing campaign against the Taliban was justified under international law, in reality, the legal situation was far more complex. In the absence of an express authorization by the Security Council, question marks were raised at the legitimacy and usage of the right to self-defence. The military campaign accompanied by evidence of indiscriminate bombardment and civilian casualties, was an unfortunate development for the Muslim minorities of Britain. As ordinary conscientious citizens of a civilized legal and political order, many Muslims expressed their concern for resort to military action. An unrelenting military campaign with an open-ended agenda on the amorphous though lethal ‘war on terrorism’ could devastate the families and surroundings of many of the British Muslims, who had hailed from Northern Pakistan and Kashmir. As the ‘war on terrorism’ gained momentum, Muslim communities were targeted not only in Afghanistan, but also in other countries such as Pakistan, Saudi Arabia, United Kingdom and the United States. While the scale of the United States led policies of kidnapping, detentions, torture and renditions is yet to become fully apparent, the abuse of the principles of international humanitarian law was evident with the commencement of bombardment of Afghanistan in October . A complicated aspect of the military intervention in Afghanistan has been the application of international humanitarian law to the persons captured by the Coalition forces in the conflict. The matter was disturbing for the British government, since it transpired that a number of those captured were British Citizens. On  January , the first of the twenty captives from Afghanistan were transferred to Camp X-ray, a detention camp at the US naval base at Guantánamo Bay in Cuba. Since that time over  captives (including men and children) have been sent to this base. A vast majority of adults have, since that time been detained, held incommunicado without charges being brought against them. These men have been sepa-

 See A.A. An-Na’im ‘Upholding International Legality Against Islamic and American Jihad’ in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (Palgrave, London, ), –, .  See J.N.B. Frank and J. Rehman ‘Assessing the legality of the Attacks by the International Coalition against Terrorism (I.C.A.T) against Al-Qaeda and Taleban in Afghanistan: An Inquiry into the Self-Defence Argument under Article  of the United Nations Charter’ ()  Journal of Criminal Law pp. –.  E. Katselli and S. Shah, ‘September  and the UK Response’ ()  International and Comparative Law Quarterly –, at p. .

Religion, Minority Rights and Muslims of the United Kingdom  rated from one another, and held in wired ‘cages’ measuring eight feet by six feet and in circumstances described by Amnesty International as ‘falling below minimum standards for humane behaviour’. In the detentions at Guantánamo and elsewhere the United States and the United Kingdom has shown a disdain of accepted norms of international human rights law and international humanitarian laws. Particularly abhorrent has been a denial of the third Geneva Convention Relating to ‘Prisoners of War’ Status, and attempts of trial for the so-called unlawful combatants in military commissions set up by the United States President himself. In its report issued on th September , Amnesty International stated that the continued detention of individuals in Guantánamo Bay was a violation of international law. The organization demanded that the detainees were entitled to fundamental rights as provided by international humanitarian and human rights laws. Similar views were echoed by international law experts and the then United Nations High Commissioner on Human Rights, Mary Robinson. The United Nations led by the Special Rapporteur on Torture, Professor Manfred Nowak has in a report published in February  heavily criticized the activities in the camp and have called for its immediate closure. The United Kingdom has supported the United States administration in its policies of detention of individuals at Guantánamo Bay. At the same time, it sought assurances that its citizens

 Cited in P. Thomas ‘September th and Good Governance’ ()  Northern Ireland Legal Quarterly  at p. .  Katselli and Shah, above n.  at p. .  See the Geneva Convention Relative to the Prisoners of War, Adopted  August  by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War held in Geneva  April to  August  (entry into force  October ) http://www.unhchr.ch/html/menu/b/.htm.  D. Mundis, ‘Agora: Military Commissions – The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts’ ()  American Journal of International Law –, at .  See Amnesty International’s Memorandum to the US Government on the Rights of Individuals in US Custody in Afghanistan and Guantánamo Bay of // at: http://web. amnesty.org/ai.nsf/recent/AMR.  See the statement made by High Commissioner for Human Rights on the Detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba  January, .  See United Nations, Situation of Detainees at Guantánamo Bay E/CN. // ( February ) http://news.bbc.co.uk//shared/bsp/hi/pdfs/___un_guantanamo. pdf .

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Javaid Rehman

will be treated humanely and in accordance with the Geneva Conventions. In reality, the UK government’s polices reflect disdain towards the fundamental human rights of those of its citizens who were detained at Guantánamo Bay. Since the detainees were predominantly Muslim by faith, their detention was also a major concern for British minority communities. The prolonged and arbitrary detention of Muslims heightened concerns of a foreign policy based on religious discrimination. Muslim human rights organizations regard the Guantánamo captivities as evidence of the United States and United Kingdom pursing an Islamophobic agenda. In so far the British detainees at Guantánamo are concerned all the men were eventually released, although no liability has been accepted by either the British or the United States government for torture, humiliation and inhuman and degrading treatment suffered by these men and their families. b. ‘War on Terror’ and the Iraq Invasion The United States exploited the events of  September  and the global ‘war on terror’ to launch a further frontal assault on Iraq. Although decried as part of the ‘axis of evil’ and a terrorist state by US President George W. Bush, Iraq was not implicated in the terrorist attack in the United States. In fact, there is strong evidence to suggest a long-term hostility between the Iraqi President Sadam Hussein and the Al-Qaeda leader Osama Bin Laden. The Bush and Blair administrations nevertheless muddled the issues, crossreferencing to threat from Al-Qaeda to an apparently substantial armoury of chemical and biological weapons accumulated by Iraq. In the light of this substantial threat of weapons of mass destruction and the capability of President Sadam Hussein to launch attacks on strategic United States and allied interests, notwithstanding global public opposition to the war, the United States invaded Iraq in March . The substantial and gross human rights violations conducted by the Iraqi dictator were also highlighted by the United States and United Kingdom. For decades the Iraqi President had repressed the majority Shias as well as the Kurdish population of Iraq. While there is evidence of genocide and torture of the Shias and the

 See Islamic Human Rights Commission ‘Failure to Repatriate Britons Masks Islamophobic Policy’  August .  See T. Branigan, ‘I am Just Amazed: He is Finally Coming Home’ The Guardian  February ; On the futility of legal challenges see Abbasi (R on application of ) v. Secretary of State for Foreign and Commonwealth Office [] EWCA Civ. .

Religion, Minority Rights and Muslims of the United Kingdom  Kurdish opposition, for the United States to use such gross human rights violations as a ground for invasion was duplicitous and hypocritical. The most significant violations, such as the Halabja massacre of the Kurds, had been conducted at a time when Iraq was a United States ally in the region – the atrocities were committed with the knowledge and material support of the United States. The double-Standards in the United States foreign Policy are also evident through its continued support of worst violators of human rights in the neighborhood of Iraq – Saudi Arabia and Kuwait would appear to top this list, though several other Arab regimes can be included in this category. Furthermore the ‘war on terrorism’ has provided a carte blanche to dictatorial and autocratic regimes all over the world to repress, torture and violate fundamental human rights – the international community is disinterested in challenging these regimes as long as they continue to purport allegiance to the ambitions of the United States foreign policy. Such duplicity, double standards and selectivity has troubled Muslims all over the worlds as well as others with who retain an objective vision of human rights law. According to Professor Ian Brownlie: The issue of selectivity can lead to claims of human rights violations being used as a powerful political weapon. Probably the most egregious

 See D. McDowall, The Kurds (London: MRG), ; H. Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press, Philadelphia, ), –.  Note the criticisms of violations of human rights conducted in the US middleeastern allies such as Saudi Arabia and Kuwait. See the Amnesty International’s Reports for  on Saudi Arabia ( September ); and Amnesty International’s Report for  on Kuwait ( September ).  An Amnesty International Report reinforces this point when it notes: ‘[t]he impact of the so called “war on terror” (henceforth “war on terror”) on human rights in the Gulf and the Arabian Peninsula has been profound and far reaching. Governments in the region and the US government have treated nationals and residents of the area with a disturbing disregard for the rule of law and fundamental human rights standards. The results have been mass arrests, prolonged detention without charge or trial, incommunicado detention, torture and ill treatment, strict secrecy surrounding the fate and whereabouts of some detainees, and apparent extra-judicial killings. These human rights violations have had profound effects not only on individual victims but also on their relatives and the general human rights situation in the region.’ See Amnesty International ‘The Gulf and the Arabian Peninsula: Human rights fall victim to the “War on Terror”’ ( June ) AI Index: MDE // .



Javaid Rehman example of this is provided by the case of Iraq. The Iraq-Iran War raged for eight years (–). Iran was not the aggressor. During the conflict leading Western powers gave assistance to the Iraqi Government in the form of matrices for chemical weapons (which were used against Iran) and satellite intelligence. The Security Council took no action under Chapter VII of the Charter. In contrast, in the period from  up to the United States attack on Iraq in March , the same State took a strong line on the bad rights record of the Iraqi regime and the attack was justified in public statements in part by reference to human rights factor. Here is revealed a purely cyclical version of human rights, contingent upon collateral political considerations.

Amidst the global public opposition to the invasion of Iraq, Muslim minorities remained pronounced. There were mass demonstrations, marches and protests in the streets of all major cities of Britain. It would not be an exaggeration to state that amongst all communities, the United States and United Kingdom governments’ decision to invade Iraq inflicted the greatest pain and humiliation on their Muslim minorities. British Muslims were not unanimous on the nature of action that ought to be taken against Saddam Hussein’s regime. While Muslim communities were not in favour of condoning mass violation of individual and group rights in Iraq, there was an emphasis that all necessary action must be taken under the auspices of the United Nations Security Council. Military action would only be permissible after all means of negotiations had been exhausted. Notwithstanding the difficulties in establishing a legal argument and in the absence of securing a United Nations Security Council Resolution authorizing the use of force, the United Kingdom government loyally pursued the United States agenda of a pre-determined invasion of Iraq. It is difficult to find any persuasive legal basis to justify the invasion and occupation of Iraq. Kofi Annan, the United Nations Secretary-General, declared the intervention unlawful, with many senior international lawyers condemning it as a substantial breach of law. In the words of (the now retired Law Lord) Lord Steyn, in order

 I. Brownlie, Principles of Public International Law th edn (Oxford, Oxford University Press, ), at .  The verdict of Koffi Annan, the United Nations Secretary-General represents the position in so far as the United Nations Organisation and the Charter is concerned. He notes ‘I have indicated it [i.e. the invasion of Iraq] was not in conformity with the UN

Religion, Minority Rights and Muslims of the United Kingdom  to present justifications for the invasion of Iraq, the British government was ‘scrapping the legal barrel’. The failure to recover weapons of mass destruction and the continuing violations of human rights in Iraq has generated a huge-backlash amongst British Muslims. Muslim minorities have been extremely vocal in their opposition to the Iraq invasion; there have been calls for withdrawal of troops and there are demands for an apology for taking Britain into war based on a false prospectus. In the build up to the invasion of Iraq, the US and the UK governments not only exaggerated the threat from Saddam Hussein’s regime, they also avoided a proper debate on the future of Iraq post Saddam Hussein. There was an immature, self-conceited belief about the righteousness of armed intervention and a misplaced optimism about a meager domestic response to the invasion. The US led invasion has resulted in enormous suffering for the Iraqi Peoples – many British Muslims have felt aggrieved at the violations conducted by the United States and the United Kingdom officers in detention centers such as Abu Gharib and in Southern Iraq. As the occupation powers, the United States and the United Kingdom also remain ultimately responsible for the substantial human rights violations and sectarian violence. c. British Governmental Response to  September Attacks The British response to the events of / was to further consolidate its laws through the adoption of Anti-Terrorism, Crime and Security Act . The Anti-Terrorism, Crime and Security Act , much like the

charter from our point of view, from the charter point of view, it was illegal.’ BBC News UK edition, ‘Iraq War Illegal, Says Annan: The United Nations Secretary-General Kofi Annan has told the BBC the US-led invasion of Iraq was an illegal act that contravened the UN Charter’  September , .  F. Gibb, ‘Law Lord Damn’s “half-baked Reforms and Ill-legal Iraq War” ’ Times October ,  http://www.timesonline.co.uk/article/,,–,.html .  The Iraq invasion also proved embarrassing and in some cases disastrous. There have been tragic consequences for over  families of servicemen and servicewomen who have been killed in the battlefield. There were also tragic consequences for the families of David Kelly and Ken Bigly.  Anti-Terrorism, Crimes and Security Act  ( Chapter ).

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Javaid Rehman

USA Patriot Act, was passed with spectacular speed, with only the House of Lords providing some opposition. The  Act is a very substantial piece of legislation authorizing, considerable draconian measures. Amongst the most contentious aspects of the legislation was its Part , which authorized the Home Secretary to issue a certificate against any non-UK national of his reasonable belief that the individual’s presence in the UK was a threat to national security and that this individual was a suspected terrorist. This certificate by the Home Secretary would authorize the continued detention of the individual concerned. The legislation presented substantial difficulties in the light of existing International and European Human Rights jurisprudence. The European Convention on Human Rights (ECHR) (most provisions of which were incorporated through the Human Rights Act – ) allows individual states to deport foreigners when their presence presents risks to national security. However, under the Soering principle, foreign nationals must not be extradited to other states, in cases where there is a real prospect of their being subjected to torture, inhuman and degrading treatment of punishment (contrary to Article  of the Convention). In the Chahal case, the European Court of human rights had gone further and decided that the right of individuals not to torture was absolute and therefore could not be trumped by considerations of National Security. For the British government, allowing individuals suspected of international terrorism to remain at large in the United Kingdom was no longer acceptable. The government therefore felt it necessary to make derogations under Article  of the ECHR. The government laid a Human

 See the ‘Uniting and Strengthening of America to Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of ’ (USA PATRIOT ACT of ). S. of the USA PATRIOT ACT.  ‘The moral panic that consumed the USA was reflected in its most constant ally, the UK’. Thomas, above n. , at p. .  The provisions follow those of the ‘Uniting and Strengthening of America to Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of ’ (USA PATRIOT ACT of ). S. of the USA PATRIOT ACT authorises indefinite detentions of immigrants and non-citizens. Several thousand Muslims/Arabs have been detained under these provisions. See Thomas, above n. , at –.  Soering v. UK ()  EHRR . See C.V.D. Wyngaert, ‘Applying the European Convention on Human Rights to Extradition: Opening Pandora’s Box’ ()  International and Comparative Law Quarterly , ; R.B. Lillich, ‘The Soering Case’ ()  American Journal of International Law .  Chahal v. United Kingdom, Judgment of  November , –V. RJD .

Religion, Minority Rights and Muslims of the United Kingdom  Rights Derogation Order () in order to derogate from the provisions. During the adoption of the legislation, evidence had been presented to the Parliamentary Joint Committee on Human Rights with the proposition that such derogations would be unlawful. It was also extraordinary that the UK was the only state member of the Council of Europe to have entered such a derogation provision as a consequence of the events of  September . Relying upon his newly found powers under the Anti-Terrorism, Crime and Security Act , the then Home Secretary, David Blunkett, commenced detentions of certain individuals in December /January . The detainees – the so-called Belmarsh detainees – were detained without charges arguably under inhuman and degrading conditions prompting them to bring legal challenges under the Human Rights Act. The case raised profound issues including the limits of executive power, discrimination on the basis of nationality and the role of judiciary to pronounce upon fundamental rights such as the right to liberty and freedom. On December , in an unprecedented sitting of nine Judges, the Appellate Committee of the House of Lords, declared s.  – the offending provision – in the Act as incompatible to the European Convention on Human Rights. Their Lordships provided consideration to three salient aspects of the case. The first one required a judicial response to the government’s position that there was a public emergency threatening the life of the nation, thereby validating the derogation under Article  of the ECHR. While a majority of their Lordships were prepared to defer the matter as one of political judgment on the part of government, there was a noticeable minority, which felt that either the threat to the nation did not exist or was not

 Human Rights Act  (Designated Derogation) Order  (Statutory Instrument No. ).  The Committee in its report had expressed substantial concerns both with the invocation of a public emergency threatening the life of the nations and the lack of adequate safeguards in relation to detention of powers. See Joint Committee on Human Rights Report on Anti-Terrorism, Crime and Security Bill – HL, HC para. .  Thomas, above n. , at p. .  A v. Secretary of State for the Home Department [] UKHL .  For commentaries on the case see B. Dickson, ‘Law Versus Terrorism: Can Law Win’ [] European Human Rights Law Review ; C.P. Walker, ‘Prisoners of “War all the Time” ’ [] European Human Rights Law Review ; S. Shah, ‘The UK’s Anti-Terror Legislation and the House of Lords: The First Skirmish’ Human Rights Law Review  ():.

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Javaid Rehman

imminent to sanction such derogation. Once it was accepted that there was a public emergency, the next issue was whether the detention provisions contained in the Act were necessary, proportionate and rational or as stated in the terms of Article  ‘strictly required by the exigencies of the situation’. The House of Lords resoundingly declared the detentions as disproportionate and unnecessary and therefore incompatible with the grounds as provided in Article . Their Lordships were also unwilling to accept that the detention of foreign suspected terrorist as contained in the  Act did not constitute discrimination – a view taken by the Special Immigration Appeal Tribunal but overturned by the Court of Appeal. v. law and policies after  july  Amidst the growing tensions and Islamophobia in the aftermath of  July bombings and the failed attacks of  July, the British society was suddenly reminded of the horrifying continuation of the ‘Shoot to Kill’ policy through the killing of an innocent Brazilian man at the Stockwell tube station. The governmental response to the July bombings was aggressive – In advancing a whole raft of measures, in his press conference of  August , Prime Minister Tony Blair forewarned rather insensitively that ‘Let no-one be in any doubt, the rules of the game are changing’. It is this re-writing of the rules and their responses from Muslim minority communities, which poses the great challenging to integration and accommodation. Although ostensibly aimed at fighting terrorism, governmental

 A v. Secretary of State for the Home Department [] UKHL , at , .  Article () provides as follows: ‘In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’.  A v. Secretary of State for the Home Department [] UKHL , .  Ibid., at .  See SIAC  HRLR .  For reported summaries of the decision, see The Incorporated Council of Law Reporting for England and Wales ICLR http:www.lawreports.co.uk/civoct..htm ( October ).  BBC News, ‘Police shot Brazilian eight times’  July  http://news.bbc. co.uk//hi/uk/.stm .  PM’s Press Conference,  August ; http://www.number-.gov.uk/output/ Page.asp .

Religion, Minority Rights and Muslims of the United Kingdom  measures have had a substantially negative impact in terms of community relations. Furthermore, the paranoia with the so-called ‘war on terror’ has led to profound limitations on fundamental rights. The curtailment of these rights is exhibited thorough the treatment of an eighty-two year old Labour activist Mr. Walter Wolfgang. Mr. Wolfgang was stopped under S. of the Terrorism Act  for shouting ‘non-sense’ at Jack Straw’s speech. He was bundled out and stopped from re-entering Labour party conference. Similarly, John Catt was stopped and searched under S. of the Terrorism Act  for wearing a T-Shirt with anti-Blair and anti-Bush slogans. Another protestor, Maya Evans was convicted under S. of the Serious Organized Crime and Police Act  for reading aloud names of (the then)  British soldiers who had been killed in Iraq. These incidents reflect an unfortunate development of intolerance and censorship of liberal values and unacceptable constraints on democracy. The series of legislative and administrative measures planned after  July bombings included, the introduction of new legislation on terrorism which aimed inter alia to extend the detention without charge for a period up to  days, to introduce the offence of glorification of terrorism, dissemination of Terrorist Publications, Training for Terrorism and expansion of the grounds for proscription of Terrorist organizations. After significant debate in Parliament and the defeat of the government in House of Commons, the  day detention period was reduced to  days. However, it is contended that a four-week detention period without charge could nevertheless amount to inhuman and degrading treatment or punishment. Extended detentions are a fundamental assault on an individual’s liberty and integrity and demand an appropriate justification. Notwithstanding opposition from House of Lords, the government was able to incorporate into the legislation the offence of glorification

 C. Hulme, ‘Our Freedom is at Stake: Blair threatens to restrict the Rights of Terrorist Suspects’ The Guardian,  February , p. .  M. Berlins, ‘When a Slogan Equals Terrorism’ The Guardian,  October  http:// www.guardian.co.uk/terrorism/story/,,,.html .  BBC News, ‘Activist Convicted Under Demo Law’  December  http://news. bbc.co.uk//hi/england/london/.stm .  BBC News, ‘Blair Defeated Over Terror Laws’  November  http://news.bbc. co.uk//hi/uk_politics/.stm .

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Javaid Rehman

of Terrorism. Given the vagueness in the nature of defining terrorism, there remains a substantial risk of conflict with freedom of expression. Under this legislation any one supporting armed resistance against a State or occupation however repressive and illegitimate will be committing an offense so long as public might reasonably regard it as direct or indirect glorification of terrorism. With a hugely contested definition of terrorism, Muslim communities are fearful that any support for resistance movements in Kashmir, Afghanistan, Iraq or Palestine could well be regarded as glorification of terrorism. It is also worrying for many Muslims to note a further extension of banning of political organization under the new legislation. The extension of proscription runs the risk of repressing movements claiming the right to self-determination, for example in Kashmir, Chechnya or Iraq. Furthermore, current proposals for screening clerics and closing down mosques is not only likely to violate the right of freedom of religion but also risks a violation of the right to freedom of expression as contained in Article  of the European Convention on Human Rights. It is akin to sending a message that ‘Muslims can not be trusted’ and is bound to infuriate the Muslim religious communities. The government also devised memoranda of understanding with several countries, which would authorize deportation of refugees or stateless persons notwithstanding the presence of well-founded fear of persecution. The government reinstated its intention of [as the Prime Minister stated] stripping ‘citizenship from those individuals with British or dual nationality who act in a way that is contrary to the interests of this country’. These dangerously vague and arbitrary provisions are now contained in s. of the Immigration, Asylum and Nationality Act, which sanctions stripping off citizenship where the conduct is deemed as not being ‘conducive to public good’. The government also introduced a new test for acquiring

 M. Tempest, ‘MPs Back Ban on Glorification of Terrorism’ The Guardian,  February  http://www.guardian.co.uk/terrorism/story/,,,.html .  See Employment Equality (Religion or Belief ) Regulation  (SI /).  PM’s Press Conference –  August , http://www.number-.gov.uk/output/ Page.asp at p.  .  Immigration, Asylum and National Act  ( Chapter ) http://www.opsi. gov.uk/ACTS/acts/ukpga__en.pdf .

Religion, Minority Rights and Muslims of the United Kingdom  British citizenship, and Tebbit test (as proposed by Norman Tebbit) of was invigorated with the government and opposition leaders calling for redefinition of loyalties: Home office Minister Hazel Blears suggested double-barrelled nationality such as British-Asians, while the then Shadow Home Secretary Davis suggested multiculturalism as ‘outdated’. After the July bombings, former conservative party chairman Norman Tebbit made the claim that July bombings could have been prevented had his infamous ‘cricket test’ been applied. In its pursuit of the ‘war on terror’ the labour government has expressed its willingness to compromise over the well-established principle of exclusion of all forms of evidence obtained through torture. In a case emerging from the Belmarsh detentions, the British government had expressed willingness to allow the use of evidence in courts against individuals that may have been obtained through torture in foreign jurisdictions. The Court of Appeal had agreed with the government’s position for the inclusion of such evidence. However, on  December , the House of Lords again overruling the earlier Court of Appeal’s decision established the impermissibility of utilizing evidence obtained through torture regardless of whether this was obtained in a foreign jurisdiction and by foreign agents. The case of the Belmarsh detainees and plight of the British men incarcerated in Guantánamo bay (until January ) formed a great cord in the hearts and minds of their co-religionists; in the violations of human rights of these individuals, many in British Muslim community perceived a religious conflict: a ‘clash of religions’ or possibly even ‘a clash of civilizations’ – it was as if Islam was brought to the docket by vile forces of the west. As noted earlier, to further exacerbate the tensions, the government also introduced proposals for screening clerics and closing down mosques. There now remains the concern that the new Identity Cards scheme would

 BBC News, ‘New UK Citizenship Testing Starts’  November  http://news. bbc.co.uk//hi/uk_politics/.stm .  BBC News, ‘Davis Attacks UK Multiculturalism’  August  http://news.bbc. co.uk//hi/uk_politics/.stm .  Ibid.  A v. Secretary of State for the Home Department [] EWCA . (Court of Appeal).  A (FC) and Other (Appellants) v. Secretary of State for the Home Department (Respondent) () A (FC) and Other (Appellants) v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) [] UKHL  ( December ).

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Javaid Rehman

turn into a witch-hunt for targeting and harassing Muslim men. Muslims communities have expressed fears that in the existing tense involvement, these administrative and legislative measures, in particular the planned terrorism Act with its detention powers would result in injustices through ‘rounding up of the usual suspects’. vi. concluding observations – strategies for the future This paper has analyzed the substantial issues faced by Muslim minorities of the United Kingdom. To overcome the historic patterns of discrimination, a change of policies is required both through legislative and administrative measures and also through societal approaches towards minority groups. There is currently no comprehensive legislation to cover all forms of religious discrimination in Britain. Religious minorities, such as, the Jews and Sikhs are covered (albeit indirectly) by existing race discrimination legislation, though Muslims have not been able to seek protection under this law. Some piecemeal protection has been provided to religious minorities in Employment and working conditions through European Union Regulation. This protection needs to be expanded to provide a comprehensive cover in key areas such as social security, health care, education, housing benefits and student grants. Steps can be undertaken either through new legislation or the extension of the current race relations laws. The United Kingdom also continues to show failings in equality provisions within international and national laws. There is an urgent need to incorporate the International Covenant on Civil and Political Rights (ICCPR)  into domestic United Kingdom law and to ratify the First Optional Protocol to the ICCPR. Successive British governments have resisted requests for inducting the ICCPR within domestic legal system. There has also been a consistent refusal to allow individuals to petition to the United Nations Human Rights Committee. The British governmental stance has been based

 See the provisions of the Identity Cards Bill, text of the Identity Cards Bill, as amended on Report in the House of Lords on th January  at http://www.publications. parliament.uk/pa/ld/ldbills//.htm .  See Employment Equality (Religion or Belief ) Regulation 2003 (SI2003/1660).  Adopted at New York,  December, . Entered into force  March . GA Res. A (XXI) UN Doc. A/ ()  U.N.T.S. ;  I.L.M. () .  G.A. Res. A (XXI),  U.N. GAOR Supp. (No. ) at , U.N. Doc. A/ (),  U.N.T.S. , entered into force March , .

Religion, Minority Rights and Muslims of the United Kingdom  on the view that incorporation of these instruments is not required since sufficient guarantees of rights are provided through the European Human Rights system. This premise is incorrect – ICCPR contains a number of rights, which are highly valuable for minorities and are unavailable under the European Convention on Human Rights System. Similarly the United Kingdom also stands-out in an exceptional position amongst the western European States for not having ratified the first Optional Protocol. Professor Higgins, now Judge and President of the International Court of Justice, made these points sometime back. She noted: The reason used to be offered to the Committee [by the British Governments] that there was no need for the Optional Protocol, as individual access was available to individuals under the European Convention, and that was heavily used. But of course this is not the same instrument and some rights in our instrument [i.e. ICCPR] are more detailed. This is true, for example, on the fair trial provisions under Article  and we also have . . . some rights in our instrument that simply are not in the European Convention. I speak of family rights, Article ; rights relating to participation in public life, Article ; rights of aliens, Article ; free-standing non-discrimination, Article ; and the rights of minorities, Article . Those rights cannot be tested before the European Commission or Court. Their only guarantee is in the Covenant, and unless those rights are fully reflected in domestic law, there can be no judicial scrutiny of them.

The United Kingdom has also not undertaken many of the obligations contained in the European Human Rights System. This includes the nonratification of Protocol  to the European Convention on Human Rights. This protocol carries substantial value for ensuring an independent right of equality and non-discrimination. There is also the need to fully incorporate the rights contained in Protocols  and  of the ECHR. Protocol  deals

 R. Higgins, ‘Foreword’ in Harris and Joseph (eds.), above n. , xi–xviii, at xvii.  Protocol No.  to the Convention for the Protection of Human Rights and Fundamental Freedom, E.T.S. , Opened for signature April , .  Protocol No.  to the Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. No. , entered into force May , .  Protocol No.  to the  European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. , entered into force Nov. , .

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Javaid Rehman

with right of freedom of movement while Protocol  ensures safeguards for the treatment of aliens. These additional protocols need to be specifically incorporated in the current European Human Rights Legislation. A further highly significant strategy is to learn from the past experiences of the Northern Irish conflict. These experiences suggest the need of religious discrimination legislation as well as having Equality Commission with strong regulatory, and investigatory enforcement mechanisms. Furthermore and perhaps more significantly, it is imperative to develop a trusting relationship with the Muslim communities. Instead of adopting vindictive, spiteful and aggressive measures, there is great merit in adopting policies, which strike at the core of some of the fundamental problems of integration. On a broader level, the Northern Irish experience demands an understanding of the complexity behind the concept of terrorism and those who are engaged in political violence. This paper has demonstrated the difficulties created by a foreign policy that is duplicitous with varying standards of human rights? The falsified intelligence presented prior to the Iraq invasion, has unfortunately undermined public confidence and has led to greater threat of terrorism. Many commentators would agree with Lord’s Steyn’s position that ‘[a]fter the recent dreadful bombings in London we were asked to believe that the Iraq war did not make London and the world a more dangerous place. Surely, on top of everything else, we do not have to listen to a fairy tale’. There is a need for greater transparency in foreign-policy decision-making. Iraq is gradually drifting towards anarchy and civil war. In the present circumstances it is absolutely vital that the United Nations takes complete control and command of all operations in Iraq. A United Nations mandated force would need to restore law and order and also establish an environment for peace, stability and democratic governance within the ravaged country.

   rier-Like

See Article , Protocol No. , above n. . See Article , Protocol No. , above n. . C. Dyer, ‘He’s Woven the Human Rights Act into our Legal System: He has a TerTenacity and the Courage of a Lion’ The Guardian, Friday  October .

Index Abortion Catholic Church, policy campaign by, 131–132 Abu Ghraib fundamental human values, disregard for, 7 prisoner abuse, 513 Afghanistan bombing campaign in, 535–538 captured persons, application of international humanitarian law to, 536 legislation, power of court to review on basis of Islam, 359 Pakistan, boundaries with, 414–415 refugees in, 415 political and military tragedy, 415 African Charter of Peoples’ and Human Rights freedom of religion under, 54 preamble, 145 rights and obligations in, 145–147 American Convention on Human Rights freedom of religion under, 54 Apostasy concept of, 140 crime of, 37 Arab Charter on Human Rights adoption of, 186 incoherencies, 192 non-discriminatory provision, 189–192 preamble, 186–187 recognition of rights, 187–188 Arab League Charter on Human Rights revised, adoption of, 33 Armed conflicts United States, involvement of, 162–163 Armed force regulation of recourse to, 124 religious as justification for, 125 as-Siyar (Islamic international law) Cairo Declaration on Human Rights in Islam, 102, 105

contemporary, modification of, 93 definition, 91 domestic law, relationship of international law with, 90 human rights discourse, participation in, 83 human rights instruments, alternative, 102–110 international human rights law, comparative analysis, commonalities and difference, 110–113 contemporary realities, 93–113 cross-fertilisation of ideas, 86–89 European intellectual judgment, subjection to, 87 expansionism, 113 methodological issues, 81–86 nature, scope and purpose, overview, 89–93 non-discrimination and equality, 110–112 potential convergence, 113 preliminary questions, 81–89 slavery, 110 state law, supremacy of, 112 state sovereignty, 112 terminology, 87 valid intellectual inquiry, as, 81–83 interpretative analysis of texts, 84 Islamabad Declaration, 102, 105, 107–109 Muslim Ummah, application to, 112 nature, scope and purpose, overview, 89–93 scope and content, 91–93 sources for analysis of, 82 Tehran Declaration on the Role of Women in Islamic Societies, 102, 105 territories, world conceptualised into, 112 universality, principle of, 93

Javaid Rehman and Susan C. Breau (eds), Religion, Human Rights and International Law ©  Koninklijke Brill NV. Printed in the Netherlands. pp. –



Index

Autonomy globalised world, in, 444–445 multiculturalism, and, 444–450 Bahrain freedom of expression and opinion, 337 Baluchistan Pakistan and Iran, split between, 420. See also Pakistan Bangladesh establishment of, 417 Blasphemy UK law, 530–532 Buddhism existence of rights, 264 Cairo Declaration on Human Rights in Islam adoption of, 102, 186 freedom of expression, 191 incoherencies, 192 non-discriminatory provision, 189–192 norms, hierarchies of, 192 origin of, 105 preamble, 186–187 public and political participation, right to, 344–345 recognition of rights, 187–188 Capital punishment Catholic Church, policy campaign by, 131 Child Convention on Rights of. See Convention on Rights of the Child Committee on Human Rights protection of cultural rights, comment on, 459 Conscientious objectors persecution, 218–220 Constitutionalism values of, 11–13 Constitutions documents, types of, 128 draft EU, 129–130 religious, role and significance of, 128–130 Contract frustration of, 236 Convention on Rights of the Child child, minimum age of, 98

cultural identity, requiring respect for, 446, 452 Muslim jurisdictions, ratification by, 93 Muslim states, approach of, 98 ratifications, 99 reservations, 99–102 substantive provisions, positions on, 99 Pakistan, reservation by, 395, 397. See also Pakistan religion, freedom of, 98–99 scope of, 97–98 universality of norms, 98 Convention on the Elimination of All Forms of Discrimination Against Women Committee, universalistic stance, 400–401 universality, commitment to, 399 constructive dialogue with states, 77 effectiveness, 64 impact of reservation, statement on, 398–399 interpretations, adoption in other communities, 77 Islam, compatibility with, 78 Islamic States as parties to, 64 Muslim jurisdictions, ratification by, 93–94 Muslim states, 98 parties, 100 reservations, 99–102 Pakistan, party, as, 62–65 ratification by, 395–397 scope of, 97 state reporting process, 64 status of, 63 reservations to, 63–66 Convention on the Elimination of All Forms of Racial Discrimination descent-based discrimination, 311–315 Court martial appeal, right of, 370–371 Cultural relativism abuses, justification of, 183 collective rights, and, 164 community and individual values, 145 critique, 137

Index cultures, analysis of, 138 diverse patterns of life, equal validity of, 163 fact, as, 144–145 human rights, and, 11 dichotomy with, 138 moderate, requirement for universal application of human rights, 178–183 radical, 183 repressive regimes, 159–160 strong, 183 supremacy of human rights, 184 traditional practices, protection of, 163 types of, 183 universalism, debates with, 120–121, 137 weak, 183 Western values and culture, uniformity of, 147 Culture attachments to, 445 definition, 144 evaluation, 165 international law, acceptance of importance in, 446 nature of, 148 relativism. See Cultural relativism stereotypes, 148 UNESCO Declaration on Cultural Diversity, 446, 451 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, 446, 452 Democracy political, importance of, 458 requirement of, 27 Development education as channel for, 353 good governance, importance of, 332–333 human right, as, 322 human, 321 progress, internal and external aspects, 329 right to, 322 security, and, 321 universal respect for rights, as part of, 26 work as channel for, 354



Dichotomy definition, 138 Diplomatic immunity Islamic, as basis of international obligation, 126–128 Discrimination caste-based, 13 Hindu caste system. See Hindu caste system individual and group identity, at core of, 55 list of rights, 223 mainstream society, in, 455 minorities, against, 447–448 persecution, amounting to, 205–208 positive measures to eliminate, 448–450 prohibition, interpretation of legislation in light of, 450 UK legislation, 223 Education combating ignorance through, 30–31 development, as channel for, 353 moral and religious, 45, 50 right to, Islamic law, under, 353–354 Muslim States, in, 353–354 Equality formal and substantial, 448 principle of, 28–29 European Convention on Human Rights dress codes, framework for argument on, 70, 72 freedom of expression, 338–340 freedom of religion under, 54, 472–474 torture, definition of, 270–271 European Court of Human Rights cultural concepts, 154 margin of appreciation concept, 132, 154–155 European Union draft Constitution, 129–130 Fair trial and due process of law, right to elements of, 346 International Covenant on Civil and Political Rights, 346 Islamic law, methods of, 347–348 meaning, 345 Muslim States, in, 345–348



Index

Foreign property nationalised, compensation for, 119 Freedom conflicting ideas of, 24 rights, interdependence of, 26–27 Freedom of expression and opinion Bahrain, constitution of, 337 European Convention, in, 338–340 human rights and good governance, contribution to, 336 International Covenant on Civil and Political Rights, in, 338 Iran, constitution of, 337 Islamic law, general rule under, 339–340 Muslim States, in, 335–341 Pakistan, constitution of, 336–337 shari’a, subject to, 338 Freedom of religion access to resources, and, 486 coercion and proselytism, 41 components of, 200 constraints, 465–466 Convention on Rights of the Child, under, 98–99 defence of, 8 disagreements and conflict as to, 3 diversity of faith commitments, 27–28 geo political context, 23–26 history of, 23–26 human right, as, 470–475 human rights instruments, 470–472 instruments, recognition in, 198 individual and group identity, at core of, 55 individual right, as, 55 International Covenant on Civil and Political Rights, under, 39–45. See also International Covenant on Civil and Political Rights international law, in, 23, 54–56 international legal background, 23 international standards, 50 recognition in, 25 Universal Declaration of Human Rights, 31, 33–38. See also Universal Declaration of Human Rights Islam, opposition of, 140–141 Jehovah’s Witnesses, treatment of, 472–474

legal personality of church, 473–474 limits on, 67–73 local government policies, 484 manifestation and restrictions, 41–43 minorities, 56–57 Muslim countries, position of, 36–38 non-religious factors, 485 positive terms, defence in, 28 practice of states securing, 27 private dwellings, within, 487 purpose of, 9 recognition of religion, 472–473 religious land use refusals, Australia, in, 486–487 case law, 485 sacred places, concept of in UK, 479–484 United States, in, 475–479 right to worship, 465 human right, as, 470–475 sacred places, concept of in UK, 479–484 sacred premises, erection of, 465 scope of, 198 UN Declaration on the Elimination of All Forms of Intolerance or Discrimination Based on Religion or Belief, in, 47–48 violation of, 51 women’s human rights, and, 56–62 Genocide acts constituting, 452 Convention, 452 cultural, 467 Pakistan, minorities in, 413 Good governance accountability, 334–335 freedom of expression and opinion, contribution of, 336 human rights and development, in, 332–333 Shari’a, advocated in, 333 Guantanamo Bay detainees, torture of, 268–274 treatment of, 536–538 fundamental human values, disregard for, 7

Index Hadith criticism, traditional canons of, 86 source of law, as, 84, 86 Hatred incitement to, 44 Hindu caste system age of, 281, 286 annihilation, 287 atrocities, prevention of, 300–301, 308–309 caste and descent distinguished, 311–315 constitutional guarantees of equality, failure to uphold, 301 Dalits, 283–286 amelioration of position, 302 Bhopal Declaration, 305–311 political force, not uniting as, 303 private enterprise, 309 reservations system, reform, 302–305 special measures, 314 threat to, 301 debilitating effects, 288 Depressed Classes Federation, 283 discrimination, enhancing protection against, Bhopal Declaration, 305–311 sui generis category of, 311–315 divisions, determining, 290 Dr Ambedkar, role of, 283–286, 316 economic and social rights, protection of, 310–311 existing protections, reform of, justice, 298–302 reservations system, 302–305 fundamental rights, protection of, 300 groups, 289 Human Rights Committee, comments of, 298–299, 312 human rights law, problem for, 282 Indian Constitution, reservations in, 284 jatis, 289 justice, reform of, 298–302 karma doctrine, effect of, 288 marriage, rules for, 290 offences, 299 Poona Pact, 284–285 race, and, 293–297 racial discrimination, as, 13, 281



caste and race, link of, 293–297 Committee on the Elimination of Racial Discrimination, work of, 291 descent-based, 290–292 grounds of, 296 immutable position of inequality, 297 Special Rapporteur, report of, 294–296 systematic, 293 religion, and, 286–290 religious belief structure, as, 316 reservations system, Bhopal Declaration, 305–311 reform, 302–305 situations in which applied, 287 social hierarchy, as, 293 social significance, 287 Special Rapporteur, report of, 294–296 summary of, 290 UN, examination by, 282 untouchability, ban, 285 failure to abolish, 300 nature of, 289 Untouchables, 289–290, 294 Vedas, 288 Holocaust, 3 body of law created in light of, 259 Human being definition, 235 dignity, ensuring, 236–243 Human rights adoption and enforcement, modified universalism, 165 Al-Shaybani versus Grotius, 169–170 challenges to, 167 clash of civilisations, 87–88 compliance, approach to, 74–75 constitutionalism, linkages with, 11–13 cultural claims, integration of, 178 cultural diversity, accommodation of, 10–11 cultural relativism, and. See Cultural relativism cultural tradition, 138, 144–149 clash with, 163 culture as excuse for restriction of, 159 development, interrelated strands, 139 21st Century, 157–158



Index

diversity, encouragement of, 137 enforcement, societal practices, 139 erosion of regime, 237–241 expectations, 229 freedoms, interdependence of, 26–27 frustration of pact, 236 good governance, importance of, 332–333 gross violations, response to, 230–233 group, 157–158 history and evolution, history of, 151 human development as objective of, 321 individuals and collectives, mattering to, 257–258 institutionalization of, 223 instruments, cultural ambit, 155 examination of, 138–139 international and regional, 149–154 international regime, enforcement of, 232 international treaties, 31–32 interpretation, cultural concepts, 154–156 positive obligations, 156 Iran, refusal to comply with international instruments by, 88–89 Islam, and. See Islam Islamic scheme, prohibited under, 115 Judeo-Christian principles, 264 jus cogens. See Jus cogens language of, 257–258 law, development of, 277 legitimacy, 177 legitimacy and universality, threat to, 137 major documents, language of, 24 Middle East, violations in, 6–7 minimum standards, upholding, 236 modern law of, 25 national security, sacrifice for, 226, 243–244 normative difficulty, 177 overall objective, 326 Pakistan, in. See Pakistan philosophical tradition, 138, 142–144 political realities, 158–163 promotion, internal and external aspects, 329

proportional, 224–227 refugees. See Refugees regional instruments, 32 religion, and, 130–134 religion and international law, relationship with, 8–11 religious communities, engagement with, 251 religious faiths, connection with, 264 religious tradition, 138, 140–142 repressive regimes, 159–160 social dimension, 147 social ordering, as form of, 321 standards, international negotiation, 24 state, challenges to, 224 mattering to, 258–259 teaching of, 164 UN system, evolution of, 182–183 universal application debate, 194 universal, international co-operation on, 26 universalism and cultural relativism, debates between, 120–121 universality, commitment to, 399 various religions, with reference to, 328 Vienna Conference, 120 West, as creation of, 167 Western antecedents, 144 women’s. See Women’s rights Human Rights Committee General Comment on Equality, 66–67 Hindu caste system, comments on, 298–299, 312 International Covenant on Civil and Political Rights, constructionist approach to, 155–156 religion and State, principle applying, 29 state reporting, 313 India caste system. See Hindu caste system gender equality debates, 383 minorities, genocide, 413 physical extermination, 413 protection, promise of, 414 religious divide, implications of, 411–415

Index partition, 16–17, 411–415 public and private division, 384 separate Muslim state, proposal for, 385 Warren Hastings Plan, 383–384, 387–388 women’s behaviour, roles and status, controls on, 384–385 Indigenous peoples Declaration on the Rights of, 33 Integration assimilationism, 491–492 liberal approach, 492–493 meaning, 490–496 measuring, 495–496 multiculturalism, 493–495 Muslims in Northern Ireland, of, 509–512 popular process of, 504–509 prejudice, origins of, 505–507 public performance, 504 public process of, 496–504 International Covenant on Civil and Political Rights constructionist approach to, 155–156 cultural groups, representation of, 152 culture and collective rights, provisions reflecting, 153 discrimination, prohibition, 153 drafting, 151 entry into force, 185 fair trial and due process of law, right to, 346 freedom of expression, 338 freedom of religion under, 470–471 coercion and proselytism, 41 education, 45 elements of, 39–41 manifestation and restrictions, 41–43 national security provisions, 43–44 state obligations, 54 text, 38–39 fundamental underlying values, 154–155 minority protection, 153 public and political participation, right to, 341 religious groups, protection, 154 UK law, need to incorporate in, 548–549



International Covenant on Economic, Social and Cultural Rights cultural groups, representation of, 152 culture and collective rights, provisions reflecting, 153 discrimination, prohibition, 153 drafting, 151 entry into force, 185 fundamental underlying values, 154–155 minority protection, 153 religious groups, protection, 154 right to work, 354–355 International Criminal Tribunal for Rwanda gross human rights violations, response to, 231 International Criminal Tribunal for the Former Yugoslavia breach of jus cogens, implications of, 249 gross human rights violations, response to, 231 international law jus cogens. See Jus cogens competing regimes, 122 culture, importance of, 446 diversity of faith commitments, 27–28 fashions in, 521 freedom of religion in. See Freedom of religion Islamic, commonalities and similarities, 10 nature of, 134 See also as-Siyar (Islamic international law) multiculturalism, challenge by, 450–456 nations exerting influence in, 115 norms, divorce from religious norms, 117 numbers of, 118–122 religion and human rights, relationship with, 8–11 religion as source of, argument of, 134 constitutions, 128–130 extra-legal platform, 134 human rights, 130–134 jus ad bellum, component of, 123–126 obligation, basis of, 122–128, 135



Index

other sources, hierarchy of, 121 Treaty of Westphalia, prior to, 115 religious norm in, 116 rubric, dissolution, 119 sanctions, 118 secular discipline, whether, 116–118 Soviet perception of, 119 State-centric disputes, refusal to interfere in, 418 universality, principle of, 96–97 International relations power politics, 275 Intolerance religious differences, of, 3–4 Iran freedom of expression and opinion, 337 international law, position as to legal obligations under, 88–89 Iraq civilians, loss of life, 513 human rights violations, 538–541 invasion, 538–541 legislation, power of court to review on basis of Islam, 359 weapons of mass destruction, failure to recover, 541 Islam constitutionalism, lack of, 4 Convention on the Elimination of All Forms of Discrimination Against Women, compatibility of, 78 ethos, States maintaining, 328 extremist groups, 57–58 fear and hatred of, 5 human rights, Al-Shaybani versus Grotius, 169–170 basis for, 169–170 civil and political rights, 334 compatibility, 176 credentials, 13 education, right to, 353–354 fair trial and due process of law, right to, 345–348 foundations, relativist debate, 175–176 freedom of expression and opinion, 335–341 full implementation, steps to, 181 incompatibility, 168–176

individual and group, 173–174 instruments, 185–193 justified existence of, 170–173 law, and, 4–8 law of God and law of man, 170–173 level of protection, 194 non-application of, justifications, 168 objections, basis of, 178 examination of, 168 political stakes, avoiding, 183–185 public and political participation, right to, 341–345 rejection of, 172 relationship with, 140 shari’a, incompatibility with, 178–179 substantive perspectives, 334–358 tensions and disagreements, 193 theoretical perspectives, 325–329 tool to promote, as, 160–162 transitional perspectives, 329–334 Western construct with extensive applicability, as, 177–185 women’s rights, 348–352 work, right to, 354–358 humanist interpretation, 180 ideology on which based, 4–5 international cooperation, 329–330 international obligation, as basis of, 128 Islamophobia, 5, 8, 17, 19 labour, encouraging, 356–357 meaning, 36–37 minority rights, 17–20 Muslim States, public role in, 323–325 political, differences in, 181 rejection of, 37 social ordering, as form of, 324, 333 state religion, as, 323 violence and terrorism, recourse to, 6 Western interest in understanding, 167 women’s rights, promotion of, 350–351 Islamic Council role of, 185 Islamic law. See also Shari’a Divine Will, as expression of, 91 family, of, 94–95 Pakistan, in. See Pakistan secular concepts, opposition to universality of, 116

Index sources of, 91 territories of, 119–120 Islamic States State practices, 20–21 Jus ad bello non-Christian civilisations, contribution of, 132 source of, 133 Jus ad bellum origins of doctrine, 123–124 religious component of, 123–126 Jus cogens acceptance by States, 278–279 amendment, provision for, 265 breach, implications of, 249 broader role for, 249 classification of human rights as, 252–253 classification of norms, 262 controversial issue of, 12 danger, in, 265–274 definition, 247, 252 demotion, 266 early allusions to, 260 human rights norms, 261 international treaty, inclusion in, 260 norms qualified as, 252 other human rights, differing from, 264 positivist construct, 247 prohibition of torture as, 268 reasons for existence of, 247 religious, 259–265 relocation of debate, 250 rights elements of, 249–250 rights included in, 252–253 social and historical milieu, development in, 261 theoretical vulnerability, 249 violation of, 248 League of Arab States role of, 185 Lex talionis injunction of, 234 Minorities continuing debate, 521 cultural conflicts, resolution of, 475



Declarations on the Rights of, 33 dress codes, 70 ethic and religious groups, obligations of, 460 ethno-religious, haphazard aggregation, 468–469 history of, 466–467 social control, 466–470 fear, ideology of, 512–516 freedom of religion of, 56–57 Geneva Meeting of Experts, 460 human rights provisions on, 448 Muslims in Sweden, 469 Muslims in UK. See Northern Ireland; United Kingdom other segments of society, interaction with, 460–461 Pakistan, in. See Pakistan religious freedoms, stringent limitations on, 487 rights, 17–20 segregation, endorsing, 462–464 suspicion of, 57 UN Declaration, 458 victimisation, 3 women’s rights, 70–71 Morality religious basis for, 263 Morocco Family Law Code, 330–332, 351 Multiculturalism autonomy, and, 444–450 concept of, 443 criticisms of, 464 difference, legitimizing, 494 extremism, effect on rise of, 443–444, 454 Great Britain, in, 18 integration policy, 493–495 international law, challenges to, 450–456 loyalties of citizens, 451 monotheism of state, challenging, 450 national identity, accusation of ignoring, 444 national identity, challenges to, 450–456 opponents of, 444 racial segregation, 450



Index

segregation and, 456–461 tool of analysis, as, 443 UK policies, 453 Muslim countries colonial and post-colonial experiences, 95 human rights treaties, ratification of, 95–96 international obligation, diplomatic immunity as basis of, 126–128 international relations, secular standards, 116 relations between, regulation of, 119 religious constitutions, 128–130 Muslim jurisdictions gender hierarchies, justification for, 85 human rights in, 87–88 human rights instruments, alternative, 102–110 approach to, 98 Cairo Declaration on Human Rights in Islam, 102, 105 drafting, 97 Islamabad Declaration, 102, 105, 107–109 Muslim thought, belief and views, representative of, 109 reservations, 99–102 Tehran Declaration on the Role of Women in Islamic Societies, 102, 105 Universal Islamic Declaration of Human Rights, 103–105. See also Universal Islamic Declaration of Human Rights, women, affecting, 108 law and jurisprudence in, 84 law-making, 84–85 Organisation of Islamic Conference, members of, 94 personal status, Islamic law of, 94–95 relations with other states, conduct of, 96 Western scholarship, engagement with, 86 women, evidence of, 85–86 Muslim Personal Law codification, 388–389 custom, shift to, 388

meanings, 387 Muslim Family Laws Ordinance, 389–390 review of, 394 separate sphere of, 387–391 statutory enforcement, struggle for, 389 Muslim societies events of 11 September, effect on view of, 6 radicalism, 6 values, 5 Muslim States development, lagging behind in, 322 freedom of expression and opinion, 335–341 human rights, instruments, adoption of, 323–324 practical guarantee of, 322 practices, improvement in, 330–332 human welfare, enhancement of, 326–327 Islam, public role of, 323–325 unemployment, level of, 355 Muslims Northern Ireland, in. See Northern Ireland number of, 94 UK policies, 453 United Kingdom, in. See United Kingdom Natural justice fundamental rights and principles of, 361–369 Natural law human rights, argument for primacy of, 143 role of, 117–118 Non-discrimination principle of, 28–29 Northern Ireland administrative region, as, 489 colonial legacy, 505 conflict, lessons from, 550 cultural divisions, 490 divided nature of society, 510 equality legislation, 499–500 fear, ideology of, 514–516

Index Good Friday Agreement, 517 identity issues, 489–490 integration, 490. See also Integration minorities, monitoring, 518 Muslims in, community groups, 511 dress, 502 education, 501–502 general divisions, impact of, 516–517 identity, 496–497 integration of, 509–512, 519 legislative accommodation, 499–500 living and working conditions, 510 Nationalist, 506 number of, 509 people in contact with, 507 police, interaction with, 502 prejudice against, 506–509 public consultation and interaction, 500–503 public discourse, 503–504 public process of integration, 496–504 public visibility, 498 September 11 attacks, effect of, 516 Muslims, no provision for, 19 national identity, 496–497 planning decisions, judicial intervention in, 483 popular prejudice, origins of, 505–507 population, 489 public order legislation, 499–500 racist incidents, number of, 508 sectarian nature, 504 sectarianism, spatial segregations, 518 travellers in, 504 violence in, 489–490 Nuclear weapons Advisory Opinion, 133 Organisation for Security and Cooperation in Europe (OSCE) work of, 32 Organisation of Islamic Conference formation of, 93 members of, 94 role of, 185 Organisation of Islamic Countries instruments adopted within, 120–121



Pakistan Ahmadis, persecution of, 211–215 Ahmadiyya sect, restrictions on, 377 anomalous and artificial, creation of, 414 Baluchistan province, autonomy, 421, 423 British, 422 disputes, 420 internal strife, 422 military operations in, 425–426 national and international attention, 424 natural gas deposits, 424 outsiders in, 421 Parliamentary Committee to examine, 425 population, 420–421 rebellion, 422–424 size of, 420 socio-economic conditions, 421 tribal law, 421 Bengalis, Awami League, 417 civil war, killed in, 417 division of, 415 exploitation of resources, 417 independent statehood, 417 military, in, 415 self-determination, 415–419 tragedy of, 410 Biharis, repatriation of, 429–430 Cantonment rents, 365 citizenship provisions, 363 civil servants, arbitrary dismissal of, 364–365, 367 quota system, 368–369 reduction of salary, 372 service records, Islamic reference in, 373 civil war, 420 compulsory acquisition of land, compensation for, 372–373 conflicting claims, negotiating, 395–401 constitutional framework, role of Islam in, 382–387 constitutions, framing, 385 Preambles, 385–386



Index

Convention on Rights of the Child, reservation to, 395, 397 Convention on the Elimination of All Forms of Discrimination Against Women, conflict with national laws, 63 constitutional law requirements, subject to, 398 general declaration to, 397 party to, 62–65 ratification of, 395–397 reservation to, 63–64 withdrawal of declaration, call for, 398 democracy, return to, 375 domestic legal system, basis of, 116 East, separation of, 410 ethnic, linguistic and cultural identities, official rejection of, 409–410 ethnicity debate, 415–419 Federal Shariat Court, appeal, provision of right of, 370–376 appeals from, 360 consistent application of law, debate on, 373 constitutional provisions, 360 free movement, right to, 371 fundamental rights and injunctions of Islam, equation of, 373–377 immunity from prosecution, removal of, 371–372 Islam, judicial review based on, 359 Islamic rights, creation of, 376 jurisdiction, 359–361 power to invalidate laws, 359 right to equality, application of, 361–369 right to he heard, 370–376 setting up, 359 sources of Islamic law used by, 374 statutes, review of, 361–369 withdrawal of passport, invalidation of provision for, 371 freedom of expression and opinion, 336–337 gender discriminatory statutes, 363 gender equality, communal politics, women as casualties of, 383 constitutional guarantees, 380

Islamisation, threat posed by, 379 religious-cultural claims, and, 401–405 statutes, discrimination in, 363 tensions arising, 379 Zina, offence of, 392 geographical boundaries, friction over, 414–415 honour crimes, 68–70, 403–408 Hudood Ordinances, 15–16 adoption of, 391 amendments, 437–438 damaging consequences of, 436–437 equality, contrary to guarantee of, 393 Federal Shariat Court. See Federal Shariat Court, above human rights, impact on, 359 introduction, effect of, 436 laws reinforced by, 436 non-Muslims, imposition on, 437 Objectives Resolution, 385–386, 393 promulgation of, 359 protection from challenge, 393 punishments, provision for, 184 rape laws, 379, 437 state-sanctioned discrimination, legal effect of, 405–406 women’s testimony, not tasking into to account, 391–391 women, effect on, 436–438 Zia ul’Haq, under, 391 Zina, offence of, 392 human rights discourse, role of, 395–401 international human rights law trumping religious claims, 380 international legal obligations, 62–67 Islamic law, constitutionally guaranteed rights, clashes with, 377–378 enactment repugnant to, prohibited, 386 equality, right to, 362–367 human rights dimension, cases exploring, 363–364 natural justice, fundamental rights and principles of, 361–369 right to he heard, 370–376 sources of, 374

Index Islamisation, challenging, 408 drift to, 432 Hudood Ordinances. See Hudood Ordinances, above ideological schizophrenia, 431 legal system, dilemma for, 381–382 measures, 359 threat to gender equality and women’s rights, 379 nation-building, 430–438 process, 15–17 religious minorities, detrimental to, 432 revival, 395 Shari’a Courts, limits on jurisdiction of, 394 successive programmes of, 407 violations of rights of minorities, 410 Zia ul’Haq, under, 391–395 judiciary, role of, 16 Kalat, status of, 422 minorities, Ahmaddiyyas, 433–434 Baluchis, rights of, 420 electoral colleges, 432–434 ethnic, linguistic and cultural, 419–430 genocide, 413 Islamisation, effects of, 410 offences relating to religion, 434–435 parameters of rights, failure to assess, 409 physical extermination, 413 protection, promise of, 414 religious divide, implications of, 411–415 Muslim Family Laws Ordinance, 389–390 Muslim League, 427 Muslim Personal Law. See Muslim Personal Law Muttahida Qaumi Movement, 430 nation-building, 415–419 East Pakistan, secession of, 431 process, 381 project, 430 nation-State, failure to emerge as, 438–439



National Assembly members, attendance of hearings by, 364–365 natural justice, fundamental rights and principles of, 361–369 non-discrimination, right to, 62 official language, 427, 429 overlapping of jurisdictions, 362 Peshawar, refugees in, 21 political leaders, 430–431 raison d’être, 409 rape, law, 379, 392, 406–407 legal regulation of, 68 religious divide, attempting, 411–415 religious personal laws, attack on, 393 religious State practices, 4 secular penal code, call for, 380 self-determination, Baluchis, rights of, 420 Bengali, 415–419 ethnic, linguistic and cultural minorities, of, 419–430 internal, denial of expression of, 410 Pakhtuns, demands of, 420 parameters, failure to assess, 409 separate Muslim state, proposal for, 385 Shari’a Acts, 389 Sindh province, Bhutto, Sindhi cause championed by, 427–428 discrimination and persecution, allegations of, 429 disputes, 420 issues arising from, 426 Karachi, separation of, 426 language, use of, 426 Muhajir Charter of Demands, 428 Muhajirs, supremacy of, 426–427 Permanent Residence Certificates Rules, 427 protagonists, 426 rural Sindhi, definition of, 427 Urdu, use of, 429 Supreme Court, Shariat Appellate Branch, 360 trafficking of women, 407 truncated, 419–430



Index

war of terror, geo-political positioning within, 408 minority rights, risks for, 410 women, violence against, 68 women’s rights, legal reforms, 406 marriage without parents consent, validity of, 401–403 scope and limits of, 401–405 shift to language of, 74 violation of, 16 Patriotism basis for, 456 Peace interest of States, in, 278 Pinochet, Augusto extradition case, 230 gross human rights violations, trial for, 231 Pluralism critical, 459 importance of, 458 paternalistic, 459 Police powers, enhancement of, 248 Positive law contemporary human rights, starting point for, 117 Positivism natural law divide, 143 Public and political participation, right to Cairo Declaration on Human Rights in Islam, 344–345 consultation, principle of, 344 International Covenant on Civil and Political Rights, 341 Muslim States, in, 341–345 Universal Declaration of Human Rights, 341 Racial discrimination definition, 296 descent-based as category of, 311–315 Hindu caste system. See Hindu caste system laws on, 315 progressive steps to elimination, 316 scope of, 296 strategies for elimination of, 315–316

Racism institutional, 449 Realist theory history of, 275 Hobbes’ Leviathan, 275–276 states, motivation of, 275 strands of, 276 Refugee Convention freedom of religion, 198 persecution, absence of definition, 199 religion-based, 199 Refugees Afghanistan, from, 415 Ahmadis, claims from, 211–215 conscientious objectors, position of, 218–220 conversion to religion, ascertaining genuineness of, 208–210 attitude of authorities, 207 bona fide, 207 endorsement, 208 forced, 206 post departure, 206 persecution, absence of definition, 199 Ahmadis, claims from, 211–215 conscientious objectors, position of, 218–220 discriminatory measures amounting to, 205–208 non-state actors, by, 218–220 religion-based, 199, 202–205 right to freedom from, 222 special risk, evidence of, 215–217 religion as ground for status, 200–202 religion based claims, complexity of, 197, 221 conscientious objectors, position of, 218–220 gender, impact of, 217 inconsistency of approach, 197 religious expression, right to, 12 religious knowledge, degrees of, 206 Religion analysis of term, 200–201 belief, definition, 200–201 collective loyalty, 141

Index collectives or organisations, mattering to, 256 conversion, ascertaining genuineness of, 208–210 cosmological conception, 263 derivation of term, 263 family values debates, 256–257 fraternity, humanity and empathy. feelings of, 277–278 freedom of. See Freedom of religion guiding principles, 254 human dignity, and, 255–256 human existence, as part of, 358 human rights and international law, relationship with, 8–11 modernity and traditional values, division between, 141–142 national or international discourses, role in, 257 persecution on basis of, 202–205 philosophy or culture informing, 142 refugee status, as ground for, 200–202 rights, relationship with, 251 role of, 253–257 State, and, 29–30 State interest, new concept of, 274–279 world politics, in, 251 Religious organisations adoption of universal rights, influence on, 35 Religious persecution ending of, 28 refugees. See Refugees social control, as means of, 466–470 torture, inhuman or degrading treatment, 487 Repressive regimes cultural relativism, 159–160 Roman Catholic Church abortion, campaign against, 131–132 capital punishment, campaign against, 131 human rights policies, fostering, 134 modernity and traditional values, division between, 141–142 political power, 131 role of, 131 Rule of law collective self-expression, 227



executive, adherence to human rights by, 225 insistence on, 237–241 non-State political actors, challenge of, 224, 226 Saudi Arabia Basic Law, 129 Universal Declaration of Human Rights, refusal to adopt, 120, 150 Security civil liberties, with, 148 development, and, 321 Segregation minority group endorsing, 462–464 multiculturalism, and, 456–461 Self determination achievement of, 26 Pakistan, in. See Pakistan Sex discrimination prohibited, 55–56 Shari’a codification, Muslim League’s demand for, 389 global economic policies, accommodation of, 5 good governance, advocating, 333 human rights, and, 13–15 human rights, incompatibility with, 178–179 Islamic texts, interpretation of, 180 meaning, untouchable, 193 mortgages, availability in UK, 453 overall objective, 326 social ordering, 14–15 sources of, 178–179 variation in application, 181 Slavery international law, 110 Social ordering approaches to, 325 combination of theories, 326–327 common aims, organization by, 325–328 Fuller’s theories of, 325 human rights as form of, 321 Islam as form of, 324, 333 Muslim States, in, 324 reciprocity, organization by, 325–328 theoretical perspectives, 325–329



Index

South Africa amnesty law, 232–233 truth and reconciliation policy, 231 victims of human rights abuses, constitutional rights of, 233–234 State neutral, not, 447 religion, and, 29–30 Terrorism attacks of 11 September 2001, 25 democracy, terrorists hating, 238 fear, ideology of, 512–516 global, spread of, 58 global war on, Western response to, 25–26 glorification of, 545–546 human rights values, causing erosion of, 228 insecure states, 227–229 legal response to, 226 suspects, freedoms, removal of, 238 regime for, 236 UK laws, 541–545 war on terror, cost of, 239–240 detainees, rights of, 268–270 dignity of human beings, ensuring, 236–243 human rights, vulnerability of, 249 international norms, priority of, 248 international public opinion on, 241 invasion of Iraq, 538–541 jus cogens, amendment of, 265 UK legislation, 236 ultimate prize, 239 world, changing, 279 zero-sum approach, 237–241 Torture absolute prohibition, 242–245, 267–268 acts falling short of extreme standard, 271 Bush Administration, attitude of, 269 Convention, 267 European Convention on Human Rights, definitionin, 270–271 evidence acquired by, 271–272 evidence obtained through, 547

human rights instruments, prohibited in, 266–267 immunity, 229 Inter-American Convention, definition in, 270 judicial, 241–242 no justification for, 237 potential sanctioning, 241–243 public, to protect, 273 regional Conventions, 267 Universal Islamic Declaration of Human Rights, protection in, 161–162 US detainees, of, 268–274 Turkey Refah Partisi party, dissolution of, 74 UN Declaration on the Elimination of All Forms of Intolerance or Discrimination Based on Religion or Belief adoption of, 45 agreement of, 32 authority of, 45 convention, not followed by, 46–47 education, 50 freedom of religion, scope of, 47–48 model for, 46 non-discrimination provisions, 48–48 other anti-discrimination instruments, and, 46 practice potential, 48 soft law status, 55 United Kingdom blasphemy laws, 530–532 Church of England, protection of, 480 citizens abroad, threat to, 526 citizenship, power to strip, 546 test for acquiring, 546–547 deportation from, 546 detention of individuals, in, 543 diverse people, as nation of, 523 evidence obtained through torture, use of, 547 fundamental rights, limitations post 7/7, 545 identity cards, 547–548 International Covenant on Civil and Political Rights, need to incorporate into law, 548–549

Index Islamophobia, 19 July 7 attacks, 514 law and policies after July 7 2005, 544–548 multiculturalism, 18 Muslims in, British National Party, opinion of, 521–522 communities, backlash against, 17 concerns and grievances, 529–534 critical examination of, 522 cultural differences, 533 discrimination and disadvantage, addressing, 453 dissatisfaction, level of, 456 diverse group of, 524 dress, 533–534 economic migrants, 524 evolution of society, equal partners in, 459–460 exclusion of, 454–455 extremism, defeating, 459 future strategies, 548–550 historical overview, 523–529 initiatives, 488 invasion of Iraq, response to, 540 Islamophobia, 522, 534 isolation, 525 law and policies after July 7, 2005, 544–548 military campaign in Afghanistan, consequences of, 536 millionaires, 528 minorities, position of, 18 Northern Ireland. See Northern Ireland origins of, 526–527 position in, 447–449 religious discrimination, demand for law outlawing, 530 religious hatred, law against, 533 September 11 2001, policies and positions since, 534–544 settlements, 524, 527 Shari’a mortgages, availability in UK, 453 socio-economic and educational standards, 528 spotlight on, 521



war on terror, actors in, 526 women, double-minority syndrome, 528 young, identity of, 528–529 National Census, religious denomination in, 526 new minorities, 524 obligations in European human rights system, failure to undertake, 549 off-shore islands, 523 public land usage, system of, 482–483 race relations in, 525 racial group, definition, 529 religious discrimination, 530 legislation, 550 religious hatred, law against, 532–533 sacred places, concept of, 479–484 September 11 2001 attacks, response to, 541–544 terrorism laws, 541–545 United Nations Charter armed force, regulation of recourse to, 124 human rights provisions, 149 inclusion of human rights in, reason for, 277 state compliance with UN mandate, requirement of, 225 United Nations High Commissioner for Refugees Guidelines on International Protection, case-by-case basis, need to deal on, 204 determination process, points in, 221 information on claim, eliciting, 206 persecution on basis of religion, forms of, 202–205 religion, analysis of, 200–201 restrictions or limitations, legitimacy of, 204 Handbook, 198–199, 205 United States Arab and Islamic world, policy towards, 6 hegemony, 162–163 Islamophobia, 17 Muslim communities, backlash against, 17



Index

planning permission, system of, 475 religious land use refusals, 475–479 Universal Declaration of Human Rights adoption of, 150 American Anthropological Association, opposition by, 138 community, duties to, 150–151 drafting, 149–150 economic, social and cultural rights, emphasis on, 151 freedom of religion under, freedom to change beliefs, 36–38 influence of religions, 35 overview, 33–34 single freedom, as, 34 state obligations, 54 thought and conscience, freedom of, 34 freedom of religion, 470–472 fundamental underlying values, 154–155 human dignity and rights, entitlement to, 28 influence on other documents, 32 Muslim Commentaries, 180 pillars, 150 public and political participation, right to, 341 Saudi Arabia, refusal of to adopt, 120, 150 Western ideas in, 24 Universal Islamic Declaration of Human Rights adoption of, 103, 161, 186 equality, right to, 103 family, right to found, 103–104 impermissible discrimination, prohibition, 103 incoherencies, 192 non-discriminatory provision, 188–192 origin of, 102 preamble, 186–187 recognition of rights, 187–188 torture, protection against, 161–162 Vienna Convention on the Law of Treaties adoption of, 261 jus cogens, amendment of, 265

Women advancement, opposition to, 58–59 Convention on the Elimination of All Forms of Discrimination Against. See Convention on the Elimination of All Forms of Discrimination Against Women, developmental progress of State, role in, 348–349 dress codes, 70–73 freedoms, denied, 60 genital mutilation, 106 human rights. See Women’s rights Islamabad Declaration, 102, 105, 107–109 Islamic households, as head of, 107 Islamic law, value of evidence in, 85–86 Muslim feminist jurisprudence, 76 Muslim jurisdictions, in, equal rights, call for, 109 households, as head of, 107 human rights instruments, recognition and commitment to, 108 Islamabad Declaration, 102, 105, 107–109 marriage, 104 public and political life, right to participate in, 108 Tehran Declaration on the Role of Women in Islamic Societies, 102, 105 religious demands, compliance with, 56 sexuality, controlling, 60 stereotype Muslim identity, 73 Symposium of Expert on the Role in Development of Islamic Societies, 106 Tehran Declaration on the Role of Women in Islamic Societies, 102, 105 work, Islamic law, 357–358 Women’s rights association, of, 61 Beijing Programme for Action, 400 celebration and manifestation of beliefs, 70 co-existence of claims made in name of religion, and, celebration and manifestation of beliefs, 70

Index examinations of, 66 facets of, 53 international legal obligations, 62–67 subordination of equality to, 61 violation of rights, 61 commitment to, 59 compliance, approach to, 74 debate agency, denial of, 72–73 dress codes, 70–73 equality, of, 9 existing laws and traditions, challenge to, 75 freedom of religion, and, 56–62 freedom of religion, limits on, 67–73 General Comment on Equality, 66–67 gross violations, lack of international support, 62 honour crimes, 68–70



instrumentalisation of, 258–259 interpretations, adoption in other communities, 77 minorities, 70–71 movement, of, 61 Muslim States, in, 348–352 Pakistan, violation in, 16 religious and cultural practices, relationship with, 66 violation of, 7 violence, freedom from, 67–68 Work, right to International Covenant on Economic, Social and Cultural Rights, 354–355 Islamic law, under, 355–356 Muslim States, in, 354–358 women, of, 357–358

Studies in Religion, Secular Beliefs and Human Rights This Series is designed to shed light on issues of current concern in the field of religion, law and human rights. ISSN 1871-7829

1. Whiting, A. and C. Evans (Eds), Mixed Blessings. Laws, Religions, and Women’s Rights in the Asia-Pacific Region. ISBN 978-90-04-15141-3. 2006. 2. Lerner, N., Religion, Secular Beliefs and Human Rights. 25 Years After the 1981 Declaration. ISBN 978-90-04-15209-0. 2006. 3. Bayefsky, A.F. and A. Waldman, State Support for Religious Education. Canada versus the United Nations. ISBN 978-90-04-14980-9. 2006. 4. Shah, N.A., Women, the Koran and International Human Rights Law. The Experience of Pakistan. ISBN 978-90-04-15237-3. 2006. 5. Ghanea, N., A. Stephens, R. Walden (Eds), Does God Believe in Human Rights? Essays on Religion and Human Rights. ISBN 978-90-04-15254-0. 2007. 6. Rehman, J. and S.C. Breau (Eds), Religion, Human Rights and International Law. A Critical Examination of Islamic State Pratices. ISBN 978-90-04-15826-9. 2007.