Saudi Arabia and the international covenant on civil and political rights 1966: A stalemate situation

Abstract

The article addresses the issue that given that Islamic Shari'ah is the supreme law of Saudi Arabia, whether or not it is attainable for Saudi Arabia to ratify the International Covenant on Civil and Political Rights 1966 (ICCPR) without violating the Shari'ah. If not, is it attainable to reconcile the ICCPR with the Islamic Shari'ah without making reservations incompatible with the object and purpose of the ICCPR? The paper starts by highlighting the status of the Shari'ah within the framework of the Saudi constitution, which states unequivocally that the Islamic Shari'ah is the supreme law of the land. Since the Shari'ah contains rules that are considered to be incompatible with the ICCPR, two approaches are considered in order to resolve the conflict between the two and thereby facilitate the joining of Saudi Arabia to the ICCPR. Firstly, the methods employed by the Muslim modernist movement to ‘adapt’ the Shari'ah to fit modern requirements are examined in terms of their consistency with the Islamic legal theory and their likely effect on eliminating the conflict between the Shari'ah and the ICCPR. Secondly, the permissibility of making reservations on particular Articles of the ICCPR in order to reconcile it with the Shari'ah is also examined.

Acknowledgement

I am grateful to Professor John Charvet of the London School of Economics and Political Science, for his support during the preparation of this article. I owe my deepest gratitude to Professor Steve Uglow of the University of Kent, who taught me, above all, the strength of conviction.

Notes

1. Universal Declaration of Human Rights, adopted 10 December 1948, GA Res. 217A (III), UN GAOR, 3rd Sess. (Resolutions, part 1), at 71, UN Doc. A/810 (1948)[hereinafter UDHR].

2. Yearbook of the United Nations (1948–1949), p.528.

3. D. Arzt, ‘The Application of International Human Rights Law in Islamic States’, HUM. RTS. Q, Vol.12 (1990), 202, pp.216–17.

4. International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, GA Res. 2200A (XXI), UN GAOR, 21st Sess, Supp. (No. 16) at 52, UN Doc. A/6316 (1966).

5. Arzt (note 3) p.217. It should be added here that Saudi Arabia also objected to the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), on the basis that Article 9, which guarantees social security including social insurance, is a Western concept, and that the Shari'ah, adopts better methods for improving the conditions of the needy. However, since this paper is only concerned with civil and political rights, Saudi Arabia's position on the ICESCR falls outside of the scope of this paper, and therefore it is not included in the discussion. For a discussion of the Saudi Arabian position on the ICESCR, see ibid. at p.218.

6. See Saud Al-Faisal, Foreign Minister of the Kingdom of Saudi Arabia, address at World Conference on Human Rights, Vienna, Austria (15 June 1993); see also Saud Al-Faisal, Foreign Minister of the Kingdom of Saudi Arabia, statement delivered by H.E. Gaafar M. Allagany, Saudi Ambassador to the United Nations at the 48th Session of United Nations General Assembly (13 October 1993).

7. Resolution on the Follow-up of the Cairo Declaration on Human Rights in Islam. The Islamic Summit Conference (Session of Confidence, Dialogue and Participation) held in Tehran, Islamic Republic of Iran, 9–11 December 1997, 8th Sess, No 50/8-P (IS); see also The Tehran Declaration of the Organisation of the Islamic Conference, The Islamic Summit Conference (Session of Confidence, Dialogue and Participation) held in Tehran, Islamic Republic of Iran, 11 December 1997, 8th Sess.

8. He stated in his message on the occasion of the fiftieth anniversary of the Universal Declaration of Human Rights on 1 December 1988, that ‘I began this anniversary year by reaffirming the universality of human rights, and by arguing that human rights are foreign to no culture and native to all nations. From the streets of Asia to the towns of Africa to the courts of Europe’. Press Release, SG/SM/6815, HR/4390, New York (1 December 1998). For a critical evaluation of the so-called Islamic human rights schemes, see A.E. Mayer, Islam and Human Rights: Traditions and Politics,3rd edn (Boulder, CO: Westview Press 1999).

9. International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, entered into force 3 January 1976, GA Res. 2200 (XXI), UN GAOR, 21st Sess. Supp. (No. 16) at 52, UN Doc. A/6316 (1966). See Y.A. Al-Ssam'an, ‘al-Mamlaka al-Arabiyyah al-Saudiyyah wa Qudit Huquq al-Insan’ (The Kingdom of Saudi Arabia and Human Rights), in Diplomatic Institute (ed), Al-Siyasa al-Kargiah ll-Mamlaka al-Arabiyyah al-Saudiyyah fi Mai't A'am (Foreign Policy of the Kingdom over 100 Years) (Riyadh: Diplomatic Institute 1999), p.779.

10. See Report of the Special Rapporteur, Dato' Param Cumaraswamy, on the Independence of Judges and Lawyers: Report on the Mission to the Kingdom of Saudi Arabia, Submitted Pursuant to Commission on Human Rights Resolution 2002/43, UN ESCOR, Comm'n on Hum. Rts., 59th Sess, Item 11(d) of the provisional agenda UN Doc. E/CN.4/2003/65/Add.3, para.81.

11. This mechanism is represented in the monitoring power of the Human Rights Committee under Article 40 of the ICCPR and the jurisdiction of the Human Rights Committee to receive individual complaints under the Optional Protocol to the ICCPR. For a discussion of these mechanisms, see T. Buergenthal, International Human Rights In A Nutshell, 2nd edn (St. Paul, MN: West Publishing Co 1995), pp.43–50.

12. Issued by Royal Order A/91 (1 March 1992) [hereinafter Basic Law]. An English translation of the Basic Law can be found in, ‘Saudi Arabia: The New Constitution’, ALQ, Vol.8 (1993), pp.258–70. For a further discussion of the significance of the Basic Law with regard to other issues that are not covered here, see A.M. Tarazi, ‘Saudi Arabia Basic Laws: The Struggle for Participatory Islamic Government’, Harv. Int'l. L.J., Vol.34 (1993) 258; see also R. Aba-Namay, ‘Recent Constitutional Reforms in Saudi Arabia’, Int'l & Comp. L.Q., Vol.42 (1993) 295.

13. The Holy Qur'an, verse 3:85.

14. For a further discussion, see A. Awdah, al-Tashria al-Jenaei al-Islami Muqaran be al-Qanun al-Wadei (The Islamic Penal Legislation Compared with the Positive Law), 14th edn (Beirut: Resalah Publishers 2000), Vol.2, pp.706–31.

15. This right of a Muslim husband is based upon what is stated in the Qur'an, verse 4: 34–5, ‘Men are the guardians over women, because Allah has made some of them excel other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard the secrets of their husbands with Allah's protection. As those women on whose part ye fear disloyalty and ill conduct admonish them [first], [next], refuse to share their beds. [and last] beat them [lightly]; but if they return to obedience, seek not against them means [of annoyance]: for Allah is most High, Great [above all].’ For a further discussion of this right, see Awdah (note 14) Vol.2, pp.513–18.

16. E.g., it is stated in the Holy Qur'an, verse 4:11, that ‘Allah (thus) directs you as regard your children's (inheritance): to the male, a portion equals to that of two females’.

17. For a detailed discussion of the rights of women in Islam and the controversy surrounding them, see M. Al-Sibaie, al-Marah ben al-Fiqh wa al-Qanun (Women between Jurisprudence and Law), 7th edn (Riyadh: Dar Al-Wraq 1999), pp.23–35, 60–117.

18. For a further discussion of the rules governing the status of non-Muslims living in an Islamic state and how they were historically applied, see A.I. Doi, Shari'ah: The Islamic Law (London: Ta Ha Publishers 1984), pp.426–35; M.C. Bassiouni, ‘Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System’,in M.C. Bassiouni (ed), The Islamic Criminal Justice System (London and New York: Oceana Publications 1982), pp.20–23.

19. M. Al-Andalusi, Bidait al-Mujtihad wa Nihait al-Muqtased (The Striver's Start and the Economizer's End) (Cairo: al-As'hariah Colleges Library 1983), p.51.

20. This point is expanded upon below p.449.

21. M. Khadduri, ‘Nature and Sources of Islamic Law’, Geo. Wash. L. Rev, Vol.22 (1953) 3, pp.6–10.

22. The Holy Qur'an, verse 45:18.

23. B. Weiss, ‘Interpretation in Islamic Law: The Theory of Ijtihad’, Am. J. Comp. L, Vol.26 (1978) 199.

24. i.e., a jurist who is qualified to practice ijtihad.

25. Weiss (note 23) p.200.

26. M. Zahraa, ‘Characteristic Features of Islamic Law: Perceptions and Misconceptions’, ALQ, Vol.15 (2000) 168, p.171.

27. For an extensive discussion of the sources of the Shari'ah, see F.E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Boston, MA: Brill 2000), pp.34–56; A.M. Ibrahim, Sources and Development of Muslim Law (Singapore: Malayan Law Journal 1965), pp.9–25.

28. B.S. Al-Muhairi, ‘Conflict and Continuity: Islamization and Modernization within the U.A.E. Penal Law’ (unpublished PhD Thesis, University of Kent 1994) (on file with Kent University Library), p.12.

29. See E.T. Luard, ‘The Origins of International Concern over Human Rights’, in E.T. Luard (ed), The International Protection of Human Rights (London: Thames & Hudson 1967), pp.7–21.

30. See M. S. Chaudhry, Human Rights in Islam (Lahore: Impact Publications 1993), pp.14–16; see also S. Al-Hageel, Human Rights in Islam and Their Application in the Kingdom of Saudi Arabia, trans. O.F. Atari (Riyadh: Al-Humadie Press 2001), pp.34–6; N.J. Coulson, ‘The State and the Individual in Islamic Law’, Int'l & Comp. L.Q, Vol.6 (1957) 49, p.50.

31. The discussion here is confined to these four Sunni schools, as Saudi Arabia is a follower of the Sunni tradition.

32. For a further discussion of the life of the founding jurists, see Doi (note 18) pp.88–111; Ibrahim (note 27) pp.58–67.

33. It should be noted though that according to the Hanifi and Maliki schools, the Shari'ah has supplementary sources. While the Hanifi school adopts Istihsan (preference), as the fifth source of law, the Maliki school considers the fifth source to be maslaha al-mursala (public interest). See ibid. at 81–5.

34. S.H. Amin, Islamic Law in Contemporary World (Glasgow: Royston 1985), p.7.

35. Regarding the implications of the closure of the door of ijtihad for the role of subsequent jurists, see N.J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press 1964) (photo. reprint 1997), pp.80–85.

36. Vogel (note 27) p.57.

37. In fact there are some Muslim Jurists who prohibit blind taqlid on anyone including lay Muslims, by asserting that everyone has the right, in fact, is obliged, to practice ijtihad, and examine the proofs of given opinions and follow the one which his/her conscience favours. This is the dominant opinion in the Hanbali school, which explains why Saudi scholars, as discussed below, reject unanimously the proposition that the door of ijtihad was closed. See Vogel (note 27) pp.67–81.

38. Ibid.

39. Ibid. p.8; see also Zahraa (note 26) pp.185–6.

40. A.A. An-Na'im, ‘Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives’, Harv. Hum. Rts. J, Vol.3 (1990) 13, p.21. This is to say that even if the Saudi Government wishes to ratify the ICCPR by violating the Shari'ah, such an exercise is highly unlikely to be accepted by the Saudi people, let alone be accepted by ulama (the religious establishment), who control the judiciary, as it would be considered to be contrary to their religious law as well as to the constitution, and therefore the requirements of the ICCPR which conflict with the Shari'ah rules would be unenforceable in practice.

41. There are other methods adopted in ‘adapting’ the Shari'ah but because of their apparent flaws, and limited effect in reconciling the Shari'ah with the ICCPR they are not included in the discussion. For a detailed discussion of these methods, see J.N.D. Anderson, ‘Modern Trends in Islam: Legal Reform and Modernisation in the Middle East’, Int'l & Comp. L.Q, Vol.20 (1971), (1); A. Layish, ‘The Contribution of the Modernists to the Secularization of Islamic Law’, Middle Eastern Studies, Vol.14 (1978), (263).

42. N. Al-Miman, ‘al-Talfiq fi al-Ijtihad wa al-Taqlid’ (Selection in Interpretation and Imitation)', Al Adl Journal, Vol.11 (2002), pp.15–26.

43. For the sake of simplicity this method is referred to throughout the paper as talfiq. It is worth mentioning that this method is referred to in Islamic English literature as takhayyur. However, since books on jurisprudence refer to this method as talfiq, in this paper this term is used.

44. Al-Miman (note 42) pp.17–8.

45. Historically this method was first adopted by the Ottoman Law of Family Rights 1917, to improve the miserable conditions endured by Muslim women that resulted from strict adherence to the Hanafi school. See Coulson, A History of Islamic Law (note 35) pp.182–6.

46. The discussion of the lawfulness of codification in Saudi Arabia draws on Vogel (note 27) chapter 8. Also relevant is Miman (note 42).

47. Ibid. p.338.

48. Ibid. p.336.

49. See A.A. Al-Ghadyan, ‘The Judiciary in Saudi Arabia’, ALQ, Vol.13 (1998), (235).

50. Vogel (note 27) pp.338–9.

51. Ibid. pp.341–50.

52. See ibid. p.338.

53. Ibid. pp.350–52.

54. King Abdulaziz, the founder of modern Saudi Arabia, initially proposed the essence of this suggestion in 1926. However, the proposal of the King received a negative response from ulama apparently for the same reasons that the opponents currently invoke. See ibid. p.287. For similar proposals put forward by the proponents of codification, see ibid. pp.350–54.

55. This is a pre-condition for a valid reservation to the ICCPR. See Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Human Rights Committee, adopted at the 1382nd meeting on 2 November, 52nd Sess, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 19 [hereinafter General Comment].

56. See above pp.493–4.

57. Awdah (note 14) Vol.2, pp.182–3. The opinion of the Hanafi school has been adopted by the Union Supreme Court of United Arab Emirates (UAE) as a binding rule to be applied in all cases in which non-Muslims are entitled to financial compensation for homicide or bodily harm. See Appeal No. 107, Union Supreme Court, UAE (18 October 1997). It is noteworthy that the UAE is a neighbouring country of Saudi Arabia, and, according to Article 7 of the Constitution of the Union 1971, Islam is the official religion of the state, and the Shari'ah is a principal source of legislation.

58. Ibid. pp.181–2.

59. See also the opinion of the distinguished and well-known Egyptian scholar Muhammad Abu-Zahra in his book, M. Abu-Zahra, Usul al-Fiqh (The Roots of Jurisprudence) (Cairo: Dar al-Fikr al-Arabi 1997), pp.341–7.

60. A.A. An-Na'im, Towards an Islamic Reformation: Civil Liberties, Human Rights, and International Law (New York: Syracuse University Press 1990), p.171. For a further discussion of An-Na'im's methodology, see ibid. pp.52–62.

61. See, e.g., Doi (note 18) pp.545–66; Al-Muhairi (note 28) pp.47–9.

62. Coulson, A History of Islamic Law (note 35) pp.220–21. See further Layish (note 41) pp.372–3.

63. Vienna Convention on the Law of Treaties, adopted 22 May 1969, entered into force 27 January 1980, UN Doc. A/CONF.39/27 (1969) [hereinafter Vienna Convention].

64. The Committee, in fact, assigned to itself the task and authority of determining the compatibility of a given reservation to the object and purpose of ICCPR, by virtue of its function under the Covenant and the Optional Protocol, besides the nature of the Covenant which renders the State parties incompetent in fulfilling this task. See General Comment (note 55) paras.16–18.

65. Ibid. paras.7–10.

66. Ibid. paras.8–9.

67. Article 2 of the Kuwait Constitution 1962 reads ‘The religion of the State is Islam, and the Islamic Shari'ah shall be a main source of legislation’.

68. For an accurate and extensive account of the disparity between the rights recognised under Kuwaiti law and those recognised by the ICCPR, see Human Rights Watch/Middle East, Kuwait: Promises Betrayed: Denial of Rights of Bidun, Women, and Freedom of Expression, Vol.12, No.2(E) (October 2000).

69. Concluding Observations of the Human Rights Committee: Kuwait, UN Human Rights Committee, adopted at 1864th and 1865th meetings on 26 and 27 July 2000, 69th Sess, UN Doc.CCPR/CO/69/KWT, paras.5–6.