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Clash between Sharia law and human rights in light of PACE Resolution 2253

The relationship between Sharia law and human rights law has been widely debated in the last years. Sharia law is understood as being the “path to be followed”, the “law to be obeyed by every Muslim” (Surah 5). It is, therefore, meant to be the positive law enforceable on Muslims, “an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects”.[1]

Many scholars have argued that Islamic law is not compatible with international human rights standards, and that a clash arise between Sharia law and those basic rights – freedom of speech, freedom of religion, gender equality, minority rights – recognized and protected by human rights Conventions. In particular, on the one hand, the provisions contained in the Universal Declaration of Human Rights[2] are at odds with traditional practices and norms in non-Western societies; and, on the other hand, the application of Sharia law in some European territories is not in compliance with the European Convention on Human Rights (ECHR).

Sharia law and human rights in non-Western societies

Even though many Muslim-majority countries have ratified the United Nations Convention on the Elimination of all forms of discrimination against women (CEDAW),[3] many of them have formulated reservations based on Sharia law, preserving the right to reject those parts of the Convention that are in contrast with Islamic law.

The Government of Brunei Darussalam expressed its reservations regarding those provisions of the Convention that are contrary to the beliefs and principles of Islam. Bahrain, Jordan, United Arab Emirates and Libya made reservations with respect to the provisions contained in Article 2 (“States Parties condemn discrimination again women in all forms (…) and undertake to embody the principle of equality of men and women in their national constitutions and to ensure the practical realization of this principle”) in so far as this Article is incompatible with the Islamic Sharia.

Egypt made a reservation to the text of Article 16 concerning the equality of men and women in all matters relating to marriage and family relations, as the provisions of the Sharia “lay down that the husband shall pay bridal money to the wife and maintain her fully”, and “restrict the wife’s rights to divorce, whereas no restriction is laid down in the case of the husband”. Saudi Arabia affirmed that “in case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention[4].

Indeed, many Muslim-majority countries, nonetheless signatories of international human rights Conventions, do not adequately promote basic rights and freedoms[5].

In Saudi Arabia – a country where the Government does not provide legal recognition nor protection for freedom of religion – Muslims who convert away from Islam face capital punishment for the crime of apostasy.[6] Public worship by adherents of religions other than Islam are not tolerated and the Government systematically discriminates against religious minorities, including in public education, the justice system, and employment. As regards to women’s rights, Saudi Arabia’s guardianship system classifies women as legal minors, requiring them to obtain a guardian’s permission to study at universities and travel abroad. The country has no written laws concerning sexual orientation or gender identity, but judges use principles of Islamic law to sanction people suspected of committing sexual relations outside marriage, including adultery, extramarital or homosexual sex[7].

Saudi government justifies these limitations on religious grounds, citing Hanbali Sunni interpretations of the Quran and hadith, claiming that ensuring such rights contradicts their religious beliefs, which do not recognize marriage freedom for women and do not allow people to change their religion. According to their point of view, certain rights are beyond the normal scope of human rights, threatening the tradition family structure, gender roles and values.

At the same time, many believe that the right to freedom of expression should be stopped to protect religion, as blasphemy laws in many Muslim-majority countries prevent defamation of religion.

Universalism v. Cultural Relativism

With regard to the relationship between religion/culture and human rights, there are two currents of thought: universalism and cultural relativism. In international law, such debate has existed for decades.

According to the supporters of the theory of universalism, human rights are universal and should apply to all human beings, as the same legal enforcement mechanisms of human rights exist everywhere.[8] On the opposite side, cultural relativists object that human rights are culturally dependent, and that no moral principles can be made to apply to all cultures.

Cultural relativists affirm that the principles contained in the Universal Declaration of Human Rights are the product of the Western political history and that they reflect the attempt of Westerners to extend their values to the rest of the world, in a form of cultural imperialism. The British Hizb Ut-Tahrir, a promiment Islamic scholar and human rights critic, affirmed that “the ideal of human rights is not a universal value common to all human beings regardless of religious belief”.[9]

Sharia law and human rights in Europe

The problem of balancing Sharia law and human rights does not only concern Muslim-majority country, as it is widely discussed also in Europe.

In Europe, there are territories where Sharia law is applied: Greece, Chechnya, and the United Kingdom. On the issue, the Parliamentary Assembly of the Council of Europe (PACE) has stated to be “greatly concerned about the fact that Sharia law – including provisions which are in clear contradiction with the Convention – is applied, either officially or unofficially, in several Council of Europe, or parts thereof”[10].

Already in 2003, the European Court of Human Rights (ECtHR) had the chance to affirm the incompatibility of Sharia law with human rights. In Refah Partisi (the Welfare Party) and Others v. Turkey case, concerning the decision taken by the Turkish Constitutional Court to order the dissolution of the Welfare Party that advocated the introduction of Sharia law, the Court held that “Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration, prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession)”[11].

Resolution 2253 of the Parliamentary Assembly of the Council of Europe

In January 2019, the Parliamentary Assembly of the Council of Europe adopted the Resolution on “Sharia, the Cairo Declaration and the European Convention on Human Rights”. The text of the Resolution was based on Report of the Committee on Legal Affairs and Human Rights “Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories to the Cairo Declaration?”[12], which elaborated several problematic aspects of Sharia law (as the superiority of men over women, the rules governing marriage, the inhuman penalties for certain crimes, the lack of freedom of religion, the discriminatory attitude towards Jews and Christians).

The issue at stake in the Report of the Committee on Legal Affairs and Human Rights was that, as far as Sharia law is not compatible with human rights, States should not be able to sign both the European Convention on Human Rights and the 1990 Cairo Declaration of Human Rights in Islam. Indeed, according to Article 10 of the Declaration, “Islam is the natural religion of man”; while Article 24 states that “the rights and freedoms are subordinate to the provisions of the Islamic Sharia (…), which is the only reference source to interpreter or clarify any article of this Declaration[13].

The Assembly affirmed that, while there is an “obligation on member States to protect the right to freedom of thought, conscience and religion as enshrined in Article 9 of the European Convention on Human Rights”, the exercise of the right to manifest one’s religion must be subject to limitations arising from the protection of public interest and, “according to Article 17 of the ECHR, it may not aim at the destruction of other Convention rights and freedoms[14].

In the Resolution, the Assembly reaffirmed the support for the principle of the separation of State and religion as one of the pillars of a democratic society. In this regard, Assembly considered that “the various Islamic declaration on human rights adopted since 1980s, while being more religious than legal, “fail to reconcile Islam with universal human rights, especially insofar as Sharia is their unique source of reference[15]. In this regard, the Assembly has expressed concerns to those Council of Europe member States (Albania, Turkey and Azerbaijan) that have endorsed the Cairo Declaration.

The Assembly agreed that Sharia law is in contradiction with the European Convention on Human Rights, as to Article 2 (right to life), Article 3 (prohibition of torture or inhuman or degrading treatment), Article 6 (right to a fair trial), Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), Article 12 (right to marry), Article 14 (prohibition of discrimination on the ground of sex or religion), Article 1 of the Protocol to the Convention (protection of property), Protocol 7 (establishing equality between marital partners), and Protocols 6 and 13 (abolishing the death penalty)[16].

Furthermore, the Assembly expressed worries for the activities of “Sharia councils” in the United Kingdom, that “provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction”.  As regards to Greece, the Assembly realized that, despite several recommendations, asking the Greek authorities to abolish the application of Sharia law in Thrace, there has been no follow-up.

In the Resolution, the Assembly called:

on Albania, Turkey and Azerbaijan, to distance themselves from the 1990 Cairo Declaration by, among the others, adopting a formal act clearly establishing the Convention as a superior source of obligatory binding norms;

on the authorities of the United Kingdom, to ensure that Sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women; and to review the Marriage Act to make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony, as it is already stipulated by law for Christian and Jewish marriages;

on Greece, to rapidly and fully implement the Grand Chamber judgement of the ECtHR in the case of Molla Sali v. Greece.

Lastly, the Assembly called on the countries that are members of the Organization of Islamic Cooperation (OIC), on Greece and on the United Kingdom to report back to the Assembly by June 2020 on the actions they have taken as a follow-up to this Resolution.

Conclusions

In order to give a response to the long-standing question of the compatibility between Sharia law and human rights, too many aspects must be taken into consideration and a deeper analysis is needed. On the other hand, the author is of the opinion that where human rights are concerned there should be no room for religious or cultural exceptions.

[1] Joseph Schacht, “An introduction to Islamic law”, Oxford University Press, 1983.

[2] UN (1948), Universal Declaration of human rights, available at:

[3] UN, Convention on the elimination of all forms of discrimination against women, New York, 18 December 1979, available at: https://treaties.un.org/doc/Treaties/1981/09/19810903%2005-18%20AM/Ch_IV_8p.pdf

[4] United Nations Treaty Collection, Status of the treaties, CEDAW, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-8&chapter=4&lang=en

5] Christian Campbell, “Legal aspects of doing business in the Middle East”, 2007, p. 265.

[6] United States Commission on International Religious Freedom, 2019, Annual Report, available at: https://www.uscirf.gov/sites/default/files/2019USCIRFAnnualReport.pdf

[7] Human Rights Watch, “Saudi Arabia: events of 2018”, available at: https://www.hrw.org/world-report/2019/country-chapters/saudi-arabia

[8] Nhina Le, “Are human rights universal or culturally relative?”, Peace Review: a journal of social justice, 28:203-211, available at: https://www.tandfonline.com/doi/full/10.1080/10402659.2016.1166756?scroll=top&needAccess=true

[9] Marie Juul Petersen, “Islam and human rights: clash or compatibility?”, available at: https://blogs.lse.ac.uk/religionglobalsociety/2018/06/islam-and-human-rights-clash-or-compatibility/

[10] Gregor Puppinck, European Centre for law and justice, “The Council of Europe is greatly concerned by the application of Sharia in Europe”, available at: https://eclj.org/religious-freedom/pace/le-conseil-de-leurope-sinquite-grandement-de-lapplication-de-la-charia-en-europe

[11] ECHR, Refah Partisi (the Welfare Party) and Others v. Turkey, February 2008, available at: file:///C:/Users/Meu-Intern2/Downloads/002-5004.pdf

[12] Council of Europe, Parliamentary Assembly, Report Doc. 14787, 03 January 2019, available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=25246&lang=en

[13] Cairo Declaration on human rights in Islam, 5 August 1990, available at: http://hrlibrary.umn.edu/instree/cairodeclaration.html

[14] Council of Europe, Parliamentary Assembly, “Sharia, the Cairo Declaration and the European Convention on Human Rights”, Resolution 2253 (2019), available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=25353

[15] See above.

[16] See above.

Maria Sole Russo

Laureata in Diritto internazionale e dell'Unione Europea presso l'Università LUISS Guido Carli di Roma. Ha approfondito la conoscenza del diritto internazionale seguendo diversi corsi presso la Fordham University di New York, Peking University di Pechino, LMU di Monaco di Baviera, HSE di San Pietroburgo e Universidade da Coruna. Ha svolto tirocini e brevi esperienze di lavoro presso il Parlamento Europeo, la Commissione Europea, il Consiglio d'Europea e le Nazioni Unite.

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