INTERNATIONAL JOURNAL OF CIVIL SOCIETY LAW
VOLUME IX ISSUE III
JULY/OCTOBER 2011
IJCSL EDITORIAL BOARD
PROF. KARLA W. SIMON
CATHOLIC UNIVERSITY OF AMERICA
EDITOR-IN-CHIEF
PAUL BATER
INT’L BUREAU OF
FISCAL
DOCUMENTATION
SENIOR EDITOR
DR. LEON E. IRISH
VISITING PROF. OF LAW
CATHOLIC UNIV. OF
AMERICA
SENIOR EDITOR
DONNA M. SNYDER
EDITORIAL ASSISTANT
STEPHEN YOUNG
REFERENCE LIBRARIAN
JESSICA SWEENEY
MANAGING EDITOR
NASIRA RAZVI
E DITOR
Contributing Editors & Contributors
Prof. Myles McGregorLowndes
AUSTRALIA
Deniela País Costa
BRAZIL
Terrance Carter
CANADA
Prof. Debra Morris
ENGLAND & WALES
Prof. Ge Yunsong
Huang Haoming
CHINA
Dr. Petr Pajas
CZECH REPUBLIC
Daniel Bekele
ETHIOPIA
Caroline Newman
F RANCE
Michael Ernst-Pörksen
GERMANY
Paul Opoku-Mensah
GHANA
Noshir Dadrawala
INDIA
Renata Arianingytas
INDONESIA
Dr. Kerry O’Halloran
I RELAND /N O .
I RELAND
Dr. Hadara Bar-Mor
ISRAEL
Dr. Alceste Santuari
Prof. Giuliana Gemelli
ITALY
Tatsuo Ohta
Morihisa Miyakawa
JAPAN
Henry Ochido
KENYA
Bayarseteg, J.
MONGOLIA
ii
Nasira Razvi
P AKISTAN
Roselle Ramsay
PHILIPPINES
Ricardo Wyngaard
Peter Hendricks
SOUTH AFRICA
Marcel Katemba
T ANZANIA
Dr. Christine Barker
UNITED KINGDOM
Arthur Larok
UGANDA
Dr. Antonio Itriago
VENEZUELA
Paul Bater
WESTERN EUROPE
Tamuka Muzondo
ZIMBABWE
July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
October, 2011
Dear Readers,
Once again we are privileged to bring several interesting and useful articles and one book review
to the attention of our readers. In addition, it is important to note that each of the articles
considers a timely issue, including pending legislation, important human rights issues, and a
potential new development paradigm in Japan. Our authors address the issues they raise with
talent, bringing value to the readers of IJCSL.
With the anticipated proclamation of the Ontario Not-for-Profit Corporations Act, (ONCA), the
law which has not been substantivley amended since 1953, will become brand new in late 2012.
Terrance S. Carter and Theresa L.M. Man of the Toronoto law firm Carters suggest in their
article The Nuts and Bolts of the Ontario Not-for-Profit Corporations Act, 2010 that this is an
appropriate time for not-for-profit (“NFP”) corporations incorporated under Part III of the
Ontario Corporations Act (“OCA”) to begin familiarizing themselves with the changes that the
ONCA will have on their future corporate structure and governance, and to plan toward
continuance under the ONCA. We are extremely grateful to the authors and the Charity Law
Bulletin No. 262, September 30, 2011 for permission to republish their article.
Prof. Joop de Koort, of the Law and History Faculties at the University of Leiden, raises some
important questions about the “right to development” (RTD) in his article Stretching law too
far? The difficulties to assure the Right to Development. He reviews the literature on human
rights with a focus on the economic arguments that are related to human rights, economic rights,
and the RTD in particular. Prof. de Koort takes a descriptive historical approach by tracking the
development of rights from their inceptions in France and the USA towards the importance they
have gained in the policies of the United Nations, but a more normative approach when
discussing the interaction between economic development and the legalization of economic
rights in their many manifestations, most notably in the RTD.
In Co-operative Banks in Japan: An Asset-Based Community Development Approach,
Rosario Laratta, Ph.D. of Meiji University, Japan and Sachiko Nakagawa, Ph.D. of Keio
University, Japan, discuss an exciting new approach to community development. Seven of the
thirteen co-operative banks currently operating in Japan were selected for their study of the asset
based community development (ABCD) system. The authors conducted semi-structural
interviews with the executive directors of the selected banks. What became clear from the
findings was that the co-operative bank executives understood as their primary role that of
encouraging neighbors to discover their own assets and mobilize them for the development of
their own community. They conclude that the bankers saw themselves as servant leaders at any
or all stages of the community change process, facilitating the beginnings of revitalized
communities by posing the key questions of the ABCD paradigm.
Nicole Ruzinski, JD expected 2012 Catholic University of America School of Law, has
presented a fascinating study of religious discrimination in Suadi Arabia. In The Treatment of
Religious Minorities in Saudi Arabia: A Violation of Islamic Principles and International
iii
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International Journal of Civil Society Law
Vol. IX, Issue III
Law Ms. Ruzinski discusses in detail the way in which Islam teaches about the proper treatment
of religious minorities and how the radical form of Islam practiced in Saudi Arabia (Wahhabism)
violates those principles. She also focuses on the ways in which such discrimination violates
international human rights law, suggesting that Saudi Arabia’s important status in the Arab world
warrants greater attention to the problems created by the religious discrimination practiced there.
Finally, my own review of the 4th Edition of Hubert Picarda’s LAW AND PRACTICE
RELATING TO CHARITIES presents this important book in a very favorable light. It is an
excellent sourcebook for everyone interested in charity law. One aspect not noted in the review
is that Debra Morris, who was chosen by Mr. Picarda to assist with some of the updates
reflecting changes in the 2006 Charities Act, is on IJCSL’s editorial board. We extend our
congratulations to Mr. Picarda and Ms. Morris on this marvelous addition to the literature.
All in all, this is a very rich issue and one we recommend wholeheartedly to our readers. In
closing, I would like to bid a fond farewell to Jason Stiener, who was a wonderful Managing
Editor during the past academic year, during which we also published one of his papers. We also
welcome Jessica Sweeney as the new Managing Editor and look forward to working closely with
her this year.
Enjoy your read!
Karla
Karla W. Simon
Professor of Law
Editor-in-Chief
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July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
TABLE OF CONTENTS
IJCSL EDITORIAL BOARD
LETTER FROM THE EDITOR
TABLE OF CONTENTS
IJCSL EDITORIAL POLICY
ii
iii
v
vi
ARTICLES
The Nuts and Bolts of the Ontario Not-ForProfit Corporations Act, 2010
1
Terrance S. Carter and Theresa L.M.
Man
Stretching Law Too Far? The Difficulties to
Assure the Right to Development
12
Joop de Kort
Co-operative Banks in Japan: An Asset-Based
Community Development Approach
26
Rosario Laratta, Pd.D. and Sachiko
Nakagawa, Ph.D.
37
Nicole Ruzinski
53
Karla W. Simon
The Treatment of Religious Minorities in Saudi
Arabia: A Violation of Islamic Principles and
International Law
Book Review: Hubert Picarda’s LAW AND
PRACTICE RELATING TO CHARITIES 4th Edition
(Butterworth’s 2010)
v
July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
IJCSL EDITORIAL POLICY
July/October 2011
Dear Reader,
CONTENT – IJCSL publishes articles on a variety of topics, seeking to provide a venue for an
international readership to learn about and express opinions on developments in law affecting civil
society. These topics and the array of opinions on them are complex and sometimes controversial. The
opinions expressed herein do not necessarily reflect the views of the IJCSL or its editorial staff.
STYLE – IJCSL publishes articles by contributors from around the world. Therefore, IJCSL uses a
flexible editorial policy regarding questions of style. Articles submitted by persons for whom the English
language is native are edited based on the author’s original syntax and spelling. Articles submitted by
persons for whom the English language is not native are edited according to American English style.
Occasionally, IJCSL publishes articles in languages other than English. In those instances, articles are
published as submitted and the IJCSL provides and English-language summary.
QUESTIONS & COMMENTS – IJCSL welcomes readers’ questions and comments on items it
publishes. If you have a question or comment, please contact:
Karla W. Simon, Editor-in-Chief
Jessica Sweeney, Managing Editor
simon@cua.edu
sweeney0115@gmail.com
IJCSL RETAINS FINAL EDITORIAL CONTROL of all aspects of publication and will share copyright with
the authors of the works published.
We look forward to hearing from you, and thank you for your interest in the IJCSL.
Sincerely,
The IJCSL Editorial Staff and Editorial Board
PLEASE CITE AS
9
INT’L
J.
CIV.
SOC.
L.
3
at
vi
http://www.iccsl.org/pubs/9_03_IJCSL.pdf
July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
THE NUTS AND BOLTS OF THE ONTARIO NOT-FOR-PROFIT CORPORATIONS ACT,
2010
BY TERRANCE S. CARTER AND THERESA L.M. MAN *
A. INTRODUCTION
With the anticipated proclamation of the Ontario Not-for-Profit Corporations Act, 20101
(“ONCA”) in late 2012, it is an appropriate time for not-for-profit (“NFP”) corporations
incorporated under Part III of the Ontario Corporations Act2 (“OCA”) to begin familiarizing
themselves with the changes that the ONCA will have on their future corporate structure and
governance, and to plan toward continuance under the ONCA. This Charity Law Bulletin
provides a brief overview of some of the key aspects of the ONCA.
By way of background, the OCA has not been substantively amended since 1953. Bill 65, An
Act to revise the law in respect of not-for-profit corporations, 2010, was introduced on May 12,
2010 and received Royal Assent on October 25, 2010. The ONCA is expected to be proclaimed
in force in late 2012. Prior to proclamation, draft regulations, standard organization by-laws and
plain language guides are expected to be released for public comment in early 2012.3 Once the
OCA is in force, the OCA will no longer apply to non-share capital corporations incorporated
under Part III of the OCA. There are many corporations that do not come under the OCA, such
as non-share capital corporations under the Co-operative Corporations Act and insurance
companies under Part V of OCA.4 As well, the ONCA excludes from its application to some
corporations and limits its application to certain other corporations.5 The ONCA does not
automatically apply to share capital social corporations incorporated under Part II of the OCA.
These social corporations may continue to operate under the OCA for five years. At the end of
the five-year period, they will have to decide whether to continue under the ONCA, the Ontario
Business Corporations Act (“OBCA”) or the Co-operative Corporations Act.6
*
Terrance S. Carter, B.A., LL.B., Trade-Mark Agent, is the managing partner of Carters Profession Corporation,
and counsel to Fasken Martineau DuMoulin LLP on charitable matters. Theresa L.M. Man, B.Sc., M.Mus., LL.B.,
LL.M., is a partner at Carters Professional Corporation, practicing in the area of charity and not-for-profit law. The
authors would like to thank Christine Kellowan, B.A. (Hons), J.D., Student-at-Law, for assisting in the preparation
of this bulletin.
1
S.O. 2010, c. 15.
2
R.S.O. 1990, c. C.38.
3
For more information on the legislative history of Bill 65, see Jane Burke-Robertson & Terrance S. Carter,
“Introduction of Bill 65, The Ontario Not-For-Profit Corporations Act” Charity Law Bulletin No 210 (25 May 2010)
online: Carters Professional Corporation <http://www.carters.ca/pub/bulletin/charity/2010/chylb210.htm>; Terrance
S. Carter & Jane Burke-Robertson, “Changes to Bill 65, The Ontario Not-For-Profit Corporations Act, Pending
Third Reading” Charity Law Bulletin No. 228 (30 September 2010) online: Carters Professional Corporation
<http://www.carters.ca/pub/bulletin/charity/2010/chylb228.htm>.
4
Supra note 1 at ss. 4(2).
5
Ibid., s. 212 to 248.
6
Ibid., ss. 211(3).
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July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
B. OVERVIEW OF THE KEY ELEMENTS OF THE ONCA
1.
Incorporation, Purposes and By-laws
Under the ONCA, incorporation will be “as of right”, similar to the mechanism used in the
OBCA. Like the OBCA,7 one or more individuals or corporations may incorporate an NFP
corporation by filing articles of incorporation and any other required documents.8 Upon receipt
of the articles of incorporation, a certificate of incorporation will be issued.9 Incorporation as of
right is a welcome development compared to the system under the OCA. Under the OCA,
incorporation is subject to the discretion of the Minister of Government Services10 and often
takes 6-8 weeks to be completed. In contrast, it is anticipated that incorporation under the ONCA
will take only a few days and can be filed online.
Under the OCA, corporations must set out their objects in the letters patent.11 Under the
ONCA, NFP corporations must set out their purposes in the articles.12 Such purposes must be
within the legislative authority of the Province of Ontario.13 Unlike the OCA, the ONCA permits
NPF corporations to have purposes that are of a commercial nature, provided that the articles
must provide that the commercial purpose is intended only to advance or support one or more of
the non-profit purposes of the corporation.14 Notwithstanding this new rule, NFP corporations
that are registered charities must still comply with the requirement of the Income Tax Act and
Canada Revenue Agency’s administrative policies on related business.15 Where the articles are
inconsistent with the ONCA or its regulations, the ONCA or its regulations will prevail and the
articles will be deemed to be amended accordingly.16
Standard organizational by-laws will be approved and released by the Ministry. If an NFP
corporation fails to pass an organizational by-law within 60 days after it is incorporated, it will
be deemed to have passed the standard organizational by-laws. Where a corporation is deemed to
have passed the standard organizational by-laws it may amend or replace the standard by-laws at
any time.17 This is a welcome change, since it is not uncommon to find OCA corporations that
have not adopted any organizational by-laws after incorporation, especially those corporations
incorporated without legal assistance.
Under the ONCA, NFP corporations will have the capacity, rights, powers and privileges of a
natural person, which is not in itself a new development.18 As well, the doctrine of ultra vires
will no longer apply to NFP corporations, which means that if a corporation acts outside of its
purposes, the acts will still be valid. Practically speaking, this change makes little difference to
the directors of charities because they still have the duty to comply with the corporation’s
articles, which may limit the purpose of the corporation.
7
Supra note 2 at ss. 4(1).
Supra note 1 at ss. 7(1).
9
Ibid., s. 9.
10
Supra note 2 at s. 118.
11
Ibid., ss. 4(1).
12
Supra note 1 at ss. 8(1).
13
Ibid., ss. 8(2).
14
Ibid., ss. 8(3).
15
Canada Revenue Agency, Policy Statement CPS-019, “What is a Related Business” (23 March 2003) online:
Canada Revenue Agency <http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cps/cps-019-eng.html>.
16
Supra note 1 at ss. 8(5).
17
Ibid., s. 18.
18
Ibid., ss. 15(1).
8
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July/October, 2011
2.
International Journal of Civil Society Law
Vol. IX, Issue III
TYPES OF CORPORATIONS
A significant feature of the ONCA is its categorization of all NFP corporations into two types, namely
public benefit corporations (PBCs) and non-PBCs. There are two sub-categories of PCB corporations: (i)
charitable corporations; and (ii) non-charitable corporations that receive more than $10,000 in a financial
year from specific public sources.19 All NFP corporations that do not fall into any of these three criteria
are non-PCB corporations.
A charitable corporation is defined in the ONCA to be a corporation that is incorporated for the relief
of poverty, the advancement of education, the advancement of religion or other charitable purposes.20
Those familiar with the decision in Special Commissioners of Income Tax v Pemsel21 will note that the
definition generally replicates the four heads of charity under the common law. It is important to note that
whether or not the corporation is a registered charity is irrelevant in deciding whether it is a PCB. The
ONCA provides a special exemption of a certain members’ remedy to religious corporations. The term
“religious corporation” is not defined in the ONCA. Presumably, religious corporations are established
for the advancement of religion and, therefore would be charitable corporations.
A non-charitable corporation is a corporation that does not meet the definition of a charitable
corporation referred to above.22 Those non-charitable corporations that receive more than $10,000 in a
financial year from any of the following sources will be considered a PBC: (i) donations or gifts from
persons that are not members, directors, officers or employees of the corporation; or (ii) grants or similar
financial assistance from the federal, provincial or municipal government or government agency.23
Generally, higher standards are applied to PBCs because of the public source of their funding. The
public interest requires that corporations that receive public funds be subject to tighter regulation and
have greater transparency in their operations than those that do not receive public funding. It is important
to bear this rationale in mind when attempting to grapple with the different treatment of the categories of
corporations under the ONCA.
3.
Financial Review and Disclosure
The general rule is that at each annual meeting the members are required to appoint by ordinary
resolution an auditor to audit the annual financial statements (or a person to conduct a review engagement
where applicable).24 An ordinary resolution means a resolution that is approved by at least a majority of
the votes cast at a members’ meeting or is consented to by each member of the corporation entitled to
vote at a members’ meeting.25
However, if a PBC’s annual revenue is more than $100,000 and less than $500,000 in a financial
year, its members may approve by extraordinary resolution to have a review engagement in lieu of an
audit. If a PBC’s annual revenue for a financial year is $100,000 or less, then its members may approve
by extraordinary resolution to dispense with the appointment of the auditor and not have an audit or
review engagement.26 These two alternatives are not available to a PBC that has $500,000 or more in
annual revenue. An extraordinary resolution is a resolution that is approved by at least 80% of the votes
cast at a special members’ meeting or is consented to by each member of the corporation entitled to vote
at a members’ meeting. An extraordinary resolution is valid only until the next annual meeting of
members, which means that the approval of such dispensation must be done on an annual basis.27
19
Ibid., at ss. 1(1).
Ibid.
21
[1891] AC 531 (HL (Eng.)).
22
Supra note 1 at ss. 1(1).
23
Ibid.
24
Ibid., ss. 68(1).
25
Ibid.
26
Ibid., ss. 76(1).
27
Ibid., ss. 76(3)-76(4).
20
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International Journal of Civil Society Law
Vol. IX, Issue III
The monetary thresholds for dispensing with financial review are less onerous for non-PBCs. If a
non-PBC’s annual revenue is more than $500,000 in a financial year, then its members may approve by
extraordinary resolution a review engagement in lieu of an audit. If a non-PBC’s annual revenue is
$500,000 or less in a financial year, its members may decide by extraordinary resolution not to appoint an
auditor and to dispense with an audit or a review engagement.28 It should be noted that the ONCA
expressly provides that the monetary thresholds for dispensing with financial review in relation to both
PBCs and non-PBCs may be amended by regulations.
In terms of financial disclosure, the directors are required to approve the annual financial statements
of the corporation and approval of the directors must be evidenced by the signature of one or more
directors.29 The financial statements cannot be issued, published or circulated unless they have been
approved by the directors and accompanied by the audit or review engagement report, if any.30 If a
corporation has an audit committee, the audit committee must review the financial statements before they
are approved by the directors31, and the majority of the committee members must not be officers or
employees of the corporation or of any of its affiliates.32
As well, the directors must present the financial statements, the report of the auditor or the person
who conducted a review engagement, if such financial review was conducted, and any other financial
information required by the articles or by-laws, to the members at every annual members’ meeting. If a
member requests a copy of these documents, the corporation must provide a copy to the member not less
than 21 days before the meeting or the signing of a resolution in lieu of a meeting pursuant.33
The financial review requirements for each category of corporations under the ONCA are
summarized in the table below:
Type of Corp/Gross Annual Revenues (GAR)
Public Benefit
Corporation
(PBC) with
GAR of
Non-PBC
corporation with
GAR of
Requirements for an Auditor
Audit/Review Engagement
$100,000 or less
(ss.76(1)(b))
May, by extraordinary
resolution (80%), decide not to
appoint an auditor
May dispense with both an
audit and a review engagement
by extraordinary resolution
(80%)
More than $100,000 and
less than $500,000
(ss.76(1)(a))
May dispense with an auditor
and have someone else conduct
a review engagement. This
dispensation requires an
extraordinary resolution (80%).
May elect to have a review
engagement instead of an audit
by extraordinary resolution
(80%)
$500,000 or more
(By implication of
ss.68(1))
An auditor must be appointed
annually
Audit is required
$500,000 or less in annual
revenue
(ss.76(2)(b))
May, by extraordinary
resolution (80%), dispense with
an auditor
May dispense with both an
audit and a review engagement
by extraordinary resolution
(80%)
28
Ibid., ss. 76(2).
Ibid., ss. 83(1)-(2).
30
Ibid., ss. 83(4).
31
Ibid., ss.83(3).
32
Ibid., ss. 80(1).
33
Ibid., s. 84 and s. 59.
29
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July/October, 2011
International Journal of Civil Society Law
More than $500,000 in
annual revenue
(ss.76(2)(a))
4.
Vol. IX, Issue III
May, by extraordinary
resolution (80%), dispense with
an auditor, and instead appoint
a person to conduct a review
engagement
May elect to have a review
engagement instead of an audit
by extraordinary resolution
(80%)
Number of Directors and Elections
All corporations must have a minimum of three directors.34 NFP corporations may provide in their articles
a fixed number of directors; or minimum and maximum numbers of directors.35 The members may amend
the articles to increase or decrease the number of directors, or the minimum or maximum number of
directors, but a decrease cannot shorten the term of an incumbent director.36
Under the ONCA, directors may be elected by the members, appointed by the directors, or take office
as ex-officio directors. Members may elect and remove directors (except for ex-officio directors) by
ordinary resolution.37 Directors may only be elected for a term provided for in the by-laws up to a
maximum of four years.38 However, if a class or group of members have the exclusive right to elect a
director, then only an ordinary resolution by that class or group of members may remove the director.39 In
addition, the directors may appoint additional directors to hold office until the next annual members’
meeting up to a maximum of one third of the number of directors elected at the last annual members’
meeting.40 All directors must be at least 18 years old, are not incapable and are not bankrupt. Unless the
by-laws provide otherwise, there is no requirement that a director be a member of the corporation.41
For PBCs, not more than one-third of its directors may be employees of the corporation or of any of
its affiliates.42 This provision may not make much difference to registered charities, since they are
prohibited from having paid employees be directors (however employees of their affiliates are not so
prohibited). In this regard, the ONCA provides that if there is a conflict between the ONCA and any law
applicable to charitable corporations, then the latter prevails.43
5.
Duty of Directors and Officers, Indemnification
The ONCA provides that every director and officer has a duty to act honestly and in good faith with a
view to the best interests of the corporation. They must also exercise the care, diligence and skill that a
reasonably prudent person would exercise in comparable circumstances.44 These duties reflect the
objective standard of care that applies to for-profit corporations. The ONCA also provides directors with a
reasonable due diligence defence. This defence applies where a director has exercised the care, diligence
and skill that a reasonably prudent person would have exercised in comparable circumstances.45 However,
in spite of requests by the NFP sector, the ONCA does not contain a partial liability shield similar to that
which is found under the Saskatchewan Non-profit Corporations Act, 1995,46 that would otherwise limit
34
Ibid., ss. 22(1).
Ibid., ss. 22(2).
36
Ibid., ss. 30(1).
37
Ibid., ss. 24(1) and ss. 26(1).
38
Ibid., ss. 24(1).
39
Ibid., ss. 26(2).
40
Ibid., ss. 24(7).
41
Ibid., ss. 23.
42
Ibid., ss. 23(3).
43
Ibid., s. 5.
44
Ibid., ss. 43(1).
45
Ibid., s. 44.
46
See ss. 112.1(1) of Saskatchewan’s Non-profit Corporations Act, 1995, S.S. 1995, c. N-4.2.
35
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International Journal of Civil Society Law
Vol. IX, Issue III
the liability of directors or officers for non-pecuniary and pecuniary losses stemming from acts or
omissions of the corporation or of any of its directors, officers, employees or agents.
Both former and present directors and officers may be indemnified by the corporation, and the latter
may purchase insurance for that purpose, subject to the restrictions placed on the directors of charities by
the Charities Accounting Act.. In this regard, charitable corporations are prohibited from purchasing
insurance for directors and officers unless the requirements in the Charities Accounting Act or its
regulations are satisfied, or a court order is obtained.47 The ONCA also permits NFP corporations to
advance money to directors and officers for the costs, charges and expenses that they incur in respect of
any civil, criminal, administrative, investigative or other action arising out of their association with the
corporation, as long as certain conditions are met. 48
6.
Powers of Directors
The powers of the directors have been expanded under the ONCA. For example, directors may borrow
money on the credit of the corporation without members’ authorization unless the articles or by-laws
provide otherwise.49 Unless the articles or by-laws otherwise provide, directors may make, amend or
repeal any by-law regulating the activities or affairs of the corporation, except in relation to certain
amendments to the articles requiring a special resolution by the members.50 However, in the case of bylaws, directors are required to submit a by-law, amendment or repeal to the members for confirmation,
rejection or amendment, failing which the by-law will cease to have effect. 51
7.
Members
The ONCA provides extensive rights to members of NFP corporations. In addition to the rights to elect
and remove directors, they may make proposals,52 requisition a meeting of members,53 as well as vote on
certain amendments to the articles54 and fundamental changes. The latter may pose some concern to
corporations that have multiple membership classes. In this regard, where there is more than one class of
members, each class of members is entitled to vote separately as a class to approve certain changes
affecting their class of membership by special resolution (regardless of whether the class of members
otherwise has the right to vote). As such, each class of members (including non-voting members) will
have a de facto veto right. Therefore, corporations that currently have multiple membership classes may
wish to consider collapsing all of the classes into one voting class.
The ONCA regulates the relationship between the corporation and its members. If there is more than
one class of members, the classes must be set out in the articles and the by-laws must provide the
conditions for membership in each class.55 Unless stated otherwise in the articles or by-laws, there are
default conditions for the termination of membership and member’s rights.56 Similarly, the articles or bylaws may provide directors, members or a committee the power to terminate membership or discipline
members. However, if the articles or by-law provide for such a disciplinary power, then they must also set
out the circumstances and manner in which the power may be exercised. The duty of natural justice
applies to the exercise of that power in that the member must receive notice of and be given an
opportunity to respond to the proposed disciplinary action or termination.57 Additionally, the ONCA
47
Supra note 1, s. 46(7).
Ibid., ss. 46(2).
49
Ibid., ss. 85(1). Under the OCA, the directors had to pass by-laws to borrow money and those by-laws were not
effective until they were confirmed by a special resolution of the members.
50
Ibid., ss. 103(1).
51
Ibid., ss. 17(4).
52
Ibid., s. 56.
53
Ibid., s. 60.
54
Ibid., s. 103 and s. 105.
55
Ibid., ss. 48(1).
56
Ibid., s. 50.
57
Ibid., s. 51.
48
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International Journal of Civil Society Law
Vol. IX, Issue III
permits directors to require members to make an annual contribution or pay annual dues, and provides
them with control over the manner in which the contribution is to be made or the dues are to be paid.58
8.
Members’ Remedies
The modelling of the ONCA on the OBCA has made available remedies to members that were not
available to corporations under the OCA. Compliance or restraining orders and rectification orders are
now available in relation to all categories of corporations. A complainant59 or a creditor may apply for a
compliance or restraining order where the corporation or its directors and officers fail to comply with the
duties set out in the ONCA, the regulations, or the articles or by-laws of the corporation.60 If a person’s
name is allegedly or has been wrongly inputted or removed from the registers or records of the
corporation, then a debt obligation holder, director, officer or member of the corporation or any aggrieved
person may apply for a court order that the registers or records be rectified.61
There are two other remedies provided for in the ONCA, the availability of which is restricted to
particular categories of corporations. The dissent and appraisal remedy is only available to members of
non-PBCs to dissent to resolutions on fundamental changes.62 The other remedy is the right of a
complainant to seek a court order to commence a derivative action,63 which is only available in relation to
non-religious corporations.64 A derivative action allows a complainant to bring an action in the name of
the corporation to enforce of its rights. Without this right, no action could be brought in the name of the
corporation, since corporations are legal persons separate from the natural persons that comprise them.
9.
Conflict of Laws
The ONCA must be read in conjunction with applicable charities law. As mentioned above, the
ONCA provides that if there is a conflict between the ONCA and a provision made in any other
legislation that applies to a body corporate without share capital, then the provision in the other legislation
prevails.65 Similarly, if the conflict is in relation to a charitable corporation, then the legislation applicable
to charitable corporation prevails. The effect is that some provisions of the ONCA will not apply to
charities. For example, although the ONCA permits directors to fix remuneration for directors, officers
and employees, this provision would not permit ONCA corporations that are registered charities to
remunerate their directors for that same reason.66 Similarly, the ONCA allows directors and officers to
enter into contracts or transactions with the corporation as long as they disclose any conflict of interest
that may exist.67 At common law, the directors of incorporated charities cannot place their personal
interests in conflict with their duty to the corporation. As such, under the ONCA, the common law
applicable to charities would apply and the directors of charitable corporations would not be able to enter
into any contracts or transactions where a conflict of interest may exist.
10.
Liquidation and Dissolution
The ONCA provides detailed procedures and processes for the liquidation and dissolution of a
corporation. Notably, it permits the members of all categories of corporations to require the corporation to
58
Ibid., s. 86.
Section 182 defines a “complainant” as including former and present members, directors, officers of the
corporation or any of its affiliates, and any person who “in the discretion of the court, is a proper person to make an
application.”
60
Ibid., s. 191.
61
Ibid., ss. 186(1).
62
Ibid., 187.
63
Ibid., ss. 183(1).
64
Ibid., ss. 183(3).
65
Ibid., s. 5.
66
Ibid., s. 47.
67
Ibid., s. 41.
59
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be wound up voluntarily by special resolution.68 In addition, the members may delegate to any committee
of members, persons who are liable to contribute to the property of a corporation in the event of a
winding-up or creditors (in the aggregate known as inspectors under the ONCA), the power to appoint a
liquidator.69 With the permission of the inspectors or the members, the liquidator may enter into
compromises and arrangements.70 There are also provisions providing for court-ordered liquidation and
dissolution.71
Notwithstanding the standardized rules for all corporations, after creditors’ claims and the debts,
liabilities and obligations of the corporation are satisfied, the remaining property is distributed differently
as compared between the ONCA and the OCA and as between PBCs and non-PBCs. Under the OCA, a
corporation is currently permitted, but is not required, to pass by-laws that provide that property
remaining after the payment of creditors’ debts and liabilities will be distributed to the government,
charitable organizations (as that term is used under the OCA) or “organizations whose objects are
beneficial to the community.”72 If no by-law is passed, then the remaining property would be distributed
equally among the members (assuming that it is not a charitable corporation) or, if the letters patent,
supplementary letters patent or by-laws so provide, among the members of a class or classes of members.
In comparison, the ONCA imposes mandatory provisions regarding the distribution of property in relation
to PBCs.
Upon being liquidated, a charitable corporation must distribute the remaining property to a charitable
corporation with similar purposes to its own, a government or a government agency. If the PBC is a noncharitable corporation, then it must distribute its remaining property to another PBC with similar purposes
to its own, a government or a government agency. Non-PBCs must distribute their remaining property in
accordance with their articles or, if there are no relevant provisions in the articles, then rateably to its
members according to their rights and interests in the corporation.73
11.
Corporate Finance
The ONCA provides that none of the corporation’s profits or property may be distributed to a
member, a director, or an officer except in furtherance of the corporation’s activities or as permitted by
the ONCA.74 However, a non-PBC may distribute the fair value of a membership to a member upon the
termination of the member’s membership, subject to the articles and by-laws of the corporation.75
Members are not liable, in their capacity as members, for any liability of the corporation or any act or
default of the corporation, except as otherwise provided in the ONCA. The ONCA permits a corporation
to put a lien on a membership registered in the name of a member for a debt of that member to the
incorporation, including an amount unpaid in respect of that membership.76
12.
Continuance Under the ONCA for Part III OCA Corporations
A continuance refers to the process by which a company operating under one corporate law statute may
transfer from that statute to another statute. In order to continue under the ONCA from the OCA, a Part
III OCA corporation must follow the process provided for in the ONCA to obtain a certificate of
continuance.
To obtain a certificate of continuance, the members of a Part III OCA corporation who are entitled to
vote at annual meetings may, if authorized by the corporation’s charter (e.g., letters patent, supplementary
68
Ibid., ss. 123(1).
Ibid., ss. 124(1).
70
Ibid., ss. 132.
71
See ss. 136 to 147.
72
Supra note 2 at s. 132.
73
Supra note 1 at ss, 150(1)(b).
74
Ibid., ss, 89(1).
75
Ibid., ss, 89(2).
76
Ibid., s. 91.
69
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letters patent77), authorize the directors by special resolution to apply for a certificate of continuance
under the ONCA. By that same resolution, the members may also amend the charter of the corporation,
subject to a prohibition on amendments that would affect a class or group of members.78 For example, an
amendment that would add, change or remove the rights or conditions attached to a certain membership
class cannot be authorized by the members at the same time that they authorize the directors to apply for a
certificate of continuance.79 Upon receipt of the articles of continuance and any required documents, a
certificate of continuance will be issued.80
With regard to amending the charter of as part of the continuance process, a Part III OCA corporation
may use the procedure in s. 207 of the ONCA. Section 207 provides that a corporation may submit
articles of amendment to amend any provision in its constating documents (i.e., the letters patent,
supplementary letters patent, by-laws or special resolutions) to bring them into compliance with the
ONCA. If articles of amendment are not submitted upon the expiry of the third anniversary of the
proclamation of the ONCA, then any provision in the constating documents that was valid immediately
before proclamation is deemed to be amended to the extent necessary to bring the provision into
conformity with the ONCA.
It should be noted that continuance under the ONCA is not expressly required for Part III OCA
corporations in the ONCA. As well, Part III OCA corporations will not be dissolved if they are not
continued under the ONCA. Nonetheless, it is generally advisable to continue Part III OCA corporations
under the ONCA in order to avoid uncertainty concerning the interpretation of the constating documents.
This is because Part III of the OCA will be repealed upon the proclamation of the ONCA81 and any
provisions in the constating documents of a corporation that are non-compliant with the ONCA will be
deemed to be amended upon the expiry of the third anniversary of proclamation. This deemed amendment
process will no doubt result in considerable confusion concerning which provisions of the constating
documents are valid.
13.
Export and Import Continuance
The ONCA provides that a corporation may be exported from Ontario to another jurisdiction, subject to
the satisfaction of certain requirements. A corporation that wishes to continue to another jurisdiction will
not be allowed to do so unless the desired jurisdiction of continuance has laws that, inter alia, ensure that
the property of the corporation remains the property of the corporation and that existing causes of action,
claims, or liabilities against the corporation are unaffected. All members are entitled to vote in respect to
export continuance to another jurisdiction. If the members approve continuance by special resolution,
then the corporation may file an application for authorization to continue.
An NFP corporation incorporated or continued under the laws of another jurisdiction other than
Ontario may be imported to Ontario under the ONCA by applying for a certificate of continuance. To
apply for a certificate of continuance, the laws of the other jurisdiction must permit continuance to
Ontario and the corporation’s articles of continuance must satisfy the incorporation requirements under
the ONCA.82
77
Ibid., ss. 115(1).
Ibid., ss. 115(2).
79
Ibid., ss. 115(4).
80
Ibid., ss. 115(5).
81
Ibid., s. 211.
82
Ibid., s. 114.
78
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C. CONCLUSION
This brief overview of the ONCA has highlighted some of the more significant aspects of the ONCA and
has explained the impact the ONCA will have upon NFP corporations in Ontario. As a result of the
sweeping changes the ONCA will bring about, it will be important for boards, executives, staff, and legal
counsel of NFP corporations in Ontario to become familiar with the provisions of the ONCA and to begin
planning for continuance under the ONCA once it is proclaimed in force.
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STRETCHING LAW TOO FAR?
THE DIFFICULTIES TO ASSURE THE RIGHT TO DEVELOPMENT
BY JOOP DE KORT1
INTRODUCTION
In 2011, the Declaration of the Right to Development (RTD) celebrates its 25st birthday. The RTD is
often considered a third generation human right after the first generation of civil and political rights and
the second generation of social, economic and cultural rights respectively, both of which are encapsulated
in the Universal Declaration of Human Rights (UDHR) of 1948. It adds ‘solidarity’ rights to ‘liberty’
rights and ‘equality’ rights.2 All human rights are put on an equal footing in the 1993 Vienna Declaration
and Programme of Action which explicitly declares that: “All human rights are universal, indivisible and
interdependent and interrelated. The international community must treat rights globally in a fair and equal
manner, on the same footing, and with the same emphasis. 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.”3
If the brevity and clarity of both the UDHR and the RTD4 add to their popular appeal, the ensuing
covenants, conventions and protocols certainly make for specialist reading, the specialists mainly being
lawyers. It is of course not only the word ‘rights’ that attract lawyers to human rights. As the declarations
are political documents stating intentions more than anything else, there is a need for lawyers to translate
these intentions into practical and enforceable rights and to subsequently argue and judge human rights
cases that are brought to courts. But there are objections to the dominance of the legal approach to human
rights. Thomas Pogge for instance argues that a human right primarily is a moral claim which “requires its
own juridification only when it is empirically true – as it might be for some civil and political rights – that
secure access to its object presupposes the inclusion of a corresponding legal right in the law or
constitution.”5 Michael Freeman argues that a legal-positivist approach to human rights would
misrepresent their character as “it is a mistake to believe that the legalization of human rights takes the
concept out of politics.”6 Often, human rights are (principally) not legally enforceable. Amartya Sen goes
a step further by arguing that the legal route to understanding human rights is mistaken. In his view
“human rights are best seen as articulations of social ethics, comparable to – but very different from –
utilitarian ethics. Their functional usefulness lies in practical reason. Like other ethical tenets, human
rights can, of course, be disputed, but the claim of generality of human rights is that they will survive
1
Leiden University, Leiden Law School, Department of Economics, and Faculty of the Arts, Department of History
respectively
2
MICHAEL FREEMAN, HUMAN RIGHTS, Cambridge UK, Polity Press, 2001
3
The Vienna Declaration was adopted at the World Conference on Human Rights in Vienna, 25 June 1993. art. I.5.
http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/a.conf.157.23.en
4
The UDHR comprises of 30 articles, whereas the RTD makes due with a mere 10.Full texts of the UDHR and the
RTD are available at: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng and
http://www2.ohchr.org/english/law/rtd.htm respectively.
5
THOMAS POGGE, WORLD POVERTY AND HUMAN RIGHTS (second edition), Cambridge UK, Polity, 2008,
at 51.
6
Freeman, supra note 2, at 10
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open and informed scrutiny.”7 The rights may be legalized, or inspire legislation, but “that is a further
fact, rather than a defining characteristic of human rights themselves.”8
Given the explicit inclusion of economic rights in human rights and the broadening of the human
rights to the RTD, it is surprising how few economic contributions are concerned with human rights.9
Many of the national and international economic decisions indeed do have an effect on the direct or
indirect realization of human rights and the growing awareness and importance of human rights
necessitate a role in economic discussions. In this paper I will review the literature on human rights with a
focus on the economic arguments that are related to human rights, the economic rights and the RTD in
particular. I will take a descriptive historical approach by tracking the development of rights form their
inceptions in France and the USA towards the importance they have gained in the policies of the United
Nations, but a more normative approach when discussing the interaction between economic development
and the legalization of economic rights in their many manifestations, most notably in the RTD.
A VERY BRIEF HISTORY
The origins of human rights are often traced back to the American Declaration of Independence of 1776
and the French Declaration of the Rights of Man and Citizen of 1789. The Americans hold it “to be selfevident, that all men are created equal, that they are endowed by their Creator with certain inalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights
Governments are instituted among Men, deriving their just powers from the consent of the governed, That
whenever any Form of Government becomes destructive of these ends, it is the Right of the People to
alter or abolish it, and the institute new Government…”10 In France, the National Assembly “recognizes
and declares, in the presence and under the auspices of the Supreme Being, the following rights of man
and the citizen: 1. Men are born and remain free and equal in rights. Social distinctions may be based only
on common utility. 2. The purpose of all political association is the preservation of the natural and
imprescriptible rights of man. These rights are liberty, property, security and resistance of oppression. 3.
The principle of all sovereignty rests essentially in the nation. No body and no individual may exercise
authority which does not emanate expressly from the nation...“11 In total there are 17 articles in the French
Declaration. Lynn Hunt remarks that there are no duties in the declarations and that they are a part of a
rupture with established authority and an attempt to define new grounds for governmental legitimacy.
They challenged the old order.12 The American Declaration of Independence still asserted that men were
endowed with rights by their Creator, but the French deduced rights from secular sources of nature,
reason and society only. Even though the declarations were not discriminating, they opened up
discussions on the rights of those without property or of religious minorities or on new groups, such as
slaves or women, who had no political standing. Hunt continues to argue that human rights have an inner
logic.13 Groups that were excluded from exercising rights, protestants, servants, Jews, slaves, those
7
Amartya Sen, Human Rights And The Limits Of Law, CARDOZO LAW REVIEW, Vol. 27:6, 2006, 2913-2927
Amartya Sen, Human Rights and Development, in: BARD A. ANDREASSEN AND STEPHEN P. MARKS
(EDS.), DEVELOPMENT AS A HUMAN RIGHT. LEGAL, POLITICAL AND ECONOMIC DIMENSIONS,
Cambridge MA, Harvard University Press, 2006, 1-8
9
The work of Amartya Sen is a notable exception. He, in 1998, received the Nobel prize in economics for his
contributions to welfare economics. He always had a keen interest in the welfare of the poorest and in the economics
of development. His explicit involvement with human rights is of more recent date and builds on the discussions on
the RTD.
10
http://www.ushistory.org/DECLARATION/document/index.htm
11
http://www.assemblee-nationale.fr/histoire/dudh/1789.asp. This translation is taken from LYNN HUNT,
INVENTING HUMAN RIGHTS. A HISTORY, New York, W. W. Norton & Company, 2007
12
Hunt, supra note 11, at 130
13
Hunt casually introduces the term human rights here. Before, the discussion is on political rights or the rights of
man and citizen as quoted from the French Declaration of the rights of man and citizen. In Dutch and German the
8
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without property successively come to fore to claim their rights. The abstract universalism of declaration
was “coming home to roost”14 Women’s rights were also discussed, even though this did not result in
expanding human rights to women.15 The 17 articles of the French declaration were a result of extensive
discussion. They predominantly reflect what later became commonly referred to as civil and political
rights. They describe the relationship between the state and its citizens and stress the accountability of the
state, the freedoms of citizens and the legal basis of state activity against citizens and so on. In
preparatory drafts, however, the rights of citizens included what later would be indicated as economic and
social rights and include adequate salary for work, free assistance to children, the weak, and disabled
among others16. But for these economic and social rights to become important, the focus had to shift from
the individual to the collective, from natural rights to social rights and for sociology to supersede
philosophy. Jack Donnelly describes that this only happened later in time, with the evolvement of
capitalism as a dominant social economic system when socialism became an important ideology, stressing
the economic dependence of workers on employers and the social consequences of capitalism and for the
working class to become an effective political force.17 It nevertheless lasted until the UDHR for economic
and social rights to receive formal recognition.
Politically, human rights received new standing after World War II when the General Assembly of
the newly formed United Nations adopted the UDHR. This document, like the French declaration in
1789, was the outcome of numerous rounds of discussion on drafts, but the final version included both
civil and political and economic, social and cultural rights.18 The distinction, however, reappeared as the
General Assembly, in 1951, as a result of diverging interests between member states asked for two
separate covenants to give human rights legal standing. Jon Mandle describes how the communist
countries, in line with their socialist ideology, stressed the importance of economic and social rights,
while the western countries emphasized the civil and political rights.19 Similar to the French declaration,
the UDHR had an inner logic and opened up a sequence of legislation to capture different interests. The
international covenant on civil and political rights (ICCPR) and the international covenant on economic,
social and cultural rights (ICESCR) were adopted and opened for signature and ratification in 1966 and
were followed by five conventions.20 Furthermore, in 1986, the General Assembly linked human rights to
development, which it describes as a comprehensive economic, social, cultural and political process,
which aims at the constant improvement of the well-being of the entire population and of all individuals
on the basis of their active, free and meaningful participation in development and in the fair distribution
translation of Rights of Man equals that of Human Rights. (Rechten van den mensch and Rechten des Menschen
respectively).
14
Hunt, supra note 11, at 153
15
Hunt supra note 11, at 170 cites Condorcet who in 1790 in a newspaper editorial argued that women had the same
characteristics as men, i.e. they were feeling beings, capable of acquiring moral ideals and of reasoning about these
ideas, and hence they necessarily have equal rights. Both she and Sen, supra note 7, point to the contributions of
Mary Wollstonecraft on the rights on women.
16
Stephen Marks, The Past and Future of the Separation of Human Rights into Categories, MARYLAND
JOURNAL OF INTERNATIONAL LAW, Vol. 24, 2009, 209-243
17
JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (second edition), New
York, Cornell University Press, 2003.
18
An extensive description of the process of debate and negotiations that led up to the adoption of the UDHR in
1948 can be found in MARY ANN GLENDON, A WORLD MADE NEW. ELEANOR ROOSEVELT AND THE
UNIVERSAL DECLARATION OF HUMAN RIGHTS, New York, Random House, 2001
19
JON MANDLE, GLOBAL JUSTICE, Cambridge UK, Polity, 2006
20
Both covenants had attracted sufficient support to enter into force in 1976. The five conventions are: The
International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Convention on the
Elimination of All Forms of Discrimination Against Women of 1979, the Convention against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment of 1984, the Convention on the Rights of Children
of 1989, and the International Convention on the Protection of the Rights of All Migrant Workers and Their
Families of 1990.
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of benefits there from, and adopted the RTD.21 Freeman links the new emphasis on economic rights into
international debate to the admission of a large number of developing countries to the UN.22 In a sense,
they challenge an old order and the RTD attempts to define new grounds for the legitimacy of the
international order in similar ways as the 18th century American and French declarations attempted to
define new grounds for governmental legitimacy. The development rights are also addressed as third
generation human rights, more particular as ‘solidarity’ rights. The increasing international economic
interdependencies, commonly referred to as globalization, leave individual states less sovereign in their
economic policies.23 The RTD indeed requires effective international cooperation to provide the
developing countries with the appropriate means and facilities to foster their comprehensive development.
Finally, the RTD is followed by the Vienna Declaration of 1993 which explicitly considers all human
rights and fundamental freedoms as indivisible and interdependent.24 The collective responsibility for
development is strengthened in the United Nations Millennium Declaration (MD) in which the heads of
State and Government use strong words – we will spare no effort – to commit making the right to
development a reality for everyone.25 The MD does go further than the RTD and other earlier declarations
in that it formulates specific goals, for instance to halve, by the year 2015, the proportion of the world’s
people whose income is less than one dollar a day, even though it does not include penalties for failing to
comply to this measurement.26
Theory of Human Rights
As is acknowledged in the Vienna Declaration of 1993, the UN works from the premises that all human
rights are indivisible and interdependent. Individual member states, however, beg to differ. China, for
instance, did not yet ratify the ICCPR, whereas the United States failed to ratify the ICESCR.27 The
United States objects to their status as rights and refers to them as goals or aspirations. The discussion
focuses on whether economic rights are constitutional. The constitution is said to provide only for socalled negative rights, i.e. the right to constrain the state from infringing upon liberties, not positive rights
entailing affirmative duties.28 In terms of negative rights, civil and political rights draw upon the state to
refrain from action. Economic and social rights, on the other hand, are drawing more on positive rights
and require a more activist state that provides rights. The difference between negative and positive rights
and the role of the state is a recurring theme in discussions on human rights. Pogge argues that a
minimalist approach emphasizes the negative duties to refrain from violating rights and rejects rights that
entail positive duties to protect and to help, whereas a maximalist approach acknowledges that all human
rights entail negative as well as positive duties.29 Elsewhere, he argues that the distinction between acting
21
See the text of the RTD.
Freeman, supra note 2, at 47
23
Sigrud Skogly remarks that “the globalizing effects of technology, capital movement, the economic power of
transnational corporations, significant international, and a de facto unequal position of states themselves, limit the
states’ domestic policy choices.” Sigrun, Skogly, The Role of the International Financial Institutions in a RightsBased Approach of Development, in: ANDREASSEN AND MARKS (EDS.), supra note 8, 284-303, at 297
24
The Vienna Declaration and Programme of Action summarizes and reaffirms all human rights declarations,
covenants and conventions and stresses the importance of coordination between all organs, bodies and agencies of
the UN.
25
http://www.un.org/millennium/declaration/ares552e.htm
26
Millennium Declaration, art. III, 19
27
The status of ratification for the covenants and conventions is available at:
http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (last visited August 1, 2011)
28
Linda M. Keller, The American Rejection of Economic Rights as Human Rights & the Declaration of
Independence: Does the Pursuit of Happiness Require Basic Economic Rights?, NEW YORK LAW SCHOOL
JOURNAL OF HUMAN RIGHTS STUDIES, Vol. 19, 2003, 557-613
29
Pogge, supra note 5, at 70.
22
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and not acting is not as clear cut as it may seem.30 From a moral point of view, there is an obligation to
help if you are in a position to help, and in some cases it can be a violation of human rights not to do so.
The maximalist approach find more followers in practical legal matters. Ruth Gavison for instance
argues that to secure the right to vote, a clear political right, requires action and positive expenses from
the state, as is the case when women and minorities are admitted to schools that used to be closed to
them.31 She also points out that civil and political rights and social and economic rights reinforce each
other as ingredients of human rights. This point is also made by Linda Keller who reproaches the United
States when it “refuses to recognize that the political rights so cherished by American politicians are
meaningless to a child who is hungry, or an adult who is working forty hours a week, but cannot afford to
keep a roof over her family.”32 Stephen Marks argues that poverty, ignorance, social inequality among
others are as constraining on an individual’s liberty to be or to act as he wishes as can be banning a
publication or speech.33 A similar point is made by Amartya Sen who argues that poverty is not just a low
income, but a deprivation of capabilities, the freedom of people to lead lives that they value and have
reasons to value.34
Like Sen, Jean-Pierre Chauffour, another economist, emphasizes the importance of (economic)
freedom in a discussion on development and the legalization of economic rights. He argues that the
fundamental distinction between negative (refraining from action) and positive (providing) rights is that
negative rights can be characterized by general and abstract rules that consistently apply to everyone on
an equal basis without exception while positive rights cannot. Positive rights are fundamentally
incompatible with a free society, in which individuals determine their position according to their own
goals and means and they, therefore, are a threat to human rights.35 Positive rights reflect a subjective set
of limited societal objectives that are highly dependent and correlated, and have income as their
constituent element. Negative rights are a set of independent and uncorrelated rights, that cannot be
reduced to a more fundamental common constitutive element. According to Marks the separation between
negative and positive rights is unfruitful and better be replaced by interpreting the normative content of
human rights in terms of three types of obligations or duties, namely the obligations to respect, protect
and fulfill (sometimes divided into duties to facilitate and provide).36 These are less abstract and more
grounded in practice.
30
Pogge gives an example where a neighbor does not water the garden in a draught while you are away, even
though she had promised to do so. Had she not been there at all your plants would have perished anyway. But had
you known she would have been away, you could have taken precautions, by asking another neighbor. Thomas
Pogge, Severe Poverty as a Human Rights Violation in: THOMAS POGGE (ED.) FREEDOM FROM POVERTY
AS A HUMAN RIGHT. WHO OWES WHAT TO THE VERY POOR? Oxford, Oxford University Press, 2007, 1154
31
Ruth Gavison, On the relationship between civil and political rights, and social and economic rights, in: JEANMARC COICAUD, MICHAEL W. DOYLE, AND ANNE-MARIE GARDNER (EDS.), THE GLOBALIZATION
OF HUMAN RIGHTS, New York, United Nations University Press, 2003, 23-55, An example of a negative duty
ensuing from a so-called economic, social and cultural rights is for the state not to intervene in the right to form
trade unions. Gerard Van Hoof, The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal to Some
Traditional Views, in: P. ALSTOM AND K. TOMASEVSKI (EDS.) THE RIGHT TO FOOD, Leiden, Brill, 1984,
97-110
32
Keller, supra note 28, at 561
33
Marks, supra note 16, at 222
34
Sen describes freedom as a two way relationship in which public policy can enhance capabilities, while the
direction of public policy can be influenced by the effective use of participatory capabilities in public. Individual
freedom becomes crucial to development. AMARTYA SEN, DEVELOPMENT AS FREEDOM, New York,
Anchor Books, 2000
35
JEAN-PIERRE CHAUFFOUR, THE POWER OF FREEDOM. UNITING DEVELOPMENT AND HUMAN
RIGHTS, Washington DC, Cato Institute, 2009. Keller, supra note 87, at 562-563 discusses the American position
that economic, social and cultural rights are a Soviet invention.
36
This distinction is widely recognized in legal literature. E.g. Marks, supra note 16
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The elimination of the distinction between negative and positive rights at the same time eliminates a
cost based argument for the separation into two separate sets of rights, with civil and political rights
implying a small state that provides a limited number of goods and economic and social rights requiring a
larger state and a higher budget. Matthew Craven puts it succinctly when he argues that neither in
principle, nor in the financial consequences there is a great difference between the separate set of rights.
They all cost money.37 But even if all activities by the state need to be financed and put a tax burden on
citizens, there is a difference whether the state spends money for its own production or acts as distributor
of money.38 Building and operating a legal system to which everyone has equal and non-discriminatory
access is very much at the heart of state responsibilities. The state produces law and order and all citizens
consume this service and the demand thus is very much on the state itself. It is the human right itself that
is produced and consumed and that is very much defined in terms of the relationship between the state
and (individual) citizens.39 Even if the distinction is not sharp, this is different with respect to economic,
social and cultural human rights. In a market economy at least, employment is provided by private
entrepreneurs, houses are built by contractors and rented out by private and semi-public companies and
associations, education is provided by both public and private institutions, cultural expressions are
produced by artists, both individually and in joined efforts. The state as a duty bearer for the provision of
these rights maybe can force or entice private parties to produce the rights after all, but that requires
redirecting means in a different direction than the owners of the means of production initially intended.40
This is even more evident when it concerns the realization of a decent standard of living. To offer a
decent standard of living sometimes requires income redistribution. The state taxes the well off to provide
for those without the means of existence. The demand then is not on the state, but on the well endowed
citizens, even though the solidarity is run through the state.41 Donnelly discusses the compensation for
those that do not do well in terms of the welfare state, which is better suited to guarantee the provision of
recognized human rights than the free market.42
The costs of this solidarity, and the provision of economic, social and cultural rights are more
unpredictable than the costs of civil and political rights. If the economic situation in a country turns bad,
for reasons that may or may not be caused by national economic policy, there will be an increase in the
number of people that come to depend on solidarity expenditures. The state may need to increase the
burden on the remaining incomes to live up to its obligations. The burden on a relatively small part of the
population may result in opposition or even a diminution of legitimacy of the state on their part. The
(welfare) state, the social compromise which has been reached on state level, cannot influence the
37
MATTHEW CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS. A PERSPECTIVE ON ITS DEVELOPMENT, Oxford, Oxford University Press, 1995; Van Hoof, supra
note 31.
38
A similar issue can be found with Sen when he discusses the relationship between income-earning ability and
income-using ability as an empirical phenomenon in poverty studies; Sen, supra note 34, at 119
39
It has to be acknowledged that the legal system also functions to mediate between citizens and private part.
Asbjorn Eide, for example, points out that human rights are not merely intended as protection from the state, but
also require measures by the state to prevent violation of human rights by other actors. Asbjorn Eide, Human RightsBased Development in the Age of Economic Globalization: Background and Prospects, in: ANDREASSEN AND
MARKS (EDS.), supra note 8, 220-253, at 244
40
This may quickly violate the right to property (UDHR, art. 17), which in many economic studies on development
holds a pivotal role.
41
This made it easier for the communist countries, where the state commanded the means of production, to provide
for these rights in the 1950s and 1960s. The state was responsible and able to produce the economic rights and the
demand for those rights were demands on the state itself. This would explain the different positions between the
western states and the communist ones during the cold war; Joop de Kort, How Rights are Economic and Social
Rights? The Interaction Between Law and Economics in Human Rights, in: FERDINAND FELDBRUGGE AND
WILLIAM SIMONS, EDS. HUMAN RIGHTS IN RUSSIA AND EASTERN EUROPE, The Hague, Kluwer, 2002,
133-146.
42
Donnelly, supra note 17; Sen, supra note 34 discusses elements of the welfare state and the impact on incentives
in relationship to the development of capabilities.
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expenditures other than by changing the claim on the system, for instance by limiting the potential claims
on the system. But this may alienate those that depend on that system and again may give rise to increased
opposition or reduced legitimacy of state policies.
Although duty bearers of the human rights are peoples and nations, individuals too need to respect the
rights. In its preamble the UDHR calls on “… all peoples and all nations, to the end that every individual
and every organ of society shall strive by teaching and education to promote respect for these rights and
freedoms and by progressive measures, national and international, to secure their universal and effective
recognition and observance…” Individuals, however, are no parties in the UDHR and the claim of the
state on its citizens is at the heart of politics and the legitimacy of the state. Countries may differ
considerably in the level of solidarity that they are willing to provide, especially if it is organized by the
state, as the discussions in the United States show very clearly.
THE RIGHT TO DEVELOPMENT
The main duty bearer for civil and political rights in a country is the state. There is not much other
countries can directly do to provide for these rights in a delinquent state without violating the sovereignty
of that state. This is different for economic, social and cultural rights. The state may again be the duty
bearer, but if the state fails to provide for these rights, there is the possibility, by means of an international
transfer of income, that other countries provide for these rights.43 Actually, article 2.1 of the ICESCR
requires states to undertake steps, individually and through international assistance and co-operation, to
the maximum of their available resources, with a view to achieving progressively the rights adopted in the
present Covenant (…). The RTD is even more explicit in the obligation towards international cooperation. Article 3.3 states that States have the duty to co-operate with each other in ensuring
development and eliminating obstacles to development (…). Article 4.2 requires sustained action to
promote more rapid development of developing countries, and states that effective international cooperation is essential in providing these countries with appropriate means and facilities to foster their
comprehensive development. Whether or not the RTD entails a claiming right for the developing
countries on the developed countries is part of the debate on the RTD. In its article 1, the RTD describes
the right to development as “an inalienable human right by virtue of which every human person and all
peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully realized.” Felix
Kirchmeier discusses the question whether peoples, or the states and their governments as representatives
of the people can issue a claim against other states (as representatives of other peoples).44 Developed
countries, the United States in particular, oppose a reading that gives claiming rights on developed
countries. They reject the notion of a nation’s right to development, for the simple reason that nations do
not have human rights. Chauffour argues that the RTD is “a flawed concept that has been politically
skewed since its inception and, thus, proved to be largely impractical.”45 The RTD, however, is a
declaration, as was the UDHR in 1948. It expresses a moral appeal, rather than a legally binding
commitment. The chairwoman of the commission that prepared the UDHR, Eleanor Roosevelt, believed
43
Pogge calculates that it would cost the rich world a mere 294 billion dollar, or 1.15 per cent of its aggregate
national incomes to enable every person in the world a daily income of 2 dollars per day, a widely used World Bank
indicator of world poverty. Official development aid (ODA), however only is 0.22 per cent of the rich worlds
aggregate income and only five small countries fulfill the obligation to spend 0.7 per cent of their national income to
ODA, which is the internationally accepted norm. Thomas Pogge, The First Millennium Development Goal: A
Cause for Celebration? In: ANDREAS FOLLESDAL AND THOMAS POGGE (EDS.), REAL WORLD JUSTICE.
GROUNDS, PRINCIPLES, HUMAN RIGHTS, AND SOCIAL INSTITUTIONS, Dordrecht, Springer, 2005, 317338
44
Felix Kirchmeier, The Right to Development – where do we stand? DIALOGUE ON GLOBALIZATION
OCCASIONAL PAPERS, No. 23, 2006, Friedrich Ebert Stiftung
45
Chauffour, supra note 35, at 8
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that such a declaration could become a force for change46 Arguably, she has been right and the RTD can
in this context be understood as a further step towards the realization of human rights.
The question then becomes what would be the best way forward to practically realize the ambitions of the
RTD. The UDHR was followed by two legally binding covenants, five conventions, and inspired regional
arrangements.47 It was also followed by many appeals on governments to honor human rights by other
governments, public international organizations and by non-governmental organizations. The effects of
these developments are difficult to quantify as it is hard, for example, to determine whether the American
refusal to allow China into the WTO on account of Chinese violations of civil and political human rights
actually influenced Chinese behavior. Or to measure the effect of Amnesty International’s letter
campaigns on behalf of individual prisoners on the plights of these prisoners or their (potential) fellow
prisoners.48 And it of course is difficult to measure the effects of the legalization of rights itself.
The RTD did not as of yet result in any legally binding commitments, but was confirmed in both the
Vienna Declaration of 1993 and the Millennium Declaration of 2000. In this latter document, the world
leaders also decided, and this was new, on a number of specific goals to eradicate poverty. One of these
specific goals was “to halve, by the year 2015, the proportion of the world’s people whose income is less
than one dollar a day and the proportion of people who suffer from hunger and, by the same date, to halve
the proportion of people who are unable to reach or afford safe drinking water.”49 Although no specific
instrument is given to achieve this goal (or any of the others), the MD also calls on the industrialized
countries “to adopt … a policy of duty- and quota-free access for essentially all exports from the least
developed countries; to implement the enhanced programme of debt relief for the heavily indebted
countries without further delay and to agree to cancel all official bilateral debts of those countries in
return for their making demonstrable commitments to poverty reduction; and to grant more generous
development assistance, especially to countries that are genuinely making an effort to apply their
resources to poverty reduction.”50 As with earlier declarations, the MD is a moral appeal, but it is a rather
specific political appeal as well, and as mentioned above it formulates specific goals, next to the noncommittal appeals that are often written down and left to be specified in accompanying activities. It is
also specific in its recommended policies, including pointing out the duty bearers for these policies. The
MD foresees a combination of income transfers from rich countries to poor ones and policies that enable
the poor to develop themselves. International transfers of income are generally more sensitive politically
than national transfers of income, even though there is no fundamental difference between the two.51
As indicated in the introduction, there is discussion whether human rights belong in the legal domain.
Many of the rights are “injusticiable”. But Sen argues that neither “injusticiability”, nor infeasibility can
be used as arguments to put the RTD outside the domain of human rights, as the objective precisely is to
work towards feasibility and realization and to consider what reasonably can be done towards that goal.
Nor does an ambiguity of obligation infer that there is no obligation.52 He continues that this is “nothing
like an automatic agreement on some pre-determined formula, but a commitment to participate in a
process, which includes an exercise of social ethics, within each country and across borders.”53 A
46
Glendon, supra note 18, at 86
See footnote 20 for the UN covenants and conventions. Within Europe, the European Court of Human Rights
allows citizens of member states to bring cases against their governments.
48
Amnesty International reports do mention the developments in the numbers of (political) prisoners in countries or
in the reported violations of human rights, but it is hard to determine what caused the changes.
49
MD, art. III.19. Pogge is critical of this goal, which, he claims, is an old goal, first accepted at the World Food
Summit of 1996, and watered down by halving the proportion of people living in poverty rather than halving the
number of people, and by taking 1990 as the base year, thus including China’s results in economic growth. Thomas
Pogge, Recognized and Violated by International Law: The Human Rights of the Global Poor, in: LEIDEN
JOURNAL OF INTERNATIONAL LAW, Vol. 18, No. 4, 2005, 717-745
50
Millennium Declaration, art. III. 15
51
See for instance Pogge, supra note 5, at 100–102.
52
Sen, supra note 8
53
Sen, supra note 8, at 7
47
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fundamental denunciation of the RTD comes from Chauffour who argues that economic, social and
cultural rights constitute positive, “nonjusticiable” claims, as they are the output of the development
process, rather than the input.54 Economic development, he continues, “is not about claims of citizens on
the state or claims of developing countries on their more developed counterparts; it is primarily about
empowerment and freedom.”55 That changes focus. The constituent parts of freedom are personal choice,
voluntary exchange, freedom to compete and protection of persons and property and the instruments to
achieve these are a market economy, a legal structure, a law enforcement system that puts contracts into
effect and protects property rights, as well as a monetary arrangement that facilitates access to sound
money. Thus, the market economy itself becomes the aim for development. There are many economic
books in praise of the market economy, not just for its efficiency enhancing qualities – competition
necessitates a continued drive for efficiency to survive – but also for its freedom enhancing qualities.
ECONOMIC DEVELOPMENT
With respect to economic development, economic analysis generally attributes great benefits to the
process of globalization which lifts many people in developing countries out of poverty, although the
spoils often are unequally distributed within countries. At the same time, globalization has reduced the
discretion with which countries can determine their domestic policies and it has unnerved many non
governmental organization that point out the disadvantages of globalization and the dominance of western
policies that goes with it. In this reading, globalization may indeed result in a ‘race to the bottom’.56
The RTD itself does not feature very much in the economic analyses of development as the narratives
of development and human rights are different. Economists focus on economic growth, rather than on
realizing human rights. But implicitly, and sometimes explicitly as well, economist often assume good
things to come from development.57 Benjamin Friedman for instance, argues that a rising standard of
living for the majority of people is not just about material gains but that it also shapes the social, political
and moral character of people.58 It fosters greater opportunity, tolerance of diversity, social mobility,
commitment to fairness and dedication to democracy. Jagdish Bhagwati focuses on globalization as a
source for economic prosperity, but also makes a case that globalization is socially benign as much as it is
economically beneficial.59 Economic growth will reduce child labor as people do no longer need the fruits
of child labor; globalization will narrow the gender gap, as firms overpaying men will lose market share
to firms that pay men and women equal (their marginal productivity); (global) markets will promote
democracy as rural producers are able to bypass the local dominant class and become more independent;
and globalization will lead to improvements in labor standards rather than result in a race to the bottom.
At several places in his book, Bhagwati challenges the wisdom of imposing norms to protect vulnerable
groups in developing countries as being counterproductive.60 A trade theorist by profession, Bhagwati
argues that these norms often act as trade barriers imposed by developed countries to protect employment
54
Chauffour, supra note 35
Chauffour, supra note 35, at 47
56
The ‘race to the bottom’ alludes to the competition between countries to attract (foreign) capital and business,
where countries will lower standards, environmental, labor and others, to win over investments. Capital will flow to
countries with the lowest standards, or so the argument goes.
57
Chauffour, supra note 35, is an excellent example of this position.
58
BENJAMIN FRIEDMAN, THE MORAL CONSEQUENCES OF ECONOMIC GROWTH, New York, Albert
Knopf, 2005
59
JAGDISH BHAGWATI, IN DEFENSE OF GLOBALIZATION, Oxford, Oxford University Press, 2004
60
Siddiq Osmani argues that the human rights normative framework has a particular pre-occupation with individuals
and groups that are vulnerable, marginal, disadvantaged, or socially excluded. Globalization might lead to a socalled ‘race to the bottom’, and addresses the vulnerable individuals and groups. Osmani adds, as Bhagwati argues
as well, that there is little supportive evidence for the ‘race to the bottom’ argument. Osmani, Siddiq, Globalization
and the Human Rights Approach to Development, in: ANDREASSEN AND MARKS (EDS.), supra note 8, 254273
55
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and production in these rich countries thereby shutting out developing countries from the benefits of
globalization.61
Development economists focus on the lack of capital in developing countries which impedes their
development.62 They stress the importance property rights. In developing countries the absence of well
defined property rights and capital markets make it impossible to collateralize assets and turn them into
capital to finance investments.63 Other factors that support higher growth are to have better educated
people, ‘good’ policies, the right incentives (and some luck). There is no one size fits all approach to
development and the most successful development came from countries that tried for themselves,
borrowing ideas, institutions, technologies that suited them best, both in the private and in the public
sector. Development economist William Easterley is true to his economic nature by arguing that free
markets and accountable governments provide feedbacks that support the right development choices.64
The nature of free market and accountable governments, however, are hard to describe. There is wide
agreement that institutions matter, but it is unclear how they matter precisely.65
Philip Alston criticizes mainstream economic thinking for the lack of definition when they advocate
the importance of establishing and enforcing the rule of law.66 There only is reference to facilitate a better
business environment. The most precise reference to rights is to property rights, which is taken to be a
formal title to property owners. This dismisses the human rights perspective of development, which in the
case of property would require a notion on the discriminatory practices that limit or prevent access of
certain groups to property in the first place. From a human rights perspective, the objective to achieve an
enabling climate for private sector activity would include the following tasks:
the elimination of laws and practices designed to exclude or marginalize certain ethnic, linguistic,
religious, or other minority groups in their efforts to compete in the market place on an equal footing with
dominant groups in society;
the removal of discriminatory laws and practices that keep women from owning land and acting as fully
empowered economic agents;
measures designed to ensure freedom of association and freedom of press;
the provision of judicial or other remedies in response to cases of discrimination;
efforts to ensure the free flow of information, including a free press, access to economic statistics, and
alternative sources of information, all of which are essential ingredients for a market economy; and
61
This is not to say that Bhagwati opposes regulation. He acknowledges that legal activism has brought developed
countries a lot of good, also in terms of economic growth, but he challenges the imposition of these norms to
developing countries.
62
E.g. HERNANDO DE SOTO, THE MYSTERY OF CAPITAL, London, Bantam Press, 2000; See also
WILLIAM EASTERLEY, THE ELUSIVE QUEST FOR GROWTH: ECONOMIST ADVENTURES AND
MISADVENTURES IN THE TROPICS, Cambridge MA, MIT Press, 2001
63
Hernando De Soto does point out that the development of such a well defined legal system took centuries in the
west and required rooting formal law in social contracts and extra-legal relationships. DE SOTO, supra note 62
64
WILLIAM EASTERLEY, THE WHITE MAN’S BURDEN, New York, Penguin, 2006
65
See e.g. Dani Rodrik, Institutions for High-Quality Growth: What They Are and How to Acquire Them,
WORKING PAPER NO. 7540, National Bureau of Economic Research, 2000. An empirical study of the economic
effects of human rights is: Lorenz Blume, and Stefan Voigt, The Economic Effects of Human Rights, KYKLOS,
Vol. 60, No. 4, 2007, 509-538. They conclude that “high degrees of human rights are conducive to economic growth
and welfare in a significant manner.” Basic human rights and property rights are conducive for investment while
none of the four groups of rights that they study, basic human rights, property rights, civil rights and emancipatory
rights, have negative impact on the economic variables, GDP, investment, average year of schooling among others.
66
Philip Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen
Through the Lens of the Millennium Development Goals, HUMAN RIGHTS QUARTERLY, Vol. 27, 2005, 755829. Alston directly refers to the views as expressed in the Global Monitoring Reports that are produced by the IMF
and the World Bank.
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efforts to reform the police service to ensure that the rule of law provides security to all citizens so that
private life, including business, can proceed effectively.67
He expresses similar critique where it concerns the importance that economic analysts attribute to
‘strengthening of public sector capacity and improvement of the quality of governance’, and offers a
similar list of tasks to introduce more precision in relation to the human rights agenda.68
Siddiq Osmani argues that the narrow concept of economic development is important, but not
enough. “Development must entail fuller realization of economic, social and cultural rights on the one
hand and civil and political rights on the other.”69 This equals the indivisibility of human rights as it is
expressed in the Vienna Declaration. Closely related to this is the issue whether the RTD concerns the
outcome of development or the process itself. This is an important issue as human rights are usually
perceived as absolute rights. It is, for instance, impossible to sacrifice some education in exchange for
housing. But if resources are limited, the standard economic argument focuses on trade offs. Means that
are used to fulfill the right to education for instance cannot be put to use to fulfill the right to (affordable)
housing. With development, more specifically economic growth, the trade off is somewhat different; a
large improvement in the availability of housing can be achieved without actually sacrificing education,
even if an improvement of the access to education cannot be attained. In that case a Pareto improvement
is still possible.70 This, according to Jacob Kirkeman Hansen and Hans-Otto Sano, would, however, be a
negative reading of the principle of indivisibility of the rights, as opposed to a positive reading of the
RTD in which a sustainable advancement of any right depends on a similar advance of all other rights.71
Arjun Sengupta points out that the right to development is “a right to both the process and the outcomes
of the process. Development is not a finite event, but a process over time.”72 He argues that even if
development is instrumental in achieving the desired outcomes, that does not disqualify development as a
right itself. It is a substantive right in itself as it passes the legitimacy and coherency tests.73 In this
reading development includes economic and non-economic aspects of poverty reduction, such as
institution building, democratic support and legal and policy reform, explicitly. A rights based approach
to development requires accountability on both the outcome and the process. The constituent elements of
a rights based approach to development are:
That development efforts benefit from clearly defined normative or legal principles;
There is a clear division of responsibilities based on a framework of rights holders and duty-bearers;
Individual and group entitlements and rights are crucial in the creation of equity, non-discrimination and
well-being;
67
Alston, supra note 66, at 781. The point then becomes by which policies the rest of the world can stimulate, help
or force countries to achieve these precise points.
68
Alston, supra note 66, at 781-782
69
Osmani, supra note 60, at 269
70
It is a so-called Pareto improvement if the new constellation shows better results on any single goal without any
other goal being worse of. But there still alternative use of scarce resources as the provision of human rights in the
present may go at the expense of a higher income, and an easier realization of human rights in the future.
71
Jacob Kirkemann Hansen and Hans-Otto Sano, The Implications and Value Added of a Rights Based Approach,
in: ANDREASSEN AND MARKS (EDS.), supra note 8, 36-56
72
Arjun Sengupta, The Human Right to Development, in: ANDREASSEN AND MARKS (EDS.), supra note 8,. 935. Sengupta was the UN Independent Expert on the Right to Development, and in that capacity closely involved in
theoretical and practical discussions on the RTD.
73
Sengupta also defines an explicit definition of these tests, “The legitimacy test involves the moral judgment that a
right is of paramount importance and thus raises it to the level of a human rights. The procedures to be followed
would make such moral judgments largely, if not universally, shared, and not arbitrarily advanced. The coherence
tests links it to the duties whose plausibility depends on (a) whether performance of these duties enhances the
likelihood of the right – the higher the likelihood the more plausible the right; and (b) the opportunity cost of these
duties should not be too high, in the sense that the alternative values that are sacrificed by performing these duties
should not be generally unacceptable.” Arjun Sengupta, Poverty Eradication and Human Rights, in: THOMAS
POGGE (ED.) supra note 30, 323-344, at 334
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Human rights trump political and economic expediency.74
This does not read very different from the general observations in economic development literature, but
the principle is different indeed; especially the fourth principle makes clear that economic growth cannot
advance, unless it honors the human rights principles.75 There cannot be compromise in that field. It is
also different in the importance of duties and obligations. The economic development literature is rather
silent about duties and obligations, especially in the international order. From the perspective of human
rights these are very important. Human rights are linked to individuals and to enjoy them should be
independent of nationality. The international (legal) order, however, is pre-eminently built on the
sovereignty of states and individuals have to appeal to their own sovereign to claim their rights.76 This
leads us back to wisdom of claims on the developed countries to support the realization of human rights
in developing countries. As indicated above, many developed countries are unwilling to submit to legal
claims on their development policies from developing countries in particular.
IMPLEMENTATION
This does not mean that developed countries are not interested in the well being of developing countries
and their citizens. As indicated above, the Millennium Development Goals (MDG) are focused on
reducing poverty, increasing education, rolling back diseases, reducing child mortality among others,
which are all human rights made tangible by defining specific targets to be achieved by the year 2015.77
In that respect, we can appreciate the MDG as an expression of the inner logic of the RTD. The
international community commits itself to helping less developed countries achieving human rights and
development. However, as Margot Salomon argues, “despite global rhetorical consensus, and some
incremental advances, the international community of states is failing to move expeditiously towards
setting this key commitment in motion.”78 She distinguishes between the obligations of each state and that
of the collective obligations of the international community of states. The actions and structural
arrangements of the latter may actually constrain the ability of states to develop and fulfill their human
rights obligations. Salomon argues that the international community has the obligation to secure a system
that is globally just.79 Thus far, international organizations, the International Monetary Fund (IMF) and
the World Trade Organization (WTO) in particular, have been hesitant to include human rights in their
74
Kirkemann Hansen and Sano, supra note 71, at 55.
There is a kind of a catch 22 here. For human rights principles to be honored, there is a need for economic growth,
but as the authors on economic development argue at the same time the realization of human rights may impede
development.
76
This even goes for individuals who have access to internationally acknowledged courts, such as the European
Court of Human Rights. Rulings of this court for example are binding to participating states, but the court still
depends on the cooperation of the states in executing the ruling.
77
Alston, supra note 66, observes that in the 59 national MDG reports that he analyzed (the number available in
August, 2004) there is very little reference to human rights, thereby neglecting a crucial dimension of the
development equation.
78
Margot E. Salomon, International Human Rights Obligations in Context: Structural Obstacles and the Demands of
Global Justice, in: ANDREASSEN AND MARKS (EDS.), supra note 8, 96-118, at 98. She further argues that the
Millennium Declaration also stresses the principle of shared responsibility and links it to principles of equity and
justice, at 102.
79
Lori Wallach and Patrick Woodall observe that no country has ever developed under the conditions and terms
required by the WTO. WALLACH, LORI AND PATRICK WOODALL, WHOSE TRADE ORGANIZATION? A
COMPREHENSIVE GUIDE TO THE WTO, New York, The New Press, 2004. A similar point is made by ERIK
REINERT, HOW RICH COUNTRIES GOT RICH … AND WHY POOR COUNTRIES STAY POOR, New York,
Carrol and Graf Publishers, 2007. He argues that developing countries should do as developed countries did, not as
developed countries say they have to behave. Pogge, supra note 43 argues that the developing world is no equal
partner in the negotiations with the developed world, but have no alternative than to join its institutions.
75
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programs and argue that human rights are beyond their goals and purposes.80 Wolfgang Benedek argues
that such a position is untenable as countries that have submitted to obligations in treaties, agreements, or
other organizations, such as the covenants on human rights and other UN based activities, cannot ignore
such obligations in other organizations.81 Thus the IMF and the WTO are under the obligation to respect,
protect and fulfill human rights, even if their mandates do not mention them.82
Anna Gouwenberg discusses the option of a new declaration or the option to develop guidelines for
implementation which can be used by states and non-state actors. She indicates that an advantage of
guidelines is that they “are flexible in character and could therefore adjust more easily to changing
situations or increased consensus or support on certain topics“.83 She also discusses the legally stronger
option of a convention on the RTD, but concludes that this may not add much to the existing and
recognized human rights language and may run in political difficulties as much as lengthy negotiations
and ratifications.
With the increasing importance of developing countries in the world, it is likely that these countries
demand a place at the tables where the rules are made. As they often represent people that are poor, it is
also likely that economic and social rights and the international responsibility towards these rights are
moving up on the international policy agenda. Furthermore, as with the French declaration of rights of
man and citizen and the UDHR, there is an inner logic in the RTD and it may follow a similar path.
Declaratory at first, it finds its way into policies and legal manifestations. But as with the French
declaration and the UDHR, it will also attract discussion on the merits of the economic rights. These were
left out of the French declaration, but found a way into the UDHR, and seem to be even more important in
the RTD. These rights, at least a legal manifestation of these, attracted fundamental criticism in political
discussions, for instance in the United States, which did not ratify the ICESCR, in philosophical
discussions, in the rejection of positive (second generation) rights, to which economic and social rights
broadly speaking belong, and in economic discussions, where it is argued that economic and social human
rights may actually be counterproductive with regard to economic development. More economic
development generally leads to more human rights, but locking in human rights in a strategy of
development may actually result in slower development, at least in the strict sense of increasing income
and production. At the same time, as Sengupta argues, it has to be acknowledged that all human rights
went through a long process of normative and procedural justification.84 This process involves political
argument as well as legal expertise. As the discussions on earlier manifestations of human rights show,
there are economic issues too, which could be advanced with input. This is even more important when, as
is the case with the RTD, the object of human rights increasingly enters the field of economic
development.
80
As states form the membership of the international community, international organizations find it difficult to act
against one of its members.
81
Wolfgang Benedek, The World Organization and Human Rights, in: WOLFGANG BENEDEK, KOEN DE
FEYTER, FABRIZIO MARRELLA (EDS.), ECONOMIC GLOBALIZATION AND HUMAN RIGHTS,
Cambridge UK, Cambridge University Press, 2007, 137-169
82
The dividing line cannot be drawn sharply and in its policies the international economic organizations take a
pragmatic course. The debt relief program of the IMF, for instance, does include social dimensions See e.g.:
Laurence Boisson de Chazournes, The Bretton Woods Institutions and Human Rights: Converging Tendencies, in:
BENEDEK, DE FEYTER, MARRELLA (EDS.), supra note 81, 210-242
83
Anna E. Gouwenberg, The Legal Implementation of the Right to Development. A STUDY OF THE GROTIUS
CENTRE FOR INTERNATIONAL LEGAL STUDIES LEIDEN UNIVERSITY, 2009
84
Sengupta, supra note 72, at 23.
24
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International Journal of Civil Society Law
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Vol. IX, Issue III
July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
CO-OPERATIVE BANKS IN JAPAN:
AN ASSET-BASED COMMUNITY DEVELOPMENT APPROACH
BY ROSARIO LARATTA, PH.D. AND SACHIKO NAKAGAWA, PH.D.
ABSTRACT
In this study the authors aimed to discover the extent to which Japanese co-operative banks are
applying the principles of the asset based community development approach (ABCD) through a
thorough investigation of the community and its assets, and convening local residents and
associations to play an active part in promoting community development. Seven of the thirteen
co-operative banks currently operating in Japan were selected for this study. The authors
conducted semi-structural interviews with the executive directors of the selected banks. What
became clear from the findings was that the co-operative bank executives understood as their
primary role that of encouraging neighbors to discover their own assets and mobilize them for
the development of their own community. They saw themselves as servant leaders at any or all
stages of the community change process, facilitating the beginnings of revitalized communities
by posing the key questions of the ABCD paradigm.
1.
INTRODUCTION
Community development may be approached from two fundamentally different directions: one is needs
based and the other is asset based (Kretzmann and McKnight, 1995; McKnight, 2003). The former, which
is also the more traditional approach, aims at identifying, prevalently through need-surveys, the
deficiencies or needs of a particular community. Only after these are clearly mapped, can a strategic plan
or program be put into work in order to address any issues which may arise. Supporters of this approach
argue that knowing the problem is a good way to begin a community development process as it can result
in the identification of half of the solution. On the other hand, as opponents point out, community
residents and their associations are only passively involved in this process, possibly resulting in a loss of
hope and a failure to utilize local talent, knowledge and skills (Chirisa, 2009). In addition, the underlying
causes of problems may well be missed or even ignored by focusing too directly on the need to identify
and remedy their consequences. Furthermore, residents may come to believe that their community is
incapable of addressing important issues, giving rise to a culture of assistentialism.
The alternative asset based community development approach (ABCD) is a reversal of the procedure
adopted by the needs based approach in that it begins by identifying the assets and gifts of a community.
The ABCD approach is founded on the assumption that if all members of the community are given equal
recognition as individuals with heart, hand and head gifts, they can contribute many useful resources,
including innovative ideas, for promoting the development of their own communities. This approach
recognizes the three building blocks central to community improvement: the talents of all individuals
within the community (including the disabled or marginalized), the participation and the resources of
associations of citizens operating in that community, and the assistance and support of local public and
private institutions. Working on the assumption that, in any community, there lies an untapped pool of
skills, knowledge and work experience that can be exploited in the interests of local development, the
ABCD approach acknowledges that community development is a mutually beneficial process. It is not
someone else’s task but rather one for the entire community. Thus, to facilitate that mutual process, those
assets need to be first discovered, then marshalled and, finally, utilized. Supporters of this approach
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International Journal of Civil Society Law
Vol. IX, Issue III
believe there are no rich or poor communities because each has its own assets (McKnight, 2003) and it is
just a matter of those same residents recognizing them and putting them to effective use.
However, this is not a universally held view. One group of scholars argue that in many developed
regions, and not just in the developing world, there is still a significant gap between rich and poor
communities due to the concentration of assets in certain areas as opposed to others which are less
favoured (Deininger and Olinto, 2000). For instance, in Japan the average wage in the most affluent
communities is approximately 2.5 times that of the poorest (Cabinet Office, 2009). The income gap is
most noticeable when comparing financial assets in metropolitan and provincial areas. The former have
sufficient sources of independent revenue to implement original policy and provide a variety of welfare
services for their local residents. Conversely, the latter depend on subsidies from central government for
approximately eighty percent of their revenue (Ministry of Internal Affairs and Communications, 2007).
Indeed, the number of Japanese prefectures where the bank loan deposit ratio exceeds the mean value is
only 4 out of 47 and, of these 4, only one is located outside metropolitan areas (Ministry of Land,
Infrastructure and Transport, 2005). Consequently, the savings of many provincially based residents,
which should constitute an asset for their communities, are, in fact, drained off from their local banks into
metropolitan areas without contributing at all to the development of the areas where the banks themselves
are located. To combat this, co-operative banks (CBs) in Japan have recently begun introducing initiatives
aimed at the social and economic revitalization of provincial areas by restricting this disastrous outflow of
local assets. In a first attempt to understand how this has been possible, Nakagawa and Laratta (2010)
conducted a series of interviews with two CBs from which they found that their orientation clearly
reflected the level and type of participation of their investors: if a CB focuses only on the financial needs
of the community, as standard banks normally do, its level of trust and reputation among investors, and
the community at large, will diminish; alternatively, if its approach is that of facilitator of community-led
development, it will attract new investors and, at the same time, increase investment levels among its
established client base (Nakagawa and Laratta, 2010). In order to test these hypotheses more accurately,
we conducted interviews with the directors of seven of the thirteen CBs currently operating in Japan.
From the outset, we defined the ABCD approach as one which identifies and utilizes a community’s
assets, rather than simply determining its needs. Thus, in this study we aimed to discover the extent to
which Japanese CBs are applying the principles of ABCD through a thorough investigation of the
community and its assets, and convening local residents and associations to play an active part in
promoting community development.
2. CONTEXTUALIZATION AND METHODOLOGY
In December 2010 there were thirteen CBs in Japan, a number which is likely to increase rapidly during
the next few years as several prefectures are now preparing to establish similar institutions of their own.
Yet, when compared to those of other developed countries, Japanese CBs seem at present to be playing
only a marginal role in the social and economic development of the country. A possible explanation for
this is that, unlike standard banks1, CBs in Japan are not subject to strict governmental regulations and, as
a result, local residents tend to regard them with a degree of skepticism. This is actually reflected in the
absence of a legally defined structure for this type of organization. Indeed, in Japan there is no legal form
for social co-operatives, with the exception of ‘business co-operatives’, and there are no CBs currently
registered under this status. The lack of legal status for these banks means they often have to operate as
other organizational forms, such as voluntary associations, which also have no legal recognition, specified
nonprofit corporations, intermediate corporations, co-operatives, incorporated associations or public
interest incorporated associations, none of which quite match their nature. Japanese CBs also differ
1
the Japanese Financial Services Agency permits only stock companies which have a capital of more than $22 million to engage in banking
activities in order to stabilize the economy.
27
July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
between them in terms of loan and credit limits, and rates of interest. A further difference among CBs can
be identified by their target borrower groups. For example, the Credit Union for Women and Citizens,
located in Kanagawa prefecture, includes in its borrower portfolio social enterprises managed by women
who experience difficulty borrowing money from ordinary banks. On the other hand, ap bank (launched
by three Japanese musicians) welcomes all individuals and organizations, including non-profit
organizations, limited companies and stock companies, who promote environmental preservation in the
country. The Co-operative Bank for Natural Housing share a similar mission with ap bank, but differs
from them in that it provides loan programs only to individuals who purchase ‘natural houses’, i.e. houses
with energy-saving lighting and heating systems, such as pellet stoves and solar panels, eco-friendly
furniture and home electrical appliances. Table 1 below shows that Japanese CBs are relatively new, the
oldest only having been established in 1994, and more than a third of them having been in operation for
less than three years.
Table 1: Profile of 13 Japanese co-operative banks.
Name
Location
Date of
legal form Terms of a loan
establish
ment
Cooperati
ve
bank
for the
Future
Tokyo
(Metropolita
n Area)
July
1994
Voluntary
association
Credit
Union
for
Wome
n and
Citizen
s
Kanagawa
(Metropolita
n Area)
August
1998
Voluntary
association
Hokkai
do Cooperati
Hokkaido
(Provincial
Area)
October
2002
Specified
non-profit
corporation
28
(1)by membership
only
(2)social
enterprises which
engage in
environmental
preservation or
welfare service or
community
development in
Japan
(1) by
membership only
(2) not being a
social enterprise
having the legal
form of a forprofit organization
(3)being a social
enterprise
especially those
managed by
women or
individuals living
in Kanagawa
(1) by
membership only
(2) not being a
Credit
limit
$100,0
00
Rate
of
interes
t
3%
$111,0
00
2%
$22,00
0
2%
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International Journal of Civil Society Law
ve
Bank
ap
bank
Tokyo
(Metropolita
n Area)
June
2003
Nagan
o
Dream
Cooperati
ve
Bank
Nagano
(Provincial
Area)
August
2003
Tokyo
Comm
unity
Power
Bank
Tokyo
(Metropolita
n Area)
Septemb
er 2003
Intermediat
e
corporation
(past) à
incorporate
d
association
(now)
Specified
non-profit
corporation
Voluntary
association
29
social enterprise
having the legal
form of a forprofit organization
(3)being social
enterprises
implementing
social purpose
activities and
aiming at bringing
benefits to the
community in
Hokkaido
(1) social
enterprises and
individuals
especially those
acting for
environmental
preservation Japan
(1) by
membership only
(2) not being a
social enterprise
having the legal
form of a forprofit organization
(3) being social
enterprises
implementing
social purpose
activities and
aiming at bringing
benefits to the
community in
Nagano
(1) by
membership only
(2) not being a
social enterprise
having the legal
form of a forprofit organization
(3) social
Vol. IX, Issue III
$55,00
0
1%
$33,00
0
2-3%
$111,0
00
1-2.5%
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International Journal of Civil Society Law
Niigata
Comm
unity
Bank
Niigata
(Provincial
Area)
July
2005
Comm
unity
Youth
Bank
“momo
”
Aichi
(Metropolita
n Area)
October
2005
Kuma
moto
Social
Bank
Kumamoto
(Provincial
Area)
February
2008
Cooperati
ve
Bank
for
Natural
Housin
g)
Tokyo
(Metropolita
n Area)
June
2008
enterprises and
individuals in
Tokyo
Voluntary
(1) by
association membership only
(2) being social
enterprises and
individuals
implementing
social purpose
activities, disaster
recovery and
aiming at bringing
benefits to the
community in
Niigata
Voluntary
(1) by
association membership only
(2) being social
enterprises and
individuals
engaging in
community
development and a
sustainable
community in
Aichi , Gifu and
Mie prefectures
Voluntary
(1) being social
association enterprises
implementing
social purpose
activities and
aiming at bringing
benefits to the
community in
Kumamoto
Voluntary
(1) by
Association membership only
(2) Individuals
intending to
purchase ecofriendly houses
and appliances
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Vol. IX, Issue III
$22,00
0
3%
$55,00
0
2-2.5%
$33,00
0
3%
(for
natural
houses)
$33,00
0
(for
energysaving
2%
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International Journal of Civil Society Law
Moyai Fukuoka
Bank
(Provincial
Fukuok Area)
a
April
2009
Fukush
ima
Cooperati
ve
Bank
Fukushima
(Provincial
Area)
January
2010
Peace
Bank
Ishika
wa
Ishikawa
(Provincial
Area)
April
2010
Voluntary
(1) by
Association membership only
(2) being social
enterprises and
individuals
engaging in social
purpose activities
and specified
nonprofit activities
defined by the
NPO law and
aiming at bringing
benefits to the
community in
Fukuoka
Incorporate (1) being social
d
enterprises and
Association individuals
engaging in social
purpose activities
and aiming at
bringing benefits
to the community
in Fukushima
Voluntary
1) by membership
Association only
(2) being social
enterprises and
individuals
engaging in social
purpose activities
and specified
nonprofit activities
31
Vol. IX, Issue III
and
ecofriendly
furnitur
e and
home
electric
al
applian
ces)
$11,00
0
$33,00 2-3%
0
$33,00
0
5%
$33,00
0
1-3%
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International Journal of Civil Society Law
Vol. IX, Issue III
defined by the
NPO law and
aiming at bringing
benefits to the
community in
Ishikawa
Note: Based on our research results in 2011.
DATA COLLECTION METHOD
Seven of the thirteen CBs above were selected for this study. These are:
1. Hokkaido Co-operative Bank;
2. Fukushima Co-operative Bank;
3. Nagano Dream Co-operative Bank;
4. Niigata Community Bank;
5. Peace Bank Ishikawa;
6. Moyai Bank Fukuoka;
7. Kumamoto Social Bank.
In this study we conducted interviews with the executive directors of the selected CBs. Cohen et al.
(2000) claim that interviewing has the advantage of providing potential access to understanding people’s
mind in terms of what they know, what they like or dislike, and what they think; it also helps the
researcher identify aspects that cannot be observed directly from a questionnaire survey. Furthermore,
they argue that, through personal interviews, respondents and their physical settings often reveal to
researchers important non-verbal clues, which will supply fruitful additional information to the data. We
used a semi-structured interview procedure because its characteristics were considered most appropriate
for data collection and the research task. One key feature of the semi-structured format is that, when there
is a set of pre-determined questions or issues to be investigated, it allows great flexibility through the use
of open-ended questions, which make the interview process more focused, free flowing and
unthreatening. With this kind of approach, as has been pointed out by Cohen et al. (2000), the researcher
is free to pursue questions in greater depth, and, as noted by Wragg (1982), interviewees are free to
express their opinions without worrying that their responses might be just “aimless rambling” (10).
During the entire interview process, with respondents’ consent in advance, tape and digital recording was
used. Organization of notes, supplemented by recordings, was carried out soon after each interview was
completed.
The set of pre-determined questions we used in the interview with each of the executives is given
below:
1. Why was the CB established?
2. What are the CB’s mission and vision?
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International Journal of Civil Society Law
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3. Before the CB was established, did you or the founders undertake any activity of
mapping of individual, organizational and business assets present in the local
community?
4. In achieving its mission or working toward its vision, which approach does your CB
normally use? a) it begins with the identification of needs and problems within the
community; b) it begins with the discovering of assets and gifts within the community.
5. Please take a moment to think about the individual, organizational and business assets
present in your community, do you think those assets have increased or decreased
today compared to the past?
6. How does this CB encourage local residents to be actively and directly involved in the
development of their community?
3. PRESENTATION OF THE FINDINGS
According to the majority of the directors interviewed, their CBs were established mainly because they
recognized, or found out subsequently through surveys, that many local social enterprises and NPOs were
inadequately funded and therefore worked under considerable pressure while attempting to achieve their
mission. They explained that standard banks (either ordinary commercial or state banks) were, and still
are, very reluctant to lend money to Third Sector organizations. In addition, government subsidies are too
meager to cover the financial needs of many social enterprises. The director of the Fukushima CB put it
this way:
“Fukushima Co-operative Bank was established by the Utsukushima NPO network, an
intermediary nonprofit organization in Fukushima prefecture. Its mission was to support local
NPOs and social enterprises in various aspects such as organizational set up, management
activities and fundraising. People from the network knew very well that many NPOs and social
enterprises were facing financial difficulties and could not borrow money from ordinary
commercial banks... So, they came up with the idea of establishing a fund from which that type
of organization exclusively could borrow money. In October of 2006, they set up a study group
called “Seminar on Fukushima-type Fund” and from here a questionnaire survey was sent to all
the 475 NPOs located in Fukushima prefecture at that time to establish how many of them were
actually in financial difficulty. The survey confirmed the critical financial situation for the
majority of NPOs surveyed. This was a strong input for us to set up our CB in the June of 2010”.
(January 26, 2011)
The executive director of the Hokkaido Co-operative Bank, one of the oldest among the CBs we
interviewed, gave a very similar explanation. She said:
“There are more than 250 NPOs and social enterprises in the Hokkaido prefecture, but at least
half of them face financial difficulties because ordinary commercial banks do not want to lend
money to them due to the absence of collateral and their lack of creditworthiness. In the May of
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International Journal of Civil Society Law
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2002, the Center for Supporting Social Enterprises in Hokkaido, an intermediary nonprofit
organization, conducted a questionnaire survey on 120 NPOs and social enterprises in order to
find out their financial condition and get their opinions about what kind of loan programs would
have been helpful for them in terms of amount, target usage, credit limit and rate of interest. On
the basis of the negative results they collected through the survey, several discussions were held
with experts, NPO and for-profit practitioners and public officials. We held the first general
meeting of our bank in August 2002 and we began its full management in October of the same
year”. (January 14, 2011)
The interviewees described their CBs’ mission as focusing mainly on helping social enterprises and NPOs
in their local area to be more financially stable. This was closely related in their view to their CBs’ vision,
namely that of contributing to the social and economic development of their local community. The
director of Peace Bank Ishikawa elaborated his view in this way:
“Our mission is that of helping social enterprises to expand their activities by lending them the
money that local residents invest in our bank. This, in turn, will contribute to our vision, which is
that of developing our local community. Indeed, it is through social enterprises that new job
opportunities were created for many of our local residents who were previously unemployed”.
(January 27, 2011)
It was also evident from their responses that their mission was partly driven by a perception of themselves
as co-ordinators between the knowledge, skills and experience of local residents and the expertise of
social enterprises. They also saw themselves as educators of the former in that they viewed the money
invested in the latter as having a positive impact both on themselves, as investors, and on the community
at large. In order to realize their vision, most of the CB executives reported having approached
community development by assessing the individual and organizational assets present in their local areas.
Indeed, most of the banks implemented surveys among local residents and organizations (both nonprofits
and for-profit) before they began their activities in order to understand what assets were already present
within the community and how they could be utilized for the realization of their vision. For instance, prior
to its establishment, the board of the Fukushima Co-operative Bank conducted interviews with around 80
local residents as well as several local organizations, in addition to holding three lectures and 10 study
meetings which were open to the public. From the meetings and the results of their survey, they were able
to identify valuable assets in a variety of fields, which they subsequently put to good use. Similarly, the
director of Moyai Bank Fukuoka also mapped the assets present in his community before the bank was
launched. He gave us his views on finding assets within a community as follows:
“One of the most powerful tools for discovering individual and organizational assets is chatting
with friends and acquaintances. Since the start of this initiative, our staff has included a variety
of people such as representatives of NPOs, social enterprises and for-profit organizations,
professors, musicians, and architects. All these people have tried to discover assets by carrying
our informal investigations within their own networks. For example, professors shared our
intention to establish the Moyai Bank Fukuoka with their students, and explained why, in their
opinion, this was necessary for the development of the community. Consequently, a number of
students took part in seminars on CBs and often displayed their willingness to contribute to the
management and vision of the bank. As another example, one of our staff, who is also an organic
food salesman with a for-profit company, has found assets through utilizing his network made up
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July/October, 2011
International Journal of Civil Society Law
Vol. IX, Issue III
of members of the co-operative movement in which he was an active participant for more than
10 years”. (January 20, 2011)
Only two of the CBs investigated, the Niigata Community Bank and the Nagano Dream Co-operative
Bank, seemed not to have implemented any strategy to discover the assets present in their community.
Their executives believed that the individual and organizational assets in their community had decreased
over the years. However, in the view of other CBs it was not so much a case of the assets having
diminished but the fact that they had never been discovered. The director of Hokkaido Co-operative Bank
put it like this:
“I do not think that the current local assets have decreased compared to the past. I rather believe
that local assets have constantly been ignored and had not been utilized effectively. This is the
reason why our bank is making the effort to discover them throughout Hokkaido”. (January 14,
2011)
We finally asked our interviewees what their respective CBs had done to mobilize those assets in order to
realize their vision. With the exception of the representatives of the Niigata and Nagano banks, the
interviewees reported that their organizations had implemented a number of initiatives. The director of
Hokkaido Co-operative Bank said:
“We have held seminars, study meetings and have carried out projects, campaigns and advocacy
works on community development around Hokkaido. Recently, we have implemented job
training for improving the skills of people who are planning to establish or are already running
some sort of social enterprise in Hokkaido. What we do is we gather people who have expertise
in different fields and we get them to share their views and opinions directly with the staff of
social enterprises. We also encourage local residents to help the elderly and disabled in our
community by liaising with local NPOs, social enterprises, intermediary nonprofit organizations
and hospitals that we are in contact with”. (January 14, 2011)
The director of Fukushima Co-operative Bank said:
“In addition to holding workshops, study meetings, and lectures on community development,
establishment and management of NPOs and social enterprises, we have also supported the so
called ‘Project for the Promotion to Establish Round-Table Conferences to Solve Problems
through the Initiative of Local Residents’. The purpose of this project was to gather together all
stakeholders, including local residents, neighborhood organizations, NPOs, social enterprises,
schools, for-profit organizations, and local government organizations, to exchange ideas and
opinions on how to revitalize our local area by actively engaging all their expertise and
experience. The fruit of such initiatives was that currently 38 round tables are established within
the prefecture, each addressing the issue of how to discover and mobilize assets within each
community. For example, one of the communities within the prefecture, Tamagawa-mura, faced
a serious depopulation problem, threatening closure of the elementary school because of the
decline in enrollments and depriving the elderly who live there of a place to promote friendship.
On the other hand, they have an abundance of natural environmental assets such as spring water
and rivers which flow from the Abukuma Mountain Area, country hills with beautiful views and
a variety of agricultural products. By using those assets effectively, the round table is trying to
revitalize this community. In order to further prompt local residents to take action to this end, our
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July/October, 2011
International Journal of Civil Society Law
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bank has plans to train its staff to create networks with experts and universities, suggest
collaborative projects to prefectural and municipal government officials and implement advocacy
activities for the public”. (January 26, 2011)
Another interesting story was told to us by the director of Peace Bank Ishikawa. He said:
“An under-populated village of mainly elderly people in Ishikawa has partly been revitalized by
initiatives taken by a small group of residents. In October 2009, a local chef decided to held a
one-day cooking class for all the villagers. His initiative was funded by his local enterprise group
which, in turn, borrowed the money from our bank. Participating in this activity were 16 local
residents and it was seen as a great initiative by all villagers. The event was held again in 2010
and it is likely to continue for many more years to come as it has now become a regular
attraction for young families from all over Japan. Some of these tourists, impressed by the
typical local dishes and the beautiful surrounding landscape, decided to build houses here and
either settle or stay during their holidays…Our bank is supporting many such initiatives. In
addition, we now have a plan to use a variety of information channels, including the local media,
in order to promote understanding among local residents on the role of a co-operative bank in the
field of community development. Through this plan we hope to get more of them to participate
in the community development process”. (January 27, 2011)
4. DISCUSSION AND CONCLUSION
Most of the executives we interviewed perceived their CBs as key promoters in the social and economic
development of their community. Each of them had a clear mission to achieve and a vision to realize it. If
we look at the mission we find little difference between CBs and standard banks, apart from the fact that
the former mainly have social enterprises and NPOs as the target of their investments whereas the latter
tend to lend money prevalently to for-profit enterprises who are usually on a more solid financial footing
and are therefore considered more reliable. However what clearly distinguishes CBs from standard banks
is that CBs also have a vision, a social vision for the development of their community.
The realization of their vision is construed not so much as a final objective but as the beginning of a
process marked by well-defined steps. They start by identifying all the possible assets (organizational,
individual and often physical assets also present within their community. Then they try to mobilize those
local assets by directly involving local people and organizations in the development of their communities.
Finally, they undertake the role of co-ordinator in a variety of ways: a) by putting local residents with
similar skills in touch with each other; b) by helping local residents who have similar visions for the
development of their community to come together and share those visions; c) by providing the
organizational and physical means to help local residents realize those visions, and to join hands with
local NPOs, social enterprises and local governments.
Most of the CB executives interviewed understood their mission to be vital to the growth of a poorlyequipped sector, that of social enterprises, who they regard as the front line in tackling the social and
economic development of a community. According to the majority of our interviewees, by directly
involving themselves with local people in deprived communities, social entrepreneurs have all the
knowledge and experience to specify what issues need to be addressed urgently within their communities.
In addition, social entrepreneurs know what monetary and non-monetary resources and networks each
community has access to, and how they may be utilized for the development of the whole area. Thus, the
social enterprise sector is regarded by CB executives as both the tool and the target of their banks in the
realization of their vision.
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Vol. IX, Issue III
Five of the seven banks investigated began their enterprise by looking at what their own community
possessed that it could contribute to their vision. CB executives seemed to have reflected deeply on their
community before taking the initiative of launching their banks, as well as on the role they themselves
would be playing. What became clear from this study was that the CB executives understood as their
primary role that of encouraging neighbors to discover their own assets and mobilize them for the
development of their own community. They saw themselves as servant leaders at any or all stages of the
community change process, facilitating the beginnings of revitalized communities by posing the key
questions of the ABCD paradigm: What does the community want done? How will the banks support,
supplement, lead in getting it done? How will the banks add value to those areas where they operate?
References
Kretzmann, J. and McKnight, J. (1995). Building Communities from the Inside Out: A Path Toward
Finding and Mobilizing a Community's Assets, Evanston, IL: Institute for Policy Research.
McKnight, J. (2003). Regenerating Community: The Recovery of a Space for Citizens, Evanston, IL:
Institute for Policy Research.
Chirisa, I. (2009). Prospects For The Asset-Based Community Development Approach In Epworth And
Ruwa, Zimbabwe: A Housing And Environmental Perspective, African Journal of History and Culture
(AJHC) Vol. 1 (2), pp. 028-035.
Deininger, K and Olinto, P. (2000). Asset distribution, Inequality and Growth, Policy Research Working
Paper Series 2375, The World Bank.
Cabinet Office (2009). Prefectural Economy in the fiscal year of 2006, Available at
http://www.esri.cao.go.jp/jp/sna/kenmin/h18/main.html (in Japanese).
Ministry of Internal Affairs and Communications (2007). Financial Indicators of Prefectural
Governments, Available at http://www.soumu.go.jp/iken/zaisei/xls/H19_chiho_3.xls (in Japanese).
Ministry of Land, Infrastructure and Transport (2005). Bank Loan Deposit Ratio of Prefectures, Available
at http://www.mlit.go.jp/singikai/kokudosin/keikaku/10/04.pdf (in Japanese).
Morduch, J. (1999). The microfinance promise. Journal of Economic Literature, 37(4), 1569-1614.
Nakagawa, S. and Laratta, R. (2010). How can co-operative spread the spirit of co-operation in deprived
communities? Social Enterprise Journal, 6(2), 162-180.
Cohen, L., Manion, L. and Morrison, K. (2000). Research Methods in Education (5th ed.) London:
Routledge Falmer.
Wragg, E.C. (1982). Conducting and Analysing Interviews. Nottingham: Nottingham University School
of Education.
37
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T HE T REATM ENT OF R ELIGIOUS M INORITIES IN S AUDI
A RABIA : A V IOLATION OF I SLAM IC P RINCIPLES AND
I NTERNATIONAL L AW
BY NICOLE RUZINSKI
Saudi Arabia is a country at the center of the Islamic world. As the site of the two holiest
cities, it is a place where Muslims from all over the world come to visit. In a country of such
religious importance, minority religions have been marginalized in favor of promoting only
Sunni Islam.168 As a country where Muslims are the majority, Islamic law has become the
law of the state governed by a monarchy and enforced by religious police.169 However, the
particular school of Islam as created a country of intolerance and violence against those of
other religions, including other Muslims.170
The government and religious leaders claim their policies on religious freedom are rooted
in Islamic law and true meaning of Islam.171 However, an examination of early Islamic
philosophy and earlier practices of the Prophet demonstrate that religious tolerance and
respect for others is inherent.172 Political leaders who were attempting to keep power and
control their society distorted these roots.173 This has resulted in severe restrictions in some
majority Islamic countries like Saudi Arabia who attempt to protect Islam and their power by
limiting the rights of others.
The human rights documents written and endorsed by Islamic states are similar in style to
those of the international community, but many of the rights have been eliminated or
reduced.174 The argument for reducing these rights is so that they are in accordance with
Shari’ah law.175 None contain an enforceable provision recognizing the freedom to practice
any religion. However, while the documents show an important recognition of human rights,
they also seek to undercut international standards and the early principles of Islam.
Under this system, Saudi Arabia has engaged in a persistent violation of the fundamental
human rights of its citizens. Christians have been repeatedly denied access to private
worship, drawing the attention of international religious leaders.176 In a system based on
Islamic law with a prohibition on other religions, the discrimination against non-Muslims
does not seem surprising. However the discrimination of the Saudi Shi’a minority is
especially troubling. Despite a promotion of Islam, the Saudi government has continued to
violate the rights of some Muslims.
This paper will attempt to demonstrate that despite the claims of the Saudi government
and religious leaders, allowing freedom of religion does not fundamentally violate the
168
See generally HUMAN RIGHTS WATCH, DENIED DIGNITY: SYSTEMATIC DISCRIMINATION AND
HOSTILITY TOWARD SAUDI SHIA CITIZENS (2009) [hereinafter HRW 2009].
169
Hossein Esmaeili, On a Slow Boat Towards the Rule of Law: The Nature of Law in the Saudi
Arabian Legal System, 26 ARIZ. J. INTL. & COMP. L. 1, 4-5 (2009).
170
Id.
171
Id. at 14.
172
MAIMAL AHSAN KHAN, HUMAN RIGHTS IN THE MUSLIM WORLD 105 (2003).
173
Id. at 117.
174
Ann Elizabeth Mayer, Universal versus Islamic Human Rights: A Clash of cultures or a Clash with
a Construct?, 15 MICH. J. INTL. L. 307, 328 (1994) [hereinafter Mayer (1994)]
175
Id.
176
Phillip Pullella, Pope Seeks Religious Liberty in Muslim Mideast, REUTERS (Oct. 14, 2010),
http://www.reuters.com/article/2010/10/24/us-vatican-synod-idUSTRE69N0ID20101024 (last visited
May 7, 2011).
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principles of Islam. Further, it will show that Saudi Arabia also has obligations it has ratified
with the international community that is must follow. Part I will look at the relationship of
religion to the state in Saudi Arabia and modern state structure. Part II will look at human
rights in Islam through both general principles and modern human rights documents. Part III
will discuss specific examples of violations of freedom of religion in Saudi Arabia. Finally
Part IV will analyze Saudi Arabia’s stance on religious freedom and international human
rights.
I. SAUDI ARABIA’S RELIGION AND GOVERNMENT
A. WAHHABISM AND TRIBALISM
Saudi Arabia’s system is a non-constitutional monarchy based on Islamic law under the
doctrine of Wahhabism.177 The doctrine focuses on the textual sources of Islamic law and
rejects any form of interpretation or transformation of those materials.178 The Qu’ran is the
source of law for Saudi Arabia and religious leaders have special status.179 The official school
of Islam in Saudi Arabia is the Hanbali school, which uses a literal interpretation of the
Qu’ran and Sunnah.180 One of the most prominent followers of the Hanbali school was
Muhammad ibn Abd al Wahhab who helped revive the movement in the eighteenth
century.181
Ibn Abd al Wahhab focused on the legal teaching of Ibn Taymiyya forming what is
known as Wahhabi.182 One important aspect of the movement was the rejection of taqlid
(mitigation) meaning all principles must come from the religious texts and teachings of the
four Sunni schools.183 Ibn Taymiyya instead thought that each jurist could engage in
“independent inferral” of the principles of law.184 This scope was still narrow and only
allowed inferral from the Qu’ran or Sunnah.185 The most important doctrine in the movement
was takfir.186 It meant imposing infidelity on someone who did “not strictly adhere to the
words of the [Qu’ran] and the Sunna[h].”187 Therefore, anyone, including jurists, who used
any rationalist methods in interpreting Islamic law, was an infidel.188 Today Wahhabism is an
important aspect of the Saudi Arabian political system.
177
Esmaeili, supra note 2, at 4-5.
Id. at 5.
179
Id. at 9. The role of the Qu’ran and religious is not surprising when looking at Saudi Arabia as the
birthplace of Islam. Id. at 8. The two holiest cities for Islam, Mecca and Medina, are both found within
the country. Id. at 9. Mecca also hosts millions of Muslims who are performing the haj and traveling to
the Kaba each year. Id.
180
Id. at 10. This school is the smallest of all the Sunni legal schools. Id. Two of the other schools
represent an opposition view and looked at Islamic law more progressively. Id.
181
Id. at 11. The founder, Ahmad ibn Hanbal, focused on forming the Hadith which were all the
sayings and behaviors of the Prophet. Id. at 10-11. His teachers were later developed into an actual
legal doctrine. Id. at 11.
182
Id. at 11-12. It is noteworthy however that Saudi Arabians do not refer to themselves as
Wahhabists. Id. at 12. Wahhabi is also not recognized as a separate sect in Islam. Id.
183
Esmaeili, supra note 2, at 13. This is known as “closing the door of ijtihad.” Id. There could be no
independent reasoning used and only the established basic principles could be relied on. Id
184
Id. at 14.
185
Id.
186
Id.
187
Id.
188
Id. This led to many Muslim jurists being called infidels for taking a different or more progressive
opinion on Islam. Id. at 15. Whether intentional or not, it also led to a growth a nationalism with Islam
becoming associated with an Arab national identity. Id. Therefore, even non-Arab Muslims should
observe Arab traditions. Id.
178
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The connection of Wahhabist interpretation and Arab culture has also created an
important role for tribal law in modern Saudi Arabia.189 Many of the customs found in
Shari’ah were also practiced by the Arab culture before Islam and were simply
incorporated.190 One area where tribal law was influential in Saudi Arabia was in the political
structure.191 The current Saudi state was formed by the confederation of the different tribes,
ruled by the Al Saud tribe.192 Tribal custom is also important to the modern government in
Saudi Arabia.193 Both Wahhabism and urbanization have weakened tribal custom though the
practices still form the foundation for Saudi Arabian society.194 It can also still be found in
Islamic law, especially “in four key areas: public law, personal law, commercial transactions,
and criminal law.”195 Tribalism still plays an important role in modern Saudi Arabian
government.196
B. THE MODERN STATE
The modern Saudi Arabian state emerged in 1932 amidst a compromise between Ibn Saud
and the Wahhabi religious leaders.197 The Basic Law passed in 1992, though not creating a
constitutional system, represents some progressive movement in the Saudi System.198 It did
create some separation of powers, however the King still is the final authority in the
country.199 There is still no codification of Shari’ah law, but the Hanbali school is treated as
the primary law and the other Sunni schools make up a secondary system.200 Areas of law
that have no provision within Islamic law may be handled through Royal decrees.201 There is
evidence that some of the legal institutions are expanding away from the traditional system.202
189
Esmaeili, supra note 1, at 16.
Id. There were also customs that were not directly mentioned in the law and others were not
directly refuted and thus still exist as custom. Id. The Shari’ah legal system also developed separately
from tribal law, but still incorporated the Arab customs that had become part of Islam. Id. at 17.
191
Id. at 19.
192
Id. at 19. The growth of oil as a source of revenue also helped the ruling power ton enforce tribal
customs into the government. Id. There has been little change to the structure since its formation. Id.
193
Id. at 20. These customs are deeply rooted in the pre-Islamic Arab culture. Id. It also governs many
areas of life from marriage to criminal law. Id. Custom has been particularly important in the are of
property law where land ownership systems are set up by tribes and dispute area rarely adjudicated in
courts according to Shari’ah. Id. at 21. Family law is another area often not adjudicated in Islamic
courts because of the close allegiance to the tribe and family. Id. at 22. Criminal violations will also be
settled among the tribe or families according to tribal customs including blood-revenge for homicide.
Id.
194
Id. at 22-23. Wahhabism disproved of any tribal customs that were incompatible with Shari’ah
principles. Id. at 22. Modernization also caused the customs to weaken as more people moved to the
cities and left the tribal lifestyle. Id. Some of the custom has been preserved by the rise in Saudi
nationalism, which has attempted to preserve Arab culture. Id. at 22-23.
195
Esmaeili, supra note 2, at 24. In the area of public law, tribal customs are influential in the
treatment of treaties under Islamic law. Id. Tribal customs have bee influential over many areas of
family law including marriage and inheritance. Id. 24-25. Some areas of family law were modified
under Islam including limits placed on polygamy and certain times of marriages. Id. at 25. The concept
of blood money in criminal law also comes from pre-Islamic tribal customs. Id.
196
Id. at 26.
197
Id. at 27-28. Therefore, there area some areas of law where Islamic law takes the dominant role and
others where responsibility is either shared or handled by the government. Id. at 28.
198
Id. at 29. For a further discussion on the impact of the Basic Law on human rights see infra Part
II.C.
199
Esmaeili, supra note 2, at 29.
200
Id. at 30. There is a strong opposition from the ulama who see anything like legislation being unIslamic. Id. at 31.
201
Id. at 31. The King also has substantial influence over areas of procedure. Id.
202
Id.
190
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One area where there has been a shift away from the traditional tribal system is in the
court structure.203 The courts are governed by the Law of Judiciary.204 There are several
traditional courts as well as courts to deal with special issues like administrative and
commercial law.205 All the courts follow the Hanbali interpretation of Shari’ah law.206
Judicial appointments and court procedure are more closely linked to a civil law system where
many in the legal profession have studied.207 The introduction of the legal profession is
relatively recent and an area that is still developing.208 Although the system has slightly
modernized, it still retains close connections to the tribal system and Shari’ah law. The legal
system has also made little development in the area of human rights law.209
II. ISLAMIC HUMAN RIGHTS LAW
A. GENERAL ISLAMIC HUMAN RIGHTS
There are many assertions that Islamic law is incompatible with the international human
rights norms that have been promulgated in international law.210 For that discussion it is first
important to examine the Islamic understanding of human rights. The roots of the
international human rights system are distinctly Western.211 If often ignored any possible
conflicts with the Islamic tradition.212 However, the concept of rights is not foreign to the
Islamic tradition.213
Early Muslim legal scholars focused less on the individual and more on the collective
needs.214 Indeed all the schools of Islam agree that every person has the right to be in a family
system.215 It was through this structure that many new rights were introduced to the Arab
society through the Islamic faith.216 There are also principles in the Shari’ah that support
harmony among different groups.217
203
Id. at 32.
Id. This was passed by royal decree as well as legislation related to both criminal and civil
procedure and law practice. Id.
205
Esmaeili, supra note 2, at 32.
206
Id. at 33. It is especially followed in “core issues such as contract, family and criminal law.” Id.
The system is also more like a civil law system rather than common law. Id.
207
Id.
208
Id. at 33-34. International attention was brought to the question of legal representation after two
British nurses were tried for the murder of an Australian nurse in 1997. Id. at 34. This was the first
case where a lawyer represented defendants. Id. International interest continued after the case and the
Code of Law Practice was codified in 2001, which grants the right to have legal representation before
the courts. Id. at 35.
209
For a further discussion and examples of human rights violations in Saudi Arabia, see infra Part IV.
210
Mayer (2004), supra note 7, at 322.
211
ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS 47-8 (4th ed. 2007) [hereinafter Mayer
(2007)].
212
Id. at 49.
213
Id. at 51-52. This was a reflection of the traditional cultures of the time period. Id. at 51.
Individuals were treated as components of the larger group. Id.
214
Id. at 30.
215
Khan, supra note 5, at 103.
216
Id. at 104. Some of these changes included an end to slavery and marriage rights. Id. The Qu’ran
called for a gradual end to slavery and the incorporation of former slaves into the exiting family
system. Id. However, as a Muslim ruling class formed, the incentive to keep slavery existed and rather
than abolishing slavery, lower levels of servitude were created. Id. at 105. It provides an example of
leaders manipulating Islamic law and taking it away from its roots. Id.
217
Id. at 105.
204
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There is also an unbreakable link between rights and duties of all people.218 Duties can be
put into two different categories: haqq-al-Allah and haqq-al-Ibad.219 Haqq-al-Allah refers to
the duties of people to God, which are “to be performed for the individual and for the
collective benefit.”220 These duties can be related to the idea of public rights.221 Haqq-al-Ibad
refers to the duties a person has the community.222 A legal obligation is created and all are
considered equal in this law.223 Any Muslim rulers were to be obeyed so long as their actions
corresponded with the Shari’ah.224
It is clear that the idea of rights existed in early Islamic societies; however, many of these
traditions have been ignored by modern rulers or taken out of context.225 Colonialism also
played an important role in shifting the relation of these duties and the state.226 The Muslim
population never accepted colonial, non-Muslim laws and often resisted the
implementation.227 This led to a perception that a modern state system was incompatible with
Muslims’ core beliefs.228 When colonial rule fell, much of the Muslim elite who ruled
followed the patterns of the colonial leaders and focused only their right to rule and none of
duties owed to anyone else.229 While the system did focus on the interests of the collective,
individuals also have rights that should be fulfilled under the Shari’ah.230 These rights should
be protected by the Islamic state in accordance with the Shari’ah.
B. UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS
In 1981, Egypt, Pakistan and Saudi Arabia prepared the Universal Islamic Declaration of
Human Rights (UIDHR) to present to the United Nations Educational, Scientific and Cultural
Organization (UNESCO).231 It is modeled after the Universal Declaration of Human Rights
(UDHR), but many of the rights differ to be more in accordance with conservative Islamic
law.232 However, much of it is left largely ambiguous.233 There are some differences between
the Arabic and English translation, but the Arabic version stresses the importance of the
Shari’ah as the basis.234 Human thought cannot derogate the divine text and therefore cannot
challenge the Islamic law.235
The UIDHR does contain provisions for freedom of religion, however there are again
differences between the English and Arabic versions.236 Article 12 gives “every person the
right to express his thought and beliefs.”237 The Arabic version specifically states within the
218
Id. at 113.
Id.
220
Id. at 114.
221
Khan, supra note 5, at 114.
222
Id.
223
Id. In the example of slavery, this was an especially revolutionary idea in traditional Arabian tribal
culture. Id. Slaves were treated as having full rights under these duties equal to those of their master.
Id. Similarly under the religious duties, slaves were also treated as equal. Id. at 114-5.
224
Id. at 115-16.
225
Id. at 105.
226
Id. at 116.
227
Khan, supra at note 5, at 116.
228
Id. at 117.
229
Id.
230
Id. at 117-18.
231
Mayer (2007), supra note 44, at 30.
232
Id.
233
Id.
234
Id. at 61.
235
Id.
236
Id. at 178.
237
Universal Declaration of Islamic Human Rights, art. 12(a) (1981) [hereinafter UIDHR].
219
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limits of Shari’ah law.238 However, there are no limits placed on how Shari’ah may impact
the freedom of belief.239 Article 13 also directly provides for the right to freedom of religion:
“every person has the right to freedom of conscience and worship in accordance with his
religious beliefs.”240 The English version of this article is nearly identical to those already in
international law.241 The Arabic version states that the right to religion is subject to the
principle “you have your religion, I have mine” which comes from the Qu’ran.242 The sura
suggests the possibilities of religions existing together, but does not contain the same strong
guarantee that is found in international law.243 While the UIDHR presents some standard for
freedom of religion, the difference in the English and Arabic texts still demonstrate a
prominence of Shari’ah law over human rights.
C. CAIRO DECLARATION
One of the modern fundamental documents for the Islamic perspective on human rights is the
1990 Cairo Declaration.244 The document has received the support of the Organization of the
Islamic Conference (OIC), which is made up of many Muslim countries.245 Foreign ministers
of OIC member states met to vote on the Declaration, “asserting the existence of an Islamic
countermodel of human rights.”246 Many of the provisions are in direct contrast to other
international human rights documents.247
The document attempts to combine some provisions of both international and Islamic
law.248 As the preamble states, the OIC “wish[es] to contribute to the efforts of mankind to
assert human rights, to protect man from exploitation and persecution, and to affirm his
freedom and right to a dignified life in accordance with the Islamic Shari’ah.”249 While the
document borrows some language from the fundamental international human rights
documents, it also contain significant diversions from the otherwise established law.250
Indeed the Declaration states that the basis of document is Islamic Shari’ah and that is the
only source for further enumeration of the document.251
There are many standard human rights protections that are absent or greatly modified in
the Declaration, most notably for the discussion the right to freedom of religion.252 Article
238
Mayer (2007), supra note 44, at 178. The remainder of Article 12(a) also does not allow for
“encouraging abomination or forsaking the Islamic community.” Id. This places a limit on both
expression and belief of any religion under the rubric of Shari’ah rules. Id.
239
ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS 178-79 (4th ed. 2007).
240
UIDHR, supra note 70, at art. 13.
241
Mayer (2007), supra at note 44, at 179.
242
Id.
243
Id. It suggests the right to follow one’s own religion, however this right would only be given to
Muslims. Id. Under Shari’ah rules, Muslims would not be allowed to convert from Islam as well. Id.
244
Mayer (1994), supra note 7, at 327.
245
Id. The OIC was founded in 1973. Id. The preamble states the OIC is determined “to contribute to
international peace and security understanding and dialogue among civilizations, cultures and religions
and promote and encourage friendly relations and good neighborliness, mutual respect and
cooperation.” OIC Charter, preamble (1973). The OIC also pledges “to promote human rights and
fundamental freedoms.” Id. Saudi Arabia is a member of the OIC. Member States, OIC,
http://www.oic-oci.org/member_states.asp (last visited May 5, 2011).
246
Mayer (1994), supra note 7, at 327.
247
Id. at 327-28.
248
Id. at 328.
249
Cairo Declaration, preamble (1990).
250
Mayer (1994), supra note 7, at 328. This raises some concerns about how the two different views
can really be reconciled. Id. Some portions of the Declaration also seem to reflect more of the policy
decisions of the writers than actual legal principles.
251
Cairo Declaration, supra note 82, at arts. 24-25. However, it is worth noting that there is no
comparable document within Shari’ah law. Mayer (1994), supra note 7, at 328.
252
Mayer, supra note 7, at 329. Some other areas of different include equality for women, freedom of
the press, democratic freedoms, the prohibition of genocide and the right to security and privacy. Id.
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One provides that “all men are equal in terms of basis human dignity and basic obligations
and responsibilities, without any discrimination on the grounds of race, color, language, sex,
religious belief, political affiliation, social status or other considerations.”253 Similarly,
Article 18 also states that “everyone shall have the right to live in security for himself, his
religion, his dependents, his honour and his property.”254 However, despite the statement of
no discrimination based on religious belief, there is no other guarantee for freedom of
religion.255 It is important to note that this lack guarantee can have a negative effect on both
non-Muslims as well as minority Muslim populations in a state.256 The right to privacy is also
vague making its guarantee uncertain.257
The Declaration also makes it clear that Islam is the preferred religion: “Islam is the
religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to
exploit his poverty or ignorance in order to convert him to another religion or to atheism.”258
Therefore, proselytizing for any other religion would be in violation of the Declaration.259 No
other religion receives any protection under the Declaration. The Declaration serves only to
protect the freedom of the practice of Islam, but neglects the overall principle of freedom of
religion.
The Declaration has received some criticism from the international community because it
undercuts the basic guaranteed rights in international law.260 Once again, not only does it
limit the rights of non-Muslims but also damages the rights of Muslims.261 Actual practice
has also shown there is no consensus among the OIC member states.262 Many countries were
slow to adapt any national laws to reflect the Declaration.263 Despite the support of the
Muslim community, the Declaration seems to have limited influence on the actual practice of
human rights in those countries.
D. SAUDI ARABIA BASIC LAW
It is also necessary to discuss the legal framework of human rights in Saudi Arabian law. In
1992, Saudi Arabia passed its Basic Law, which addressed some issues of human rights in the
Cairo Declaration.264 Since Saudi law is otherwise rooted in only the Islamic sources, there
was no prior legislation that existed in the system.265 However, two petitions, one secular and
one religious, were circulated calling for the establishment of a constitutional government.266
253
Cairo Declaration, supra note 82, at art. 1.
Id. at art. 18(a).
255
Mayer (1994), supra note 7, at 333.
256
Id. at 334.
257
Id.
258
Cairo Declaration, supra note 82, at art. 10.
259
Mayer (1994), supra note 7, at 334.
260
Id. at 347. The International Commission of Jurists (ICJ) released a statement stressing the negative
effect the Declaration could have. David G. Littman, Universal Rights and “Human Rights in Islam,”
THE MYTH OF ISLAMIC TOLERANCE (Robert Spencer, ed.) 324 (2005). It stressed especially the threat
to “international consensus” and “a deliberately restrictive character in regard to certain fundamental
rights and freedoms.” Id. at 325.
261
Mayer (1994), supra note 7, at 347.
262
Id. at 349.
263
Id. at 349-50.
264
Id. at 350.
265
Id. at 351. There was also fear in the monarchy that creating something close to a constitution
would threaten the royal family. Id.
266
Id. at 352. In 1990 the liberal secular group sought the creation of a Basic Law, equality, and
government oversight “in an open Muslim society.” Id. They also called for reforms to the religious
police and women’s rights. Id. The religious petition sought to remove any legislation that did not
directly follow the Shari’ah and also greater government accountability and equality. Id. Neither
petition neither questioned the authority of the monarchy nor accorded with international human rights
law. Id.
254
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With some social unrest, the monarchy released the Basic law while still stressing that it did
not in any way change the allegiance to Shari’ah law.267 The Basic Law was only intended to
strengthen the current legal system and reflect the culture.268
Similar to the Cairo Declaration, the Basic Law contains no guarantees for freedom or
religion.269 Article 23 states that “the state shall protect the Islamic Creed and shall cater to
the application of Shariah.”270 The state seeks to protect Islam and to only endorse Islamic
law.271 Article 26 further adds that “the state protects human rights in accordance with
Islamic [S]hari’a.”272 Once again, the lack of religious protection also does not protect
Muslims who are not members of the Saudi majority.273
III. VIOLATIONS OF FREEDOM OF RELIGION IN SAUDI ARABIA.
As shown by the discussion of the Basic Law above, the development of human rights in the
Saudi Arabian system has been virtually non-existent. The majority of Wahhibists see any
human interpretations or creations of law as incompatible with Shari’ah.274 According to
them, rights should only be governed by Shari’ah law and traditional principles.275 The right
to freedom of religion has especially been marginalized in light of the Wahhabist treatment of
“infidels.”276 The state-sanctioned religion allows no other religion to practice, including
other sects of Islam.277 This section will discuss some specific examples of the persecution of
religious minorities in Saudi Arabia.
A. PERSECUTION OF NON-MUSLIMS
In a system based solely on Sunni Islam, there is little tolerance for non-Muslims have
freedom to worship in the Saudi state. Currently Christians make up approximately three
percent of the population.278 As non-Muslims, they are not afforded the right of citizenship in
the state and there can be no places of worship.279 Officials have argued that no other worship
sites can exist because Saudi Arabia contains the two most sacred Islamic cities.280 To
267
Mayer (1994), supra note 7, at 352-53. An ad hoc committee drafted the law under the guidance of
a member of the royal family. Id. at 353. The Basic Law still asserts that the Islamic doctrines make up
the constitution of Saudi Arabia. Id. at 354.
268
Id. at 353.
269
Id. at 357.
270
Basic Law of Saudi Arabia, art. 23 (1992) (available at http://saudinf.com/main/c541.htm)
[hereinafter Basic Law].
271
Mayer (1994), supra note 7, at 357. There is also a suggestion that this article directly endorses the
use of religious police and arrests for the violations of Islamic law. Id.
272
Basic Law, supra note 103, art. 26.
273
Mayer (1994), supra note 7, at 357.
274
Esmaeili, supra note 2, at 36-37.
275
Id. at 36.
276
Id. at 14-15.
277
Mayer (2007), supra note 44, at 163-64.
278
Saudi Christians Live Life in Secret, CATHNEWS (Apr. 8, 2011),
http://www.cathnews.com/article.aspx?aeid=25766 (last visited May 7, 2011).
279
UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, USCIRF ANNUAL REPORT
2010 - COUNTRIES OF PARTICULAR CONCERN: SAUDI ARABIA, Apr. 29, 2010, available at
http://www.unhcr.org/refworld/docid/4be2840dd.html [last visited May 8, 2011] [hereinafter USCIRF
2010].
280
Id.
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support their stance, the government has used the hadith from the Prophet, which states that
only Islam may exist in Saudi Arabia.281
Saudi officials have continued to stress that non-Muslims are free to worship in private,
however there is no definition of what that means.282 Despite this statement, there are still
reports of religious police and security officers entering private homes to stop private
services.283 It also important to note that in public life, non-Muslims must observe all Muslim
practices and can show no outward sign of their own faith.284 The textbooks used in schools
also vilify non-Muslims and some even encourage violence against other religions.285
Most of the Christians in Saudi Arabia are migrant workers.286 In their compounds some
limited worship is permitted but they can still be subject to interruption for many different
reasons.287 Services have reportedly been interrupted for being “too loud, ha[ving] too many
people in attendance, or occur[ring] too often in the same place.”288 The Saudi government
also does not recognize other religious leaders nor permit them to perform services.289 In
2000, an Eritrean pastor was forced to flee the country to escape imprisonment.290 He had
been holding underground church services for 10 years and the government had already made
several attempts to deport him.291 There are other reports of individual worshippers being
arrested and released after a few days of detainment.292
In 2010 it seemed the government was making some improvements in the treatment of
non-Muslims.293 The government had made statements that it was working to improve the
treatment of non-Muslims and was working with the Vatican.294 However, these reforms
seem to have been limited. In October 2010, Filipino migrant workers were charged with
proselytizing for attending a private Catholic mass.295 The Roman Catholic Pope also
directed an October 2010 sermon towards religious peace in the Middle East.296 There are
reports in 2011 of the religious police still arresting Christians and also pressuring nonMuslims to convert to Islam.297 While the King and top government officials continue to
281
Id. This argument is intended to cover the entire Arabian Peninsula, however, it is noteworthy that
Qatar allows non-Muslims to worship in public. Id. Saudi officials have compared the building of nonMuslim places of worship in Saudi Arabia to building a mosque in the Vatican. Id.
282
Id.
283
Id. There are also reports of continued surveillance of non-Muslims that is also not permitted. Id.
284
Living in Secret in Saudi Arabia, ZENIT (Apr. 4, 2011), http://www.zenit.org/article32222?l=english (last visited May 7, 2011). When entering the country non-Muslims must also swear
that they will abide by all the rules of Islam. Id. Security officers are known to confiscate any religious
materials from those entering the country despite the fact that those items could be used in private. Id.
285
UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, USCIRF ANNUAL REPORT
2011 - COUNTRIES OF PARTICULAR CONCERN: SAUDI ARABIA, Apr. 28 2011, available at
http://www.unhcr.org/refworld/docid/4dbe90c0c.html [last visited May 8. 2011] [hereinafter USCIRF
2011].
286
USCIRF, supra note 112.
287
Id.
288
Id.
289
Id.
290
Id.
291
Id.
292
USCIRF 2010, supra note 112.
293
Id.
294
Id.
295
Raissa Kasolowsky, Christians in Arab Gulf Face Hurdles to Worship, REUTERS (Oct. 8, 2010),
http://www.reuters.com/article/2010/10/08/us-christians-gulf-idUSTRE6972O920101008 (last visited
May 7, 2011).
296
Pullella, supra note 1.
297
USCIRF 2011, supra note 118. In January 2011, two Christian men were arrested at a private
prayer service. Id. The men were physically abused and sentenced to 45 days in prison for
proselytizing though no formal charges were ever filed against them. Id.
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make statements professing a desire for greater religious tolerance, this practice has not yet
been implemented especially among the religious police.298
B. PERSECUTION OF SHI’A MUSLIMS
The Shi’a minority in Saudi Arabia has long faced discrimination in the country.299 Shi’as are
often blocked from worshipping by religious police and discriminated against in the areas of
education, justice and employment.300 Though also Muslims because they are not part of the
Sunni majority, Shi’as are treated as second-class citizens.301 There are countless instances of
Shi’as being arrested for entering mosques or attempting to observe their faith.302 Shi’as are
also not permitted to teach religion or history in school and Shi’a students have reported being
harassed by Sunni teachers.303 Frequently Shi’as are denied fair access to the court system,
not being allowed to serve as witnesses, receiving severe sentencing, or a general lack of a
fair trial.304 Additionally, there are limited Shi’a courts with limited jurisdiction.305
It is difficult to overcome the discrimination because the policy is so engrained in both the
government and the public.306 As discussed above, the discrimination stems from the
connection of Wahhabism to the state.307 The doctrine can also be found in all areas of life
from education to state institutions.308 Critics have attempted to speak out against the
oppression, but have been arrested. In 2008, Shi’a cleric Shaikh Tawfiz al-‘Amir gave a
sermon criticizing a statement that had been signed by Wahhabi clerics denouncing the
Shi’a.309 Even the government’s attempts to hold “interfaith” meetings failed to include any
Shi’a from Saudi Arabia.310
In 2009 there were several clashes in Medina between the Saudi police and Shi’as there
on pilgrimage.311 On February 20, several visited the Baqi’ cemetery to venerate certain
Islamic tombs.312 Several of the Shi’a claimed a religious police agent was filming the
women in the group and began to throw items at the agent.313 Five Shia were arrested as a
298
Id.
HRW 2009, supra note 1, at 9. Shi’as make up approximately 10 to 15 percent of the population
and are mostly found in the Eastern Province. HRW 2010, p. 40. After much political opposition in the
1980s, many fled the country, but were allowed to return in 1993 so long as they ceased political
activity. Id. At the time, the government also made guarantees for the release of political prisoners and
an end to discrimination. Id. Most of these promises were not met. Id.
300
Id.
301
Id. Religious leaders have gone so far as to declare Shia religious practices as heretical. Id.
302
Id. at 10. In 2007 an American Shia was praying in a mosque in Mecca. Id. A religious police
officer approached him, told him he was an infidel and arrested him. Id. In 2005, an elderly man was
arrested for carrying a prayer book. Id. In 2001 a Shia man was arrested after exiting the mosque of the
Prophet Muhammad, charging him with insulting the Companions. Id. The courts upheld this charge
and he was sentenced to lashes and time in prison. Id.
303
Id. at 10-11. In 2006, some students reported that a teacher called them an “unbeliever” and the
religious police arrested another after having an argument with another student. Id.
304
Id. at 11.
305
HRW 2009, supra note 1, at 12.Jurisdiction in the courts “is limited to personal status, inheritance,
and endowments cases.” Id. A 2005 royal decree places the courts of first instance under Sunni
supervision. Sunni courts would get jurisdiction in any case where one part was not a Shia. Id. In 2007
the judges attempted to protest but returned to work with no changes. Id.
306
Id.
307
Id.
308
Id.
309
Id. at 12-13. Twenty-two Sunni leaders including current and former government officials as well
as religious leaders signed the statement. Id. at 13.
310
Id. at 13.
311
HRW 2009, supra note 1, at 15.
312
Id. This is directly against Wahhabism, which considers veneration a practice of idolatry. Id.
313
Id.
299
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result, but this sparked a larger protest by the Shi’a at the cemetery the following day.314 Over
the next several days more clashes occurred with reports of police forces using batons against
the protestors.315 On February 24, the security forces blocked the entrance to the cemetery
and a Shi’a scholar was stabbed when he attempted to enter the Prophet’s mosque.316 After
meeting with Shi’a elders, the governor of Medina released the underage detainees and later
the King issued amnesty for all those that had been arrested.317
Though the situation seemed settled, it sparked a series of further demonstrations
throughout the Eastern Province.318 Security forces attempted to place a ban on communal
prayer but this was defied by Shaikh Nimr Baqir al-Nimir who gave a sermon and that only
sparked a new series of arrests.319 In response, power was shut off to the town twice and
police set up checkpoints.320 Again arrests occurred and several were held for three months
and never tried.321
In response to the continued demonstrations, the authorities attempted to close Shi’a
mosques and arrest religious leaders.322 In Khobar, several religious leaders were arrested
when they refused to sign pledges to close prayer buildings.323 There are eight specific
leaders who have been repeatedly arrested and released since 2008.324 In Ahsa’ the
government continued it attempts to close any Shi’a private religious buildings.325 They also
focused on closing any Shi’a community centers regardless if any religious services
occurred.326 Arrests continued well into 2010 and the government continues to attempt to
close all Shi’a community centers to prevent services and cultural activities.327
The discrimination of the Shi’a minority continues today in Saudi Arabia. With the
recent outbreak of protests throughout the Middle East, the government is become
increasingly concerned that the protests could spread to the Saudi Shi’as.328 On March 1,
2011, a Shi’a cleric was again arrested for given a sermon that encouraged the formation of a
constitutional monarchy.329 In April 2011, the top Saudi clerics released a fatwa condemning
314
Id. at 16.
Id. There were also claims that children had been injured. Id.
316
Id. It is unclear who stabbed the cleric, but it is believed to be a citizen and not a member of the
security force. Id.
317
HRW 2009, supra note 1, at 16.
318
Id. at 19.
319
Id. The sermon called upon Shia to secede from Saudi Arabia. Id.
320
Id.
321
Id. at 19-20. There were 22 reported to be arrested. Id. at 19. Of those 22, 18 were released after
three months and it is unknown what happened to the other four. Id. at 20. There were also eight who
were minors. Id. at 20. Shia leaders were unsure if any had actually been tried or charged with any
crimes. Id.
322
Id. at 22.
323
HRW 2009, supra note 1, at 22. In 2008, the government had successfully closed three prayer
buildings though they were later reopened. Id.
324
Id. at 22-23.
325
Id. at 23. In this town, the authorities have been attempted to close Shia centers and arrest leaders
for several years. Id.
326
Id.
327
Human Rights Watch 2010, p. 41. HUMAN RIGHTS WATCH, LOSER REIN, UNCERTAIN GAIN: HUMAN
RIGHTS ASSESSMENT OF FIVE YEARS OF KING ABDULLAH’S REFORMS IN SAUDI ARABIA 41 (2010).
328
See generally Saudi Arabia-Politics, Military, GLOBALSECURITY.ORG,
http://www.globalsecurity.org/military/world/gulf/sa-politics.htm (last visited May 6, 2011); see also
Oman Riots Increase Fears for Saudi Arabia, UNITED PRESS INTERNATIONAL (Mar. 1, 2011),
http://www.upi.com/Top_News/Special/2011/03/01/Oman-riots-increase-fears-for-Saudi-Arabia/UPI27381299007449/ (last visited May 6, 2011).
329
Arrest of a Shiite Cleric Could Be the Spark That Ignites Saudi Arabia, BUSINESS INSIDER (Mar. 1,
2011), http://www.businessinsider.com/saudi-arabia-arrest-turmoil-cleric-2011-3 (last visited May 6,
2011). The arrest is thought to be a pre-emptive attempt to prevent a large protest movement to spread.
Id.
315
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mass protests, citing a hadith from the Prophet.330 It is uncertain if the wider protests will
spread to Saudi Arabia, which is also facing a change in the monarchy power.331
V. ANALYSIS
The argument has frequently been made that Islamic law cannot reconcile with Western
conceptions of human rights. However, looking at the history of Muslim rights and duties,
there are many similarities to modern Western human rights. These similarities demonstrate
that current leaders in Saudi Arabia and perhaps other Islamic countries have construed
Islamic principles to fit political ends and to justify their behavior. Additionally, the position
of Saudi Arabia within the United Nations (UN) and the international community requires the
state to meet the obligations of the community. Saudi Arabia serves as a member of the
Human Rights Council (HRC), the monitoring body for human rights in the UN system. It has
also signed international treaties that impose obligations on the country. Saudi Arabia’s abuse
of religious freedom violates both its obligations in the international community and the some
fundamental principles of Islam.
A. PRINCIPLES OF ISLAMIC HUMAN RIGHTS
As legal philosophies, there are differences between Islamic jurists and Western jurists.332
However, despite the differences in background, some similarities emerge that show
fundamental beliefs are shared by both.333 During the time of Muhammad, there are many
examples of modern human rights principles in the agreements between different tribes.
The Medina Charter (Charter) was written in 622 by the prophet Muhammad.334
Interestingly, many Muslim principles were not incorporated in the Charter, rather it focused
on settling disputes between the warring clans in the area.335 The principles in the Charter
serve as an example for future states by demonstrating the ability of different people and
religions to coexist.336 Though the Charter contained no direct passages of the Qu’ran, the
Qu’ran was the guiding force.337 It is “the legal philosophy of the socioeconomic and political
system run by the Muslims.”338 The system was designed for the benefits of everyone
regardless of their religious belief.339
One principle in the Charter was the protection for the integrity of Medina.340 Everyone
was expected to protect the community no matter clan or religious identity.341 The document
330
Irfan al-Alawi, Saudi Arabia’s Anti-Protest Fatwa Is Transparent, GUARDIAN (Apr. 1, 2011),
http://www.guardian.co.uk/commentisfree/belief/2011/apr/01/saudi-arabia-anti-protest-fatwa (last
visited May 7, 2011). The fatwa also stresses the continued unification of the Saudi state and
condemns polytheism. Id.
331
Key Political Risks to Watch in Saudi Arabia, REUTERS (May 3, 2011),
http://www.reuters.com/article/2011/05/03/saudi-risks-idUSRISKSA20110503 (last visited May 6,
2011). Many of the leaders of the monarchy are elderly and also in poor health. Id. It is unclear how
the accession will be decided, but the monarchy will likely go to a member of a younger generation
than the current senior officials. Id.
332
Mayer (2007), supra note 44, at 51.
333
Id. at 52.
334
Khan, supra note 5, at 146. The Prophet and many new Muslims had emigrated to Medina. Id. at
147. At this time the Muslim identity started to form and people began to leave their old clan and tribal
identities. Id. The document is the first constitution to have been formed. Id. at 148.
335
Id. at 148.
336
Id. at 149.
337
Id. at 172-73.
338
Id. at 174.
339
Id.
340
Khan, supra note 44, at 149.
341
Id. at 150.
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promoted the collective responsibility of the entire community.342 The example also extends
to some provisions that can be found in international human rights law. The same principle
can be found reflected in the International Covenant for Civil and Political Rights [ICCPR] in
Article 12 that deals with the right to freedom of religion.343 While the first section grants the
freedom of religion, the third section places a limit on the protection in the interest of national
security.344 In the context of the ICCPR, the paragraph is a specific limitation that may be
used by the government, but it also reflects the idea of protecting the collective interests. If
the community is not protected, individuals cannot be protected.
Another principle found in the Charter was the respect for other religions, which is
demonstrated by the treatment of Jewish clans in Medina.345 Medina was home to several
major Jewish tribes who accepted the Prophet’s role as a mediator.346 The agreements with
the tribes provided that all religious issues would be kept separate, but Jews and Muslims
would be a community in all matters.347 This was reinforced by the message of the Qu’ran. It
contained many passages that allowed Muslims to have an open relationship with other
religions.348 Though there were some conflicts that arose between Muslims and Jews,
ultimately Jews were allowed to practice their faith freely and were never forced to adopt
Islam.349 The city of Medina provides an example for how Saudi Arabia can deal with
freedom of religion within a religious state.350 It shows that it would be reasonable for Saudi
Arabia to allow both non-Muslims and the Shi’a minority to practice their beliefs freely.
Citizens could still be held liable for all community laws just as the Jews were in Medina, but
they can also be allowed to at least practice their religion in private. Allowing freedom of
religion in Saudi Arabia is not fundamentally opposed to the principles of Islam.
B. SAUDI ARABIA’S MEMBERSHIP ON THE HRC AND STATUS IN INTERNATIONAL
AGREEMENTS
The past relationship of an Islamic state to other religious groups demonstrates that there is
nothing inherent within Islam that prevents Saudi Arabia from recognizing the religious
freedom of others. Additionally, Saudi Arabia is a member of the international community
and though there are international agreements related to human rights it has not signed, it still
has an obligation to uphold the international principles of human rights. Additionally, Saudi
Arabia has violated the provisions of international agreements it has signed.
Saudi Arabia is a member of the United Nations (UN) and is also a member of the Human
Rights Council (HRC), which oversees human rights for all UN member states.351 The HRC
is charged with “promoting universal respect for the protection of all human rights and
fundamental freedoms for all.”352 Any state may become a member to the HRC, “tak[ing]
into account the contribution of candidates to the promotion and protection of human rights
342
Id.
Int’l Covenant of Civil and Political Rights, art. 12 [hereinafter ICCPR].
344
ICCPR, art. 12, para. 3.
345
Khan, supra note 7, at 162.
346
Id. at 162-63. The population was largely made up of Arabs who had converted to Judaism. Id.
Though they did not oppose the overall message of Islam, the tribes were cautious of the Prophet’s lack
of Jewish descent. Id. at 163.
347
Id. at 163. There was no religious conflict between the Jews and Muslims. Id. at 164.
348
Id. at 164. For example, Muslims are permitted to share food with “People of the Book” and men
may marry women from the other religion. Id.
349
Id. at 167. Allegedly disputes arose between the Prophet and Jewish tribe leaders because
Muhammad was continuing to gain recognition and popularity in the area. Id. at 165.
350
Id.
351
LOUIS HENKIN ET AL., HUMAN RIGHTS 417 (2d ed., 2009). The HRC was originally called the
Human Rights Commission and was a subsidiary of another General Assembly Committee. Id.
352
G.A. Res. 60/251, ¶ 2, U.N. Doc. A/RES/60/251 (April 3, 2006).
343
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and their voluntary pledges and commitments made thereto.”353 Therefore by applying to be a
member of the HRC, Saudi Arabia has pledged to uphold human rights and it is not exempt
from upholding those rights within its borders.354 The continued violations of the rights of
religious minorities violate the obligation Saudi Arabia has made to the HRC and the
international community. If Saudi Arabia wishes to continue to participate it must take this
role seriously.
The HRC uses a universal period review procedure to evaluate human rights in UN
member states every four years.355 In the most recent review of Saudi Arabia, the HRC
recommended that Saudi Arabia work for religious freedom.356 It is important to note Saudi
Arabia did not object to this point.357 However, while this is encouraging, the lack of actual
action and continued discrimination shows Saudi Arabia has not taken its obligations
seriously.
Saudi Arabia is also party to several International Conventions, which it has violated in its
treatment of religious minorities. One treaty is the International Convention on the
Elimination of All Forms of Racial Discrimination (ICEAFRD). Its goal is to eliminate racist
doctrines and promote a community with ethnic tolerance.358 Saudi Arabia ratified the
ICEAFRD in 1997 and its only reservation was that it would implement the ICEAFRD in
accordance with Shari’ah law.359 Included in the ICEAFRD is a protection for the free
practice of religion.360 Saudi Arabia is obligated to protect the free practice of religion by all
its citizens. This is clearly being violated by the arrests of Christians and Shi’a Muslims for
practicing their beliefs. One could also argue that there has been ethnic discrimination as
many of the Christians are migrant workers. The Shi’as also represent a distinct culture and
Saudi religious police have shut down their cultural centers.
Another convention signed by Saudi Arabia is the Convention on the Rights of the Child
(CRC).361 This treaty again contains provisions for the protection of freedom of religion.362
States have a duty to protect a child from discrimination for their belief or opinions.363 The
arrests of children at religious protests have clearly violated their ability to freely practice
their religion.364 Article 14 additionally reaffirms the rights of children to practice their
religion.365 Again, Saudi Arabia has ratified this treaty and has made a commitment to uphold
its principles.
As a member of the international community, Saudi Arabia has a duty to respect human rights
and meet the obligations it has made. As a member of the HRC, Saudi Arabia must serve as
an example to other states for how human rights and specifically religious freedom should be
353
Id. at ¶ 8.
Membership of the Human Rights Council, UNHRC,
http://www2.ohchr.org/english/bodies/hrcouncil/membership.htm (last visited May 10, 2011); see also
G.A. Res. 60/251, ¶ 9, U.N. Doc. A/RES/60/251 (April 3, 2006).
355
Henkin, supra note 184, at 438.
356
Human Rights Council, Universal Periodic Review: Saudi Arabia, ¶ 87(11) U.N. Doc.
A/HRC/11/23 (Mar. 4, 2009) [hereinafter Saudi Arabia Report].
357
Id. at ¶ 88.
358
Int’l. Convention on the Elimination of All Forms of Racial Discrimination, preamble (1969)
[hereinafter ICEAFRD].
359
Int’l Convention on the Elimination of All Forms of Racial Discrimination, UNITED NATIONS
TREATY COLLECTION (May 8, 2011),
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV2&chapter=4&lang=en#EndDec (last visited May 11, 2011). Saudi Arabia also made a reservation to
not be bound by the International Court of Justice. Id.
360
ICEAFRD, supra note 191, at art. 5, para. d(vii).
361
Convention on the Rights of the Child, UNITED NATIONS TREATY COLLECTION (May 8, 2011),
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en
(last visited May 10, 2011). Saudi Arabia ratified the CRC with no reservations. Id.
362
Convention on the Rights of the Child, art. 2 (1990) [hereinafter CRC].
363
Id.
364
See supra Part III.
365
CRC, supra note 195, at art. 14.
354
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protected. Having ratified international conventions, Saudi Arabia is also bound to uphold
those agreements and subject to the monitoring of those treaties governing bodies. The current
discrimination and abuse of religious minorities in Saudi Arabia continues to violate all its
international obligations.
V. CONCLUSION
Saudi Arabia has consistently violated the principles of freedom of religion present in both
Islamic law and international human rights law. Despite claims that the government is
committed to evolving, little action has been taken. With unrest in the Middle East and a
changing religion, perhaps Saudi Arabia’s continued repression of religious minorities is born
out of fear, fear of losing power and fear losing important religious principles. However, even
with these concerns, the Saudi government has no excuse for violating the early roots of Islam
and Islamic practices that clearly respected the differences between people and the protection
of people to worship freely. Continued use of force by the religious police also violates the
laws of the international community of which Saudi Arabia is a partner. Saudi Arabia is not
alone in its human rights obligations and the international community also has a duty to hold a
state accountable for its violations. The government of Saudi Arabia must change its policies
of religious tolerance and respect the human rights of its citizens.
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B OOK R EVIEW
BY KARLA SIMON
It gives me great pleasure to review Hubert Picarda’s LAW AND PRACTICE RELATING
th
TO CHARITIES 4 Edition (Butterworth’s 2010). This is a masterful book written by a
real master of the subject matter. Hubert Picarda, Q.C. is probably England’s bestknown charity lawyer, and has been called “the doyen of charity lawyers.” His book
is everything a lawyer looking to inform herself about the subject matter needs to
have on her bookshelf. And it is written in a style that makes it accessible to a relative
newcomer to the field.
This 4th edition includes all new developments on the taxation of charities, extensive
citation to and analysis of case law, statutory developments, and Charity Commission
reports, since the last edition. Having a new edition that looks at the historical
development of the 2006 Charities Act, with its first ever statutory definition of
charity for England and Wales, as well as subsequent Charity Commission advice and
practice is extremely important for anyone seeking to stay up-to-date on charity law
developments. The book includes discussions of
• the new categories of charitable purposes
• explanation of the new Charity Tribunal and Charitable Corporations (CIOs)
• details of the new procedure for Charity Tribunal appeals, reviews and
references
• discussion of the new accounting procedures and the significant revisions to
the taxation position of charities, and
• details of all the changes to the registration requirements for charities and the
revised constitution and workings of the Charity Commission.
In researching the 4th edition Mr. Picarda enlisted Debra Morris, whom he calls a
“conspicuous academic in the field of charities,” to assist him with certain aspects of
the updating, including discussion of the new legal form of community interest
companies (CICs) and various aspects of taxation, praising her for the “sterling
worth” of her contributions. Debra is Reader in Charity Law & Policy, and Director
of the Charity Law Unit at the University of Liverpool School of Law. He was also
assisted by Philippa Booth of the Buzzcott Accounting charity team for the chapter on
VAT.
In its 60 chapters the book also provides an invaluable source of practical advice on
the registration of new charities in England and Wales, appeals and fundraising,
administration, jurisdiction, court proceedings, trading, taxation and rating. It
considers the duties of charitable trustees and the updating of charitable trusts. One of
the things this reviewer likes about the book is its use of comparative materials, in
particular from Australia, Canada, New Zealand and the Republic of Ireland. Some
discussion of legislation in Singapore and the United States is also present. Chapter 60
analyzes developments in Europe, including the European association and foundation
statutes, and how these may affect English charities looking to operate in Europe.
Another helpful aspect of the book is the inclusion of 4 appendices with former and
current charity legislation and regulations regarding the new charity tribunal. The
July/October, 2011
International Journal of Civil Society Law Vol. IX,
Issue III
inclusion of these will greatly assist the researchers using it as a guide, because it
means that one does not have to look for the source materials – they are right there.
Thoroughly revised and updated, the 4th edition of Hubert Picarda’s LAW AND
PRACTICE RELATING TO CHARITIES is worth every penny of its £ 325 purchase price! I
very much look forward to reading the first supplement, which is due out in January
2012.