Andrey Shcherbovich
Leonid Issaev
Euro-Arab human rights issues in context of Mediterranean integration
Mediterranean integration represents different problems of interpretation of human
rights problems. Due to existence of different legal and political systems on north
and south shores of Mediterranean sea, we can consider that human rights issues,
prescribed in legal instruments of European Union and Arab League, totally differs
with each other. This could make some inconveniences in mutual understanding
and cooperation between European and Arab nations.
Universal Declaration of Human Rights of 1948, followed by International
Covenant of Civil and Political Rights and International Covenant of Economic,
Social and Cultural Rights are not unique instruments, where all possible human
rights were prescribed. Those respectful international instruments set a standard for
human rights for all nations in the world. This standard provides human beings
with normal conditions of life, where life, freedom and human sovereignty and
safe living could be possible for all people inhabiting Earth, without regards to
nation, religion, and other cultural and political conditions of the national states.
Otherwise, the Universal Declaration of Human Rights and related documents,
which is not based of any concept of human rights but drafted as universal example
of the implementation of human rights according to different approaches of
cultural, political, religious nature. We couldn’t say that United Nations documents
can reflect only the Western concept of values. The United Nations is not one state
or group of states. Speaking in philosophic categories, the UN accumulated
collective will of humanity. According to this, outcome will be simple.
United Nations human rights instruments is not a mechanism of the Western world,
but the guarantee of covering of these framework documents, which UN member
states agreed to complete. Documents of the UN (especially the Universal
declaration of Human rights. ere developed and signed by absolute majority of
member states of the Organization). This means that this doctrine of universalism
of the human rights is a framework, which could be realized differently in different
regions and cultures.
Detailed prescriptions of human rights guaranteed by the government, together
with international mechanisms of their protection, are prescribed in regional human
rights instruments. Those instruments could not minimize which is prescribed in
the Universal declaration of human rights (as a duty of UN member states adopted
a declaration). They could adjust and concretize human rights according to national
and cultural conditions of regions.
So, European Union human rights charter1 is based on European values, based on
civilization. Basic features of them are Christian values and heritage of ancient
legal tradition, strict accent on personal freedom. According to the Roman lawyers
natural law is an integral part of existing law and the embodiment of its equity.
Law is defined by the Roman jurist Ulpian "Jus est ars boni et aequi" which means
that “The essence of law is art of good and justice”, which could fully convey the
fundamental nature of natural law. This treatment was part of the Roman legal
doctrine (legal rights), which was one of the sources of Roman positive law.
Just as the Roman law, as reflected in the latest legal systems, natural law doctrine
has also formalized in the monuments of the right of later periods, for example, in
the French Declaration, inter alia, states that “People are born free and equal in
rights ... the goal of each of the state union is to ensure the natural and inalienable
human rights. These are liberty, property, security and resistance to oppression.”2
European human rights charter represents new era of development of European
human rights policy, which runs long forward not only Universal Declaration of
Human Rights, but also the Convention for the Protection of Human Rights and
Fundamental Freedoms (Rome, 1950).
This Charter provides very high standards of social rights: integrity rights, rights of
elderly people, people with physical and mental disabilities (which include their
1
See Charter of Fundamental Rights of European Union. Strasbourg, 2007.
See The Declaration of the rights of man and the citizen. France, August 26, 1789.
http://www.hrcr.org/docs/frenchdec.html
2
integration into society of people), high healthcare, environmental and social
protection standards. Economic rights is developed by right to conduct business,
wide set of labor rights including rights for collective bargaining fair conditions of
labor, as well as prohibition of all forms of forced labor. Political rights also
developed by freedom of expression, pluralism of media, access of media and
information. Also, basic point is non-discrimination of all the national, religious,
and social bases.
Also, the Charter enacts procedural guarantees of human rights protection. First of
all, there are institution of European ombudsman, rights of effective remedies and
fair trial. But besides Convention for the Protection of Human Rights and
Fundamental Freedoms, this mechanism requires enactment of instruments of
detailed regulation of their activities. Also, stressing on material side of human
rights standards, procedurally the Charter relies upon existing European structures
dealing with human rights protection.
It seems to be that basic goal of the European Charter of human rights is not simple
protection of some prescribes set of human rights, but also right for living in a high
standard of human development
Rule of Law is a basic principle of European human rights standars. By definition
of Erik Jensen, professor at Stanford University, this is a situation where the right,
firstly, is widely known, and secondly, clearly understood by all, and thirdly, the
same applies to all. This definition, in our opinion, on the one hand, the most
common and thus universal. It is in the context of the Rule of Law must be
interpreted modern approach to the natural and inalienable human rights and
freedoms, because it creates the necessary conditions for its application3.
In this case, the natural right to be, in our view, act as a source of positive law in
any form, whether law enforcement act, legal practice or precedent. Guarantee will
be an understanding that natural law is indeed a category of human freedom and
formal equality of men in society.
See Erik G. Jensen, “The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional
Patterns and Reformers’ Responses,” pp. 336-381, in Erik G. Jensen and Thomas C. Heller, Beyond Common
Knowledge: Empirical Approaches to the Rule of Law (Stanford University Press: 2003).
3
The Arab approach to the issue of human rights is based primarily on a number of
international instruments adopted under the League of Arab States and
Organization of Islamic Conference. First Universal Islamic Declaration of Human
Rights was adopted at the International Conference ‘on the Prophet Muhammad
and his message’, in London in 1980. A year later, the Islamic Council in Paris,
was published the second Universal Islamic Declaration of Human Rights, which
represented a more advanced version in terms of future attempts of their
universalization. However, this document was not adopted by the Organization of
Islamic Conference only in format of working paper.
The first official document establishing human rights in the Arab world appeared
only in 1990 when the 19th Islamic Conference of Foreign Ministers of OIC
adopted the Cairo Declaration of Human Rights in Islam. Even for today the
declaration remains the basic document governing the implementation of human
rights in all of 22 Arab countries. However, in 2004 at the 16th Annual Summit
Arab League adopted the Arab Charter on Human Rights, which represents a more
advanced version of the Cairo Declaration.
Features of the Arab approach to human rights lies in the fact that human rights in
the context of the region are considered in close connection with Islam, the
dominant religion in the Arab world. Human rights in Islam are based on the
premise that only God is the source of all human rights, as well as that in the 8 th
century AD, with the birth of Islam, God gave to mankind an ideal code of human
rights. This code is a set of rules and regulations governing human rights,
presented in the Quran and Sunnah.
All adopted declarations on human rights in the Arab world are entirely based on
the Quran and Sunnah, and in no case could contradict them. In particular, the final
25-th article of the Cairo Declaration states that "Islamic Shariah is the only source
for reference for the explanation and clarification of any of the articles of this
Declaration"4.
First and foremost, an Islamic connotation in the Arab approach to human rights
4
Cairo Declaration of Human Rights in Islam. Session: ‘Peace, interdependence and development’. Cairo, 1990.
imposed one important feature, which is as follows. Human Rights in the Arab
world is mainly based on collective principles. This is due to the fact that, in
accordance with the Quran the Islamic Ummah is the best nation, which gave
humanity a universal and well-balanced civilization. This civilization and historic
role of the Islamic Ummah is perhaps the main barrier to the universalization of
human rights in the Mediterranean region. Moreover, in respect of fundamental
rights and freedoms of the individual differences between the Euro- and ArabMediterranean approaches to human seems to be minimal. It could be proved by
evidence of the preamble to the Arab Charter on Human Rights, which reads as
follows: “Rejecting all forms of racism and Zionism, which constitute a violation
of human rights and a threat to international peace and security, recognizing the
close link that exists between human rights and international peace and security,
reaffirming the principles of the Charter of the United Nations, the Universal
Declaration of Human Rights and the provisions of the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights, and having regard to the Cairo Declaration on Human Rights in
Islam <…>”5
So, we could present questions for further research, which arise from these
confident theses:
- Show on specific examples, how European system of human rights could be
developed in XXI century, according to transformation of ethics,
development of new technologies and other political and social processes.
- Outline issues of inter-Arab concordance in consolidated approach to human
rights issues in Arab region,
- How European and Arab systems of human rights could communicate and
cooperate with each other in the context of Mediterranean integration.
5
Arab Charter on Human Rights. Res. No. 270. Tunis, 2004.