International Human Rights and Islamic Law

This volume is a comprehensive and authoritative comparative analysis which asks whether Muslim States can comply with international human rights law whilst adhering to Islamic law. The traditional arguments on this subject are examined and responded to from both international human rights and Islamic legal perspectives. Through this analysis, it offers a clear vision of the realisation of international human rights within the application of Islamic law.

Dr. Mashood A. Baderin is Lecturer in Law at the Faculty of Law of the University of the West of England, Bristol.

Tables of Cases

xvii

Tables of Treaties and Declarations

xix

CHAPTER 1: INTRODUCTION

1

(9)

CHAPTER 2: HUMAN RIGHTS AND ISLAMIC LAW

10

(38)

2.1 Breaking traditional barriers

10

(3)

2.2 Islamic responses in international human rights discourse

13

(3)

2.3 What are human rights?

16

(16)

2.3.1 Emergence of the international human rights regime

17

(4)

2.3.2 Categorization of human rights

21

(2)

2.3.3 Universalism in international human rights law

23

(3)

2.3.4 The paradox of universalism and cultural relativism

26

(3)

2.3.5 Relevance of Islamic law to universalism in international human rights law

29

(3)

2.4 What is Islamic law?

32

(12)

2.4.1 Nature of Islamic law

33

(1)

2.4.2 Sources of Islamic law-(Shari'ah)

34

(3)

2.4.3 Methods of Islamic law-(Figh)

37

(2)

2.4.4 Spiritual and temporal aspects of Islamic law

39

(1)

2.4.5 Scope and purpose of Islamic law

40

(2)

2.4.6 Promotion of human welfare and prevention of harm (Maslahah)

42

(2)

2.5 The justificatory principle

44

(4)

CHAPTER 3: THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) IN THE LIGHT OF ISLAMIC LAW

48

(121)

3.1 Introduction

48

(1)

3.2 The rights guaranteed under the ICCPR

49

(1)

3.3 The object and purpose of the ICCPR

50

(1)

3.4 Obligations of States Parties under the ICCPR Article 2

51

(3)

3.5 The right of self-determination-Article 1

54

(4)

3.6 Equality of rights between men and women Article 3

58

(8)

3.7 The right to life Article 6

66

(9)

3.8 Prohibition of torture or cruel, inhuman or degrading treatment or punishment Article 7

75

(10)

3.8.1 Islamic criminal punishments and international human rights law

78

(7)

3.9 Freedom from slavery, servitude and forced labour Article 8

85

(3)

3.10 The right to liberty and security of person Article 9

88

(2)

3.11 The right to a humane incarceration system Article 10

90

(2)

3.12 Freedom from imprisonment for contractual obligation Article 11

92

(1)

3.13 The right to freedom of movement and choice of residence Article 12

93

(3)

3.14 Freedom of aliens from arbitrary expulsion Article 13

96

(1)

3.15 The right to fair hearing and due process of law Article 14

97

(14)

3.15.1 Equality of parties before the courts

99

(4)

3.15.2 Right to be presumed innocent until proved guilty

103

(1)

3.15.3 Accused person's minimum guarantees

104

(5)

3.15.4 Rights of juveniles in criminal proceedings

109

(1)

3.15.5 Right of appeal to higher tribunal

109

(1)

3.15.6 Right to compensation for wrongful conviction

109

(1)

3.15.7 The rule against double jeopardy

110

(1)

3.16 Freedom from retroactive criminal law Article 15

111

(2)

3.17 The right to recognition as a person before the law Article 16

113

(1)

3.18 The right to privacy Article 17

114

(4)

3.19 The right to freedom of thought, conscience and religion Article 18

118

(7)

3.19.1 The question of apostasy under Islamic law

123

(2)

3.20 The right to freedom of opinion and expression Article 19

125

(5)

3.21 The prohibition of propaganda for war and incitement to hatred Article 20

130

(1)

3.22 The right of peaceful assembly Article 21

131

(1)

3.23 The right to freedom of association Article 22

131

(2)

3.24 The right to marry and found a family Article 23

133

(20)

3.24.1 Polygamy in Islamic law and equality of rights in marriage

138

(6)

3.24.2 Female endogamy in Islamic law and equality of rights as to marriage

144

(2)

3.24.3 Female's share in Islamic inheritance and equality of rights in marriage

146

(3)

3.24.4 Dissolution of marriage in Islamic law and equality rights of women

149

(4)

3.25 The rights of the child Article 24

153

(3)

3.26 Political rights Article 25

156

(6)

3.27 The right to equality before the law Article 26

162

(2)

3.28 The rights of ethnic, religious or linguistic minorities Article 27

164

(3)

3.29 Concluding remarks

167

(2)

CHAPTER 4: THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ICESCR) IN THE LIGHT OF ISLAMIC LAW

169

(50)

4.1 Introduction

169

(1)

4.2 Importance of economic, social, and cultural rights

170

(1)

4.3 The rights 'recognized' under the ICESCR

171

(1)

4.4 The object and purpose of the ICESCR

171

(1)

4.5 Obligations of States Parties under the ICESCR Article 2

172

(4)

4.6 The right to work Article 6

176

(6)

4.6.1 Women and the right to work under Islamic law

179

(3)

4.7 The right to just and favourable conditions of work Article 7

182

(3)

4.8 Trade union rights Article 8

185

(3)

4.9 The right to social security and social insurance Article 9

188

(4)

4.10 Family rights Article 10

192

(7)

4.11 The right to an adequate standard of living Article 11

199

(6)

4.12 The right to highest attainable standard of physical and mental health Article 12

205

(4)

4.13 The right to education Articles 13 and 14

209

(4)

4.14 The right to cultural life and benefits of scientific progress Article 15

213

(5)

4.15 Concluding remarks

218

(1)

CHAPTER 5: CONCLUSION

219

(18)

5.1 A Complementary approach

219

(3)

5.2 Domestic means of enhancing human rights

222

(3)

5.2.1 Human rights education

222

(2)

5.2.2 Judicial training in human rights

224

(1)

5.2.3 National Human Rights Commissions

224

(1)

5.3 Regional means of enhancing human rights

225

(6)

5.3.1 The Organization of Islamic Conference (OIC) as a regional mechanism for human rights protection in the Muslim world

226

(3)

5.3.2 A binding covenant and a regional Islamic Court of 'Mazâlim' for Muslim States

229

(2)

5.4 The 'margin of appreciation' doctrine as a universal means of enhancing human rights

231

(6)

Annexe: The Cairo Declaration on Human Rights in Islam adopted by the Organization of Islamic Conference in Cairo on 5 August 1990

237

(6)

Glossary

243

(4)

Bibliography

247

(26)

Index

273

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International Human Rights and Islamic Law

Summary

Author Biography

Table of Contents

Supplemental Materials