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The Statute of the OIC Independent Permanent Human Rights Commission

Published online by Cambridge University Press:  27 February 2017

Ioana Cismas
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International Legal Documents
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International Legal Materials , Volume 50 , Issue 6 , December 2011 , pp. 1148 - 1160
Copyright
Copyright © American Society of International Law 2011

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References

End notes

* This text was reproduced and reformatted from the text available at the MediaFire website (visited Dec. 1, 2011) http://www.mediafire.com/?uyau13ga7r56d96.

1 See Organization of Islamic Cooperation, About the OIC, http://www.oic-oci.org/page_detail.asp?p_id=52; Charter of the Organization of the Islamic Conference arts. 1 & 2, Mar. 14 2008, OIC Doc. OIC-CHARTER-FINAL-miscdocah-08 (notably, Palestine is listed by the OIC as a Member State) [hereinafter Charter].

2 Charter, supra note 1, arts. 5 & 15; see also Ten-Year Programme of Action to Meet the Challenges Facing the Muslim Ummah in the 21st Century art. VIII, Third Extraordinary Session of the Islamic Summit Conference (Dec. 7-8, 2005).

3 Charter, supra note 1, art. 10.

4 Statute of the OIC Independent Permanent Human Rights Commission, Resolutions on Legal Affairs Adopted at the 38th Session of the Council of Foreign Ministers, OIC Doc. OIC/IPCHR/2010/STATUTE (June 28-30, 2011) [hereinafter Statute].

5 OIC Leader Circles Globe to Represent Voice of Muslim World, Hü rriyet Daily News (July 16, 2010), available at http://www.hurriyetdailynews.com/n.php?n=the-man-of-amillion-miles---an-interview-with-oic-secretary-general-professor-ekmeleddin-ihsanoglu-2010-07-15.

6 Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. Doc. A/CONF.157/PC/62/Add.18 (1993) [hereinafter Declaration].

7 Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study xviii (2008) (stating that the substance of sharia can take ‘‘the form of positive law or prescriptive norms and moral exhortations’’ ‘‘derived from a methodological interpretation of the Quran and the Sunnah’’).

8 Declaration, supra note 6, art. 24.

9 See Abdullahi, AhmedAn-Na’im, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives-A Preliminary Inquiry , 3 Harv. Hum. Rts. J 13, 37-44 (1990)Google Scholar; Heiner, Bielefeldt, ‘‘Western’’ Versus ‘‘Islamic’’ Human Rights Conceptions?: A Critique of Cultural Essentialism in the Discussion on Human Rights , 28 Pol. Theory 90, 105-106 (2000)Google Scholar; Eva, Brems, Human Rights: Universality and Diversity 259-267 (2001)Google Scholar; Ann, Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or Clash with a Construct , 15 Mich. J. Int’l L. 307 (1994)Google Scholar; Asifa, Quraishi, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective , 18 Mich. J. Int’l L. 287 (1996)Google Scholar; Javaid, Rehman, International Human Rights Law 367-370 (2d. ed. 2010)Google Scholar.

10 Jurisprudence and scholarship concur that a number of procedural criteria must be met for limitations on rights to be permissible under treaty law. As such, limitations must be prescribed by law, must have justified one of the specified legitimate aims (public order, public health, public morals, national security, public safety, and rights and freedoms of others), and be necessary in a democratic society. See, e.g., The Word ‘‘Laws’’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, Inter-Am. Ct. H.R. (Ser. A) No. 6, ¶ 18 (May 9, 1986); uses Media Rights Agenda and Constitutional Rights Project vs. Nigeria, Communications 105/93, 128/94, 130/94, 152/96, ACHPR, 12th Activity Report 1998-1999, Annex V, ¶¶ 65-70; U.N. SCOR, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, U.N. Doc. E/CN.4/1984/4 (1984); Mohamed Elewa Badar, Basic Principles Governing Limitations on Individual Rights and Freedoms in Human Rights Instruments, 7 Int’l J. Hum. Rts. 62 (2004).

11 Declaration, supra note 6, art. 25 (stating that ‘‘[t]he Islamic Shari’ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration’’).

12 A self-contained regime refers to, inter alia, ‘‘interrelated wholes of primary and secondary rules, sometimes also referred to as ‘systems’ or ‘subsystems’ of rules that cover some particular problem differently from the way it would be covered under general law.’’ See Int’l L. Comm’n [ILC], Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi) ¶¶ 152.1 & 152.5, U.N. Doc. A/CN.4/L.682 (Apr.13, 2006). The International Law Commission in its report on fragmentation recommends the use of the concept ‘‘special regime’’ as opposed to ‘‘selfcontained regime,’’ given that the former captures better the fact that ‘‘there is no support for the view that anywhere general law would be fully excluded.’’ The author here uses the expression ‘‘attempt at self-containedness’’ precisely because Article 25 of the Declaration challenges the applicability of any other rules in interpreting the Declaration, including the mandatory rule in Article 31(3)(c) of the Vienna Convention, infra note 13.

13 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan.27, 1980) (Article 31(3)(c) stipulates that, in interpreting a treaty, ‘‘any relevant rules of international law applicable in the relations between the parties’’ shall be taken into account); see also ILC Report, supra note 12, ¶¶ 426-427.

14 For example, Article 19(d) of the Declaration provides that ‘‘[t]here shall be no crime or punishment except as provided for in the Shari’ah.’’ See Declaration, supra note 6, art. 25. It is well known that some interpretations of sharia require as punishment the amputation of the right hand for theft and 100 lashes for adultery. See Abiad, supra note 7, at 23-24. At the same time, the prohibition against torture is a jus cogens norm and, alongside the prohibition against cruel, inhuman and degrading treatment, it is enshrined in the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which several Member States of the OIC are parties. See, e.g., Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987); International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Prosecutor v. Furundžija, Case IT-95-17/1-T, Judgement, ¶ 156 (Int’l Crim. Trib. for the Former Yugoslavia Dec.10, 1998). However, Article 25 of the Declaration requires as sole reference the sharia law for interpreting Article 19(d), thus seemingly excluding the international standards related to the prohibition against torture and other cruel, inhuman and degrading treatment.

15 Org. of the Islamic Conf. [OIC], Covenant of the Rights of the Child in Islam, OIC Doc. OIC/9-IGGE/HRI/2004/Rep.Final (June 2005), available at http://www.en.iranoic.ir/LinkClick.-aspx?fileticket=9avItk0TLdo%3D&tabid=373[hereinafter Covenant].

16 In the context of the African Charter on Human and Peoples’ Rights, Richard Gittleman defines clawback clauses as those ‘‘that entitle a State to restrict the granted rights to the extent permitted by domestic law’’ and observes that these clauses render the protection of rights ‘‘substantively questionable.’’ See Richard Gittleman, The African Charter on Human and Peoples’ Rights: A Legal Analysis, 22 Va. J. Int’l L. 667, 691 (1981). See also Report of the Commission to the General Assembly on the Work of its Fifty-second Session, [2000] Y.B. Int’l L. Comm’n 165, U.N. Doc. A/CN.4/SER.A/2000.

17 Yuval, Shany, Toward a General Margin of Appreciation Doctrine in International Law? , 16 Eur. J. Int’l L. 907, at 909-910 (2005)Google Scholar (identifying two principle elements characterizing the margin of appreciation doctrine: judicial deference (i.e., international courts grant a certain, but not total, degree of deference to national authorities acknowledging their discretion on the manner they choose to execute their international law obligations) and normative flexibility (i.e., states can lawfully reach different decision on the application of an international norm given that rule at stake is open-ended or unsettled)). For a critique of the doctrine, see Eyal, Benvenisti, Margin of Appreciation, Consensus, and Universal Standards , 31 N.Y.U. J. Int’l L. & Pol . 843 (1998)Google Scholar.

18 Anver M., Emon, Conceiving Islamic Law in a Pluralist Society: History, Politics and Multicultural Jurisprudence , Sing. J. Legal Stud . 331, 355 (2006)Google Scholar; Barbara Gartner, Der religionsrechtliche Status islamischer und islamistischer Gemeinschaften (2011).

19 Abiad, supra note 7, 5-19 (identifying states where sharia is not a source of legislation (e.g., Turkey), states where Islamic law is an important but not exclusive source (e.g., Egypt, Yemen, Libya, Malaysia, and Morocco), and finally those where sharia is the only source of law (e.g., Iran, Pakistan, and Saudi Arabia)).

20 Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law 11-33 (1990). See also Abiad, supra note 7, at 119-122 (noting the potential and importance of implementing legislative reforms within the framework of sharia and promoting those interpretations that further human rights).

21 Muhammad, Khalid Masud, Brinkley, Messick & David S., Powers, Muftis, Fatwas, and Islamic Legal Interpretation, in Islamic Legal Interpretation, Muftis and their Fatwas (Muhammad Khalid Masud et al. eds., 1996)Google Scholar (arguing that sharia is ‘‘continuously adjusted to changing circumstances’’).

22 See Statement by Bacre Waly Ndiaye, Dir. Human Rights Council and Treaties Division, Office of the United Nations High Commissioner for Human Rights to the 38th Session of the Council of Foreign Ministers, Organization of Islamic Conference (June 28-30, 2011).

23 Statute, supra note 4, arts. 9, 10, 13, 14 & 16.

24 For the mandate of the Inter-American Commission on Human Rights, see American Convention on Human Rights ch. VII, Nov. 21, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 99 (1978) (entered into force July 18, 1978); for the mandate of the African Commission on Human and Peoples’ Rights, see African Charter on Human and Peoples’ Rights pt II, June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982); for the mandate of the Human Rights Committee, see ICCPR, supra note 14, pt IV.

25 This composite objective is very interesting. First, it should be recalled that for a state to become a member of the OIC, it must have a Muslim majority population. Aminority Muslim population, to which Article 10 of the Statute refers, would thus belong to a non-OIC Member State. As a result, the Commission is entrusted with an ex parte task of monitoring the obligations (towards Muslim minorities) in states which are not party to the OIC. Second, it can be argued that a Muslim state is made up of Muslim communities; thus the Commission would be tasked to monitor the obligations of the OIC Member States in relation to these communities. However, the notion of ‘‘Muslim communities and minorities’’ is often used in resolutions of the OIC Council of Foreign Ministers as communities in non-OIC Member States. See, e.g., Resolutions on Communities and Minorities in Non-OIC Member States, 37th Session of the Council of Foreign Ministers, OIC Doc. OIC/CFM-37/2010/MM/RES/FINAL (May 18-20, 2010).

26 The relation between the Commission and the OIC Council of Foreign Ministers could be said to mirror, albeit imperfectly, the relationship between the Human Rights Council Advisory Committee and the U.N. Human Rights Council. However, the functions attributed to the Commission surpass considerably those of the Advisory Committee. For example, the Advisory Committee lacks the right to choose the studies it undertakes, and it requires a precise mandate by the U.N. Human Rights Council. Moreover, the U.N. Human Rights Council Advisory Committee cannot offer consultancy directly to states. See Human Rights Council Res. 5/1, Rep. of the Human Rights Council, 5th Sess., June 11-18, 2007, U.N. GAOR, 62d Sess., Supp. No. 53, A/62/53 (June 18, 2007).

27 Statute, supra note 4, arts. 14 & 17.

28 The Commission could use as model the working methods of the U.N. Special Procedures; see Manual of Operations of the Special Procedures of the Human Rights Council (Aug. 2008), available at http://www2.ohchr.org/english/bodies/chr/special/index.htm.

29 Statute, supra note 4, arts. 3–7 & 18–24.

30 Id. art. 3.

31 Id. arts. 18 & 20.

32 Id. arts. 6 & 7.

33 Id. art. 21. Article 15 also restricts the support from the Commission only to ‘‘Member State-accredited national institutions and civil society organizations active in the area of human rights.’’ See also Human Rights Defenders Call for Inclusion in OIC Human Rights Body, Mazlumder (June 22, 2011), available at http://www.mazlumder.org/ing/haber_detay.asp?haberID=177.