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L'existence d'une conception des droits de l'homme propre aux états musulmanspar Peggy Hermann Faculté de Droit de Montpellier 1 - DEA de Droit International 1999 |
Titrate : the existence of a design of the humans right specific to the Moslem states DEA of international law Faculty of Law of Montpellier I Director of memory : Mr. Michel Levinet Introduction The humans right define and devote, in legal terms, the freedom of the individual. They are the fruit of a long historical advance several centuries. But the history differs according to whether it is presented by an European or non an European. Sami A. Aldeeb Abu-Sahlieh explains that, in the chapter «historical Bases and development of the humans right», written by Imre Szabo, we read that» For certain authors, the origin of the humans right goes up with Greek Antiquity ". Moslem side, it quotes Muhammad Hamad Hader who writes: «the current principles of the humans right mentioned in Islam come inevitably from Islam. In fact, nobody can deny the influence exerted by Islam on the Occident by the way of Andalusia and the Cross ones. On the other hand, the principles which do not appear in Islam are only vain and futile slogans not being of any interest for the dignity of the man»1(*). A first misunderstanding appears as for the historical origins of the humans right. Undoubtedly that each time and each civilization undoubtedly owe something with those which precede them, that the largest currents religious and ideological contributed to the development of the respect of these rights. The man always sought to regulate his relationship with the other and the bases of these rules are always prone to discussion. Some believe that are rules laid down by the man, others claim that are rules laid down by the divine will. «It is true that the humans right have as a base of the values essential, intrinsically inherent in all the men and all the cultures, it does not remain about it less than they are declined differently and raise of civilizations which have different designs forts»2(*). A second misunderstanding appears as for the bases of the humans right. The humans right, which claimed upon the departure with a universal range, without borders, mobilizing, saw appearing regional definitions, which in theory were to lie within the universal scope and to be compatible with him. Many are the problems arising in the Moslem States by the humans right conceived by the United Nations. Sami Abu Sahlieh points out that «the humans right, in the universal declaration of the humans right do not have their raison d'être in a divine command, but in my will of the General meeting of the United Nations based on considerations of general interest. It is a question of creating social living conditions on an international scale, the respect of the humans right having been considered to be as necessary so that the man is not constrained, in supreme recourse, with the revolt against tyranny and oppression.»3(*). The universality of the humans right is still fragile and it does not tend to the diffusion of a single model but to emergence in various points, of the same will to recognize these rights. It is an enrichment by the division of the cultures, it is not a unification but a harmonization of the systems of right insofar as the differences are allowed4(*). Considering what precedes, one cannot reproach the Moslem States for wanting to represent the reality of a design of the humans right, by proclaiming that these rights are based on the divine will. It is not a primarily legal debate because there are many social-cultural considerations. Nevertheless there can be risks of bursting because there is not collective memory of the humans right. Through particularisms, there can be fragmentation of the humans right; it marks the reserve with the acceptance of the universality of the humans right. But one should not neglect this evolutionary character of the process5(*). The humans right were always defined by the lack because there is a compromise between the existence of the several designs. Rather than to try to defend and prove the universality of the humans right like postulate, it is necessary to analyze the obstacles and the challenges which marked out this walk in order to better be able to surmount them. Force is to note that in a good part of the Western doctrines, Islam is regarded as a threat for the humans right. Do they testify to such a hostility because of old complexes, such those of the decolonization or a phobia which the revival of Islam causes? This work can sometimes seem critical with regard to the Moslem States; they are not criticisms of Islam as a religion, but they are directed against the oppressive and which corrupted modes against which, Islam itself rises. The framing of the knowledge which one can have of the Islamic religion can appear relatively easy, for little that one takes the trouble of an analytical minimum of rigor and objectivity suitable to move away the generally accepted ideas, or straightforwardly distort. Even if some methodological considerations, altogether rather simple, are enough «Islam is a religion, a spirituality and a worship»6(*), the term, Islam, also cover «a social and Community identity lived within a multitude of companies and groups cultural»7(*). In fact factors feed confusions; the imaginary collective of the Westerners is impregnated prejudices and images stereotyped on the Islam, of which it is difficult are submitted because their development is often well too summary. But the interest of this work is not to give an opinion on Islam as a religion, but to analyze its effects on the political and legislative organization of the Moslem States as regards humans right. This work cannot claim to completely inform the reader on the relationship between the religion and the right in the Moslem States. A difference must be established between the references to Islam and the application of the Moslem right. This work was come up against the difficulties of access to the sources written in other languages that French and English. But that does not have to prevent the reference to some Moslem authors. Moreover the width and complexity of the subject, the extent of the covered historical field, and numbers it new writings concerning with the problems in question necessitated choices which can sometimes appear arbitrary: one will be able legitimately to reproach the negligence of such or such reference, of such or such author, of such or such experiment socio-policy and history which would have been more interesting than those which were retained in this development. It thus should be become aware that this work is far from being able to account for the complexity of the debate on the existence of a design of the humans right specific to the Moslem States. In spite of these limits, this research aims at the comprehension of the general logic which ordered the various speeches of the Western and Moslem authors on the subject in question. This work wants to be more one conceptual and problematic approach, that a historical study of the humans right in the Moslem States. Such an approach is likely to confront two series of standards, those of the Moslem States on a side and that of the United Nations of the other. «The legal thought is put up badly with the plurality of the vague standards.»8(*). It was necessary to adopt an intermediate position between the opposition and the compatibility of these two series of standards, which tries to avoid a destroying speech of an impossible design of the humans right specific to the Moslem States. Nevertheless, it is noted that the Moslem States guarantee certain rights and freedoms, contradict others of them and some are unaware of some. Large projections were visible these thirty last years in the field of the humans right. The States know that they cannot ridicule indefinitely and with impunity the humans right, because they became the business of all and each one. It is on the concept of universality that and the whole of the texts, procedures and mechanisms worked out rested which, today melt the international protection of the humans right. But this protection system is fragile; it is well too much to discuss to be really effective. One cannot reproach the only Moslem States for discussing on a design of the humans right who is clean for them. «The Occident is the first to distort company with this design universalist»9(*), by the creation of regional instruments like Western Europe with the European Convention of the humans right and of fundamental freedoms signed in 1950, as well as the European social Charter signed in 1961. America acts in the same way with its inter-American Convention of the humans right signed in 1969. The Moslem States have «the feeling which the Occident imposes to them a universal declaration programmed by its lawyers.»10(*). What occurs, it is the systematic expression of a defensive strategy, which refuses what one imposes to him. As a long time as the Moslem States will not accept the universal design of the humans right, it is necessary to realize a design of the humans right who is clean for them. Essence is to lay down common, legitimate rules and to arrive at the effective respect of the humans right; this perhaps only fruit of a change social, cultural and political in-depth. By identifying the values which are clean for them, the Moslem States must adopt very an other design of the humans right. They take as objective the claim of their particularism as regards humans right (Title I). It is a question here of justifying this particularism and of wondering about the design of the humans right whom express the Moslem States. But there remains a faintness. By adhering to the universal design humans right, the Moslem States are bound by these standards. They are well too much to imply on any side to be able to give up it. Nevertheless, the dynamic Moslem States, adapt to very different environments and historical circumstances changeantes. They appeared compatible with the principal types of State and the various forms of social organization that the history produced. Once again, like often during the history, the Moslem States have to adapt to a new situation by limiting the range of the universal design of the humans right (Title II). The results (of the respect of the humans right) should be better since the Moslem States take as objective their major problem: the fight counters secularity, invention religious, which is in the middle of the political and cultural history Moslem States. It is to counter it that the Moslem States discuss existence of a design of the humans right who is clean for them. Synopsis: Titrate I: The claim of a particularism as regards the humans right by the Moslem States Chapter I/the justification of particularism Section I - The base Section II - Contents Section III - The place of the Islamic Law in the legislation of the Moslem States Chapter II/the expression of particularism Section I - The inevitable deterioration of the universal design of the humans right Section II - Contradictions in the documents Contain II: The limitation of the universal range of the humans right by the Moslem States Chapter I/a hostility of principle Section I - Development of the legal corpus of the universality of the humans right Section II - The relativisation of the legal corpus of the universality of the humans right Chapter II/a problematic acceptance Section I - The progressive acceptance of the universal design of the humans right Section II - Incidences of this acceptance TITRATE I : The claim of a particularism as regards humans right by the Moslem States The Moslem States turn to the past only to seek there a model and not a daily way of life to imitate the every day. They want to preserve the standards which have vocation with rythmer the life of the individuals and to govern the operation of the company. When, in Occident, the standards relating to the humans right are derived from British Magna Carta, the French revolution or the principles of the American Declaration of independence, in the Moslem States, they support on Coran and the actions of the Prophet; they are there the sources, the language and the vocabulary normal of the Moslem thought. It is while being based on these sources which the Moslem States even make that their particularism is cogency, legitimates, that they justify their particularism as regards humans right and express their desire to protect these supreme values. (Chapter I) But how to translate this model, these codes of conduct in the contemporary life specific to the Moslem company? The Moslem States are given to interpret the texts and the Law in a way compatible with the contemporary company. (Chapter II) Chapter I : the justification of particularism Islam is a universal whole of religious duties, the totality of the commands of God, which regulate the life of each Moslem in all the fields. The Moslem States want to preserve the standards which have vocation with rythmer the life of the individuals and to govern the operation of the company. These standards specify what is allowed and what is not it. They thus delimit the right of the individuals and their space of freedom. According to this logic the «rights of God» take precedence over the humans right. In order to justify this particularism, it is necessary to delimit its field and to guarantee its validity by studying the essential elements which are used to him as a basis (Section I), and the ideas which are expressed in these standards. (Section II) Section I : The base To try to separate the religion and the right in the Moslem States, and to leave side the religious texts is impossible. Islam recognizes a Moslem right and the legal contents itself form integral part of a system of religious rules and morals. The base even of particularism, in the Moslem States, is in the comprehension of the Islamic religion and the relation which exists between the religion, the right and the State. § 1 : The comprehension of the Islamic religion The Islamic Law is the heart and the core of Islam. It is impossible to include/understand Islam if the Islamic Law is not included/understood, as it is impossible to include/understand the Islamic Law without identifying not the texts founders of Islam.
The original equal sources, Coran and Sunna constitute the Islamic Law or Shari' with. - Coran Coran is the ultimate revelation of God, because Mahomet, is regarded as the last of the prophets, the last messenger of God. It is the fundamental source of teaching and the Islamic Laws. Coran treats beliefs, morality, history of humanity, of worship, knowledge, wisdom, relation between God and the man as well as human reports/ratios under all their aspects. A significant part is devoted to lesson of social justice, economy, of the policy, legislation, jurisprudence, right and international relations. As a whole, Coran was judged by God himself like a perfect work : « Today, I made your religion perfect. I completed my grace on you ; I counsel Islam as being your religion » (Sourate V ; Verse 3)12(*). Such is Coran, vision of the world according to the design of Mahomet, creative of a unit that neither the differences in interpretation nor ethnic diversities could break. Code social and religious life, it very envisaged, very regulated, implicitly or explicitly. These stated principles in intangible manner, are immutable and any reform which will be brought to them would constitute an innovation blâmable, i.e. a heresy. To tell the truth, it is the base of the Moslem right. Six hundred verses raise of the right itself which regulate the relationships of the individual with the company. - Sunnah It is the description of the manner of acting, the behavior of the Envoy of God indicated by the word, the action, silence. Witnesses of the life of the Prophet, the Companions were qualified to bring back its words and its gestures. They are supposed conscientiously to have observed its control. The Following endeavoured to collect, consign carefully and to communicate all that they estimated like authentic. An enormous mass of notations, thus joined together, will specify, explain and supplement Coran. The crowned texts of Islam regulate the life of each Moslem under all these aspects ; it should however be understood that the right remains the most important element in the comprehension of the Islamic religion. B Interest of the Islamic Law Two important changes intervened in the history of the Islamic Law. One was the introduction of a legal theory which was not satisfied to be unaware of, but denied the existence of the Law of all the elements which were not Islamic in a strict sense, and which limited the material sources to Coran and the example of the Prophet, Sunnah. The other which began in this end from century, is the modernistic legislation promulgated by contemporary Islamic governments, which restrict the applicability of the Islamic Law, but intervenes in the traditional form of the Law itself. 1-of a historical point of view The Islamic Law was born and developed in a political and administrative context confused of the pre-Islamic time. It appears into 610, at the same time as the first revelation of the Prophet. With died of the Prophet into 632, the period which follows is agitated. Before dying, Mohammed did not have to raise the problem of her succession. The Islamic Law had not regulated the base of the capacity after its disappearance. It is the period of the caliphs de Médine or « right caliphs » from 632 to 661 which was the Companions of the Prophet. It is only under the reign of Omeyades, the first dynasty of Islam (661-750), that the executives of a new Moslem company were create, and within this company, a new fashion of administration of justice, an Islamic jurisprudence, and the Islamic Law itself, transfer the day. Omeyades were reversed by Abassides, and those tried to make Islamic Law, which was still in formation, the only Law of the State. They will not completely manage to make coincide the theory and the practical application. The Law maintained its stability and provides the principal unit place in the divided Moslem world. The modern period, as the Westerners hear it, saw the development of two great Moslem States on the ruins of the former order : Othoman Empire of the Middle East and Mongolian Empire in India. In both, at the time of their apogee (respectively to the XVI E and the XVII E Centuries), the Islamic Law reaches its higher degree of real effectiveness. At the time of the Western political domination, the symbiosis of the Islamic Law and Western right in British India and in Algeria produced two autonomous legal systems. Finally, the influence of the Western political ideas in the Moslem States at the XXème century caused, in our century, a modernization of the legislation without precedent.
The Law was established by a rational and methodical interpretation, and the religious standards and morals which were introduced into the legal contents provided the framework of its internal cohesion. It does not lend itself easily to the technical treatments ; the modern lawyers in the majority of the contemporary Moslem States, try an amalgam of the Islamic standards and Western laic standards. The goal of the Prophet was not to create a new legal system, but to teach with the men how to act, that to make, and what it was necessary to avoid to present itself at the last Judgment, and to enter to the Paradise. This is why Islam in general, and the Islamic Law in particular, are a system of duties including/understanding of the ritual obligations, morals and legal settings on the same plan, and all subjected to the religious requirement. It was the primitive idea of Mahomet and one finds the traces in Coran of them. It is only later, at the time of the first decades of the Abbasids which the right impregnated with the religious standards and morals suitable for Islam. The fields of the religion, right and the policy can be detached with difficulty from/to each other in the Moslem States. § 2: Relations between the religion, the right and the State All the Moslem States, including those which are claimed of Shari' with, discover that the political use of the religion goes too Loin and seek ways and means to circumscribe the respective fields of the policy and the monk. Thus all the Moslem States have to be explained on the relations between the religion, the right and the State. The clarification of the concept of Moslem State has The Moslem State is one of the fundamental questions in the Moslem world. It is necessary to reconsider some traditional notions of the advent of Islam. According to Islamic sources', single God created the men in a single community (Umma). The khilâfa of the man on ground means in Arab language the establishment of one caliph in the place of the person authenticates («vicar of the messenger »). I.e. God turned into to men (Al-nâs) his caliphs on ground. The caliphate of the man on ground then takes in the Moslem doctrines two aspects : general caliphate, i.e. any man is a caliph on ground. And private caliphate, i.e. caliphate of the capacity. It is noted that the Moslem lawyers in their definition of the term «Umma» use the concept of caliphate. This community can have two directions Umma human and Islamic Umma. Umma, in its universal metaphysical dimension (Umma human) means the unit. This idea of the unicity of the human Community finds its explanation in the concept of caliphate of the Man on ground. All the prophets of Abraham with Mahomet are the prophets of a single community. I.e. all those which recognize the metaphysical Truth (the Unicity of God) are Moslems. Umma includes all the men on ground. The community is thus the place of the faith, of Islam. This community is founded on the faith in single God, Al-H13(*). It is indeed a fraternity in which all the people are equal, since they are equal in front of God and the divine Law. According to this concrete direction of Umma is a community determined by the ground, Arabia or the grounds conquered out of Arabia. All in all, are the grounds of Islam or as call them the Moslem lawyers « Dar-Al-Islam », opposed to the world of the war which refuses Islam, « Dar-el-harb ». Thus the Moslem community is that which resides on the ground subjected to Islam, the Moslem State. But the concrete existence of Umma removed the cause of the need for the State (the political organization). This State requires the capacity : caliphate or the Moslem government. In 1924, one officially put an end to the mode Caliphate which symbolized the unit of Umma. Since the end of the mode of the Caliphate, it is the multitude which prevails, in an official and daily way. Fault of being able to link itself around what is constant the message of the prophet the States try to coordinate, episodically, their efforts around political variables within the framework of an international organization : the Organization da the Islamic Conference (O.C.I) . How to define the Moslem State :
The first report is to show that the Moslem States would be members of an International Organization claiming Islam, the Organization of the Islamic Conference (O.C.I), which is founded on the following goals : - Consolidation of Islamic solidarity
The members of the O.C.I are the States founders, whose chiefs of the government or chiefs spiritual took part in summon of Reduction in 1969 following the fire of the mosque « Al-aqsa » in Jerusalem. The States whose Moslem population is higher than 20% of the population, had been invited. Thereafter, at the meetings of the Foreign Ministers held in Jerba and Karachi in 1970, about thirty States signed the project of Declaration: by alphabetical order Afghanistan, Algeria, Saudi Arabia, United Arab Emirates, Bahrain, Egypt, Guinea, Indonesia, Iran, Jordan, Kuwait, Lebanon, Libya, Malaysia, Mali, Mauritania, Morocco, Niger, Oman, Pakistan, Qatar, Somalia, Sudan, Syria, Chad, Tunisia, Turkey, and Yemen. The States not-founders were allowed pursuant to the procedure of adhesion : Iraq, Bangladesh, Cameroun, the Republic of the Comoros, Gabon, the Guinea-Bissau, Gambia, Burkina Faso, Maldives, Uganda... In July 1994, the O.C.I counted 21 Member States of which some claimed Marxism like Albania and Ouzbékistan. There are three criteria of adhesion to be member of the Organization of the Islamic Conference : The quantitative criterion : the States whose Moslem population is higher or equal to 50% of the total population of the country. But certain States were not regarded as Moslems, although they meet the condition of 50%. It was the case of Nigeria and Ethiopia. The Constitutional criterion : any State qualified like such by its Constitution is Moslem State. Any State is Moslem State whose Islam is, Constitutionnellement, the religion of State or religion of the State. This criterion was not always applied. States whose Constitutions do not refer to Islam or who proclaim themselves frankly laic or who establish separation between the religion and the State are members of the O.C.I. The illustration is given by it by Turkey, Senegal, Niger and Burkina Faso. The personal criterion : it was retained by the O.C.I to answer some particular requests coming from States which met neither the quantitative condition, nor the Constitutionnel criterion, but whose chiefs is or became Moslem. It is thus of Uganda, of Gabon, of Cameroun. This first report on the question of the Moslem State shows that there is neither design, nor practical coherent likely to propose a precise definition of the Moslem State14(*). Ultimately, the least debatable reality is provided by the idea which affirms that the Moslem States are the Member States of the O.C.I and that the Member States of the O.C.I are the Moslem States. One can be tempted to say that the concept of Moslem State seems to apply, mainly, in the States which, beyond the belief, make Islam an ideology. There is indisputably a political use of Islam in countries like Saudi Arabia, Iran, Pakistan, Afghanistan or Sudan. The reality which the O.C.I offers is only possible because it translates, precisely diversity. The Moslem world is a world of diversity and not of the uniformity. There is not in other words, of gasoline of the Moslem State ; there is, quite simply, existence of Moslem States. Does the question remain to know how to discuss nature of the capacity when the religious factor makes irruption and influences the concepts and perceptions of the capacity and right? B The debate on the base of the capacity and the right The Moslem State is presented in the form of a whole, where the religion, the company and the State merge ; since the Moslem State is proclaimed Islamic, it has absolute capacities for the application of the Islamic Law against which no other standard can be called upon, in particular those which are based on the humans right. One sought to justify historical phenomena as the exaltation of the tender to the chief since it is supposed being the best guide of the community as a most pious man, best inspired, with the image of the first four Caliphs (right Caliphs, Abubakr, Omar, Othman and Ali) who constitute the model of reference. All in all only piety would be enough to guarantee the good exercise of the capacity since conformity with the religious precepts introduced of the limits and makes it possible to find a solution satisfactory with any problem of relation between believing and the holder of the authority. Logically no claim, dispute or revolt are legitimate in a Moslem State, since this one is supposed to meet all the individual and collective needs for the members of the community of believing; any opposition can be only one danger which the State must repress with greatest strength. It is however the reverse which one notes in Iran, where the students express and revolt with for leitmotiv, not as in 1979 «Independence, Liberté and Islamic Republic », but « Iranian republic ». The movement which was started in a spontaneous way on July 8, 1999, did not seem not structured. The claims of the students resemble the program of moderate president Khatami, who remains their hero : no censure for the press, personal freedoms, civil and political, cultural relaxation. Such events go in total contradiction with the logic imposed in the Moslem States. It is worrying to note that in this end of century which knows a renewal and an expansion of the democratic idea, value of the humans right and concept of State of right that men are subjected to the threats, humiliations and settings with died for simply to have wanted to engage a true debate on the base of the capacity in Islam. Many Moslem thinkers, who have to discuss the nature of the Islamic capacity to suggest new tracks of reflection, incurred risks while seeking to reconcile Islam and the democracy. Two thinkers deserve a re-examination of their designs ; they ran up against the opprobrium of the religious Establishment in the Moslem world, because they had courage to question the interdicts to show that one cannot make the saving in a debate on the capacity and the right in Islam. The first thinker is the Egyptian Ali Abderraziq who wrote a work in 1925 on «the Islam and the bases of the capacity»15(*) at one neuralgic time since Turkey kemalist had just abolished the caliphate in 1922 and to found the Republic. Until this work, there was an Islamic vulgate, collecting the consensus of the ulémas on the nature and the organization of the capacity. The agreement had been done on a kind of Constitution implicit rising from Coran or Sunnah, defining the conditions of exercise of the capacity in an Islamic State, establishing a direct and close link between the religious rules and the rules of government, thus sacrilizing these last and obliging all believing to join itself the holders of the capacity. It is all the theory of the institution califale whose justification rests, in the absence of clear bases in Coran itself, on the practice of the first four Caliphs. However it is this theory which Ali Abderrazik by a argued refutation will shake which arrives at the following conclusion : « Nothing prevents the Moslems from building their State or their system of government on the basis of creation last of the human reason and on the basis of system whose solidity was proven, those which the experiment of the nations with indicated as being among the best »16(*). It posed the idea that the caliphate can be based only on the argument of the authority. The second thinker is Mahmud Muhamad Taha of Sudanese origin of which the reflection and the contribution consisted of a second reading of Coran of which it opposes two moments and two messages to arrive at surprising forts conclusions17(*). He estimates, indeed, that the few Koranic, with their discriminatory aspects, coercive legal provisions or violent one, date from the period médinoise of the prophet (Hégire, exiles of the rejected prophet of Mecque) and correspond at the obviously defective state the Islamic company of this time. However, it is advisable to return to the message of the period mecquoise which would be that of the true divine message to rediscover all the spiritual significance of the authentic Islam occulted by a historical Islam that the Moslems were constrained to live since VIIème century. This humanistic authentic Islam, which rests on the reconciliation of the individual with itself, with the company and the State, is able to fertilize not only Moslem civilization but also Western civilization. To have supported these Taha theses found itself with the bench of the Infamy : continued first once in 1968 pennies the charge of apostasy, atheism and subversion, it was condemned to the death penalty in 1985 and carried out. These two examples show that any reflection on the base of the capacity in Islam which refuses to form part of a dogmatic logic and which search for new ways to explore the relations between the religion, the right and the State, has little chance to thrive in the current Moslem world. Islam recognizes a Moslem right and the legal contents form integral part of a system of religious rules and morals. Section II : Contents After having indicated the base of particularism specific to the Moslem States, it remains to classify the elements which constitute the objective significance of this particularism. Our analysis relates to the essential questions which are expressed in the contents of particularism: the question of the statute of the man in the Islamic thought (§ 1) as well as the question of the concept of freedom (§ 2). § 1 : The question of the statute of the man How the man is located compared to the company, in Moslem States? In order to distinguish the various parts of the statute of the man, it is necessary to break up the whole of the question.
The Islamic Law arrives by the means of the rights and of the obligations has to make the man prone. Any person is endowed with the quality which enables him to do it with what it has right or is obliged. It is the capacity which is inseparable from the human nature. In the Moslem right, the legal capacity, capacity of obligation, are considered under the double aspect, credit and liability, of the right as well as of the obligation. In the talk relating to the assent according to the Moslem theory, one finds the problem of predestination or the free will. According to Moslem orthodoxy, the human action depends, at the same time of the man and God. It depends on the man, because this one is free to choose between the action and the abstention. But if the act wanted by the man is carried out it is not an effect of the human will, but of the divine intervention. The will must be not only considered in its relationship with the act in oneself and its object, but still with the legal effects of the act which are given by the Islamic Law. That which leads a man to act, thanks to its words or of the contrary acts to the truth, i.e. opposite with the divine will, is guilty of fraud. If the man causes right, freedoms and do the humans right exist in the thought of the Moslem States? § 2 : The question about the concept of freedom The concept of freedom is essential in the study of the contents of particularism. It makes it possible to include/understand how the Moslem States justify the capacity of the Islamic Law on the humans right.
Freedom is a concept which occupies a place of choice among the values which structure the Moslem world. The idea of freedom is so important that the Moslems associate it the concepts of honor, dignity and with the fundamental value of a human being. In the same way for the concepts of justice, equality, solidarity and all the values which melt the humans right; the oldest texts with the most contemporary speeches, the reference to these values is so present that one has evil to imagine that the humans right could meet the rejection, the hostility and the violations whose governments and the Moslem companies are marked. However, it is necessary to exceed the simple reference to these values and to seek the real significance of freedom and the Law. Indeed, like the Former Greeks, the Romans, the Egyptians or the Judeo-Christians, the Moslems always referred to these values very as a practitioner slavery, the despotism, the wars of religion... To speak about the contents of freedom comes down to speaking about Islam like way of life. Islam indicates precise policies which apply to all the men and which it is a question of respecting in all the situations of the existence. The rule which it gives is of a broad range: it includes the fields social, economic, political, moral and spiritual. Coran recalls to the man the goal of his terrestrial existence like its duties and obligations towards itself, its parents, its close relations, his Community, its similar and its Creator. The existence arises then at him as a challenge which enables him into practice to put these high ideals. The designs Islamic traditionalists do not give a definition of freedom, but of the codes of conduct which the man must follow because they are taught by God and through him. When we speak about rights or freedoms in Islam, we think that these rights were granted by God, and not by a king or a legislative assembly. Nobody has the right to repeal these rights and freedoms. Charters, proclamations and resolutions (and other texts...) of the United Nations cannot be compared with the rights that God sanction : because whereas the first apply to no matter whom, the seconds apply to each Moslem. These rights form integral part of the Islamic faith. All the Moslems or the administrators who are Moslem, will have to accept them, recognize them and apply them. If they neglect the rights that God allotted, if they make modifications to see the violent one while affirming verbally to respect them, the verdict of Coran is clear and unambiguous : « The incrédules are those which do not judge the men according to what God revealed » (Sourate 5 : Verse 44)20(*) As example, freedom of expression. Islam recognizes the right to freedom of thought and expression for all believing them, provided that it is to propagate the truth and the virtue, and not to spread spite and the evil. It is interdict with whoever to use an offensive or abusive language under pretext of criticism. The Moslems were accustomed to asking the Prophet if a divine injunction had been revealed to him on such or such subject. When it answered that it had received any no, the Moslems then expressed freely their opinion on the subject in question. 2 - The criticism of the modern design of freedom The humans right and freedoms are inseparable from modernity. Indeed freedoms concern modern sociabilities where individualism, like return to the private sphere and desertion from the public space, perhaps exceeded in the intersubjectivity which does not proceed of the tender to authorities based on servility and ignorance, but of the adhesion of free, equal and interdependent individuals by need or humanism. In modernity, the company, as the individual have as a guiding principle : the self-determination and the refusal of the tender plug with any authority. Contrary the designs « ante » and « anti » modern are characterized by the dispute of this guiding principle in the name of necessary stability, perenniality and universality of the values morals and legal ; it is the supreme argument, counters modernity, of all those which like the Moslems give the primacy to the religion and the tradition .
During the pre-Islamic period, the company was founded on inter-tribal relations. Freedom was the constant acceptance of the hierarchy of the tribal order and its place in this order. A free man is a happy man to serve those which are hierarchically higher while knowing to him to move away from him the idea «pecheress » to disobey, discuss their orders to them or to dispute any manner their authority. With the advent of Islam, the framework of reference changed, it is not more the tribe but the «community of the Moslems ». Islam will defend a design of the freedom defined as being that of a group, arranged hierarchically according to the Law which is binding on him and its members, against all those which do not make party of it. It is legitimate with the eyes of all the Moslems whom they must carry their message to all the ground, including by the force. The other countries must open with their principles. On the other hand the proselytism of nonthe Moslems is interdict in the Moslem countries, even when they are citizens of these countries, as it is the case for the coptes in Egypt. The Moslems have the right to hold of the meetings, to organize demonstrations, to constitute associations, to publish newspapers, to have radios and any network of diffusion like Internet in France, in England, in Germany, in the United States, in Italy etc.... . In the first acceptance of the freedom, which is that of the right of the people to independence, the Moslems conceive freedom only for the Moslems other than the others which can claim there only while becoming members of the Moslem community. B Identity of a bond between freedom and the Law.
Through the analysis of the contents of freedom, it is possible to show the existence from a common point essential to both : this point relates to the identity of a bond established between the Law and freedom : 1 - The design traditionalist For the Moslem traditionalists, the Law is the first ; freedom consists in doing only what it allows (or better than it does not prohibit). There are legitimate rights for the person that within the framework of the rights of God, in- or compared to the community of believing according to criteria's of piety, knowing, sex, capacity, etc.... Freedom, and the rights which result from this, are conceivable only inside what the tender allows the order which is essential in the name of God. If the priority is granted to the Law, if freedom is only a one function which extends and narrows according to the will of the Law and the capacity which incarnates it and in with the load, there is nothing which can limit the capacity of the Law on the freedom and the rights of the people, nothing which can prevent the Law, i.e. the State, to extend its capacities to all the sectors of the public or private life of the people in the name of God. The history shows that whatever the mode, even more the democratic one, if its Law is not limited, it can only tend to the extension of its capacities. It is this fundamental structure of subordination of freedom to the Law which is at the base of the totalitarian modes, that they claim openly traditionalists or that they claim of such or such modern ideology. Thus this subordination connects modern modes the «, progressists and laymen» like those of Syria and Iraq to modes like those of Khomeiny or of the Saoudi Dynasty : the freedom and the humans right are denied and violated in the name of the «laic law » of the first and of « Religious law » of the seconds21(*). 2 - Modernistic design Contrary to this structure traditionalist, modernity is defined, precisely, by the opposite relationship between freedom and the Law ; it is the freedom which is first. The Law does not have «the right » to prohibit that what blocks the possibility, for all and each one, without discrimination, to enjoy freedom and the rights which result from this. Modernity does not accept the limitation, of the freedom and the rights which are inherent for him, that to the title of the limitation of the abuses by which some encroach on the freedom and the rights of the others. The only ones which can be excluded from these rights are those which do not respect them for the others, and only within the limits necessary and sufficient to prevent this encroachment. The function of a modern Law is not revenge but only protection against the infringements with the integrity, freedoms and the rights of others. The freedom and the humans right are, in a design authentically modern of the law, the guiding principle and the reason of the Law : this one has as a function only to guarantee them and to protect them. It does not have as a function to define them or to limit them in the name of God or of another reason who is higher to them as in the Moslem States. This essential dimension of the humans right whom the Law must respect, under penalty of being discriminatory, is a laic and provocative principle for the Moslem States. Section III : The place of the Islamic Law in the legislation of the Moslem States The relations between the State and the religion in the Moslem States caused controversies. It is difficult to apprehend the problems of the cohabitation and the integration of two normative orders founded on different sources; in the species those of the substantive law and Koranic right. Our reflection on the subject joined that of Olivier Roy22(*), who advances the idea of a process of D-Islamization by the top and bottom. By the top, i.e. a response of the modes of the Moslem States to pushed islamist movements, by bottom by the projection of these islamist movements. By examining the legislations of the various Moslem States, one observes that these processes of D-Islamization by the top result in a progressive reintroduction of the Islamic referents in Moslem legal space. This reflection enables us to release three quite distinct situations: that of the legislation subordinate to the Islamic Law (§ 1), that of the legislation freed from the Islamic Law (§ 2), that of the legislation inspired of the Islamic Law (§ 3). These situations must constitute the axes around whose the legal scaffolding in the Moslem States is built. After having exposed these three axes, our reflection will be directed towards the confrontation of the various currents of thought, which influence the legislative structure in the Moslem States (§ 4). § 1: The legislation inspired of the Islamic Law This inspiration is neither general nor absolute. In a general way, it is much more obvious in the Arab States than in the Moslem States and especially those of Africa... . The inspiration finds, in the majority of the cases, its base in the Constitution. The Constitutions of the Moslem States proclaim a form of relation between the Islamic Law as a source of right and the substantive law by subordinating the second to the first. Sometimes it is indicated, in a very evasive way, as it is the case in Somalia, than the legislation takes as a starting point the the Islamic Law, or as it is the case in the Constitution of the Comoros, than it is a question «of drawing from Islam the permanent inspiration of the principles and rules which govern the State and its attributions»23(*). The Islamic Law is sometimes regarded as «one of the principal sources of the legislation» (Kuwait)24(*). The Constitution of Mauritania qualifies the Islamic Law, in its preamble, of single source of the legislation. In certain cases, the Islamic Law is retained, not as a source of standards, but as a whole of directly applicable standards in certain fields. Thus the Jordanian Constitution states that «the courts sharaïques observe the rules of the religious Law»25(*). It arrives, however, that the Constitutions of Moslem States hardly refer to it like source of the legislation, but that the Laws are inspired some, despite everything and in a clear way sometimes. The Islamic Law as a source of inspiration of the positive legislation, in certain Moslem States, calls the following remarks:
§ 2 : The legislation freed from the Islamic Law Many Moslem States do not envisage in their Constitution, of relationship between the Islamic Law and the legislation. It is thus in Algeria, in Cameroun, in Djibouti, in Burkina Faso, in Gambia, in Guinea Bissau, in Iraq, in Mali, in Morocco, in Niger, in Senegal, in Chad, in Tunisia, in Turkey. The legislation in these States is juridically released from all Islamic, implicit or explicit references. It should be specified that any stamping with the Islamic Law in the Moslem States remains relative. In order to limit our study we will lay the stress in our references on two particular Moslem States which make parties of the Maghreb.
The reign of the new monarch of Morocco, Mohammed VI is found vis-a-vis the challenge of modernity. After the death of Hassan II, the new king of Morocco must quickly harness himself with complex problems, of which parties the humans right make. The legitimation of the legislative system of Morocco oscillates between a modern system and a system which, at the bottom, remains traditional, therefore opposite with the modern principles of the democracy. The Constitution confers to the Monarch capacities quasi-absolutes, but by his standpoint in favor of a monarchy inspired of the Anglo-Saxon or Spanish models, king Mohammed VI became, the reference of those which want to modernize the mode. According to the first interpretation, Morocco would have given itself a modern and Western Constitution, more or less copied on that of the 5th French Republic. This Constitution would break with the past and would open new proceedings; the Western influence would be important, especially with regard to stamping with regard to the Islamic Law. The second interpretation given, would be that the Moroccan Constitution would remain in the line of the old traditions: the top of the State is in conformity with the model of the caliphate and the legal system of the caliphate impregnates the legal standards «modern». In a word, the question is to know if the current legislation of Morocco rests on an Islamic basis or a democratic basis with the Western one ? It is impossible to slice this controversy on the basis of the text of the Constitution, because contradiction described here is in the formulations even text. The article 1st of the Constitution says that Morocco is «a constitutional monarchy, democratic and social», article 29 known as that» sovereignty belongs to the people "29(*). It remains that many internal and external problems await the new sovereign, who will have to juggle between these two visions of the legislative and political system of his country. In example, on the internal level, Morocco suffers from the evils which strike the developing countries without reference to mode. The independence of justice is still a pious wish. The corruption dirties the social system on all the floors, the Moroccan prisons still abound in the boarders condemned under obscure conditions, with the image of Mohammed Serehane, journalist who claims justice since years. The person in charge for the League of humans right, after many investigations on the spot, denounces in Morocco of the non-observance of the humans right and calls his wishes the introduction of a real democracy. One returns from there to the same conclusion as for Tunisia, namely that any stamping with regard to the Islamic Law remains relative.
§ 3 : Moslem States subordinated to the Islamic Law The Law imposed by the divine will is essential and prevails on that posed by the man. The Law posed is not legal and legitimate only insofar as it translates the Islamic Law, conforms to its regulations or is compatible with it. All authorities, therefore, are limited in their will and their action by Shari' to, Islamic Loi. It is to say that the official right does not have autonomy or of clean legitimacy. This situation is, in a general way, that of the legislations in Saudi Arabia, in Iran, in Sudan and Pakistan. The case of Saudi Arabia has There practically is not in the fundamental statute of the capacity or the text instituting the advisory Council which date both from March 1, 1992 - provisions which move away, from their contents or their range, of the Islamic Law. According to the statute, the Constitution of Saudi Arabia is Coran and Sunnah (article 1st). According to article 7, the source of the capacity is consisted Coran and Sunnah. This provision prevails on all the other provisions of the statute like on the whole of the other rules. The bases of the Saoudi company and the humans right are determined by the Islamic Law and the substantive law cannot derogate from it. Justice indicates article 6 conforms to the Islamic Law. Contrary to the States whose legislation is freed from the Islamic Law, the States subordinates with the Islamic Law controls all the legislative system of the country. Subordination is of nothing relative, as remains to it the stamping from certain Moslem States B The case of Iran The concept of secularity, that the holy books are unaware of, is judged by the capacity in place in Islamic Republic of Iran, as being the negation all at the same time the Islam and Constitution of the Republic of Iran. The Sheik Mohammed Shabistari, professor of philosophy Islamic at the university of Teheran expresses himself by choosing his words: «In Islam, there is not any constraining form of official institutions. As much a government taking as a starting point the the supreme values Islam is legitimate, especially in a country deeply believing and traditional like ours, as much an Islamic State is a nonsense taking into consideration crowned text. Our Constitution, to which I adhere by having civic, juxtaposes the divine rights and the duties of the citizens. This mixture of the kinds is the source of a number of our problems. It will be necessary a day well to escape these contradictions by adapting us to modernity...». 30(*) It is observed that the oscillation between the opening to modernity and fidelity with the Islamic Law characterize the Moslem States freed from the Islamic Law, finds oneself in a Moslem State being subordinated to the Islamic Law. It is simply advisable to make compatible the lesson of the democracy, and the rights human, with the lesson of Islam. But how? The Moslem philosopher Abdel Kerim Souroush, whose ideas, says one «are with the capacity» since the election of President Mohammed Khatami, who is renovating daring since it deviates resolutely from the holy texts, precisely in the name of modernity. » It returns to us to us, intellectuals of the Third World, to make them compatible ". «Quite simply while trying to imagine what would be the standpoint of the Prophet if it were to return on ground to live among our contemporaries. It will know, to make him the distinction between the fundamental principles of Coran, far from many, and presses it judgments of the economic situation which corresponded, fourteen centuries ago at a company quite different from ours».31(*) According to Souroush, are null and void the institutions of divine right (Velayat Faguih), the penal sanctions known as Islamic, the setting with died of the apostates (allusion amongst other things, with the case of Salman Rushdie), the inequality between the men and the women, the discriminations expressed with regard to the not-Moslems (Dhimmis) within the Moslem State. The «cohabitation with the Iranian woman» between president Kathami, figure of chief of the liberal opposition and the ayatollah Khamenei, chief of the government, is the source of the many problems which the Islamic Republic of Iran encounters. It took the forms of a war of position in which contradictory interpretations of Islam are only one of the aspects. The media constitute the central arena of confrontation. Vis-a-vis the radio, on television, with the many publications, controlled by the conservatives, a multitude of reviews and daily newspapers militate for a aggiornamento. The response of the capacity to these challenges took various forms: suppression of publications, which reappear at once under new names, arrests of journalists and chroniclers, who return to the load of theirs release, media intimidation campaigns, attacked physical... In July 1999, the Iranian mode is taken of runs by the revolt coed in favor of the democracy. Chronologically, they are the closing of the daily newspaper Salam reformist, the charge by the court of the clergy of its director Mahammad Mousavi-khoeiniha (recognized guilty according to various count of indictment of which those of slandering, misinformation, publication of confidential document), near of the reforming President Mohammed Khatami, and the concomitant adoption by the Parliament of the broad outline of a very restrictive bill on the press, which was at the origin of this revolt. Force is to note that following these events, «the cohabitation with the Iranian woman» is characterized rather by a structural imbalance which opposes an absolute capacity to a popular legitimacy. As for the Laws, numbers of them are of an ambiguity which allows all handling. The freedom of expression, for example, is guaranteed provided that it «does not carry not reached to Islam», or better still, that it» is not used to sow confusion in the spirits ". The Iranian legislation is controlled by the Islamic Law. But the double victory gained by the reformists with the presidential and municipal elections reflects deep changes occurred in the company. 75% of the population did not take part in the Revolution of 1969. It grew at the era of the satellites and Internet; it aspires to modern, European or American manners, with all public freedoms that those comprise. This will of opening towards modernity appears compatible to them with their fidelity with Islam. § 4: The confrontation of the various currents of thought in the Moslem States The legislation in the Moslem States is governed partly by the Islamic Law, and partly by the substantive law of Western origin. This is why the islamist current and the modernistic current clash.
Vis-a-vis the toughening of the islamist speech traditionalist, the current which wants to be modern is fascinated by the Occident. He followed the example of Mustapha Kemal Ataturk which in one of these famous speeches of 1928 declares : « the not civilized people are condemned to remain in the dependence of those which are it. And civilization, it is the Occident, the Modern World, of which Turkey must form part if she wants to survive ». There are the two shapes of modernistic currents : the current positivist and the laicizing current.
This current joined the precedent in its position vis-a-vis nonthe reintroduction of the Islamic standards. It exceeds the current positivist however by wishing the elimination of the Islamic standards into force. The modernistic current has a fascination for the world Western and public freedoms. The idea is that Islam is not against the reason, nor against the scientific discoveries. Islam presents a call with the reflection and research in all the fields of the social life of the Moslems. This current succeeded, for example in Iran, to popularize certain concepts of Western origin, like the extension of public freedoms and the victory gained by the reformists reflects the expression of this major change. Economic, social and cultural modernization lead to a retreat of the religion. Those which are favorable there want a company tolerant, rational, progressist, humanistic and laic. Those which deplore this modernity, the conservatives worry about the consequences of the disappearance of the religious beliefs, the institutions and the orientations morals given by the religion to the individual and collective human behavior.
On the basis of the design of the Law, the islamist current wishes to get rid of the Western standards to apply only the Moslem standards. It calls upon in particular the two following passages of Coran : « Those which do not judge the men according to what God revealed are non-believers, [...] the unjust ones, [...] of the perverts «(5: 44, 45, 47). When God made a decision, it is not appropriate for one believing to maintain a chois opposite with its will. That which disobeys God and his Prophet mislays completely and obviously (33 : 36)34(*). This current of thought is undoubtedly the last-born child. It preaches the radical rupture with the dialectical modernistic one. One inevitably leads to the rejection of all that threatens the identity of Islam, especially secularity. To arrive to its ends, Abu-Sahlieh explains why this movement uses various means : - It uses the legislative opposition which is expressed in the texts of Laws, in the drafting of the Constitutions. The Moslem States subordinated to the Islamic Law do not leave a place to the foreign right. The legislation must be based only on the Koranic standards. The policy and the religion do not separate. To want to separate the humans right and the rights of God, it is to dispute the right of God to be the only Master of the world. - This opposition to the Western right is found in many works, and articles of press. It is easier for the islamist ones to spread their conviction than for the liberal, target reformers of a too firm government and too conservative, to publish articles which call into question some of the preserving positions. In Iran, where the media constitute the central arena of confrontation between conservatives and revisionists, the journalists remain careful henceforth; even if they dispute some of the provisions of the Iranian Constitution, the operation of the system of Velaya Faguih, the institutions of divine right, the person of Faguih the ayatollah Ali Khamenei remains infallible and out of attack. - In the arena of confrontation, the legal institution occupies a place of choice. Certain islamist judges do not hesitate to adopt a hostile attitude with regard to the positive Law of Western origin and do not hesitate to apply the Islamic Law in their judgments. It is the case of Egyptian judge Ghurab, deceased in 1994, who published a collection of his judgments under the significant title : « Moslem judgments like judgment of Positive laws »35(*). Dr. hassan Ghafoorifaard, member of the presidency of the Parliament of the Islamic Republic of Iran, near of the conservatives, holding of the capacity known as «we have the duty to fight against the interior and external enemies republic, in particular against the cultural invasion of the Occident. » The Moslem States are with Asia to be only continued vis-a-vis the Occident. The Moslems turn to Islam like source of identity, direction, stability, legitimacy, development, power and hope. The justification of particularism specific to the Moslem States is used as a basis for the expression of their identity and of the problems arising with contemporary Islam by the humans right such as they were conceived by the United Nations. Chapter II : The expression of particularism The cultural heritage, the power of the religion, the heterogeneity of the Moslem States, mistrust with regard to all that comes from the Occident are as many factors which inevitably deteriorate the universal design of the humans right (Section I) and which gave rise to several contradictory documents of protection of the humans right (Section II). Section I : The inevitable deterioration of the universal design of the humans right The demarcation of the Moslem States compared to the universal design of the humans right, is concretized in the adaptation of the humans right to the Moslem framework (§ 1). The Moslem States affirm the need for preparing documents of protection of the humans right which are clean for them (§ 2). § 1 : Demarcation of the Moslem States Islam seeks to limit the humans right by the expression of his particularism. It establishes certain universal basic rights for very whole humanity, rights which must be observed and to be respected in all circumstances. Coran says clearly : « O, you who believe ! You hold close like witnesses in front of God, as a practitioner justice. That hatred towards people does not encourage you to make injustices. Be right ! Justice is close to the respect of God » (Sourate V ; Verse 8)
« The humans right in the Universal Declaration of the Humans right, do not have their raison d'être in a divine command, but in the will of the General meeting of the United Nations based on considerations of general interest »36(*). In Islam, the humans right are conferred by God, and consequently, no authority on ground, has the right to adapt modification to it. Nobody has the right to repeal them. The reasoning founder of the humans right according to Islam can thus proceed only by reference to indications of Coran or, possibly, «by their application to situations which occurred indeed insofar as they crystallized like exemplary conduits »37(*). The charter, the proclamations, the resolutions of the United Nations cannot be compared with the rights that God sanctions. These rights form integral part of the Islamic faith. The problems raised by Islam as regards the humans right derive owing to the fact that the Moslem man feels dependant by standards that it did not make and on which it does not have any capacity because of his fidelity to Islam. There is no doubt: the universality of the humans right is disputed by the Moslem States. Rene Cassin, in his drafting of the Universal Declaration of the Humans right had not provided that the alarm clock of the Islamic religion would represent a serious danger to the universality of the humans right, often related to his source of laic inspiration. The requirement of the universality is likely to have to support a fatal blow insofar as Islam, while being proclaimed tolerant, is «totalitarian » since it aims at controlling the totality of the life of the men on the plans spiritual and material, religious and political. Indeed, in substantive law, there is no hierarchy between the international legal standards. There is a hierarchy in the Moslem States such as the Islamic Law which overrides any obligatory standard of international law. Moreover, the assertion of this need shows that Islam asserts with its profit universalism. All while adopting U.N. universalism, these documents must be read in the light of the precepts of Coran. It is to say that even if the formulation of the rights can appear very traditional and join that of the universal texts, actually they must be interpreted in a direction which is extremely likely to contradict that which is allowed on the universal level. Indeed, the Moslem States refuse the precedence of the universal standards of the divine standards; what would be blasphématoire with regard to their divine author, Al-H. Sinacor explains that this demarcation of the Moslem States compared to the universal design of the humans right is benevolent and that it will settle the question of the humans right. «It is insofar as each culture allows each nation, or together of nations which are claimed some, to preserve the respect of the rights, which the nations will find themselves the resources and the means of one life in the unison with the world community, a free conformity to the universal values which melt the relations between the countries and the States and gives all its direction to the idea of international community. »38(*). It is insofar as the differences are accepted, that the Moslem States can bring their own lighting and their own justification to the theory of the humans right. The assertion of the universality of the humans right seemed to rest on solid bases; it east grows rich regularly. However for a few years, the bases of the universality have been called into question. The Moslem States quickly affirmed the need for preparing documents of protection of the humans right which are clean for them. They first of all affirm this need with the name of a moderated regionalism, but that hides actually a major dispute of universalism ; a dispute carried out in the name of their particularism. § 2 : Elaboration of documents on the humans right
Considering what precedes, one cannot reproach the Moslem States D `any more for affirming the need for preparing their own documents of protection of the humans right. But how the States accommodated the humans right by preparing these documents ?
The Arab documents present a design which refers at the same time to the Islamic precepts and the U.N. documents. One can announce several of these Arab documents:
All these documents have a reference to Islam in common. We will more particularly study the universal Islamic Declaration of the humans right of 1981, as well as the Declaration of Cairo of 1990. 1 - The universal Islamic Declaration of the humans right. Islamic Council for Europe in London, which depends on the League of the Moslem World, published on September 19, 1981 a universal Islamic Declaration of the humans right, proclaimed in Paris in the buildings of UNESCO, by Mr. Salem Azzam, secretary-general of the Islamic council. This Declaration is of private initiative. The rights defined in this Declaration represent a very broad range since they include not only rights of the universal Declaration of 1948, but also those of the international Pacts of 1966 relating to the civil laws, political, economic, social and cultural, like those under consideration in the project of the third Pact relating to the rights of solidarity. It on several occasions recalls in its preamble, like dissociating universal Declaration of the humans right, that the humans right are based on the divine will. The first passage of the introduction known as : « The humans right, in Islam, are strongly enracinés in the conviction of God, and God alone, is the author of the Law and the source of all the humans right. » One of considering this introduction adds : « ... This Declaration of the rights of man gives a powerful impulse to the Moslem populations for ester firm and to defend with courage and resolution the rights which were conferred to them by God. » In one of the passages of the preamble to this declaration, one can read : « Al-H (God) gave to humanity, by its revelations in the Coran saint and Sunnah of its saint prophet Mahomet, a legal and moral framework durable making it possible to establish and regulate the human institutions and reports/ratios ; ... » « By the present ones, as servants of Al-H and members of the universal fraternity of Islam, we affirm engage to promote the inviolable and inalienable rights of the man defined below, of which we consider that they are prescribed by Islam. »41(*) This manner of basing the humans right on a divine will derives from the justification of particularism specific to the Moslem States which says that the good and the evil, the good and the bad one are determined by the divine Law. The rights which the Moslem enjoys and the restrictions who are imposed to him find their source in Coran and, subsidiarily in Sunnah. The Declaration affirms as of its introduction its attachment to the precepts of Islam. Its field of application is defined by a religious membership. Article XII relating to the «right to freedom of belief, thought and word ». « has) Any person has the right to express her thoughts and her convictions insofar as it remains within the limits prescribed by the Law ». « D) There should not be any obstacle with the propagation of information insofar as it does not endanger the safety of the company or the State and remains within the limits imposed by the Law. »42(*) There is not any doubt that «the Law», is the Islamic Law imposing the will of God. The fact that in this Declaration, the humans right in Islam are based on the divine will, shows the will of these authors to dissociate other international texts of universal protection of the humans right. The bases and the objectives of this universal Islamic Declaration of the humans right are found in the two projects of declaration of the Organization of the Islamic Conference like in the Declaration of Cairo of 1990. 2- Two projects of declarations of the Organization of the Islamic Conference and the Declaration of Cairo of 1990 The Moslem States, gathered in a regional international organization (the Organization of Islamic conference, called O.C.I, created since 1970) were not insensitive with the valorization of the humans right on the international level. This is why the O.C.I undertook with the courses of years 1980 of the efforts to work out a declaration on the humans right, all the more «that a Universal Islamic Declaration of the Humans right» was adopted by a not-governmental organization on September 19, 1981 ; in fact the Islamic Council for Europe. In order to avoid leaving the ground of the humans right unoccupied by the Moslem States, the O.C.I carried out the development of two projects of declarations before adopting, during the meeting of Cairo, the Declaration of the rights of man in Islam. The first project is called «Declaration of the fundamental rights and the obligations of the Man in Islam » published in 1979. Its fundamental characteristic is its attachment with the Islamic Law. Indeed as of the preamble, he is written : « In the name of God..., grateful that the rights and the obligations of the man in Islam are governed by imperative texts that with provided the creator, him who is the supreme legislator, so that the man could never carry there reached, neither to pretend to forget them, nor to even give up it,... »43(*) The second project is called « Declaration on the humans right in Islam » published in Taïf in January 1981. This project proclaims the specificity of the Islamic Law and insists on the essential role of the Moslem community or it « Nation is qualified for to guide perplexed humanity enters the currents and the ideologies competitive and to propose the Islamic solutions ready to solve the anachronistic problems of material civilization »44(*). These two projects thus preceded the adopted Declaration of Cairo on August 5, 1990 by the conference by the Foreign Ministers of the O.C.I. The Declaration comprises a preamble and twenty-five articles. It is primarily based on religious convictions. It recognizes the civil laws and political, of the social rights, economic and cultural. It lays down rules relating to the humane right, effleure the problem of the right to the development and proclaims duties with the load of certain physical people and morals. It is noticed that the denomination given to the Declaration is less ambitious than that formulated by the Islamic Council for Europe, since one avoided qualifying this declaration of universal. By omitting voluntarily the qualification of universal, the Member States of the O.C.I did not want to carry out «a second reading of Islam ».45(*) Certain islamologists think that Islam is perfectly able to integrate the modern theory of the humans right to condition of being interpreted in the light of the current company. But nothing like it in the Declaration of Cairo; it was limited to point out the inviolable framework of the Islamic Law for the majority of the stated rights. It is important to announce that these documents seldom refer to the documents of the United Nations. The 2nd declaration of the O.C.I says that it aims at «accompanying the efforts made by humanity to take advantage of the humans right in modern times, in particular the proclamation and the conventions adopted by L `Assemblé general of the United Nations, for purposes to protect the man against the brute forces and to affirm its freedom and its rights in the life »46(*). The reference to the texts of the United Nations disappeared in the 3rd Declaration ; this one aims at «contributing to the efforts of humanity aiming guaranteeing the humans right, protecting it from the exploitation and persecution, at affirming its freedom and its law to the worthy life in agreement with the Islamic Law »47(*). This satisfying with regard to the U.N. texts rises from the idea that Islam is sufficed for itself and does not need to be based on other systems to protect the humans right. Through the study of these documents, it is the same idea which is arisen from the study of the other documents specific to the Moslem States; the Moslem does not have to seek apart from the Islam of the solutions to his problems since Islam offers eternal and good solutions in the absolute. The rights of which it enjoys and the restrictions which are imposed to him find their source in Coran and, subsidiarily in Sunnah. Conformity with the Islamic Law is not an easy task. The controversies and the divergences are common. The document of Cairo is a simple declaration. That means that the Moslem States did not make a success of with adoper a conventional instrument being obligatory. The Declaration of Cairo deserves an attentive reading to try to identify contradictions in the texts because it constitutes one of the most marked the demonstrations irruption of Islam on the international scene. Section II : Contradictions in the documents It is difficult to say today not to Islam, as it is difficult to say not to the humans right. Contradictions weigh on the modernistic Moslem, author of the documents which discuss the humans right in Islam. As a whole, the humans right are not disputed as for their principle. But the refusal of the Moslem States to integrate «fully» the universality of the humans right seems to be expressed through the contradictory interpretation which is made humans right ( § 1). These documents are the work of the people who see in Islam a perfect system of protection of the humans right and which, so seek to make revalorize its design in place and place of the concept of contemporary international right. But this perfect system of protection of the humans right is it applicable ? (§ 2) § 1 : A contradictory interpretation of the humans right. The documents which are expressed on the humans right in the Moslem States dispute all with degrees different the principle from the universality of the humans right. Jean-Claude Vatin estimates that these texts are characterized at the same time by «a will to place itself within the universal framework fixed by the United Nations » and by «a desire not less obvious to dissociate itself some by certain features to insist not on regional characteristics on cultural differences, the religious character of the individual and his report/ratio to the divinity and the texts and traditions crowned involving of the dependences and obligations of a special gasoline »48(*). One can note with the reading of these documents, that there are no rights specific to the Moslem States which would not have an equivalent in the various international documents of the humans right. Contradictions come owing to the fact that these documents do not seek obligatorily an Islamic reading of the humans right, in which case, the humans right in general would lose of their universality. It is because the majority of the humans right recognized by the international law seem to be marked by an Islamic connotation (insofar as Islam is the base and the reference of the humans right) and that the Islamic Law (Shari' with) control surface the humans right whom one notes certain contradictions as for the interpretation of these rights. They recognize the civil laws and political, of the social rights, economic and cultural. They lay down rules relating to the humane right, effleurent the problem of the right to the development and proclaim duties with the load of certain physical people and morals. All these rights are universally proclaimed in the international instruments relating to the humans right. But Islam remains the reference of these stated rights, and the Islamic Law transcends the humans right which keep their universal formulation. Thus the terms of Islamic Law, of Shari' with are used as of the preamble and practically all the laws are recognized within the limit of the Islamic Law. The examination of the various articles of these documents shows the concern for its authors to recognize a whole of rights «within the limit » or «in agreement » or «within the framework » or «in respect » or «without contradiction » with the Islamic Law. Thus the freedom of expression is stated, in the universal Islamic Declaration of the humans right in his article XII : « has) Any person has the right to express her thoughts and her convictions insofar as it remains within the limits prescribed by the Law ». « D) There should not be any obstacle with the propagation of information insofar as it does not endanger the safety of the company or the State and remains within the limits imposed by the Law. »49(*) In the Declaration of Cairo in its article 22 : « has) Any individual has the right to freely express his opinion in a noncontrary way to the principles of the Islamic Law. »50(*) In this last document, fastening with the Islamic Law is even more explicit in the last two articles insofar as it is expressly expected that «all the rights and freedoms stated in this document are subordinated to the provisions of the Islamic Law » (article 24)51(*). And article 25 poses that «the Islamic Law is the only source of reference to explain or clarify any article of this declaration »52(*). For a lawyer, this last provision means that any problem of interpretation must be solved in the light of the only Islamic Law other than any other positive standard including those worked out by the United Nations. These documents cannot be a simple second reading of Islam. Because if the Islamic standards of the Moslem right could have a justification in the past, today some of these standards are a danger to the Moslem States. It is necessary thus to acknowledg that the reading of these documents does not make it possible to identify only Islamic contents of the humans right. It was necessary to imagine a modern reading of Islam through the humans right or a reading of the humans right through modern Islam. Another contradiction is to be raised. These declarations, charters... are in general balanced documents which take into account the basic human rights and public freedoms. But it does not remain about it less than these documents seem to have their own design of the humans right and all these principles S `apply only to the Moslems. Thus the recommended solutions are often contradictory ; a universal formulation, but an application limited to the Moslems. It is not either easy for States which do not have the same relations between the State and the religion to uniformly apply the principles stated in these documents. Because it is difficult to apprehend the problems of the cohabitation of the substantive law and the Koranic right. It is perhaps for this reason that the interpretation of these documents relating to the humans right specific to the Moslem States is contradictory from one State to another. While referring to the precepts of the religion, the Islamic and Arab documents are likely to produce more effect than the laic international documents, because they are based on two readings, universalist and Islamic, which give a double authority to the documents. Remain that these documents do not lay down any measurement of concrete application. § 2 : A «perfect system of protection » inapplicable. These documents are the work of the people who see in Islam a perfect system of protection of the humans right and which, so seek to make revalorize its design in place and place of the concept of contemporary international right. At present, none of these documents came into effect. Sami A. Aldeeb Abu-Sahlieh explains that: « The fact that these Declarations did not come into effect proves that they are intended not for the public arabo-Moslems, but with the Western interlocutors with fine advertizing executives »53(*). For this reason it announces that the universal Islamic declaration of the humans right of 1981 «was proclaimed » in Paris, within the framework of UNESCO. None of these documents has legal authenticity. They thus do not envisage any measurement of concrete application and nobody can call upon them in order to obtain the respect of his right. That explains why contradictions in these documents do not come owing to the fact that they seek to make a simple Islamic reading of the humans right, but owing to the fact that they do not devote any provision or special institution to protection of the humans right. The charter of the League of the humans right envisages a Committee of experts. But only competences of this Committee are «to examine the reports/ratios which the States left submit in the year which follows the entry into force of the charter or the adhesion of the State, periodic reports submitted by the States concerning the application of the Charter as well as the reports/ratios received of the States on request of the Committee »54(*) (article 41 of the Charter). The authors of these documents which see in them a perfect system of protection of the humans right omitted essence, the guarantee of this protection. There are however regional protection systems. The European system of protection of the humans right who is founded on the European Convention of the humans right, signed in Rome on November 4, 1950. The individual sees himself recognizing the possibility of seizing an international authority of a complaint directed against a State. There is a jurisdictional body, the European Court of the humans right. The inter-American system founded on the inter-American Convention of the humans right of 1969, who guarantees some dozen civil laws and political. Convention gives competence to the inter-American Court of the humans right to know questions which relate to the respect with the States of their engagements. The African system rests on the African Charter of the humans right and of the people which envisages the creation of a commission near the Organization of African Unity charged to promote the humans right and of the people and to ensure their protection in Africa (article 30). It seems important taking into account the efforts made by the other regional institutions set up a system which guarantees the protection of the humans right in the Moslem States. We know that there is an opened Islam, tolerant, cultivated who, far from rejecting the positive contributions of modernity, wants to contribute in a way interdependent to all the efforts made in the world for a faster projection of the humans right. The task is immense. Sami A. Aldeeb Abu-Sahlieh thinks that this task is allocated to the Arab and Moslem intellectuals. That it is to have to them to create a system political, economic and legal adequate which can ensure the respect of the humans right while holding of the needs and specificities of the Moslem States. These documents affirm the adhesion of the Moslem States with « Charter of the United Nations, with the Universal Declaration of the Humans right and of two Conventions of Natione-Plain relating to the economic, social and cultural rights, and with the civil laws and political "55(*) (preamble to the Charter of the Arab League). By rewashing the fact that these documents do not have any legal authenticity, written Abu-Sahlieh: «What one needs today it is the adoption of a Convention of the humans right specific to the world arabo-Moslem which takes into account its own problems. It is not enough here to copy the universal Declaration of the humans right by powdering it with religious formulas as the various current Islamic Declarations do it.»56(*). There is nothing which can, in theory, to prevent the Moslem States from adapting and to become compatible with the universality of the humans right, if they do not limit the range of it. CONTAIN II : The limitation of the universal range of the humans right by the Moslem States The Islam based on eternal principles, is compatible with anything else only with itself. In this direction, it refuses, rejects and fights until the end the universality of the humans right - laic design - (Chapter I). But the dynamic Moslem States, adapt to very different environments and historical circumstances changeantes. They appeared compatible with the principal types of State and the various forms of social organization that the history produced. Just as Islam as a religion belonging to the world history extending over fourteen centuries, incontestably succeeded in being established in a great diversity of company, culture, way of life. Once again, like often during the history, the Moslem States have to adapt to a new situation and the challenges of modernization. They are ready to grant the universality of the humans right. (Chapter II). Chapter I : A hostility of principle The Moslem States will be able to adapt and accept the universality of the humans right while observing a feeling of mistrust in all circumstances. If they relativize the range of it, there is nothing which can prevent the Moslem States from granting the development of the legal corpus of the universality of the humans right. Section I : Development of the legal corpus of the universality of the humans right § 1 : Difficult universality The humans right were forged through the history and since Greek philosophy. He would be erroneous to deny the contribution of the century of the Lights and the French revolution of 1789, and consequently to deny the contribution of the Occident in the universalist formulation of the humans right. It is interesting to raise that this long process of universalization has advanced in a slow way on the conceptual level (A). In the field of the effectivity, the humans right knew progress as well as retreats which marked the universality which remains unfinished (B) still today.
Even if the conceptual developments as regards humans right are not truly parvenu with a material universalization, there is an international consensus on the universalization of the hard core, an imperative minimum standard in any place and all circumstances. In spite of the divergences which one has to announce higher, one saw emerging gradually a restricted core of values and rights universally admitted by all the States. The problem of an intangible core of the humans right includes the question relating to a priority of certain rights compared to other. The definition of this intangible core of the humans right however does not go without difficulty. Exist there rights from which the States cannot derogate whatever the circumstances, rights which would be considered according to the definition given by professor Frederic Sudre - as the constituent rights «the inalienable attributes of the human person, based as such on values that one finds in theory in all the cultural inheritances and social systems »58(*), duties applicable to any person whatever the circumstances of time and place ? The answer is certainly negative because of the coherence and the indivisibility of the humans right related to the integrity of the human person. This indivisibility and this unit of the humans right were devoted besides in the Proclamation of Teheran adopted unanimously by the international Conference of the humans right in 1968 announcing in his article 13 that the humans right and fundamental freedoms are indivisible. There does not exist, in international law of the humans right, of hierarchy of the rights. But the international legislation relating to the humans right was marked by a separation, at the same time artificial and misleading, between the civil laws and political, on the one hand, and the economic, social and cultural rights, on the other hand. It is undeniable that the social and cultural economic rights have to profit from less attention on behalf of the United Nations and its constitutive bodies. The standards adopted in this field as well as the mechanisms intended to make them apply are much developed. However the Universal Declaration of the Humans right calls " all the individuals and all the bodies of the company " to bring to their contribution to the universal respect of the rights as human being. Each country does not have the same priorities concerning the humans right. It is difficult to imagine that in an underdeveloped country, controlling them will proclaim a right to the freedom of expression, whereas the press and the other means of diffusion of information really do not exist. Their priority would be for a right under development. Appear especially on the international plan, the obstacles of the application of the humans right. How to tighten the best possible one towards this universalization of the humans right ? For that, the United Nations worked out international instruments specific to the humans right. § 2 : The specificity of U.N. construction The protection of the humans right within the framework of the United Nations was imagined as of the adoption of the Charter of the United Nations. Nevertheless, it was necessary to conceive and work out treaties defining in a way appropriate the concept even of humans right being addressed without distinction to all the States and all the individuals of the international community.
A- Standards It is the adopted Universal Declaration of the Humans right on December 10 1948 which will be used as a basis for the formulation, clarifies various rights so much civil and political, which economic, social, cultural whose individuals benefit. Thereafter, a certain number of relative Conventions, inter alia with the prevention and the repression of the crime of genocide, with the imprescriptibility of the war crimes and the crimes against humanity, and with the abolition of slavery supplemented the range already extremely wide rights protected by the Declaration. The range of the treaties relating to the protection of the humans right includes on the one hand the international Charter of the humans right and, on the other hand, of the more specific treaties widening and supplementing the types of the already protected rights. In addition to the universal Declaration, the Charter includes/understands the international Pact relating to the social and cultural economic rights and the Pact relating to the civil laws and political, to which two relative optional Protocols are attached, on the one hand with the examination of individual communications and, on the other hand, with the abolition of the death penalty. The Pacts were adopted by the General meeting of the United Nations on December 16, 1966. Some of the basic rights guaranteed by these Pacts were approached by several other specific treaties so much the need had been felt to protect particularly certain categories of people or rights. It is advisable to quote, as an indication, the International Convention on the elimination of all forms of racial discrimination come into effect on January 4, 1969 and which constitutes the first instrument chronologically to have envisaged a mechanism of application ensured by the Committee for the elimination of racial discrimination. Convention counters the crime D `Apartheid, Convention against torture and other sorrows or treatments cruel, inhuman and degrading... Indeed Paul Tavernier written in connection with the Moslem States : « They were divided about the Universal Declaration of the Humans right and adopted little by little with the two Pacts of 1966 and U.N. universalism, not without thought reserve or back »59(*). At the beginning the text of the universal Declaration seemed to them incompatible with the lesson of Islam. Because the humans right, in the universal Declaration do not have their raison d'être in a divine command, but in the will of the General meeting of the United Nations. The exercise of the proclaimed rights depends closely on the procedures installation to allow the claim. Rights of first degree, or primary education right right to the life, freedom, work... are nothing without a right to the second degree, the right to the right, guaranteeing the protection of the humans right. B Mechanisms of control Mechanisms of control of the application of the international treaties as regards protection of the humans right were developed within the system of the United Nations. The States Left with the known as treaties, have the principal obligation to apply the basic rights envisaged by the texts. By identifying the techniques of protection installation within the framework of the O.N.U, one notices that it is difficult to organize at the international level of true legal sanctions. The political techniques of control and the not-jurisdictional mechanisms of protection play a more important part. Moreover, it is useless to multiply within the organizations international or regional techniques of control, especially when the sanctions which are envisaged have only one relatively modest effect. Several procedures were installation allowing the examination of inter-official communications and individual communications. The procedure which interests us more in the species, is that applicable to the two international Pacts of 1966; i.e. examination procedure on official report/ratio which proceeds of the concept of dialog between a whole of independent experts coming from areas and different legal systems and a delegation made up representatives of the State Partie concerned. Such a procedure, deliberately not-accusatory, makes it possible the international community to influence directly on the drafting of texts of Laws, Payments or the practical application of the national standards. Several international standards affirm that it falls on the governments to prevent and sanction the violations of the humans right when they are made on their territory. To widen the responsibility implies not only to be interested so that make the governments, but also so that they do not make to promote the humans right and to prevent the violations of these rights. This widening will explain the relativisation of the legal corpus of the universality of the humans right. Vis-a-vis this «disturbing » right of the rights, the States finally adopted an attitude of reserve and mistrust. Because majority of the States, whose Moslem States are persuaded that the legal corpus of the universality of the humans right is used as instrument to maintain the hegemony of the great Western powers to the detriment of the respect of the humans right. Thus even if particularism specific to the Moslem States as regards humans right, does not give basically causes of them the legal corpus of the universality of the humans right, that does not prevent them from relativizing it. Section II : The relativisation of the legal corpus of the universality of the humans right By relativizing the legal corpus of the universality of the humans right, the Moslem States do not refuse the universality categorically, but they make him lose its absolute character. Antonio Cassese points out that the importance of the Universal Declaration of the Humans right and of two international Pacts is not called into question in as well «as objectives to be reached » (ideal commun runs to be reached, to take again the terms of the Declaration), in spite of the differences of interpretation and application. In other words, he says that « the States continue to see in the three documents a whole of values which one must endeavor to realize. «60(*) . They relativize the absolute character of the terminology of the legal corpus of the universality of the humans right (§ 1), like his application (§ 2). § 1: Absolute character of the terminology The terminology is the whole of the terms particular to the U.N. legal corpus of the universality of the humans right. To relativize the absolute character of the universality, comes down to saying that the universality remains for the moment «a common ideal to be reached». Not only the humans right are respected differently in the various countries, but they are also conceived differently. Antonio Cassese raises the points on which «the effort of world unification did not lead yet »61(*) . Initially, there are deep divergences in the philosophical design of the humans right. Another divergence relates to the cultural and religious designs different. An important divergence, that relating to the problem of the international protection of the humans right. Hanna Sheba explains «because with the difference in the other parts of the international law the International Charter of the humans right relates to primarily the condition of the people, the design and the application of the principles whom it defines is more particularly conditioned by philosophies, the religions, the traditions and the social systems of the various States which make our multicultural world. »62(*) For that UNESCO, convened a round table which was held in Oxford from the 11 to November 19, 1965 and in which took part of imminent personalities come from the most various countries and pertaining to the most different traditions (Western, Marxists, Buddhists, hindouists, Confucianists, Islamic, African...). The mandate of this conference was not limited to clarify the differences in the designs; the question was also asked to him to know «if, in the different companies whose values seem divergent and even opposite, there is not however a base common to very thought or at least of equivalences likely to be analyzed»63(*). One of the principal conclusions of the conference of Oxford east that «the universal Declaration was strongly influenced by the Western tradition of the humans right and in particular the Declarations of the rights which were proclaimed in Western Europe and with thePlain ones. The form and the terminology of the universal Declaration, the place granted to the its center with the civil laws and political and also with the guarantees of these rights testify to this influence. One could also think that the universal Declaration would be strongly «Western» insofar as the standards which it states always do not reflect those of certain philosophies or religions and traditions; sometimes even they rest on values if not opposite at least different.»64(*) The legal corpus of the universality of the humans right comprises contrary provisions with the precepts, the Laws and the habits of the Moslem States. The representative of the Moslem States often intervene within the framework them the United Nations to recall that the U.N. legal corpus of the humans right differs from that recommended by the Islamic Law. This faintness is well expressed through the intervention in 1982 of the representative of Iran at the 3rd Committee of the O.N.U where he says : « The Declaration and the Pacts are mainly the product of Western liberalism ; at the time of their adoption, the Western modes colonialists and imperialists represented the majority of the international community. But today this majority is formed by the States lately independent of Asia and Africa which have a philosophical rich person heritage, ideological and cultural. Consequently, the declaration must be modified, the laic document and Westerner having to make place an instrument which better is thus accepted universally and more easily applicable universally. For that, the Western world must be separated of its traditional cultural chauvinism and consider new approaches as regards humans right. »65(*) One could accumulate the examples of the discrepancies existing between the terminology of the U.N. corpus and the principles, even the legislations specific to the Moslem States. One of the greatest challenges to take up would be the expression and the diffusion of the values of the U.N. corpus in a culturally varied form, without to weaken the concepts that it proclaims nor to restrict the universality of their application. With the simplest level, that means to translate the texts in all the languages spoken in the world and to place these texts at the disposal of the billion people who are unaware of the existence of it. More concretely, it will be necessary to widen the knowledge and the comprehension of these rights, by calling upon various cultural, philosophical and religious traditions. The universality must profit from diversity and not to exclude it. Particularism, instead of being an obstacle with the universality of the humans right, is beneficial for him. Rather than the unification, diversity suggests the harmonization of the systems of rights (insofar as they are «allowed » by the international community), with the proviso of being compatible with the principles common founders of the humans right. As Mohammed-Allal Sinaceur explains it «the universal respect of the humans right could not be to safeguard if each culture and nation do not offer, in their same roots, defenses which protect them. It is insofar as each culture allows each nation, or of nations which are claimed some, to together preserve the respect of these rights, which the nations will find themselves the resources and the means of one life in the unison with the world community, a free conformity to the universal values which melt the relations between the countries and the States and gives all its direction to the idea of international community. »66(*). These documents which remain above all, the principal source of the humans right, have evil to be to accept in their terminology by the strong Moslem States impregnated by their particularism as regards the humans right. The terminology of the legal corpus of the universality of the humans right is not the single reason of this relativisation. By definition, the universality of the humans right implies a right of mutual glance between all the States. Mechanisms exist in order to control the application of the respect of the humans right in all the States. It is to say that the humans right can be a right of action for certain States against others. § 2: Absolute character of the application Are it possible to apply absolutely and uniform, the legal corpus of the universality of the humans right, in all the international member countries of the Community? The answer is certainly negative. Indeed, the application of all the provisions of the legal corpus in all the States still requires very important changes in mentalities and the legislations. It is thus even in the Western States, founders of this universality. If the Moslem States relativize the application of the legal corpus is in order to prevent that the United Nations transplant in their legal systems of the universal standards incompatible with their particularism as regards the humans right. But the humans right became a concern in the contemporary legislation of the Moslem States. They are, indeed, closely related to modernity, and the Moslem States do not reject this modernity basically. In 1948, during the drafting of the Universal Declaration of the Humans right, the Moslem States, for the majority, regarded this text as incompatible with the Islamic precepts. But a reciprocal adaptation was done gradually under the sign of a double evolution which affects, on the one hand, the extent even and the conditions of exercise of the recognized rights and, on the other hand, the legislations and the habits of the various countries. If one refers in 1966, year of the adoption of the international Pacts relating to the humans right by the General meeting of the United Nations, one notes several demonstration of this evolution. To give only one example, article 18 of the universal Declaration proclaimed the right to change religion: «... this right implies the right to change religion or of conviction...». This goes completely against Islam. In the international Pact of the civil laws and political, article 18 relating to the freedom of thought, conscience and religion does not mention right to change religion. To give only another example relating to the Moslem States, the principle of the freedom of expression is affirmed by the international documents whose universal value is recognized by the majority of the Moslem States. (Article 19 of the Universal Declaration of the Humans right, and article 19 of the Pact International of the civil laws and political). Legislative and administrative measures were taken by the Moslem States to soften the limitations imposed on the principle of the freedom of expression, but these measurements do not make it possible yet to change mentalities radically and to remove the prejudices vis-a-vis the universal application of the humans right. Kickbacks intervene to destroy in little time the effect of the years of fight and efforts. A delegation of «Reporters without borders» belonged to multiple violations of this principle; since the assassination of Tahar Djaout on May 26, 1993, fifty-seven journalists were killed. The majority of these murders were asserted by the various groups armed claiming Islamism» which regard the Algerian professionals of information as «henchmen of the capacity» and «enemies with Islam "". 67(*) By formally accepting the legal corpus of the universality of the humans right, the Moslem States are bound by these standards and their application; they are thus prone to be judged through them. The absolute character of the application of the legal corpus of the universality of the humans right makes fear in the Moslem States the fact that certain States can judge their practices on the matter, can be involved in their interior businesses. That the international community can estimate that such or such practice is acceptable or is not it, and to to this end judge adequacy of these practices with the standards of international law of the humans right through the mechanisms of control set up by the United Nations. These mechanisms as weak as they are, force the State to return accounts and to be justified. « Allowing a right of external glance on what constitutes the heart even political régime of the State, it can lead to carry reached to its respectability as well interns as international »68(*). Vis-a-vis this strange right of the rights, the Moslem States are being wary. First of all, because that allows a right of mutual glance between all the States which can make use of it to intervene in the interior businesses of the State. And if one tends to recognize with the humans right a universal and absolute character, the diversity of the instruments of protection poses problem. The limitation which imposes the Moslem States on the universal range of the humans right comes from the multiplicity of the instruments regional, universal, declaratory or conventional, of protection of the humans right, who poses the problem of their harmonization. One cannot avoid the inaccuracies which are undoubtedly the cause of the difficult universality, because each State can adopt its own definition and bring its own limitations. To accept the universality is not a problem in oneself, because we have just shown it; there are several ways of approaching it. The problem lies in the fact that that imposes a certain rigor in practice. The Moslem States can only be hostile by principle to see itself imposing absolute universal standards which are inapplicable in practice in their country. What precedes watch that they can only think that «UNO in its structure is used as instrument to maintain the hegemony of the great powers to the detriment of the respect of the humans right»69(*), and that the humans right can exist only in one positive and modern system. However, while being hostile with the universality of the humans right, resistances vis-a-vis the installation of the legal corpus of the humans right are less and less visible in the Moslem States, even if this acceptance remains problematic Chapter II : A problematic acceptance One often underlines contradiction even the incompatibility - which exists between the universality of the humans right, of primarily laic and Western origin and the claim of a particularism specific to the Moslem States on the matter, of purely religious origin. In addition, one can consider that the little of resistance opposed on behalf of the majority of the Moslem States to accept the universality of the humans right results from the Islamic teaching which predicts their recognition. Mohammed-Allal Sinaceur explains that by saying that «the absolute dignity recognized with the human being by Islam cannot make it possible a Moslem to be opposed to the adoption of article 1 of the Universal Declaration of the Humans right and provisions of this text which go in the same direction»70(*). Owing to the fact that the ideas express the humans right are of source Islamic or not, it does not remain about it less than the Moslem States accept them even in a problematic way. It is about a vast debate which it will be difficult to close in this final chapter. However, from this point of view, it is interesting to know how the Moslem States gradually accepted the universal design of the humans right. (Section I) and to show in what the consequences of this acceptance recall this contradiction between the universality and particularism. (Section II) Section I : The progressive acceptance of the universal design of the humans right On the basis of protective Convention of the humans right, UNO deployed a considerable activity and the Moslem States were particularly attentive with the question of the humans right. Without to take again all the elements of this discussion, it perhaps interesting to observe the evolution of the attitude of the Moslem States with respect to the universal design of the humans right. (§ 1) We will restrict ourselves to observe their attitude with regard to the «International Charter of the humans right» who is consisted of the Universal Declaration of the Humans right, of the International Pact relating to the civil laws and political and of the International Pact relating to the social rights, economic and cultural. Although this study can be to supplement by an examination of the attitude of the Moslem States with regard to other or not-conventional conventional instruments relating to the humans right, the study of the «International Charter of the humans right» will be enough for us in order to analyze and to specify the difficulties of application of these texts. (§ 2) § 1 : Evolution of the attitude of the Moslem States It perhaps interesting to show in what their attitude «was neither monolithic, nor uniform; in addition, that it evolved/moved...» 71(*) and to study their degree of adhesion to protective Conventions of the humans right (A.), and their attitude vis-a-vis these Conventions (B.)
At the time of the proclamation of the Universal Declaration of the Humans right, the Moslem States were very few with UNO. They were divided with regard to the principles stated in the Declaration, because some of these principles were incompatible with the principles of Islam. One noted a certain evolution in their attitude and one can consequently affirm that the majority of them adhered to the texts of the «international Charter of the humans right». Like the writing Ferjani Mohammed-Sherif «Across the cultures, across the characteristics constitutive of the identity of people or an unspecified community, and which one can be respectful insofar as they do not blame human dignity and the rights which are inherent for him, there is a universal principle which enables us to intervene for the respect of this dignity and these rights, and makes us even an obligation of it.»72(*). That means that taken as a whole, «the speech of proclamation of the humans right is addressed to all the men everywhere and has a planetary field»73(*). The Moslem States react by formally adhering to the universal design humans right. Because even if the texts which proclaimed them were born in Occident, the objective does not remain about it less the universal respect of these rights. In 1948, the positions of the Moslem States were contrasted. Even if a strong majority adopted the dominant position of the General meeting, the abstention from some like Saudi Arabia and the absence of others like Yemen, expressed a fundamental opposition to the text of the Universal Declaration of the Humans right. It does not remain about it less than the homage paid to the text is explicit. The Charter of the Arab League of 1994, in its preamble quotes: «Reaffirming the principles of the Charter of the United Nations, the Universal Declaration of the Humans right...»74(*) But the universal Declaration is only one simple document; a resolution of the General meeting of thePlain ones, which states recommendations intended for the States. It is thus a text without obligatory value, which does not create any obligation. Whatever the obligatory character of this text, one notes that there is no more hostility of principle on behalf of the Moslem States with regard to this text, but a progressive acceptance which continues nevertheless to pose some practical problems to them. The Universal Declaration of the Humans right of December 10, 1948 is a statement of principle intended for the origin to be supplemented by other texts: they were the two Pacts relating to the humans right, adopted by the General meeting of the United Nations on December 16, 1966. 2- Pacts of 1966 relating to the humans right «The Pacts of 1966 translate concerns different from those of the universal Declaration and an inflecting of the ideology of the humans right, who holds with two digits: the General meeting of the United Nations counts 58 members in 1948 and 122 members in 1966; the majority ideology is not any more the same one.» 75(*). The two Pacts distinguish the civil laws and political in an instrument, social, economic and cultural rights in another instrument. Moreover Pacts are addressed to the States and not to the individuals («the States begin with. »). The Pacts have to avoid raising the delicate questions which posed problem in the Moslem States in the universal Declaration. Whereas the vote of the universal Declaration in 1948 to show contrasted positions, the adoption in the majority of the two Pacts tends to approve the fact that the Moslem States gradually accepted the universal design of the humans right. To quote only some of them: Algeria, Egypt, Iraq, Jordan, Lebanon, Libya, Guinea, Morocco, the Islamic Republic of Iran, Somalia, Syria, Chad, Tunisia, Yemen adhered to the Pacts. The adhesion of the Moslem States to the Pacts is not used for nothing if one does not make sure as a preliminary that they are juridically bound by them. These international Pacts present of real interest only if bodies of control guarantee the effective respect of the humans right stated. The Committee of the humans right is the body of the United Nations charged to control and supervise the application of the Pact of 1966 relating to the civil laws and political. It functions since 1977 and deployed an extremely interesting activity. The Protocol «entitles the Committee of the humans right... to receive and examine, of the communication emanating of private individuals who claim to be victims of a violation of one of the rights stated in the Pact.» (Preamble). The States Parties to this Protocol must lend themselves to the control of the Committee, which means recognition of its competence, and they must take action on this control. The Moslem States have in majority is voted in favor of the Protocol (Iraq, Jordan, Lebanon, Libya, Sudan, Morocco, Tunisia,...), that is to say preferred to abstain from (Algeria, Saudi Arabia, Iran, Mauritania, Syria, Oman, Bahrain...). Article 40 of the international Pact relating to the civil laws and political invites the «States Parties to the present Pact to present reports/ratios to the measures taken which they adopted and which give effect to the rights recognized in this Pact and on the progress made in the pleasure of these rights...». One observed a certain mistrust on behalf of the Moslem States compared to the contents and the range of this Protocol. By limiting this study to the texts of the international Pacts relating to the humans right, one will examine the attitude of the Moslem States with regard to these texts.
If the two Pacts had such a success, it is probably because they do not have to mention the few litigious points which appeared in the universal Declaration; the passages disputed by the Moslem States in the universal Declaration disappeared. Thus, the Pacts removed the references to the religion which posed problem for the Moslems, in particular in article 16, relating to the right to marry and found a family, and article 18 which recognizes the right to change religion. However one detects a certain mistrust on behalf of the Moslem States with regard to the procedures of implementations of two Pacts, in particular of the Pact relating to the civil laws and policies which has the merit to have envisaged the creation of the Committee of the humans right. The two Pacts are dumb concerning the practice of the reserves, but they do not prohibit them. The hesitations as well as mistrust on behalf of the States Parties to the Pacts can disappear by the play from the reserves. The States keep an asset in their pocket: they can bring their own limitation to the provisions which they consider contrary at their practice as regards humans right.
About half of the States Parties to the Pact reserves or declarations formulated, bearing on the precise provisions of articles. It is however striking to notice that few Moslem States which ratified the international Pacts relating to the humans right, issued reserves. Syria as well as Iraq issued reserves or declarations with the international Pact relating to the civil laws and political (without counting the reserves relating to the recognition of Israel). Paul Tavernier notes that «the attitude of Algeria, which it is true ratified more recently the two Pacts (September 12, 1989), was much more careful. It not issued explanatory reserves but «statements».»76(*). The explanatory statement most interesting relates to the provisions of subparagraph 4 of article 23 of the international Pact on the civil laws and policies which lays out that: «The States Parties to the present Pact will take suitable measurements to ensure the equality of rights and responsibilities for the husbands taking into consideration marriage, during the marriage and during its dissolution. NR case of dissolution, of the provisions will be taken in order to ensure the children protection necessary.» The Algerian government interprets this provision like not carrying to in no case reached with the essential bases of the Algerian legal system, but that lets foresee that in the field of the right of the family, the Islamic Law is the source of inspiration. The right of the family implies, the women's rights. The statute of the woman in the Moslem States remains in lower part of standard established by the documents of the United Nations. These Countries did not hesitate to make reserves each time the U.N. documents aiming at improving the women's rights. Article 23 of the Pact of the civil laws and political urge the States «to ensure the equality of rights and responsibilities for the husbands taking into consideration marriage, during the marriage and during its dissolution.» But we cannot deny that the condition of the Moslem woman knew a certain progress according to countries'. She obtained the voting rights, the right to reach the political offices, legal and other public office, the right to work, the right to teaching. Even if the Moslem States remain for the majority hostile with regard to this form of progress, it is not less than they accept it gradually. One foresees in the attitude of the Moslem States a larger will to adhere to the Universal Declaration Humans right and to the international Pacts of 1966. One could think that one arrives towards a progressive acceptance of the universal design of the humans right. But this universalization is easier to realize in the proclamation of the rights than in the concrete and effective application of these protective Conventions of the humans right. Saudi Arabia as well as the Arab Emirates, Oman, Mauritania, Djibouti, Bahrain, Qatar adhered to none of the two Pacts, nor with the Protocols. Mrs. Khadija Sherif Ben Mahmoud, vice-president in charge of the women's rights to the Tunisian League of the humans right, Sidi Bou Said (Tunisia), known as which «it is an index which deserves to be raised and which constitutes an obstacle with the universality and thus with the universalization of the values and standards as regards humans right.»77(*). § 2 : Difficulties of application of the «International Charter of the humans right» The difficulties which emerge in implementation the effective of the International Charter of the humans right «are due to the large extent to the difficult conciliation which the Moslem States want to operate between the Islamic Law and the U.N. standards as regards humans right»78(*). The index of these difficulties is provided by the reports/ratios which the States must submit to the Committee humans right, for the international Pact of the civil laws and political and to the Committee of the economic rights, social and cultural, creates in 1985 for the other Pact. From 1977 to our days, the Committee of the humans right examined the reports/ratios of many Moslem States. On the other hand, it noted that the majority of the Moslem States were late for the tender of their reports/ratios initial and periodic what translates the existence of difficulties in the application of this Pact. There is no question of taking again here all the elements of this discussion and this is why we will restrict ourselves to bring some materials to feed our study. Our development will stop with the examination of the reports/ratios presented by certain Moslem States at the Committee of the humans right within the framework of article 19 of Pact relating to the freedom of thought and expression:
It is noted that the Moslem States launched out in a long process of revision of their legislation. They did not express any unwillingness to harmonize it with the Pact; examples provided by the reports/ratios presented by the Moslem States at the Committee of the humans right show these positive aspects in the application of the Pact (A). However, it appears that these States are confronted with particular obstacles when they must apply the provisions of the Pact. (B)
Our study will relate to the reports/ratios of the Moslem States which made the dialog more profitable between the delegations of the Moslem States and the Committee of the humans right. They provide more precise information, and made it possible the Committee to better include/understand the situation of the humans right in the Moslem States.
In spite of these efforts of harmonization and the beginning of profitable dialog between the delegations of the Moslem States, the Committee regrets noting that particular obstacles appear in the application of the Pact. B - Particular obstacles Concerning the dialog with the Moslem States, the Committee often emits the following observations: «The committee however regrets noting that, if the report/ratio contains information detailed on the legislation and the regulation giving effect to the Pact, one does not find sufficient information there on the application of this instrument in practice on the factors and the difficulties affecting this application»91(*). In the heading of article 19 of the international Pact of the civil laws and political, the concepts «of law and order» and «public morality» pose a problem of definition in the legislation of the Moslem States; 3- The exercise of the freedoms envisaged in paragraph 2 of this article comprises special duties and special responsibilities. It can consequently be subjected to certain restrictions which must however be expressly fixed by the Law and which are necessary:
Obstacles are drawn up on the way of the promotion of this principle because of the requirements of the Islamic Law, on the one hand, and on the other hand, because of reason of State. 1 - The obstacle because of the requirements of the Islamic Law
The obstacles with which the Moslem States in the application of the Pact are confronted come from the requirements of the Islamic Law. But of the more precise information on the question of the incompatibility of the Islamic Law and the U.N. design of the humans right, allowed the Committee to better understand that these requirements were not the only ones with being an obstacle. 2- The obstacle because of reason of State In the States where the Islamic Law does not have effects on the organization and the operation of the State, the obstacle is that of the reason of State. The authorities places from there in a Moslem State cannot be criticized by the citizens. Whatever they are, they will undergo the consequences of them.
Even if one foresees an important movement towards the acceptance of the universal design of the humans right, the practices of the Moslem States make it possible right now to draw the conclusions from this acceptance. Will one go until saying «that the progress of the humans right is never assured and that the debates on the compatibility and the incompatibility of the Islamic Law and the texts relating to the humans right will continue during still a long time»99(*)? Section II : Incidences of this acceptance Progress was made by the Moslem States in the acceptance of the universality of the humans right. However, the experiment shows that the incidences of this acceptance remain fatal for the humans right. It runs up against the laic formula of the humans right; by analyzing the development of the legal corpus of the universality of the humans right, we saw that the only shape of government of which the humans right in their dimension U.N. specialist can adapt, is the modern democracy. Deep changes intervene, consequently in the company of the Moslem States. It aspires to modern, European or American manners, with all the personal freedoms that those comprise. (§ 1) Of the reports/ratios of force being born between the people and the capacity; one wants to be able to freely express criticisms against the lack of freedoms and democracy; the other wants to limit for all the means these criticisms. (§ 2). § 1 : modernistic consequences
While allowing adhering as to the opponents being described freely, the Moslem States would agree to accept the aspiration of the people to modern manners. But if the people are sovereign on paper, it does not have any means of expressing and of exerting its right to sovereignty. The people can exert his right to sovereignty «neither by the participation in the formation of the Law, nor by the choice, the control and the sanction of controlling, that it either directly or by bodies which represent it and which are responsible in front of him. As regards freedoms and rights individual and collective, without which the democracy would be only one trickery, they are guaranteed by the Constitution, but within «the framework of the Law "". 103(*) Undoubtedly, the freedom of expression could appear more invaluable in a democratic company, because it orders the free debate of ideas and opinion. But it is not only one personal freedom, it is also an essential value for the company as a whole. Even if the rights and freedoms of expression are recognized in the Moslem States, one cannot exert them freely. With such a design of the humans right, the Moslem States can adhere to all the Declarations and all the International Conventions of protection of the humans right, without that engaging them with anything. It is besides what they did systematically or almost. The Constitutions of the Arab and Islamic republics, refer any to these texts and the humans right. If one disregards alleviating formula: «within the framework of the Law», these Constitutions can count among what there is of more modern. It is what with Khomeiny fact in Iran, as what the Moslem Brothers in Sudan made, by accelerating the process of modernization. They worsened the situation with the profit of an influence more extended even of the State on the life of the company and the individuals. These situations represented a dream in which the individual and his freedoms did not have a place. As the Law is put in top of the freedom and the humans right, one can make respect the legal order only by the use of the repressive force (imprisonments, assassinations, censures press, suppression of the personal freedoms and collective...) and by the sacralization of the Law in the name of the Islamic religion traditionalist. Inside these countries, the difference between the speech of the humans right and the practice of these modes are far from being negligible. Modernity generates more repression and more the arbitrary one, and thus more violations of the humans right. § 2 : practice of the violations of the humans right The experiment shows us that repression remains the principal weapon to be maintained with the capacity and to subject its people. «Algeria is certainly an imperfect democracy, but in which the islamist opposition belongs to the government: it is the only country of the Arab world which has a free press.» This sentence is unceasingly repeated by the Algerian diplomats and ministers each time the nongovernmental organizations (ONG) express criticisms against the lack of freedoms and democracy in this country. Marc Margenis explains that by-there, the government of Algiers tries to convince, not without success, that «democratization follows its course and that ONG most virulent (Reporters without borders, Amnesty International...) prohibited for several months, have shown objectivity by no means.» 104(*) Then how to explain that an Algerian journalist who wants to keep anonymity, writes, «It did not rain there of free press in this country; hardly some concessions which allow the government, to improve its public image, to praise itself, abroad, to authorize the freedom of the press. In addition, the Generals know perfectly that, without a small puff of freedom, the country would be a kettle under pressure and the situation would become explosive»105(*). According to one of the last reports/ratios of Reporters without borders, since the assassination of Tahar Djaout, the first journalist killed on May 26, 1993,» fifty-seven journalists were killed. The majority of these murders were asserted by the various armed groups claiming Islamism. «106(*). Association specifies that the circumstances which surround some of the assassinations remain obscure and cause interrogations. Many journalists admit, into private, that the capacity is at the origin of some of these murders, but all state to fear for their life if they make public this information. In October 1995, Omar Belhouchet, director of the daily newspaper El Watan entrust in an interview to the French chain Canal +: «There are journalists who obstruct the capacity. And I would not be astonished if I learned tomorrow that some of my colleagues were assassinated by men of the capacity. »107(*). These remarks will apply to the journalist to be condemned to one year of prison for «insult with body made up». Gathered in front of the palate of the government, the Algerian journalists expressed for the freedom of expression, Wednesday November 11, 1998, carrying hostile signs with the authorities; they asked that the freedom of expression not be ridiculed any more. The conflict between the authorities and the journalists burst after the public companies summoned four daily newspapers (El Wanta in the morning the Platform, the Evening of Algeria) to settle in the forty-eight hours their debt under penalty of suspension. This ultimatum intervened after a series of articles blaming the minister-adviser at the presidency, and the Minister for justice. To muzzle the press, the capacity has the monopoly of printing works like importation of paper, but also 85% of publicity. It can at the same time suspend the publication of the newspapers, reduce their pulling or strangle them financially. But its master trump, it is a doubled particularly repressive legislative device of an omnipresent police safety. According to one of the last reports/ratios of Reporters without borders, at least ten journalists would be currently held in the Syrian prisons for «nonviolent activities such as the membership supposed with political groups or of defense of the humans right not - authorized.»108(*). Lamentable conditions of hygiene prevail in these prisons and the prisoners are subjected there to tortures. The experiment of Salman Rushdie, author of the satanic Verses, surely was médiatisée. Why? Because the Occident did not cease defending Salman Rushdie in the name of the freedom of expression. February 14, 1989 is the black date in the history of the freedom of expression. This day, a religious edict of the Ayatollah Khomeini informs all the Moslems of the world that the author and all the people implied in the publication or having been informed of the contents of the satanic Verses, a book against Islam, the Prophet and Coran, are condemned to death. During nearly ten years, Salman Rushdie will become the symbol of the freedom of ridiculed expression. The World of September 26, 1998, published an being entitled article, «Iran wants to close again the file Salman Rushdie», by Afsané Bassir For. It explains why by disuniting fatwa which weighs on the writer, the government of Teheran hopes to raise a heavy mortgage in the relations with the Occident. The Iranian Minister for the Foreign Affairs, Kamal Kharazi announced that» the government of the Islamic republic of Iran does not intend to take some action that is to make an attempt on the life of the author of the satanic Verses or the people associated with her work, and does not encourage or will not help anybody to do it. Consequently the government is dissociated from any reward which was offered and dissociates from this initiative. «109(*). Its British counterpart expressed in its turn its» satisfaction " in front of «the clarification» by Iran of this business which constituted the principal obstacle for its country, and well of others, with a complete normalization of the relations with Iran. This standpoint of the Iranian government confirms a will of opening of Teheran towards the Occident. Two years after his election with the presidency, Mr. Mohammed Khatami confirmed on several occasions his will to print a new course with the foreign policy of his country. Recently, the editor of the newspaper reformist Salam, Abbas Abdi, continued for slandering, was discharged according to the Iranian press of August 23, 1999. He appeared to have publicly shown last year the conservatives to play a double game with thePlain ones. Its Salam daily newspaper, played a key part in the victory of the moderate president of the Republic of Iran. Even if this reforming president could not rebalance the institutions, start again the economy, improve the social conditions of his country, the national and international opinion does not hold rigor for all that of it to him. Indeed, this man seems to show a fidelity meddles with his electoral, modest promises seemingly but fundamental for the democratic future of the Republic. Through doesn't this illustration, Iran understand that no reason is higher than freedom, and that nothing valid perhaps undertaken without the respect humans right? It remains that in the field of the humans right, the Moslem States start again the same ideological combat unceasingly. They continue to fight to make accept their design of the humans right by the international Community. Conclusion The most important result of a research is to leave the limits of what was said and made, and of the width of what it remains to do on the subject. The treated topic being of an extreme topicality, it was difficult to resist temptation to give an opinion compared to the events and the problems which can leave indifferent only those which do not feel concerned by the problems of the respect of the humans right in this world. It was difficult to take the retreat necessary to satisfy all the requirements of objectivity and rigor whereas the object of this subject knows bounces unceasingly. The engagement which brings to write this conclusion is neither more, nor less, that to want to widen our design of the humans right conceived henceforth in an indivisible and indissociable way by integrating identity and cultural dimension into the vast debate on the universality. «The speech on the humans right sins the excess of ideology. It imperceptible because too much general, atemporel and alocalized, is deprived of envelope space-time, colorless, timid, odorless, repetitive, vague, not code (with much of verbs to conditional)»110(*). One feels the need to adopt an intermediate position between the universality and particularism, in order to avoid destroying the various speeches on the respect of the humans right. «The ideological values, chocolate éclairs or, maintaining the impulses which tend to hegemony, lend themselves badly to the co-operation and accept the dialog and the compromise only like one pause in the fight. They inevitably ridge as soon as the international law tackles problems of company, such those of the humans right.»111(*). There are however multiple correspondences and resemblances in all the fields between the men, civilizations, the cultures and the languages. Then why «the universal respect of the humans right could not be safeguarded if each culture and nation do not offer, in their same roots, defenses which protect them.»112(*) ? The formal recognition of the humans right goes back to very a long time, exit each time of particular historical circumstances, clean with each culture. Coran stipulates as regards universality «That which will have killed a man without this one making a murder, or will have exerted violence on the ground, will be looked like the murderer of mankind; and that which will have returned the life to only one man will be looked at as if it had returned the life to all mankind. (V-32)»113(*). It is in these problems that the Moslem States through Islam like religion, culture, civilization, brings its own lighting and its own justification of the design of the humans right. It is not necessary to go up fourteen centuries to behind include/understand the exception of the design of the humans right clean to the Moslem States; these thirty last years were enough to explain it. Any culture is universal, or at least, has claims with the universality. Any civilization have their singular vision of the man according to their design of the world, at the same time in its independence and its interdependence. One must conceive a new universality of the humans right enriched by characteristics. As a long time as the Moslem States will assert a particularism as regards humans right, they will be able only to limit the range of the universal design of the humans right. It is enough for them to lay down common and legitimate rules, and to arrive at the effective respect of the humans right. That will have been, and continues to be the fruit of a change social, cultural and political in-depth. Because they entire are devoted to the change, the Moslem States are modern and can provide better results in the field of the respect of the humans right. Bibliography Works: General works:
Special works:
Articles: Articles of review:
pp. 23-30
Articles of press:
Documents: Official documents:
Another documents:
Contents Introduction ........................................................................................................... 1 Synopsis ................................................................................................................ 6 Titrate I - the claim of a matter particularism humans right by the Moslem States .............................................................................................................. 7 Chapter I/the justification of particularism ........................................ 8 Section I - The base ............................................................................................ 8 § 1 - The comprehension of the Islamic religion ............................................... 8
1/From a historical point of view - 2/a theoretical point of view § 2 - Relations between the religion, the right and the State ........................................ 13
Section II - Contents ............................................................................................... 19 § 1 - The question of the statute of the man .............................................................. 19
§ 2 - The question of the concept of freedom .............................................................. 21
1/the design traditionalist - 2/modernistic design Section III - The place of the Islamic Law in the legislation Moslem States ..................................................................................................... 26 § 1 - The legislation inspired of the Islamic Law ..................................................... 26 § 2 - The legislation freed from the Islamic Law ................................................. 28
§ 3 - The legislation subordinate to the Islamic Law .............................................. 31
§ 4 - The confrontation of the various currents of thought ..................................... 34
1/reasons - 2/consequences Chapter II/the expression of particularism ................................................ 39 Section I - The inevitable deterioration of the universal design humans right ................................................................................................... 39 § 1 - Demarcation of the Moslem States ............................................................. 39 § 2 - Elaboration of the documents on the humans right ............................... 42
1/the universal Islamic Declaration of the humans right - 2/two projects of declaration of the O.C.I and the Declaration of Cairo Section II - Contradictions in the documents ..................................................... 48 § 1 - A contradictory interpretation of the humans right ............................................................................................................................ 48 § 2 - «a perfect system of inapplicable protection» .......................................... 51 Contain II - the limitation of the universal range humans right .............................................................................................. 54
Chapter I/a hostility of principle ............................................................. 54 Section I - Development of the legal corpus of the universality humans right .................................................................................................... 55 § 1 - The difficult universality .................................................................................... 55
§ 2 - The specificity of U.N. construction .................................................... 58
Section II - The relativisation of the legal corpus of the universality humans right ..................................................................................................... 61 § 1 - Absolute character of the terminology ............................................................ 61 § 2 - Absolute character of the application ............................................................... 64 Chapter II/a progressive acceptance ........................................................ 67 Section I - The progressive acceptance of the universal design humans right .................................................................................................... 68 § 1 - evolution of the attitude of the Moslem States ............................................... 68
§ 2 - difficulties of application «international Charter of the humans right» ................................................. 74
1/obstacles because of the requirements of the Islamic Law - 2/obstacles of the fact reason of State Section II - incidences of this acceptance ............................................................. 83 § 1 - The modernistic consequences ........................................................................ 84
§ 2 - Practice of the violations of the humans right ........................................ 87 Conclusion .................................................................................................................... 91 Bibliography ............................................................................................................... 93 * 1 S.A Abu-Sahlieh, the international definition of the humans right and Islam, R.G.D.I.P 19985, n°3, p. 627 * 2 Yacoub (J.), Réécirire the Universal declaration of the Humans right, Provocation, Desclée de Brouwer, 1998, p.11 * 3 Ibid, p. 629 * 4 Delmas-Marty (Mireille), Three challenges for a world right, ED. threshold, 1998 * 5 Ibid * 6 Lamchichi (A.), lecturer at the University of Picardy Jules Verne, «Islam-Occident, Islam-Europe: shock of civilizations or coexistence of the cultures? », Coexistence, European stake, CRUCE (University Research center on European Construction Amiens), CAD-Huy (T.), Fenet (A.) (under dir it.), Puf, p.263 * 7 Ibid * 8 Delmas-Marty (Mr.), For a common right, the bookstore of the XXe Century, Threshold, p.8 * 9 Abu-Sahlieh (S.A.A), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p.17 * 10 Ibid, p. 18
* 12 Abu-Sahlieh (S.A.A), «islamist movements and humans right», RT.D.H 34, 1998, pp.251-290 * 13 «The citizenship enters the East and the Occident», Revue of association the Mediterranean n°9, 1996, Harmattan * 14 AD INTERIM D.C 10th session, Tunis 1994, Constitution and religions, Press of the university of Toulouse, 1996, pp.27-28 * 15 Abderraziq (Ali), Islam and the base of the capacity, (1925), the Discovery, 1994 * 16 Ibid, p.156 * 17 Khayati (Mr.), Introduction to the thought of Mr. Mr. Taha, reformist martyr, in BLEUCHOT (H.) and Hopwood (D.), (eds.) : Sudan, history, identities, ideologies, Ithaca Near, 1991, p. 297
* 20 Abu-Sahlieh (S.A.A.), «islamist movements and humans right», R.T.D.H n°34, 1998, p.257 * 21 AD INTERIM D.C 10th session, Tunis 1994, Constitution and religions, Press of the university of Toulouse, 1996 * 22 Roy Olivier, researcher with the C.N.R. Strasbourg, «Company, Right and religion in Europe», ways of D-Islamization, in Capacities, 1992 n° 62, Islam in the city, p. 81-92 * 23 AD INTERIM D.C 10th session, Tunis 1994, Constitution and religions, Press of the university of Toulouse, 1996, p.64 * 24 Ibid * 25 Ibid, p.65 * 26 Ibid
* 29 Wolf (Jurger H.), the political thought in Islam, the legitimation of the capacity and the modern democracy: the case of Morocco, Directory of North Africa, XXXII (1993), ED. C.N.R.S, pp. 361ss * 30 Roller (Eric), In Iran, Islam against Islam, the Diplomatic World, June 1999, pp.20-21 * 31 Roller (Eric), In Iran, Islam against Islam, the Diplomatic World, June 1999, pp.20-21
* 34 Abu-Sahlieh (S.A.A), «islamist movements and humans right», R.T.D.H 34, 1998, p.257 * 35 Mahmud' Abd-Al-Hamid GHURAB, Ahkam islamiyyad idanah lil-qawanin Al-wad' iyyah, Dar Al-i' tissam, Cairo, 1986 * 36 Abu-Sahlieh (Sami A. Aldeeb), human right conflict between the occident and Islam, Algerian Review of economic and political legal sciences, volume XXXO- n°01/1993, p.48 * 37 Sinacor, Mohammed-allal, Islam and humans right in universal dimensions of the humans right, lapyre, Tincey and vask, Bruylant 1990. * 38 Sinacor (MY), «Islam and human right», Lapeyre (A.), De Tinguy (F.), Vasak (K.) (under dir it.), universal dimensions of the humans right, Flight I, Bruylant 1990, p. 149
* 41 Haquani (Z.), «the universal Islamic declaration of the humans right», Universality of the humans right in a pluralist world, Act of the conference organized by the Council of Europe, Strasbourg, April 17-19, 1989, ED. NP Engel, 1990, p. 173 * 42 Ibid, p. 177 * 43 Appendix I, 1ère Declaration of the OCI, 1979, Aldeeb Abu-Sayed (Sami A.), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p.462 * 44 Ibid, Appendix II, p. 265 * 45 Néji Baccouche, « humans right through the declaration of the rights of man of the Organization of the Islamic Conference », in the books of the IDEDH n°5, p.19. * 46 Appendix II, 2nd Declaration of the OCI, 1981, Aldeeb Abu-Sayed (Sami A.), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p. 265 * 47 Ibid, appendix 3, 3rd Declaration of the OCI, 1990, p.468 * 48 Jean-Claude Vatin, « the universal one and characteristics. Remarks in connection with the humans right in the Islamic world », bulletin of E.C.D.E.J (Cairo), n° 18, 2nd half of 1985, p.172. * 49 Haquani (Z.), «the universal Islamic declaration of the humans right», Universality of the humans right in a pluralist world, Act of the conference organized by the Council of Europe, Strasbourg, April 17-19, 1989, ED. NP Engel, 1990, p. 177 * 50 Appendix 3, 3rd Declaration of the OCI, 1990 Aldeeb Abu-Sayed (Sami A.), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p.470 * 51 Ibid, p.471 * 52 Ibid * 53 Aldeeb Abu-Sahlieh (Sami. With), «conflict humans right between the Occident and Islam, Algerian Review of economic and political legal sciences, Volume XXXI-N°1/1993, p.47, note (15) * 54 Appendix 7, Charter of the Arab League, 1993, Aldeeb Abu-Sayed (Sami A.), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p.507-508 * 55 Appendix 7, Charter of the Arab League, 1993, Aldeeb Abu-Sayed (Sami A.), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p.505 * 56 A. Aldeeb Abu-Sahlieh, Human right conflict between the occident and Islam, Algerian Review of economic and political legal Sciences, Volume XXXI- N°01/1993, p.72
* 58 Sudre (Frederic), International law and European of the humans right, P.U.F, 1997, p.20 * 59 Tavernier Paul, «Arab States, the O.N.U and humans right», Cognac (G.), Amor (A.), Islam and humans right, Paris, Economica 1994 p.57 * 60 Are Cassese (Antonio), the humans right truly universal? , R.U.D.H 1989, Flight 1, p. 18 * 61 Ibid p.14 * 62 Sheba (Hanna), «the international Charter of the humans right, his development and his application in a multicultural world», future of the international law in a multicultural world, R-J Dupuy (under dir it. of) Conference from November 17-19, 1987 in Nayve Academy off international Law, pp. 331-339 * 63 Ibid, p.333 * 64 Ibid * 65 AG, 3rd Committee, Nov. 26, 1982, A/C.3/37/SR. 56, p.17 * 66 Sinacor (MY), « Islam and humans right », in universal dimensions of the humans right, Lapeyre (A.), De Tinguy (F.), Vasak (K.) (under dir it.), vol. 1, Bruylant, 1990, * 67 «violations of the press of 1992 to 1998 in Algeria», www.rsf.fr * 68 Imbert (pH), connects it simplicity of the humans right, R.U.D.H, 1989, p.2. * 69Abu-Sahlieh, «Human right conflict between the Occident and Islam», Algerian Review of economic and political legal sciences, Volume XXXI- N° 01/1993, p.67 * 70 Sinacor (MY), Islam and humans right ", universal dimensions of the humans right, Lapeyre (A.), Tinguy (F.), Vasak (K.) (under dir it.), Bruylant Brussels, Volume I, 1990, p.161 * 71 Paul Tavernier, «Arab States, UNO and humans right»,», Cognac (G.), Amor (A.), Islam and humans right, Paris, Economica 1994, p.59, * 72 Ferjani (M-C), Islamism, secularity and human right, to include/understand the East, Harmattan, p.374: * 73 Sudre (F.), Right intrenational and European of the humans right, Puf 1997, p.89 * 74 Appendix 7, Charter of the Arab League, 1993, Aldeeb Abu-Sayed (Sami A.), Moslems vis-a-vis the humans right, religion § political right §. Study and documents, Bochum, Winkler, 1994, p.505 * 75 Ibid, p.91 * 76 Tavernier (P.), professor at the University of Rouen, Director of the CREDHO (study and research center on the humans right and the humane right); Arab States, UNO and humans right. The Universal Declaration of the Humans right and Pacts of 1966, Conac (G.) (under dir it), Economica, Islam and human right, 1994, p.67 * 77 Ben Mahmoud (K.C), «Universality of the humans right in a pluralist world», the Council of Europe, Edition NR. P. Engel, p.143 * 78 Tavernier (P.), Arab States, UNO and humans right..., Conac (G.) (under dir it.), Islam and humans right, Economica, 1994, p.67 * 79 CCPR/C/51/Add.7, September 2, 1992, p.89, appendix II * 80 CCPR/C/51/Add.7, September 2, 1992, p.90, appendix II * 81 CCPR/C/79/Add.23, August 9, 1993, p.3, § 12 * 82 CCPR/C/42/Add.10, May 3, 1990, p.16, § 72 * 83 CCPR/C/76/Add.3, August 27, 1993, p.21, § 74 * 84 CCPR/C/75/Add.2, second periodic report/ratio relating to the PIDCP, § 134 (observations relating to article 19 of the Pact), of Sudan on March 13, 1997. * 85 CCPR/C/79/Add.85, final observations of the committee of the humans right after examination of the second report/ratio of Sudan (November 19, 1997) * 86 CCPR/C/SR.715, analytical record of the 715ème meeting of the committee of the humans right, §21, on April 6, 1987. * 87 CCPR/C/50/add.2, § 42, initial reports/ratios of democratic Yemen presented under the terms of article 40 of the international Pact of the civil laws and political. * 88 CCPR/C/82/Add.1, §83. * 89 CCPR/C/79.Add.95, August 18, 1998, final Observations of the Committee of the humans right, p.6, § 16 * 90 CCPR/C/28/Add.16, 4 May 1993, Second reports/ratios periodic, p.11, § 44 * 91 CCPR/C/79/Add.44, final observations of the Committee of the humans right, Morocco, November 23, 1994, § 2 * 92 CCPR/C/28/Add.15, second periodic report/ratio relating to the PIDCP, of the Islamic Republic of Iran on May 22, 1992. * 93 CCPR/C/Add.1, October 12, 1993, second periodic reports/ratios of the States left which were to be presented in 1993, § 83 * 94 CCPR/C/52/Add.5 §121 b), and CCPR/C/84/Add.1 §180 c). * 95 CCPR/C/SR.992, July 20, 1990, p.9, § 29 * 96 CCPR/C/79.Add.95, August 18, 1998, final Observations of the Committee of the humans right, p.6, § 16 * 97 CCPR/C/79/Add.101, November 6, 1998, p.4, § 15 * 98 CCPR/C/79/Add.44, November 23, 1994, p.3, § 15 * 99 Paul Tavernier, Arab States, UNO and humans right ", «, Cognac (G.), Amor (A.), Islam and humans right, Paris, Economica 1994, p.71
* 103 Ferjani Mohammed-sherif, «Islamism, secularity and human right, To include/understand the Middle East, Harmattan, p. 275 * 104 Marc Margenis, «the information controlled in Algeria», the Diplomatic World, September 1998, p.9 * 105 Ibid * 106 Reporters without borders, «Algeria, violations of the 1992, freedom of the press to 1998», www.rsf.fr * 107 Ibid * 108«Of the journalists tortured in Syria according to Reporters without borders», the World, Monday December 21, 1998, p.4 * 109 Bassir For (A.), «Iran wants to close again the file Salman Rushdie», the World of the 28 September 1998, p. 1 and 12 * 110 Yacoub (J.), To rewrite the Universal Declaration of the Humans right, Provocation, Desclée de Brouwer, 1998, p.40 * 111 Dupuy (R-J), Conclusions of the conference, future of the international law in a multicultural world, R-J Dupuy (under dir it. of) Conference from November 17-19, 1987 in Nayve Academy off International Law, p.454 * 112 Sinacor (Mr. A), «Islam and human right», in universal dimensions of the humans right, Lapeyre (A.), De Tinguy (F.), Vasak (K.) (under dir it.), vol. 1, Bruylant, 1990 * 113 Yacoub (J.), To rewrite the Universal Declaration of the Humans right, Provocation, Desclée de Brouwer, 1998, p.47-48 |
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