Abstract
This article proposes a compatibility assessment framework for specifying and narrowing down the Muslim states partiesâ generic and vague reservations to the United Nations (UN) core human rights treaties and the corresponding equally generic and vague objections by non-Muslim states parties. These reservations and objections seem to be informed by misperceptions about human rights and Islamic law. I argue that human rights and Islamic law are, to a greater extent, compatible and further compatibility may be achieved by employing the proposed contextual interpretive approach: to interpret human rights and Islamic law in their historic and contemporary social contexts. I tested the framework by conducting a compatibility assessment of the foundations, objectives and purposes, jus cogens and nuṣūṣ, and the limitation schemes of human rights and Islamic law and found them to be compatible. This article aims to contribute to a better understanding of human rights and Islamic law, which would assist in maximising the application and enjoyment of human rights in the Muslim states and bolster cooperation in developing respect for and promoting human rights required under Articles 1 and 55 of the UN Charter.
1 Introduction
Many Muslim states parties have made generic and vague reservations to the United Nations (UN) core human rights treaties. Non-Muslim states parties consider these reservations to be against the âobject and purposeâ of human rights treaties and doubt Muslim states partiesâ commitment to their obligations. They have, therefore, made equally generic and vague objections to these reservations.
The constitutions of most Muslim states are based on Islamic law or recognise Islam as a source of law.1 When they ratify human rights treaties, very often they subject their compliance with treaties to the compatibility of treaty provisions with Islamic law and/or their constitutions. Muslim states express their intentions as to how they would implement the treaties through their reservations and interpretive declarations to treaties. The following examples are reflective of Muslim statesâ practice. Malaysiaâs accession to the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) âis subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Sharia law and the Federal Constitution of Malaysiaâ (United Nations Treaty Collections 1979 (hereinafter UNTC)).2 In 1998, Malaysia replaced the generic reservation with a specific one, but France still viewed it as âincompatible with the object and purpose of the Conventionâ (UNTC 1979). Saudi Arabiaâs reservation to CEDAW states that âin case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Conventionâ (UNTC 1979). France objected to Saudi Arabiaâs reservation, arguing that it is âof general, indeterminate scope that gives the other states parties absolutely no idea which provisions of the Convention are affected or might be affected in futureâ (UNTC 1979). Bangladesh states that it âdoes not consider as binding upon itself the provisions of article 2, [⦠and â¦] 16 (1) (c) [of CEDAW] as they conflict with Sharia law based on Holy QurʾÄn and Sunnaâ (UNTC 1979). Compared to other Muslim states, the reservation of Bangladesh is specific and narrow. Brunei Darussalam does not consider itself to be bound by âthose provisions of [CEDAW] that may be contrary to the Constitution of Brunei Darussalam and to the beliefs and principles of Islamâ (UNTC 1979). Pakistanâs reservation states that Articles 3, 6, 7, 18 and 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR) âshall be so applied to the extent that they are not repugnant to the Provisions of the Constitution of Pakistan and the Sharia lawsâ (UNTC 1979). The Netherlands found Pakistanâs reservation unclear and raised âconcerns as to the commitment of the Islamic Republic of Pakistan to the object and purpose of the Covenantâ (UNTC 1979). In response, on 20 September 2011, Pakistan modified and clarified its reservation to many articles of the ICCPR but maintained its generic reservation that only those treaty provisions would be implemented which were compatible with its constitution and SharÄ«Ê¿a. Qatarâs reservation states that it âshall interpret the term âpunishmentâ in Article 7 of the [ICCPR] in accordance with the applicable legislation of Qatar and the Islamic Shariaâ (UNTC 1979). Qatarâs reservation further states that it âshall interpret Article 18[2] of the Covenant based on the understanding that it does not contravene the Islamic Shariaâ (UNTC 1979). Sweden objected to Qatarâs reservation, claiming that âsuch reservations, which do not clearly specify the extent of the derogations, [raise] doubt as to the commitment of the state of Qatar to the object and purpose of the [Covenant]â (UNTC 1979).
Making reservations to human rights treaties, per se, is not problematic as international law provides states parties the flexibility in making reservations and adopting the method of incorporating a treaty into their domestic legal systems. International law allows states to make reservations if not prohibited by the relevant treaty and/or not against the âobject and purposeâ of the relevant treaty (VCLT, Art 19(c)). The number of treaties that do not allow reservations at all is very limited. Some treaties explicitly prohibit reservations, which would be against their âobject and purposeâ. For instance, Article 28(2) of CEDAW prohibits reservations incompatible with the âobject and purposeâ of CEDAW. States parties may also suspend and derogate from some, but not all, provisions temporarily during a national emergency.3 Human rights treaties also give states parties the flexibility to incorporate treaties into their domestic law according to their constitutions.4
Muslim statesâ accession to most core human rights treaties demonstrates their willingness and commitment to human rights law, but their generic and vague reservations cast doubt on their commitments. As I argue below that human rights treaties and Islamic law are, to a greater extent, compatible, Muslim states partiesâ practice of making generic and vague reservations indicates that they did not conduct proper compatibility assessments to determine which treaty provisions they thought were potentially incompatible with Islamic law. Had they conducted compatibility studies, their reservations would have been narrower, specific, and, in most cases, not needed. Similarly, the generic and vague objections by states parties such as France and Sweden suggest that they did not conduct compatibility assessments either. Their objections stem from the misconception that Islamic law and human rights treaties are incompatible. Had they conducted proper compatibility studies, they would have found greater compatibility and their objections would have been narrower, specific and perhaps not needed.
International and Islamic law do not provide a framework for conducting compatibility assessments. There are many scholarly works on Islamic and human rights law, but the current corpus does not provide a carefully designed framework for compatibility assessments. Muslim scholars, such as Maududi (1995) and Brohi (1978), tend to expose the superiority of the Islamic concept of human rights over the secular Western-centric international human rights law, but without devising or employing a compatibility framework. Other scholars, such as Mayer (1990), Anver et al. (2012), and Sachedina (2009), engage in critical analyses of Islamic and human rights law, but not within a clearly designed compatibility framework.5 Scholars such as An-Naim (1990) and Baderin (2003), who seek reconciliation between human rights law and Islamic law, espouse specific and commendable approaches but do not offer a compatibility framework.6 This lack of a compatibility framework is not confined to the comparative study of Islamic and human rights law. There are studies in other areas, such as diplomatic law (Ismail 2016), humanitarian law (Al-Dawoody 2011), and criminal law (Bassiouni 2014), which do not offer fully developed compatibility frameworks (see Shah 2022; Bourgeois 2016; Shelton 2011). For instance, Al-Dawoodyâs (2017; 2019; 2022; 2023; and 2024) extensive scholarship has expanded the boundaries of Islamic and humanitarian law, but none of the publications provide a framework as set out below. For instance, the aim of Al-Dawoody and Signoretâs (2023) publication is to provide an overview of humanitarian law and Islamic law regarding the dead and challenges the forensics face in the Muslim conflicts. Al-Dawoody and Murphy (2020) compare how Islamic and international law protect children in armed conflict.
This article proposes a framework for conducting compatibility assessments of Islamic law and human rights treaties. The framework would assist Muslim states at the formation and ratification stages of treaties. At the formation stage, Muslim states can actively participate in debates and contribute to the development of human rights law with a clear understanding of draft treaty provisions which would be compatible with Islamic law. At the ratification stage, Muslim states should conduct a proper compatibility assessment and make, if necessary, specific and narrow reservations to potentially incompatible provisions. The framework would assist monist as well as dualist states, as both would need to conduct a compatibility assessment before acceding to a treaty.
Non-Muslim states parties can also employ the framework for conducting their compatibility assessments (e.g., consulting country and Islamic law experts) at the formation stage, as well as when objecting to the reservations of Muslim states parties. An assessment under the proposed framework would assist in enabling non-Muslim states to better appreciate the debates, contributions, and reservations of Muslim states, and, in turn, be specific in their objections. The framework may assist scholars as well as civil society organisations involved in compatibility studies.7 It is hoped that finding greater compatibility between Islamic law and human rights treaties through employing this framework would lead to a better understanding and contribute to maximising the application of human rights law and greater enjoyment of human rights in Muslim states. It would also lead to better cooperation among states as required under Articles 1 and 55 of the Charter of the United Nations, 1945.
This article is divided into four sections. Section 1 introduces the issues and provide context for discussion. Section 2 discusses the meaning and the logic behind compatibility assessment. Section 3 sets out the compatibility framework, which is tested in Section 4. Section 4 discusses and tests the five-step framework, i.e., it compares the foundations, objectives and purposes of human rights treaties and Islamic law as well as the human rights jus cogens and nuṣūṣ of Islamic law. It also analyses the permissible limitations schemes of human rights and Islamic law to determine whether both are compatible. Section 5 concludes the analysis and discussion.
2 The Meaning of Compatibility
Human rights treaties have not defined compatibility, but according to the Oxford Advanced Learnerâs Dictionary (Hornby 2000), one of the meanings of compatibility is âthe ability of people or things to live together without problems.â Municipal laws of states parties, such as the Human Rights Act 1998 of the United Kingdom, empower senior courts to give a statement of incompatibility in respect of any legal provision which they find incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) (UKPGA 1998). The act, however, does not define compatibility. Section 8 of the Human Rights Act 2019 of Queensland, Australia, has defined compatibility as follows:
An act, decision or statutory provision is compatible with human rights if the act, decision or provision (a) does not limit a human right; or (b) limits a human right only to the extent that is reasonable and demonstrably justifiable [â¦] in a free and democratic society based on human dignity, equality and freedom.
Queensland Government 2019
In my view, any provision of municipal law that may dilute or limit the content or scope of a human rights treaty provision can be considered incompatible.
2.1 Why Compatibility?
Compatibility assessment of human rights treaties and Islamic law has several benefits. First, a better understanding of Islamic law and the proposed draft treaty would assist states at the formation stage. Muslim states participating in the debates on proposed draft treaties would need to make informed decisions on the object and purpose as well as each draft provision. If the object and purpose of the proposed treaty were against Islamic law, it may not be possible for Muslim states to ratify it, as that is not allowed under Islamic law and their constitutions. The reservation regime would also not mitigate against this, as international law does not allow a reservation which would go against the object and purpose of a treaty. Muslim states also need to make a meaningful contribution to the development of international law by offering their new or alternative draft proposals.8 A good example of this is Article 20(3) of the Convention on the Rights of the Child 1989 (CRC), which recognises the Islamic law concept of kafÄla (an alternative to family care for those children who are deprived of a family environment)9 as a form of care system for children without a family environment.10 Article 3(e) of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 also recognises kafÄla as an alternative care system. This kind of outcome can be achieved only when all states have a better understanding of Islamic law.
Second, compatibility assessment may assist with the implementation of treaties as they impose obligations on states parties to take legislative and other measures to implement the treaties nationally. The obligation of compatibility applies to existing as well as future laws and other measures. Existing laws and policies should be brought in line with treaty standards, whereas future laws and policies shall be made compatible with human rights treaties. States parties can implement treaties meaningfully only after they have conducted a compatibility assessment. Monist states would need a compatibility assessment before ratification to determine whether their laws meet the treaty standards, or do they need to amend their existing laws or make reservations to provisions conflicting with municipal law. As treaties are not directly applicable in dualist states, they would need to conduct an assessment at the time of signature or soon after to determine whether they need to amend conflicting laws, if there were any, or make reservations to potentially conflicting provisions.
Third, compatibility assessment would assist in limiting the Muslim states partiesâ practice of generic and vague reservations and corresponding generic and vague objections by non-Muslim states parties. Through compatibility assessment, conflicting provisions should be identified, and where necessary, specific and narrow reservations may be made. Once a treaty is ratified without reservation, Article 27 of the VCLT prohibits states parties from invoking internal law âas a justification for its failure to perform a treaty.â Finally, Article 26 of the VCLT requires states parties to follow the good faith principle: âEvery treaty in force is binding upon the parties to it and must be performed by them in good faith.â The good faith principle demands that all legal and other hurdles to implementing treaties are identified and removed.
2.2 Is Full Compatibility Required?
Human rights treaties allow reservations except those which are against the object and purpose of a treaty. Full compatibility of municipal laws with human rights treaties depends on the reservations of states parties. States parties are sovereign and may or may not become parties to treaties. When they decide to sign and ratify human rights treaties, they can do so with or without reservations. If a state party has acceded to a treaty without reservation or a treaty does not allow reservation, then full compatibility would be required. Otherwise, states parties can modify the nature of their legal obligations by making reservations in respect of treaty provisions they deem to be incompatible with municipal law. All core human rights treaties permit reservations. The flexibility to modify legal obligations indicates that human rights treaties recognise global cultural and legal diversity and do not expect full compatibility.
2.3 Is Full Compatibility Desirable?
Following on from the permissibility of reservations to core human rights treaties, I argue that full compatibility is not desirable for three main reasons.11 First, human rights treaties allow flexibility to states parties to make reservations and modify the nature of their obligations. The second reason is global cultural and legal diversity, as the world is composed of different religions, cultures and followers of different philosophical beliefs.12 There are many political systems and democratic cultures ranging from relatively better democratic setups to states with democratic facades. It is inevitable that in the world made up of diverse religions, cultures and political systems, there would be no unanimity of moral standards except the fundamental human values. Even in Europe, a single geographic unit and former Christendom,13 the European Court of Human Rights (ECtHR) found a lack of unanimity of moral standards and allows states a âmargin of appreciation.â14 The ECtHR allows flexibility (i.e., margin of appreciation) to states parties to interpret and enforce the Convention rights according to their pressing social needs. To appreciate global diversity and encourage more states to come into the human rights fold, the core human rights treaties allow reservations.
Finally, the early core human rights treaties were formed at a time when the UN membership was limited and colonial powers heavily influenced the formation of treaties, reflecting the dominance of Western values and culture. The thinking to recast the world in the Western image was still dominant. It was also the age of the Cold War, as the world was divided into capitalist and socialist camps. The original UN membership in June 1945 was 51. At the time of adopting the Universal Declaration of Human Rights on 10 December 1948 (UDHR), the membership had slightly increased to 58. Today, the total membership is 193 (United Nations 2024).15 Many states gained independence after the International Bill of Rights (i.e., UDHR, ICCPR and ICESCR), which had played no meaningful role in the formation of post-1966 treaties (see An-Naim 2021).16 It is understandable for those states to make reservations to treaty provisions which they deem potentially incompatible with their laws.
Generally speaking, the issue of making reservations to core human rights treaties is not limited to Muslim states parties. Non-Muslim states parties have made extensive reservations as their laws are not fully compatible with human rights treaties. For instance, the United Kingdom has made reservations to the ICESCR and CRC (UNTC 1969). The UKâs reservation to CEDAW states:
In the light of the definition contained in Article 1, the United Kingdomâs ratification is subject to the understanding that none of its obligations under the Convention shall be treated as extending to the succession to, or possession and enjoyment of, the Throne, the peerage, titles of honour, social precedence or armorial bearings, or as extending to the affairs of religious denominations or orders or any act done for the purpose of ensuring the combat effectiveness of the Armed Forces of the Crown.
UNTC 1969
The UK reservation reflects the law on succession to the throne, where religion and sex of the person played a determinative role, i.e., the King/Queen must be Protestant, and a younger son cannot displace the elder son. The Succession to the Crown Act 2013 amended the provisions, but the Act applies to those born after 28 October 2011. Israel has made a reservation âwith regard to article 7 (b) of the Convention [CEDAW] concerning the appointment of women to serve as judges of religious courts where this is prohibited by the laws of any of the religious communities in Israelâ (UNTC 1979). New Zealand made a reservation to CEDAW stating that the âGovernment of the Cook Islands reserves the right not to apply article 2 (f) and article 5 (a) to the extent that the customs governing the inheritance of certain Cook Islands chief titles may be inconsistent with those provisionsâ (UNTC 1979). Spain, like the UK, made a reservation about succession to the throne: âThe ratification of the Convention by Spain shall not affect the constitutional provisions concerning succession to the Spanish crownâ (UNTC 1979).
Most states parties have made reservations, but Muslim states partiesâ reservations have attracted objections from non-Muslim states parties and are criticised in scholarly writings (Cook 1990), especially by Western scholars. There are two main reasons for this: (a) the generic and vague nature of the reservations by Muslim states and (b) the general misperception that Islamic law is incompatible with human rights. One of the aims of the proposed framework is to assist with conducting a compatibility assessment, which would assist in addressing these two issues.
3 The Compatibility Framework
For a systematic and meaningful compatibility assessment, first, the foundations of human rights and Islamic law should be compared and assessed to determine foundational compatibility. Second, the broader objectives and purposes of human rights and Islamic law should be compared and assessed to determine their compatibility with each other. Each human rights treaty has its object and purpose, which shall be assessed to determine whether Islamic law recognises the object and purpose of that treaty. Third, human rights jus cogens should be compared with the Islamic law nuṣūṣ17 to determine whether they are compatible. Broad compatibility on these three points â foundational, object and purpose and jus cogens and nuṣūṣ â must be established. If there were incompatibility among these, the interpretive approach proposed below should be employed to explore whether different interpretations could lead to a compatible outcome. Otherwise, accession and commitment to human rights treaties would be symbolic and fruitless. Fourth, the permissible limitations on human rights (i.e., limits in limited rights; qualifications in qualified rights and derogation in national emergency) should be compared with Islamic law (i.e., limited and qualified rights and the law of necessity (á¸arÅ«ra)) and assessed to determine whether they are compatible. Finally, it might be the case that in some areas of Islamic law, it provides favourable treatment and stronger protection than human rights treaties. As human rights law provides the minimum standards and allows the most favourable provisions of municipal law to be applied (see CEDAW, Art. 23), the most favourable provisions of Islamic law shall prevail in such cases.
For resolving incompatibility, the first step should be legislative compatibility, i.e., amending and/or repealing existing laws to bring them in line with treaty provisions and making new laws which are compatible with the treaty provisions. If this is not feasible, interpretive compatibility may be achieved by adopting the contextual interpretive approach to narrow down or eliminate the incompatibility where possible. A contextual interpretive approach means that both Islamic law and human rights treaties may be interpreted harmoniously and purposively in the light of their contemporary and historic contexts. In terms of Islamic law, context means the historic and social context in which an Islamic provision came into existence (i.e., first/seventh-century tribal Arab society) and the contemporary context and specific society in which it is going to be applied (Shah 2006; 2011). In terms of human rights treaties, context means the history and context of their formation, their predominant Western origin, and their application in contemporary Muslim states. Interpretive compatibility may be achieved by adopting a two-way approach: interpreting Islamic law compatibly with human rights law and interpreting human rights law compatibly with Islamic law where a provision is susceptible to more than one interpretation. Different interpretations of treaties are possible in some instances, as the cases of SAS and Yarker suggest. In SAS v France (2015), the ECtHR held that the French law banning face covering in public places was not discriminatory. In Sonya Yaker v France 2016, a case based on identical facts arising under the same provision of French law, the UN Human Rights Committee (HRC) held the same law to be discriminatory. The ECtHR decided the case under Articles 8 (right to private life) and 9 (freedom of religion) ECHR but found no violation. The HRC decided the case under Article 18 (freedom of religion) ICCPR but found a violation of the right to freedom of religion. The ECHR and ICCPR are different treaties, but the language and contents of both Article 9 ECHR and Article 18 ICCPR are identical. This demonstrates that identical treaty provisions may be interpreted differently even by international human rights judicial and quasi-judicial bodies.
The table below provides an overview of the framework:
Citation: Journal of Islamic Ethics 2026; 10.1163/24685542-20250013
4 Testing the Compatibility Framework
We test the framework by providing some illustrations from each component of the five-step framework.
4.1 Foundational Compatibility: Human Dignity and Equality
Human dignity and equality form the foundation of human rights law (Davis 2021, 4).18 Human dignity has two aspects: dignity and autonomy. âHuman dignity refers both to a foundational premise of human rights and a principle having an impact on the methods of interpretation and application of specific human rightsâ (Shilton 2020, 7).19 It means that every human being has an equal and inherent moral value and status entitling them to have other people, including institutions, respect that status. âDignity, in this sense, is an unearned attribute of all human beingsâ (Davis 2021, 4). Individual autonomy is a central part of human dignity. âAutonomy describes the freedom to live according to oneâs own sense of valuesâ and be a âperson with interests and desiresâ, and be able to pursue them (Davis 2021, 4). Autonomy also includes the capacity to enter into contracts and agreements freely, but once entered, the individual is bound by the terms of the agreements and contracts (Davis 2021, 8).
Human rights law emphasises human dignity. The UDHR mentions human dignity five times. During the debate on UDHR, diverse meanings of dignity emerged, but all âdespite their diversity affirmed the equal moral worth of all human personsâ (Davis 2021, 8). The tradition of mentioning and anchoring various rights in human dignity is reflected in subsequent human rights treaties. The International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD) has mentioned human dignity three times in its preamble (see generally Meron 985, 283). In their preambles, the ICCPR and ICESCR recognise that âthese rights derive from the inherent dignity of the human person.â The same recognition and confirmation is found in core treaties such as CEDAW,20 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT);21 CRC;22 and Convention on the Rights of Persons with Disabilities 2006 (CRPD). The same tradition has been maintained in regional human rights treaties (Shilton 2020, 9â11). Human dignity is central to human rights treaties.
Human dignity and equality are the central tenets of Islamic law. The Islamic concept of human dignity begins from birth, followed by being born in the best physical shape, exalted status in the universe and the endowment of knowledge and freedom. God has created man from a single pair of man and woman, indicating unity and equality of creation and the only ground of differentiation is righteous conduct (Q 49:13, 46:19, 6:132). This is why the QurʾÄn (Q 2:213) considers the whole of mankind as one nation. The QurʾÄn says human beings were created in the best shape (Q 95:4); fashioned in due proportion (Q 82:7); God blew His spirit into them (15:29, 38:72); and gave them exalted place even higher than angels in His scheme of the universe (Q 2:34). God gave human beings knowledge (Q 2:31) and were honoured (Q 17:70, 17:62). God made man as His vicegerent on earth (Q 2:30) and created all things in the universe for the benefit of man (Q 2:29). All these verses of the QurʾÄn use the word âhuman beingsâ and apply to all human beings including but not limited to Muslims. The dignity, honour and exalted position of human beings in the QurʾÄnic scheme is beyond doubt. Under Islamic law, âdignity is a natural right belonging to every individualâ and is âthe absolute right of everyoneâ (Kamali 1993, 356).
The QurʾÄn also recognises individual autonomy. All human beings are born free and equal. They are free to choose any religious or philosophical belief. There are many divine religions, Islam being one of them. The QurʾÄn requires the propagation of its message by arguing and presenting Islam in the best manner (Q 16:125), leaving it to the people to believe or not to believe (Q 18:29). The QurʾÄn (2:256) states: âlet there be no compulsion in religion.â Those who volitionally enter the fold of Islam enter into a contract with God by confirming that there is no God except God and that the Prophet Muḥammad is the messenger of God. They make a covenant with God that they will obey the code of conduct of God and His messenger (Q 4:59) (see comments of Ali (2003) on Q 5:7). They also enter into âa contract (bayÊ¿a) with the Muslim community that his life be regulated in accordance with aḥkÄm [commands] of Godâ (Nyazee 2016, 50). Hence, they would need to follow the terms of the contract (Islamic law) they entered into as free agents. This is why Islamic law applies only to Muslims and does not bind non-Muslims in a Muslim state, as they have not made a covenant with God or the Muslim community.23 Those who want to leave the fold of Islam can, as the QurʾÄn (2:256) states, that there is âno compulsion in religion.â Q 2:256 has a two-fold meaning: (a) no one can be forced to enter into Islam, and (b) no one can be forced to stay in Islam if they wanted to leave. This verse will become meaningless if force is applied in both scenarios, i.e., at the entry or exit points. Yusuf Ali (2003, 103) argues that âcompulsion is incompatible with religionâ because âreligion depends upon faith and will.â24 The concepts of human dignity and autonomy in human rights law are compatible with Islamic law.
Human rights law guarantees equality and non-discrimination. Article 1 of the UDHR states that âAll human beings are born free and equal in dignity and rights.â Commenting on Article 26 of the ICCPR, Nowak (2005, 598) says that âalong with liberty, equality is the most important principle imbuing and inspiring the concept of human rights.â All core human rights treaties entitle everyone to all rights without any kind of discrimination based on sex, race, religion, political opinion, etc.25 Non-discrimination is an overarching norm and linked to human equality (Shelton 2011, 131). Everyone similarly situated would be treated in the same way, and everyone is entitled to the same set of rights guaranteed by human rights treaties.26 Nowak (2005, 600) says that equality and prohibition of non-discrimination run like a red thread throughout the ICCPR.
Islamic law recognises equality and non-discrimination as fundamental rights. As discussed above, the QurʾÄn believes in the oneness of humankind, freedom, and equality. The QurʾÄn (49:13) states: âWe created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise (each other)).â In his farewell sermon, Prophet Muḥammad said: âAn Arab is no better than a non-Arab. In return, a non-Arab is no better than an Arab. A red man was not better than a black one except in piety. Mankind is all Adamâs children, and Adam was created from dustâ (al-Mubarakpuri 2002, 398; Ibn Ḥanbal 2001). During his last sermon, Prophet Muḥammad said that all Muslims are brothers (Guillaume 2007, 651). The two primary sources of Islamic law forbid discrimination. This principle was applied by Muslim rulers as the following two examples suggest. During the time of the second caliph, Ê¿Umar (d. 23/644), a Syrian royal (Jabala b. Ayham al-GhassanÄ« (d. 24/645)) who had converted to Islam, slapped someone for accidentally walking on al-GhassanÄ«âs mantle. The victim retaliated by slapping al-GhassanÄ« back. Al-GhassanÄ« took the matter to caliph Ê¿Umar, expecting severe punishment for the man who had slapped him in retaliation, but caliph Ê¿Umar told al-GhassanÄ« that he had received punishment for what he did. Al-GhassanÄ« complained that he belonged to a high and noble rank, and those who were rude to us like this were punished with death in Syria. Caliph Ê¿Umar said that it was the case during the time of ignorance. Islam has equalised all ranks (Hussain 2001, 45â46). Another precedent of non-discrimination is that Prophet Muḥammad appointed UsÄma ibn Zayd (d. 54/673), who was a son of a black slave, as commander of the Muslim army. Caliph Ê¿Umar paid UsÄma a salary which was higher than his own son (Ibn KathÄ«r 2000, 442â443). There was no discrimination in the appointment, as well as paying him a higher salary, as both were based on merit. The QurʾÄnic principle and subsequent practices of Prophet Muḥammad demonstrate that discrimination on the basis of race, birth, rank, colour, religion, etc., was practiced in the pre-Islamic era, but Islam abolished it. The concept of human equality in human rights and Islamic law is compatible.
4.2 Compatibility of Objective and Purpose
The broader objective of human rights law is to treat people equally and fairly so that they can have a dignified and peaceful life in society.27 Equality and fairness are the cardinal principles of Islamic law. As discussed above, according to the QurʾÄn, all human beings are born equal and free. The concepts of fairness and Ê¿adl (justice) are intertwined in Islamic law. The QurʾÄn (4:58) commands that when you judge between men, judge with justice, and (Q 4:135) âstands out firmly for justice and let not the hatred of others make you swerve to wrong and depart from justice.â The QurʾÄn (4:105) further states: âWe have sent down to you the book in truth, that you might judge between men, as guided by AllÄh: so be not used by those who betray their trust.â The term Islam is derived Arabic word âsilmâ, which means âpeaceâ and âsubmissionâ (Esposito 2003, 114). Islamic society is based on equality, fairness, justice and non-discrimination.28 The broader objectives of Islamic law are to protect life, religion, intellect, progeny, and property (Kamali 2003, 235; Nyazee 2006, 213). These essential values of Islamic law âare all premised on the dignity of the individual, which must be protected as a matter of priorityâ (Kamali 2008, 62). Human rights treaties also protect life, intellect, progeny and property. The broader objectives of human rights treaties and Islamic law are compatible. The following compatibility assessment of the objectives and purposes of core treaties such as CERD, CEDAW, CAT, and CRC further strengthens this finding.
The object and purpose of the Convention on the Elimination of All Forms of Racial Discrimination 1966 (CERD) is to eliminate racial discrimination as âany doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous.â29 As discussed above, Islamic law prohibits racial and other forms of discrimination and is compatible with the object and purpose of the CERD. The practice of Muslim states parties confirms this view as well as they have not made substantive reservations to CERD with the exception of Saudi Arabiaâs usual generic and vague reservation subjecting compliance with the Convention to its compatibility with SharÄ«Ê¿a (UNTC 1969).30 As Islamic law prohibits discrimination, the generic reservation is misconceived and should be withdrawn to place Saudi Arabia in line with the rest of the Muslim states parties.
The object and purpose of CEDAW is to eliminate discrimination against women by achieving âfull equality between men and womenâ and âmaximum participation of women on equal terms with men in all fields.â31 Islamic law treats men and women equally. There might be different routes to achieving equality, as Islamic law aims at equality of outcome and equality as a human being (Shah 2006). Men and women are equal in dignity and human worth. They are also free and enjoy individual autonomy like men. They are entitled to equal economic rights as the QurʾÄn (4:32) states: âTo men is allotted what they earn, and to women what they earn.â Equality of men and women is also reflected in Muslim statesâ constitutions and other laws, but despite these equality provisions, some have made generic and vague reservations to CEDAW. For instance, Pakistan has declared that its accession to CEDAW is âsubject to the provisions of the constitutionâ (UNTC), whereas Article 25 of the 1973 constitution of Pakistan states that âThere shall be no discrimination on the basis of sex.â32 The Federal Shariat Court (an Islamic court) has held that Islam recognises gender equality, relying on the QurʾÄn, Article 25; UDHR and CEDAW (Gender Equality Case 2006). Saudi Arabia has also subjected compliance with CEDAW to its compatibility with SharÄ«Ê¿a, whereas Article 26 of Saudi Arabiaâs Basic Law of Governance 1992 states that âThe state shall protect human rights in accordance with Islamic SharÄ«Ê¿a.â Under Islamic law, men and women are equal in dignity and worth and have similar economic rights. The reservations of Pakistan and Saudi Arabia are inherently in conflict with their constitutions. The QurʾÄn treats men and women equally, but it is the official interpretation of Islamic law by some Muslim states that is gender discriminatory. That official interpretation is not only incompatible with the provisions of CEDAW but also with the primary sources of Islamic law. Islamic law in itself is compatible with the object and purpose of CEDAW, as the primary sources suggest.
The object and purpose of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) is to prohibit severe human pain or suffering and preserve human dignity in all circumstances. As discussed below, the object and purpose of CAT are compatible with the objectives of Islamic law and its concept of human dignity. The practice of Muslim states parties is reflective of this, as they have not made reservations to the substantive provisions of CAT (UNTC 1984).
The object and purpose of the CRC is that âthe child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.â Furthermore, âthe child should be fully prepared to live an individual life in society [â¦] in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.â33 Islam has given special status to children. The QurʾÄn (64:15) considers children as âthe highest rewardâ and has deterred people from killing their children for fear of want, which was a common practice in the pre-Islamic Arab society. The QurʾÄn (17:31) states: âKill not your children for fear of want: we shall provide sustenance for them as well as for you. Verily, the killing of them is a great sin.â The QurʾÄn has reiterated this prohibition in stronger terms in Q 6:151. The QurʾÄn (16:57â59) also prohibited the infanticide of female children, as they used to be killed because of the shame their birth brought on the family.34 The QurʾÄn (16:59) considered it a great sin. The QurʾÄn (93:6â8, 8:41) also forbids harsh treatment and ordains kindness towards orphaned children.35 The Islamic principles are reflected in the Covenant on the Rights of the Child in Islam 2004 of the Organisation of Islamic Cooperation (OIC). The object and purpose of the CRC are compatible with the objectives of Islamic law.
4.3 Compatibility of Jus Cogens and Nuṣūṣ
What are jus cogens and nuṣūṣ? According to Article 53 of the VCLT, jus cogens are norms âaccepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.â36 In human rights law, they are higher norms and are absolute, i.e., not limited or qualified. The commonly accepted jus cogens are: prohibition of genocide; torture; the use of force in self-defence; self-determination understood as freedom from colonialism; racial discrimination and slavery (Crawford 2012, 20â23, 581; UNHCR 2006, 15).
Nuṣūṣ is a plural of naṣṣ, which means a clear and fixed rule of the QurʾÄn or the Sunna (model behaviour of Prophet Muḥammad), which does not allow amendment or different interpretation than what is clearly stated (Kamali 2003). According to Laneâs Arabic-English Lexicon (1968), the naṣṣ in terms of the QurʾÄn and ḥÄdÄ«ths (sayings of the Prophet Muḥammad) is an expression that makes specific reference to a statute or ordinance in the actual words of the QurʾÄn and the Sunna without having to resort to interpretation. Nuṣūṣ, like jus cogens, are limited in number. Examples of nuṣūṣ are fixed shares in inheritance, penalty for theft, a fixed number of witnesses in case of zinÄ (fornication/adultery), etc.
Human rights jus cogens and nuṣūṣ of Islamic law are compatible. I will illustrate this by focusing on three examples: genocide, the prohibition of torture, and racial discrimination. These correspond to nuṣūṣ of Islamic law, i.e., the right to life, human dignity, kindness and compassion, and human equality. Racial discrimination is discussed above, where it was established that Islamic law, like CERD, prohibits racial discrimination and upholds human equality. Below, I discuss two nuṣūṣ corresponding to two jus cogens norms: the prohibition of genocide and torture.
4.3.1 The Right to Life and the Prohibition of Genocide
Genocide and the right to life are intertwined. The Convention on the Prevention and Punishment of the Crime of Genocide 1948 prohibits and penalises genocide. Article 2 defines genocide as:
Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group such as: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.37
Article 6 of the ICCPR guarantees every human being âthe inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.â The death penalty is reserved only for the âmost serious crimesâ after the final judgement by a competent court and in line with the provisions of the ICCPR and the Genocide Convention. Those sentenced to death shall be able to seek pardon or commutation of the sentence of death, and the death sentence cannot be imposed on those below eighteen years of age or pregnant women.
Islamic law prohibits genocide and protects the right to life. According to the QurʾÄn, life is sacred (Q 17:33) and God gives and takes life (Q 9:116, 10:56). The QurʾÄn (5:32) states:
If anyone slew a person â unless it be for murder or for spreading mischief in the land â it would be as if he slew the whole people [mankind]. And if anyone saved a life, it would be as if he saved the life of the whole people [mankind].
Life can be taken only on the grounds of murder, mischief in land (Q 17:33) and âjust cause.â38 The QurʾÄn (6:151) mandates not to take life except by way of justice and law. The QurʾÄn (2:178) believes in the law of equality (qiá¹£Äá¹£: eye for eye, tooth for tooth) and has prescribed âthe law of equalityâ for Muslims as âin the law of equality there is saving of lifeâ QurʾÄn (2:179). The QurʾÄn ordains equality, i.e., life for life, but âwith strong recommendation for mercy and forgivenessâ (Ali 2004, 71). The QurʾÄn (2:178) further states: âbut if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and mercy from your Lordâ (see generally for a good commentary, Anwarullah 2006, 53). The death penalty is prescribed for the most serious crimes, and the accused/convicted may seek mercy and forgiveness of the heirs, but may or may not be asked to pay compensation. Looking at the first two elements of the definition of genocide, the QurʾÄn prohibits them. The third and fourth elements of the genocide are covered by Q 17:33 and 6:151. The fifth element of genocide is also against the rights of children under Islamic law, discussed above. Muslim states parties have not made reservations to the definition of Genocide, reflecting their view of it as a jus cogens. The Genocide Convention and Islamic law are compatible in the prohibition of genocide and protection of life.
4.3.2 Prohibition of Torture
Torture is an undisputed jus cogens (Crawford 2012, 20â23, 581; UNHCR 2006, 13). Article 1 of the Torture Convention has defined torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Article 1 further states that any âpain or suffering arising only from, inherent in, or incidental to lawful sanctionsâ does not constitute torture. Other acts of cruel, inhuman or degrading treatment or punishment, as recognised but not defined by Article 16 of the Convention, do not amount to torture, but states parties are required to prevent these acts (UNTC 1984, Article 16). Prohibition of torture is an absolute right, and âNo exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of tortureâ (UNTC 1984, Article 2(2); see also Lippman 1994, 319).
Islamic law believes in humane and compassionate treatment of everyone in all circumstances. As discussed above, Islamic law also believes in human dignity and dignified treatment. The QurʾÄn states that God is kind and merciful (Q 16:7); kind and merciful to man (Q 22:65); loves those who are kind (Q 5:13) and enjoin deeds of kindness and compassion (Q 90:17). According to the QurʾÄn (90:18), those who are kind and compassionate will find salvation. These provisions of the QurʾÄn apply to everyone and in all circumstances. This is why Muslim states parties have not made reservations to the substantive provisions of CAT.
Reza (2007) argues that, relying on the primary sources from the earlier period of Islamic law, torture is prohibited. He has also set out two other views that some individual jurists argue that, at the investigation stage, some form of coercion, such as beatings under some circumstances, might be allowed (Reza 2007, 24â25). These, however, are individual juristic views not strictly in line with the primary sources of Islamic law. Also, these views are not aligned with the Muslim statesâ practice, as their practice indicates that they accept the prohibition of torture as a jus cogens.
The prohibition on torture is also reflected in regional treaties among Muslim states and their constitutions. Article 20 of the Cairo Declaration on Human Rights in Islam 1990 prohibits torture:
It is not permitted to subject [an individual] to physical or psychological torture or to any form of maltreatment, cruelty or indignity. [â¦]. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions.
NICFM 1990
Similarly, Article 8 of the Arab Charter on Human Rights 2004 prohibits torture: âNo one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment.â
Article 14 of the Constitution of Pakistan states that the dignity of man is inviolable and no âperson shall be subjected to torture for the purpose of extracting evidence.â Pakistan incorporated the Convention against Torture in its domestic legal system through the Torture and Custodial Death (Prevention and Punishment) Act 2022. Islamic law and human rights treaties are compatible as both prohibit torture in all circumstances.
There has been criticism of some Islamic penal sanctions such as flogging for fornication, cutting of hands for theft, and stoning to death for adultery.39 Muslim scholars may debate whether and how these penal sanctions may be interpreted and applied, but the criticism is based on the misconception of CAT as well as Islamic law. As to the misconception regarding CAT, the criticism ignores the provision of Article 1 of CAT, which states that a âpain or suffering arising only from, inherent in or incidental to lawful sanctionsâ is not torture. Given this, it would be hard to argue that the Islamic penal sanctions are not valid laws in Muslim countries. Second, within Islamic law scholarship, these sanctions are viewed as compatible with human rights law. Baderin (2003, 75) has persuasively discussed this topic and concluded that there is no conflict between CAT and Islamic law. Bassiouni (2014, 147) has concluded that Islamic criminal law includes the same social and human interests protected by contemporary human rights law, humanitarian law, and international criminal law and that Islamic law is fully compatible with international criminal law (see for ḥudÅ«d laws and flogging Peters 2005, 37). In Muslim states, there are safeguards in place to ensure that these punishments are applied less painfully. There is also a debate among Islamic scholars that punishments such as stoning are not Islamic (Shah 2006, 84).
It has been established that there is foundational compatibility between human rights and Islamic law. There is also compatibility between the broader objectives and purposes of human rights and Islamic law. We also discussed the objectives and purposes of selected core human rights treaties and found them to be compatible with Islamic law. The CRC has even borrowed the Islamic law principle of kafÄla (an alternative parental care in cases of children deprived of a family environment). We also compared selected jus cogens and nuṣūṣ and found them to be compatible.
4.4 The Limitation Schemes of Human Rights and Islamic Law
Diluting or limiting the scope of human rights treaties through municipal law may lead to incompatibility between the two. By this, I do not mean that human rights treaties do not allow limitations in the case of limited rights. The first permissible limit is reservation, which modifies the legal effect of the reserved provisions (VCLT 1969, Art. 2(1)(d)). The second one is the permissibility of derogation from certain rights in a time of nationally declared emergency. Some rights have in-built limits or qualifications. They are called limited or qualified rights (Wadham et al. 2015, 31). Limited rights, such as the right to life, can be curtailed on specified grounds identified in the text of the provision. For instance, Article 6 of the ICCPR recognises the inherent right to life, and lawful deprivation of life is allowed, as it only prohibits arbitrary deprivation of life. The death penalty for the most serious crimes is also permissible. The Second Optional Protocol to the ICCPR 1990 aims at the abolition of the death penalty but permits reservation âfor the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.â
Qualified rights contain elements of individual rights, the public exercise of which may come into conflict with the rights of the public. In such a situation, human rights law allows proportionate curtailment of individual rights on specified grounds provided in the text of the provision. For instance, the manifestation of the right to freedom of religion, belief and conscience recognised by Article 18 of the ICCPR âmay be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.â Similarly, the exercise of the rights to hold opinion and freedom of expression under Article 19 of the ICCPR âmay [â¦] be subject to certain restrictions [â¦] such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.â The limitation scheme of human rights law is sensible, taking into consideration the interests of individuals and the public at large, including the demands of governance by states. Courts are required to strike a fair balance when the rights of an individual come into conflict with public rights.40
Islamic law recognises the concept of rights as it ârevolves around a system of rightsâ (Nyazee 2006, 17). The QurʾÄn (17:26) uses the word âḥaqqâ for rights, but it has several other meanings as well. âIn Arabic philosophical language, ḥaqq means both âtruthâ and âreality,â usually referring to God as truth and realityâ (Leaman 2008, 247). The QurʾÄn (17:26) has also used the word ḥaqq for the rights of different people: âAnd render to the kindred their due rights, as also to those in want, and to the wayfarerâ (Kamali 1993, 356). The rights system of Islam has several characteristics, more or less similar to human rights law. First, Muslim jurists have divided rights into rights of God (ḥaqq of God) and rights of men (ḥaqq al-Ê¿ibÄd). âBy the right of God is meant that which comprehends public benefit, not peculiar to any individualâ (Hasan 1993, 279). These ârights are attributed to God not because they are of benefit to Him, for He is above all wants [â¦]. In fact, they correspond to public rights and involve the benefit of the whole Muslim societyâ (Hasan 1993, 279). For instance, the fixed punishment (ḥadd) for theft is a public right, and the person whose property is stolen can ask for its restoration and compensation, but cannot condone it. God does not have rights per se as in the sense of human beings having rights, as under Islam, God is above all needs. The Islamic state must enforce public rights (the rights of God). Individual âright means the authority recognised by the law to control in a particular way the action of the person against whom it exists, the latter being obliged or under an obligation to act as requiredâ (Rahim 1958, 57). Private rights can be enforced at the discretion of the individual concerned, such as breach of contract (Rahim 2006, 192â193).
There are also rights which contain public and private elements, but the former preponderates, e.g., imputing unchastity to another person where a member of the community is depreciated (Rahim 2006, 193). There are rights which combine public and private elements, but the latter preponderate, e.g., qiá¹£Äá¹£ (i.e., retaliation). The public element is a disturbance to peace and order, whereas the private element is loss of life and sorrow caused to the heirs (Rahim 2006, 193). Another characteristic of Islamic rights is that a right can be dependent or independent. A dependent right exists against another person who is under an obligation to discharge certain duties towards the possessor of the right. Conversely, independent rights do not carry corresponding obligations (Rahim 2006, 195).
Islamic law contains clear (naṣṣ) and absolute rights. For instance, as discussed above, the prohibition of racial discrimination is an absolute right. Similarly, the QurʾÄn (4:32) protects the economic rights of women in clear and absolute terms: âto men is allotted what they earn, and to women is allotted what they earn.â These rights correspond to absolute rights recognised by human rights law. Islamic law also contains limited rights, such as the right to life. Life is sacred and taking an innocent life or saving it amounts to killing or saving humanity, but it can be taken on grounds such as murder, mischief on earth, or a just cause. The right to life is also a combination of individual and public rights, but Islamic law strikes a fair balance by giving the victimâs heirs the right to prosecute, accept compensation as blood money, or forgive. The state cannot forgive or accept compensation instead of the victimsâ heirs, as it would amount to usurping the right of the heirs. The state must prosecute, but a fair settlement41 between the victimâs heirs and the perpetrator may lead to compounding of the case.
Islamic law also recognises qualified rights, e.g., the freedom of expression. During the Battle of Uḥud, the Prophet Muḥammad asked to fight the enemy inside the city of Medina, but his companions expressed a different view, i.e., to fight the enemy outside the city. They asked whether the opinion of the Prophet was based on divine guidance, to which he replied in the negative. After hearing this, the companions opposed the view of the Prophet, insisted on their opinion, and the Prophet agreed to it (Hussain 2001, 51; Watt 2004, 21â22). The QurʾÄn (4:148) has also recognised the right to speak out for exposing injustice: âGod loves not that evil should be noised abroad in public speech except where injustice has been done.â Freedom of expression, however, can be restricted on certain grounds, e.g., to protect the honour of others. The QurʾÄn (49:12) prohibits speaking ill of each other behind their backs. Unverified news cannot be shared as the QurʾÄn (49:6) states: âif a wicked person comes to you with any news, ascertain the truth, lest you harm people unwittingly.â The QurʾÄn (17:36) further states, âand pursue not that of which thou hast no knowledge.â The QurʾÄn (24:19) penalises scandals: âThose who love to see scandals published broadcast among the believers will have a grievous penalty in this life and in the hereafter.â The QurʾÄn (49:11) prohibits men and women from laughing at each other, defaming or being sarcastic to each other, and using offensive nicknames. Freedom of speech can also be restricted based on security. The Prophet sent two people to arrest a woman with a letter on the way to Mecca disclosing Muslimsâ war preparation for an attack on Mecca (Hussain 2001, 48).
Islamic law has a well-developed concept of the law of necessity (á¸arÅ«ra) corresponding to the human rights law principle of derogation in time of national emergency. The law of á¸arÅ«ra is a wider concept than the principle of derogation, as under the former, individuals as well as states may choose not to follow certain obligations under compelling circumstances. Under á¸arÅ«ra, âone may omit doing something required by law or may do something illegal,â but the freedom to derogate is not granted in every case, e.g., âmurder or other gross physical harm is never legitimateâ (Esposito 2003, 64). Muslims are prohibited from eating certain food (i.e., ḥarÄm, the opposite of ḥalÄl) but âif any[one] is forced by hunger, with no inclination towards transgression, God is indeed oft-forgiving and most mercifulâ (Q 5:3, see also 2:173, 6:145, 16:115), i.e., they can eat the prohibited (non-ḥalÄl) food. âThe concession is restricted to the extent of emergency, and oneâs consumption should not exceed what is necessaryâ (Usmani 2006, 195). The logic behind the doctrine of á¸arÅ«ra is that Islamic law aims at easing rather than creating difficulties for people. The QurʾÄn commands fasting but âif anyone is ill or on a journeyâ, they can fast later for the prescribed days as âGod intends every facility for [and] does not want to put you to difficultiesâ (Q 2:185, see also 22:78). Similarly, the QurʾÄn (65:6) asks for suckling children but if the mother finds it difficulty (e.g., ill health), then another woman can suckle the child. Economically also, the QurʾÄn (65:7) does not put a greater burden than one can carry:
Let the man of means spend according to his means; and the man whose resources are restricted, let him spend according to what God has given him. God puts no burden on any person beyond what he has given him.
Caliph Ê¿Umar suspended the punishment for theft during famine (Haykal 2007, 379). The most recent example is restricting the performance of ḥajj (Muslimsâ pilgrimage to Mecca), which is one of the five obligatory pillars, but it was limited, and some of its rituals were suspended during the COVID-19 pandemic (Usher 2022). Human rights treaties allow limiting rights on the grounds of health. In the case of ḥajj, the law of á¸arÅ«ra was used to limit and suspend some rituals of ḥajj based on health risks.
In addition to the limitation scheme of Islamic law, it provides flexibility, and not all its rules are obligatory. The formal structure of Islamic law is studied by Muslim jurists under the title ḥukm sharÊ¿Ä«. In its literal sense, the word ḥukm (plural: aḥkÄm) means a âcommandâ (Nyazee 2006, 46). In its technical sense, it means a ârule.â The ḥukm is expressed through a demand: to do or not to do something. The ḥukm may grant an option or a choice (takhyÄ«r) to do something. Sometimes, a ḥukm is a simple declaration declaring or determining a relationship of an act or set of facts with the ḥukm (Kamali 2003, 278). Islamic law is a ḥukm sharÊ¿Ä« which occurs in five varieties: obligatory (fará¸), recommended (mandÅ«b), prohibited (ḥarÄm), disapproved (makrÅ«h) and permitted (mubÄḥ) (Kamali 2003, 47). Apart from obligatory and prohibitory rules, there is flexibility among the rules which could be relied on in achieving greater compatibility with human rights law. For instance, if a recommended principle of Islamic law is incompatible with a substantive principle of human rights, then it can give way in favour of the substantive human rights principle.
4.4.1 Comparative Analysis of the Schemes
The limitation schemes of human rights and Islamic law dispel the misperception about both legal systems. All provisions of human rights treaties are not absolute, and neither are the provisions of Islamic law. The number of absolute provisions in both systems is limited. The rest of the provisions are either limited or qualified, and both systems admit interference with those rights on specified grounds. Both systems recognise the demands of public rights and governance of the state. As illustrated above, the permissible grounds for limiting rights have similarities in both systems, e.g., protection of the honour of others, security, public order and health. The recent outbreak of COVID-19 is a good example of limiting the right to freedom of movement of people all over the world, including Muslim states. Moral standards might be different in different parts of the world, but the proposed scheme of contextual interpretation of treaty provisions in Muslim states would assist, as they would have to interpret treaty provisions within the context of their contemporary social needs.
Muslim states parties would need to exploit the flexibility of human rights treaties and Islamic law to explore and find greater compatibility between the two systems and discontinue the practice of generic and vague reservations to human rights treaties. Non-Muslim states parties and treaty-based bodies would also need to appreciate the flexibility of human rights treaties and try to better understand and appreciate the position of Islamic law on certain rights. They should also carefully differentiate between the conservative official interpretations of Islamic law of some Muslim states parties and the diversity of practice among Muslim states. A good example is gender equality. In Saudi Arabia, until 2021, women were not allowed to drive, but in Pakistan, a woman, Ms Benazir Bhutto (d. 2007), became the Prime Minister of Pakistan twice, in 1988 and 1993. Similarly, Khaleda Zia (b. 1945) became Prime Minister of Bangladesh in 1991 and 2001.
4.5 The Most Favourable Provision Rule
Human rights treaties provide the minimum standards of human rights. If municipal law provides greater and favourable treatment, that should be applied. Article 23 CEDAW has clearly stated this principle: âNothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a state party; or (b) In any other international convention, treaty or agreement in force for that state.â As discussed above, human beings and their welfare are at the centre of Islamic law. Any legal provision providing better protection to individuals should be applied. As discussed above, the QurʾÄn (4:32) protects the economic rights of women: âto men is allotted what they earn and to women is allotted what they earnâ, but Muslim states may not have laws and policies affecting women in every aspect of economic life. They may apply the most favourable and developed provisions of CEDAW, e.g., Article 16 dealing specifically with rural women.42 The most favourable provision rule is available in Islamic as well as in human rights law.
5 Conclusion
Muslim states parties have made generic and vague reservations, subjecting compliance with obligations acquired under core human rights treaties to their compatibility with their constitutions and Islamic law. Non-Muslim states parties have made equally generic and vague objections to these reservations. It has been established that the generic and vague reservations and corresponding objections are misconceived. It has been established that the provisions of human rights treaties and Islamic law are, to a greater extent, compatible. This compatibility can be brought to the fore by employing the proposed framework for comparing human rights treaties and Islamic law before making any reservations and objections thereto. I tested the framework and found that the foundations of human rights are compatible with Islamic law. The objectives and purposes of human rights treaties are also compatible with the objectives and purposes of Islamic law. I assessed the compatibility of the objectives and purposes of four core treaties and found them fully compatible with the broader objectives and purposes of Islamic law. I also found jus cogens of human rights law compatible with the nuṣūṣ of Islamic law. These significant findings show that there are no major hurdles in the way of implementing core human rights treaties in Muslim states and narrowing and specifying their reservations. The classification and limitation schemes of human rights treaties and Islamic law are broadly compatible, and they could be employed in a manner leading to compatibility of outcomes. By employing the contextual interpretive approach to core human rights treaties and Islamic law, any existing compatibility gap may be eliminated in most areas and narrowed in others. Greater compatibility could lead to the withdrawal of Muslim states partiesâ generic and vague reservations and, in turn, enhance the application and enjoyment of human rights in the Muslim world. This would also lead to a better understanding of Islamic law in the non-Muslim world and cooperation needed under Articles 1 and 55 of the Charter of the United Nations.
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Niaz A. Shah is a former professor in Law at the University of Hull, Hull, United Kingdom.
There are 46 Muslim majority states that are also members of the Organisation of Islamic Cooperation. Twenty-three states have declared Islam as a state religion, whereas twenty-two recognise a role for Sharīʿa as the source of law: see the report of the United States Commission on International Religious Freedom 2012.
On reservations to CEDAW, see Cook (1990).
Article 4 of the ICCPR is a good example of this. See also Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. On derogation, see OâDonnell (1985). There are three kinds of rights: absolute, limited, and qualified. Limited rights specify grounds for limiting the right. Qualified rights also specify the grounds for proportionality assessment: see Wadham et al. (2015, 31). On limits in the ICCPR, see Kiss (1985).
Article 2(2) of the ICCPR is a case in point.
Mayer, for instance, argues that Maududiâs ideas are in fundamental conflict with international human rights law, but without designing or employing a compatibility framework (see Mayer 1990). Similarly, Khan (2016) has conducted a comparative study of the UDHR and Islam, which is a generally useful commentary.
Baderin argues for adopting the âmargin of appreciationâ doctrine of the European Court of Human Rights (ECtHR) and the Islamic concept of maá¹£laḥa (public interest).
On the Western origin of human rights, see Tasioulas (2015). On cultural relativism, see Donnelly (2012). On the superiority of Islamic human rights, see Maududi (1995).
On the contribution of Muslim states parties to international humanitarian law, see Fleck (2009, 17) and UK Ministry of Defence Manual (2005, 7).
For a good discussion on kafÄla, see Asim and Sloth-Nielson (2014).
See generally on reservations to the CRC, Schabas (1996).
For avoidance of doubt, I do not mean incompatibility with the objectives and purposes of human rights treaties or jus cogens.
On the concept of rights in different religions, see Green and Witte Jr (2013; see generally, Gearty and Douzin 2012).
By former Christendom, I mean that these days a large section of the population is humanist. In the UK, humanists are more than fifty percent.
The term âmargin of appreciationâ refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights (the Convention; see Greer 2005; Harris et al. 2023; see also cases of the European Court of Human Rights: Murphy v Ireland (2004) 38 EHRR 13 [68], Wingrove v UK (1997) 24 EHRR 1 [57â58]).
As to how the UN membership grew, see United Nations (2024).
An-Naim argues that it was always the rich colonial states that have influenced the poor, weak and colonised states.
Nuṣūṣ (plural of naṣṣ) are clear principles or limits of Islamic law which do not allow discretion or derogation from and are obligatory (see Kamali 2003, 90).
For a good critical discussion on dignity as a foundation of human rights, see Waldron (2015). For a more detailed discussion on the general philosophy, see Hayden (2001), see generally Beitz (2009) and the Council of Europe (2024). See also Nowak (2003, 9), who argues that dignity and equality are recognised by all religions. See also key cases from the ECtHR: see Goodwin v United Kingdom (2002) 53 EHRR 18 [90] and Pretty v United Kingdom (2002) 35 EHRR 1 [65].
Generally, see, on the concept and meaning of human rights, Van der Vyver (1979, 10). More generally, see Clapham (2007).
The preamble mentions human dignity three times.
The preamble recognises that âthose rights derive from the inherent dignity of the human person.â
The CRC has mentioned it eight times in its preamble and Articles 23, 28, 37, 39, 40.
There are areas of law which apply to everyone, e.g., public order, safety regulations etc.
Some scholars believe that there is a death penalty for those leaving Islam, but this has been established that for leaving Islam not coupled with other offences, there is no death penalty (see Shah 2005b). Hussain says that the second caliph Ê¿Umar (d. 23/644) tried to persuade his Christian slave, Wussaq, to convert to Islam, but he refused. Ê¿Umar said: There is no compulsion in religion. Later, Wussaq was freed (see Hussain 2001, 53; see also Anwarullah 2006, 208), where he argues that there is no death penalty for leaving Islam, i.e., apostasy.
For instance, see Article 26 of the ICCPR.
See generally, Equality Act 2010, UK (UKPGA 2010).
See the first three preambular paragraphs of UDHR (United Nations 1948).
These are the key principles for an Islamic society, but, in Muslim countries, these key rules are grossly violated. This is why the actions of Muslims must be distinguished from Islamic law as they do not always reflect Islamic law. This is the case with all other laws, e.g., English law is violated regularly, and so is international law. A visit to English courts and /or the International Court of Justice would provide a good glimpse of the legal disputes and violations of laws.
See preambular paragraphs six and seven.
For a general discussion on the religious foundations of human rights, see Ghanea, Stephen and Walden (2007).
See preambular paragraphs six, twelve and fifteen. CEDAW has been ratified by 189 states, but is one of the heavily reserved treaties. Reservations are made by Muslim and non-Muslim states parties, but the reservations of Muslim states have received severe criticism.
The Federal Shariat Court has delivered landmark judgements on gender equality wherein it has cited CEDAW along with the QurʾÄn: see All Pakistan Legal Decisions 2008 Federal Shariat Court 1.
See preambular paragraphs 6 and 7.
See also Q 81:9â10. For a good commentary on infanticide, see Giladi (2001) 301â302.
On kindness to children, see Tanvi (2000, 92).
For a good discussion on human rights jus cogens, see De Schutter (2019, 85).
For a good discussion on genocide, see Schabas (2009), Gaeta (2009).
Mischief in the land includes serious crimes such as rebellion, terrorism etc., see Aliâs (2004) commentary on Q 5:32, 5:257.
See generally Mayer (2018), who also argues that âIslamic human rights schemes rest on shaky foundationsâ (Mayer 2018, 65), which is, as demonstrated above, not the case.
See the UK Supreme Court case, Bank Mellat v HM Treasury (No 2) [2013] UKSC 38; [2014] AC 700.
See section 311 of the Pakistan Penal Code 1860 where courts have been given oversight to determine a settlement is fair and the weaker party is not coerced into a settlement.
Islamic law also allows choosing an opinion/interpretation from Islamic jurisprudence which is suitable for their situation. This is called takhayyur, which means âselection and preference of one among the available rulings or opinions of a single madhhab, or of the different madhhabs on a broader scale, for the purpose of legislation and enforcementâ (Kamali 2007, 406).
