ISLAMIC LAND RIGHTS MODULE 3 Land Property and

ISLAMIC LAND RIGHTS MODULE 3 Land, Property and Housing Rights In the Muslim World LOGO

SESSION LEARNING OUTCOMES 1 v Appreciate the participation of Muslim countries within the International Human Rights Framework 2 v Explore the differing conceptions of rights under universal human rights and Islam; 3 v Compare international and Islamic rights standards with respect to the current and migrants; 4 v Consider strategies for empowerment through a human rights approach LOGO

YOUR OPENING THOUGHTS v What are your experiences of land rights in the Muslim world? v Do you think Islamic human rights are relevant in Muslim societies in dealing with land issues? v How can Islamic rights facilitate land, property and housing rights? LOGO

HOW CAN THESE CONCEPTS BE USED 1. Universal rights are applicable to all people, including Muslims. v Need to find convergence regarding property rights. v There is no Islamic debate over land rights because Islam has a srong socio-economic rights ethos. v Arab Charter, Cairo Declaration, UIDHR bear striking resemblance to universal land rights. v Some have access to regional monitoring mechanisms, others rely on domestic or international. v Vibrant Muslim debate over the Islamic human rights scope and stragies will eventually work out. LOGO

WHAT ARE THE KEY CONCEPTS v Rights relating to land, property and housing are globally well established. v Muslim societies face similar kind of human rights and development issues, as do non-Muslim societies. v Rights of minorities, children and migrants are well protected under Islamic law. v Reservations (opt-out clauses) regarding treaties ratified by Muslim governments are not specifically regarding land, property and housing rights. v There is no alternate global Muslim human rights treaty mechanism. LOGO

WHY ARE THESE CONCEPTS RELEVANT v Classical Islamic rights and modern human rights differ in formats, effect. v Similarities between Islamic and International human rights conceptions with respect to land, housing and property rights. v Universal Islamic Declaration on Human Rights (UIDHR) and Cario Declaration are influential, but not enforceable. v Diversity of opinion, but increasing receptivity to the human rights norms and standards. LOGO

WHAT ARE HUMAN RIGHTS? Enforceable claims or entitlements inherent in every individual simply by virtue of being human Every person is entitled to minimun standards of treatment which he or she can expect from others Social, moral, political and religious aspects of human rights part of a philosophical debate HUMAN RIGHTS “Age of rights”, where human rights are the “new standard of civilisation”. Human rights are now established as enforceable legal rights LOGO

WHY ARE HUMAN RIGHTS IMPORTANT? 1. Human rights define basic standards, as well as create obligations for the State to fulfil. 2. The State has a duty to ensure non-discrimination (including gender) and fairness in procedure, as well as positive actions to respect, protect, provide and facilitate land rights. 3. These rights are inalienable – so they cannot be overridden or taken away arbitrarily. For example, there cannot be forcible eviction except through legal process. LOGO

WHAT ARE PROPERTY, LAND, AND HOUSING RIGHTS? Legal security of tenure Availability of services Materials Facilities and infrastructure Affordability Habitability One of the main elements of the right to an adequate standard of living Adequate housing LAND, PROPERTY, AND HOUSING RIGHTS Accessibility Location Cultural adequacy Own and enjoy property Prohibition on any arbitrary intereference with property LOGO

ARE HUMAN RIGHTS ENFORCEABLE? v States have basic minimum thresholds and obligations of conduct. v Mere existence of human rights does not guarantee implementation, continuous efforts at the local, the national and international levels to strengthen rights. v Enforcement of human rights depends on awareness and political will. v For examples, ESCWA conducts training workshops on the preparation of national reports for Arab states v Technical assitance to countries on gender concepts and CEDAW report-writing. LOGO

WHERE ARE HUMAN RIGHTS SET OUT? v Human rights principles can be found in several documents, as well as practice. A variety of constitutional and legal principles, international and regional human rights treaties, political declarations, customary practice and international standards. Specific global treaties and declarations relating to social and economic rights, women and children and other particular human rights issues. These treaties often provide clear principles relating to land, property and housing rights as well as implementation mechanisms. LOGO

WHY INTERDEPENDENCE OF RIGHTS? v Pick and choose the rights they support and reject others, undermining the holistic impact of combination of rights. v Rights are inalienable and interdependent. v Developing countries often complain that civil and political rights prioritised over socio-economic rights. v Interest in promoting and protecting economic, social and cultural rights has grown. v NGOs, academia, Governments and the judiciary paying increasing attention to the protection of these rights LOGO

WHAT ARE THE MAIN TREATIES? The main treaties include: v 1966 Int. Covenant on Economic, Social & Cultural Rights(ICESCR). v 1966 Int. Covenant on Civil and Political Rights (ICCPR) v 1965 International Covention on the Elimination of Racial Discrimination (ICERD) v 1979 Covention on the Elimination of Discrimination against Women (CEDAW) v 1989 Convention on the Rights of the Child (CRC) v 1951 Convention relating to Status of Refugees (CSR) v 1990 International Convention on the Protection of the Rights of All Migrant Workers (CMW) LOGO

DO TREATIES DEAL WITH LAND RIGHTS? ICESCR Each treaty deals with land property rights according to its own focus and emphasis v Calls for non discrimination and progressive realisation of Covenant rights. ICCPR v Article 17: prohibits “arbitrary and v “The rights if everyone to an unlawful interference” with one’s adequate standard of living for privacy, family, home or himself and his family, including correspondence. adequate food, clothing and housing, and to the cintinuous improvement of living conditions” (Article 111). LOGO

HOW THESE TREATIES RELEVANT? v Have created monitoring committeess to supervise their compliance by States. v Some like the ICCPR have an individual complaints system with respect to States who have agreed to it v International supervision of land rights is based mostly on the reporting system v The ESCR Committee has developed a new range of its own monitoring procedures and practices. v The participation of Muslim States, in the reporting system, has produced a rich record of their progress in securing international land rights. LOGO

HAVE MUSLIM STATES SIGNED TREATIES? v A large number of Muslim countries have ratified the relevant international human rights treaties, although others have not done so. v Most have signed ICESCE and ICCPR. v Also participated in the political process towards augmenting promotion and protection of housing and land rights. v Subscribe to the Unitecd Nations Charter which refers to human rights and to general international standards relating to land housing rights. LOGO

DO RESERVATIONS AFFECT OBLIGATION v Ratified international human rights treaties but also entered into reservations (exemptions) v Targeting provisions of those treaties, usually in the name of religion. v Some commentators argue that the reservations reflect conflict between Islamic and universalist positions, others say that the reservations reflect the political views of governments. v The State lodging a reservation against a particular provision of a treaty is not bound by that provision. LOGO

WHAT ARE RESERVATIONS ON LAND? 1 Reservations with regard to provisions in several treaties, not specifically relating to land, property or housing rights 2 Little conflict with respect to land, housing and property rights 3 Islam has a strong socio-economic rights ethos and promotes equitable distribution of resources LOGO

WHY IS CEDAW KEY TO LAND RIGHTS? CEDAW International bill of rights for women 1. Defines discrimination against women 2. Establishes an agenda for national action to end discrimination. 3. Outlines the rights of women in reference to land issues. 4. “The same rights for both spouses in respect of the owenership, acquisition, management, administration, enjoyment and disposition of property […]” (Article 16(h)) 5. Establishes that domestic laws and traditional, religious or cultural practice cannot justify violations of the Convention. LOGO

ARE THERE RESERVATIONS TO CEDAW A number of Muslim countries have enlisted reservations on the basis of Shar’ia. v One state justifies its reservation on Article 2 by arguing that the provision “[…] conflicts with shar’ia law”. Similarly, another has a reservation on ‘’[…] in order to ensure its implementation within the bounds of the provisions of the Islamic Shar’ia. ’’ v However, in aiming to set an example amongst Arab states, Morocco withdrew all reservations to CEDAW last December. LOGO

IS THERE A MUSLIM HR TRRATY? IS HTRER A MUSLIM HR TREATY? 1. No global Muslim human rights treaty mechanism. 2. The Universal Islamic Declaration on Human Rights and Cairo Declaration do not have an implementation or monitoring body 3. The revised Arab Charter on Human Rights of the League ratified by number of States. 4. The land housing rights in the Arab Charter bear a striking resembalance to international human rights treaties, including the principle of non- discriminaiton. LOGO

ARE UNIVERSAL RIGHTS FOR MUSLIMS TOO? v Human rights generally considered to be universal, indivisible and interdependent and applicable to all societies, including Muslims. Universalists who believe that human rights are applicable the same everywhere v Muslim societies face similar kind of human rights and development issues, as do non. Muslim countries. Cultural relativists who argue that human rights to an extent depend on the context and subscribers Islamic critique of universal human rights that Islamic conceptions on human rights must apply to Muslims. LOGO

DO MUSLIM OPPOSE HUMAN RIGHTS? v Differences in some areas between the articulation of classical Islamic conception of rights and modern human rights expectations v Diversity of opinion and practice regarding universal human rights in Muslim countries v An increasing receptivity to the human rights norms and standards. v A vibrant internal debate within Muslim societies over the role of modern human rights. LOGO

ARE REGIONAL FRAMEWORK RELEVANT? 1. Muslims live in many different regions, some have effective human rights mechanisms 2. Two conventions are supervised by courts 3. The 1981 African Charter on Human and People’s Rights has been ratified by 10 Muslim States and is supervised by a regional Court. 4. The importance of international system: other areas are without regional human rights standards and monitoring mechanisms, such as Asia LOGO

DO POLITICAL RESOLUTIONS MATTER? v Muslim countries have generally participated in the promotion of land, property and housing rights through global initiatives. v These include the Habitat Agenda and the Millennium Development Goals from the 2000 Millennium Declaration. v Taken together, these provide the framework and general consensus forming part of a ‘soft law’ creating various levels recognition and obligation on the part of States. LOGO

WHERE ARE ISLAMIC RIGHTS FOUND? v Islamic human rights are derived from the main sources of Islamic law and practice, particularly the Qur’an and the Sunna v These principles are reiterated in the 1981 Universal Islamic Declaration of Human Rights (UIDHR) adopted by the Islamic Council of Europe and the OIC 1990 Cairo Islamic Declaration on Human Rights in Islam. LOGO

DO ISLAM AND HUMAN RIGHTS CONFLICT? UIDHR Cario Declatation not binding Different emphasis and formulation compared to international treaties Also offer a wide range of property rights Land rights as declared by these documents are generally compatible eith international treaties Support the arguments for fuller Islamic property, housing and land rights conceptions LOGO

ARE THERE ISLAMIC WOMEN’S RIGHTS? 1. Have a range of rights to property under Islamic law and human rights. 2. Possess independent legal, economic and spiritual identity. 3. Complexities in terms of both fixed Islamic inheritance rules and the prevalence of patriarchal or gender depreaciating practices in the name of Islam. 4. Opportunities to work out a far more gender egalitarian Islamic approach to women’s property rights through independent reasoning (ijtihad). LOGO

DOES ISLAM SUPPORT CHILD RIGHTS? CRC Widely ratified by Muslim countries; support guarantees and rights to child Child rights Islamic conceptions contain several strengths, such as the rights of orphans Reforms Improve the position of ‘adopted’ children and orphaned grandchildren, on the basis of the Qu’ranic verse of bequest, LOGO

HOW DOES ISLAM DEAL WITH CHILDREN? v Qur’an recognises child rights in several dimensions. Emphasis on the equal preference of both sexes, against female infanticide. v Confers the basic rights of name, identity and paternity. v Provides a broad framework for the physical, material, emotional and spiritual rights of the child. v Islamic theory relies on both mental maturity and physical development in determining the various stages of childhood. LOGO

v Both the UIDHR as well as the Cario Declaration emphasise minority rights v non-Muslim minorities or the ‘protected’ or ‘covenanted’ people (dhimmis) who live in an Islamic State ‘ are guaranteed irrevocable protection of their life, property and honour’ in exactly the same manner as Muslims. In practice v there are sometimes tension. DO ISLAMIC RIGHTS COVER MINORITIES In theory LOGO

ARE RIGHTS OF MIGRANTS RECOGNISED? v The 1951 Convention on the Status of Refugees, with over 150 State ratifications, including Muslims v But controversial for Muslim States due to its exclusion of Palestinian refugees. v Organisation of Islamic Conference (OIC) emphasises that ‘ Islam laid the foundations for the institution of asylum in its public law through the holy Koran and the Tradition (Sunna)’ and that ‘respect for migrants and those seeking refuge has been a permanent feature of the Islamic faith”. LOGO

WHAT KIND OF OBLIGATIONS? All States positive Impose the duties to provide and fulfil, requiring State intervention negative State has to obstain from interfering in the enjoyment of rights, while at the same time recognizing and protecting them. LOGO

WHY IS ‘CONVERGENCE’ IMPORTANT? 1. Relationship between Islamic and International human rights often cast as dichotomous and incompatible. 2. Differences with recent human rights formulations. 3. Islam has strong foundations in socioeconomic rights. 4. Convergence looks to positive engagement, authenticity and diverse methods of support commonly shared human rights LOGO

CAN ISLAMIC RIGHTS BE BENEFICIAL? 1. Vibrant debate in Muslim societies over a responsive Islamic human rights framework 2. Fusion of independent personal reasoning (ijtihad) and political activisim LOGO

CAN ISLAMIC RIGHTS BE BENEFICIAL? 1. Islamic land rights principles are seen as offering a broader net of protection since these are not merely temporal rights but obligations owed to God. 2. Muslim welfare state, acting in the public interest, is mandated to work towards achieving equitable distribution of wealth and rights for all. LOGO

CAN WE SUBSTITUTE HUMAN RIGHTS? Not a substitute for human rights Ø A way of understanding the scope and implementation of human rights treaties. Ø UIDHR and Cario Declaration neither bind Muslim States nor do they provide enforcement mechanisms. Ø While Islamic land rights potentially enrich human rights implementation, there is no firm consensus over them LOGO

HOW CAN LAND RIGHTS BE IMPROVED? Hold to account over their obligations Encourage to sign human rights treaties State obligations Basic principles LOGO

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