We will present the history of this Arab Charter (I), its articles (II), and the mechanism of the Arab Charter (III).

I - History

The drafting history of the Arab Charter on Human Rights begins in 1960. In that year, members of the Union of Arab Lawyers (the oldest NGO in the Arab world) requested the League of Arab States (created in 1945)¹ during their meeting in Damascus to adopt an Arab Convention on Human Rights². Eight years later, participants in the first meeting for Human Rights in the Arab world held in Beirut, asked the Arab Commission on Human Rights³ to prepare an Arab Charter on Human Rights⁴.

In 1994, the League of Arab States adopted the first version of the Arab Charter on Human Rights at its 50th anniversary. The adoption of the Charter symbolized the importance of respect for human rights both to the Arab world and the League. The League's adoption of the Arab Charter was critical because the Charter of the League makes no mention of human rights⁵.

This first version of the Charter has 43 articles after the preamble⁶. The Charter proclaims essentially the same rights as those embodied in the other international and regional human rights instruments. The main weakness with the 1994 version was the lack of any human rights enforcement mechanism, particularly in comparison to the mechanisms within the European and American Conventions on Human Rights, and the African Charter on Human and Peoples' Rights⁷.

Following the passage of the Arab Charter there was increasing criticism of its deficiencies by experts, NGO's, academics and others. Numerous meetings and conferences were organized in Europe and in the Arab World to pressure Arab governments to amend the Charter. In a resolution passed on January 10, 2003, the Arab Commission on Human Rights invited the Arab States to submit observations and proposals to improve the Charter, with a promise that the Commission would examine the Charter again in January 2004. On a parallel track, the High Commissioner for Human Rights invited many Arab experts for a meeting in Cairo in December 2003 to present and discuss proposals to improve the Charter. Finally, in May 23, 2004, a new version of this Charter was presented to the Arab Summit in Tunisia, where the new version was adopted.

II - Arab Charter 2004

The new version of the Charter contains 53 articles after the Preamble, which remains essentially the same as in the first version⁸. Article 2 of the Charter is very similar to the second article in the International Covenants of 1966 concerning the rights of people (the Arab people) to self determination, to control their natural wealth and resources, to freely determine the form of their political structure and to freely pursue their economic, social and cultural development.

The remainder of the articles of this Charter can be grouped into four main categories:

1. The first category concerns individual rights: the right to life (articles 5, 6 and 7)⁹; the right not to be subjected to torture, inhuman or degrading treatment (articles 8, 9, 18 and 20); the right to be free from slavery (article 10); the right to security of the person (articles 14 and 18).
2. The second category concerns rules of justice: the right of all persons to be equal before the law (article 12); the rights to due process and fair trial (articles 13, 15, 16, 17 and 19).
3. The third category concerns civil and political rights: the right to freedom of political activities (article 24); the right to freedom of movement (articles 26 and 27); the right of respect for private and family life (article 21); rights of minorities (article 25); the right of political asylum (article 28); the right to acquire a nationality (article 29); liberty of thought, belief and religion (article 30); the right of private property (article 31); the right of information and liberty of opinion, expression and research (article 32); the right to full consent to marriage (article 33).
4. The fourth category concerns economic, social and cultural rights: the right to work (article 34); the right to form trade unions (article 35); the right to social protection (article 36); the right of development (article 37); the right of education (article 41); the right to participate in cultural life (article 42).

What is new and important in the new version is the confirmation of equality between men and women in the Arab World (article 3 & 3). The new version also guarantees children's rights (article 34 & 3), and the rights of handicapped persons (article 40).

III - Arab Charter 2004 - Mechanism

The main criticism of the old version remains unresolved in the new one: there is no effective enforcement mechanism. The expert Committee remains the only system for monitoring state compliance. The Committee, comprising 7 members, receives periodic reports from States parties. It is a “primitive” mechanism. There is no mechanism for petitions from a State party or an individual to this Committee for violations of the Charter. Nor does the Charter establish any other enforcement mechanism, such as the hoped-for Arab Court on Human Rights.

There were many meetings and workshops organised in Europe and in the Arab World to discuss and propose projects for an Arab Court on Human Rights. One of them was the “Draft Charter on Human and People's Rights in the Arab World 1978” prepared by the International Institute of Higher Studies in Criminal Sciences in Syracuse, Italy (A). Two other meetings were organised in Aden (Yemen) in 2004 (B), and in Sana'a (Yemen) in 2008 (C), and we will present some propositions concerning a project for an Arab Court on Human Rights (D).

A. The Draft Charter on Human and People's Rights in the Arab World 1978

The Section two (articles 55-61) of this draft is about the Arab Court of Human Rights. The article 56 mentions that “The Court shall be composed of seven judges”. The State party “nominate two persons” and “the bar association therein shall nominate a third person”.

The Court has two functions: contentious jurisdiction and jurisdiction for “Interpretation of the Charter and determination of the obligations of parties” (article 58 & 3).

The Court could, with the contentious jurisdiction, exam the cases “brought before it by one party against another party”, and the “individual communication referred to it” by the Arab Commission on Human Rights (article 58 & 1 and 2).

The draft is interesting, but we think that the individual communication should be presented directly to the Court without any intermediary.

B. The Aden's meeting 2004

The Human Rights Information & Training Center (Yemen), the Arab Institute of Human Rights (Tunisia), and the Arab Center for International Humanitarian Law & Human Rights Education (France) organized a meeting in October 2004 in Aden (Yemen) to discuss about the creation of an Arab Court of Human Rights. Many papers were presented and a (Declaration) has been adopted concerning the necessity to create an Arab Court of Human Rights by the adoption of an additional protocol to the Arab Charter on Human Rights.

C. The Sana'a meeting 2008

The Human Rights Information & Training Center (Yemen) and the Arab Center for International Humanitarian Law & Human Rights Education (France) organized a second meeting in March 2004 in Sana'a (Yemen) to discuss about the creation of an Arab Court of Human Rights.

D. Propositions

The propositions of the Arab Center for International Humanitarian Law and Human Rights Education for a project for an Arab Court on Human Rights are the following:

1. Adoption of additional protocol to the Arab Charter on Human Rights for the creation of Arab Court of Human Rights. This Court could be composed by 7 Judges, the same numbers of the expert Committee. It should have two jurisdictions: contentious jurisdiction and advisory jurisdiction.
2. We propose the establishment of “Coalition for the creation of Arab Court of Human Rights”. This Coalition will organize meetings and workshops to promote the adoption of additional protocol to the Arab Charter on Human Rights for the creation of an Arab Court of Human Rights.

Conclusion

The 2004 Arab Charter on Human Rights is a binding treaty since its entry into force in March 15, 2008, because 7 Arab States ratified this Arab Charter. They are: Algeria, Bahrain, Emirates Arab Units, Jordan, Libya, Palestine, and Syria. The Yemen and Qatar ratified recently this Arab Charter.

What is new and important in the new version of the Arab Charter on Human Rights is the confirmation of equality between men and women in the Arab World (article 3 & 3). The new version also guarantees children's rights (article 34 & 3) and the rights of handicapped persons (article 40).

However, the main criticism of the old version remains unresolved in the new one: there is no effective enforcement mechanism.

The mechanism of the Arab Charter needs improvements and modifications. One of these improvements and modifications should be the creation of an Arab Court of Human Rights.

Text of conference, Regional Human Rights Mechanisms, The European Convention and the Arab Charter, International Conference, Bologna (Italy), 2-3 December 2008.
Mohammed Amin Al-Midani is President of Arab Centre for International Humanitarian Law and Human Rights Education, Strasbourg, France and Lecture Fellow at Strasbourg University, France

[1]See R. Macdonald, The League of Arab Stares, a Study in the Dynamics of Regional Organisation. Princeton, New Jersey, Princeton University Press, 1965. See also M. SHIHAB, "Arab States, League of", Encyclopaedia of Public International Law, Published under the Auspices of the Max Planck Institute for Comparative Public and International Law in Heidelberg, Elsevier, North-Holland, Amsterdam, Volume One, 1992, p. 204.

[2] J. F. Lalive, "La protection des droits de l'homme dans le cadre des Organisations régionales existantes", in Les droits de l'homme en droit interne et en droit international, Colloque international sur la Convention européenne des droits de l'homme, Vienne du 18 au 20 octobre 1965, Bruxelles, 1968, p. 509.

[3] See R Daoudi, "Human Rights Commission of the Arab States", Encyclopaedia of Public International Law, Published under the Auspices of the Max Planck Institute for Comparative Public and International Law in Heidelberg, Elsevier, North-Holland, Amsterdam, Volume Two, 1995, p. 915.

[4] B. Boutros-Ghali, "La Ligue des Etats Arabes", in Les dimensions internationales des droits de l'homme, Paris, Unesco, 1978, p.638.

[5] See M. A. Al-Midani, "La Ligue des Etats arabes et les droits de l'homme", Scienza & Politica, Università di Bologna, n° 26, 2002, pp. 101-114.

[6] See this first version in Human Rights Law Journal (HRLJ), 29 August 1997, Vol. 18 N°. 1-4, p. 151.

[7] See M. A. Al-Midani, Les droits de l'homme et l'Islam. Textes des Organisations arabes et islamiques. Association des Publications de la Faculté de Théologie Protestante, Université Marc Bloch, Strasbourg, 2003, p. 25.

[8] See the Arab Charter on Human Rights 2004, Boston University International Law Journal, Volume 24, fall 2006, Number 2, pp. 147-164.

[9] See M. A. Al-Midani, "A propos de quelques droits garantis par la Charte arabe des droits de l'homme de 2004" in La nouvelle Charte arabe des droits de l'homme. Dialogue italo-arabe. Actes de la Table Ronde italo-arabe du 17-18 décembre 2004, Messina, sous la direction de Claudio Zanghi et Rafâa Ben Achour, Giappichelli Editore, Torino, Italie, 2005, pp. 133-144.