درخت حوزه‌های تخصصی

The first mistaken conception is this. Some Muslim theorists argue that only God can proclaim what justice, right, and rights are; hence parliaments and other state institutions lack the sovereignty to create laws and to proclaim rights. They presume that Western states in their legislation and the UN in their Universal Declaration of Human Rights of 1948 claim such sovereignty. Many Western theorists share their view, differing only in the evaluation. But human rights imply that states must follow them and lack the sovereignty for legislation incompatible with them. The German constitution is explicit on this lack of human sovereignty. It declares in Art.1: “The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.” Hence, the idea of human rights implies that human rights and basic principles of legislation are valid not because states have declared them but because of their inherent qualities. It also implies that states are legitimate only if they conform to such basic principles and excludes the idea that the principles are legitimate because states or mankind have accepted them. Therefore, Western and Islam conceptions of law and sovereignty are less different than they seem. Second, it is generally accepted in Islam and the West that there is a right and even the duty of every human being to fight for justice and the protection of human rights. But there are two conceptions of such a fight both in Islam and the West. The model of the fight for human rights in the centralist conception is a bureaucracy that imposes its rules on the cases it administers. The model in the autonomous conception is a scientific community that solves its differences by principles developed in the community itself.

The legitimacy debate between ‘universal’ human rights and its apparent conflict with the Islamic value system (broadly characterized as the ‘relativist’ challenge to ‘universal’ human rights) is still far from settled. My paper will reflect on this debate in terms of the current international treaty law. <br />The paper will consider this conflict in the light of the interaction of Islamic states with multilateral human rights regimes, starting from United Nations Charter, Universal Declaration of Human Rights, the two covenants (International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights) and the stream of other international and regional human rights regimes. It will analyze through the ‘reservations’ clause of human rights regimes, the interaction between ‘universal’ human rights and Islamic law. <br />In particular, it will focus on how Islamic states have put forward what has come to be known as the “Islamic reservations”, and it will attempt to outline to what extent these reservations are contradictory to universal human rights, as noted in the objections to these reservations by various states parties to the treaties. An assessment will also be made of the extent to which the human rights to which the ‘Islamic reservations’ have been made, may actually be incorporated into the legal systems of the reserving Islamic countries. <br /><strong> </strong>