The following section sequences the progressive development of the concept after World War II, starting with the countries that have been at the core of the Arab Spring.
Then, the Arti- cle considers the countries that have incorporated the concept most recently, and finally reflects on the states that have remained at the periphery of the Arab Spring without making any significant changes to their constitutional uses of dignity. A preliminary explanation with regard to the inclusion of Somalia, Libya, and Syria in this parade must be given. For the time being, the future of Syria is so uncertain that it is really hard to predict if, when, and how a constitutional text will become effective; but the text reveals the type of constitu- tional language with which regimes in hardship tend to legitimize themselves.
The Core of the Arab Spring and the Development of Dignity The Arab countries that certainly have experienced the greatest changes after are Egypt, Libya, Syria, and Tunisia, with Egypt and Tunisia being especially quick to force their respective leader- It will be good, then, to contrast the new provisions with those that preceded them.
The post-Qadhafi provi- sional constitution, enforced during what was expected to be a transitional period before a permanent constitution, makes refer- ence to dignity. Seth G. In , , and See infra notes , and It was slightly amended twice in to prepare the way for the general elections, the creation of a constituent assembly, and the constitutional drafting process.
The provisional constitution lacks a similar individualistic understand- ing of human dignity. Even before the Assad regime, this concept had populated Syr- ian constitutional documents.
The constitutional text enshrined dignity as inherent to human beings among the core values of the new regime in its Preamble and later confirmed that all citizens enjoyed equal dignity as individuals.
Therefore, it rep- resents the political regime and structure that its opponents are trying to topple. It is a real embodiment of achievements, a response to shifts and changes, an evidence of organizing the march of the state towards the future, a regulator of the movement of its institu- tions and a source of legislation.
Preserving the dignity of the society and the citizen is an indicator of the civilization of the coun- try and the prestige of the state. And this understanding empowers the state to protect human dig- nity—especially that of individuals—instead of imposing a check on it.
This trend, which started in the s, has remained largely untouched until now. Tunisia The idea of dignity made its appearance in Tunisia in with the new Constitution. We, in the name of the Tunisian people, with the help of God, draft this Constitution. The overall impression is that Tunisian constitutions consistently rely on the concept of dig- nity to refer to individuals, with the state both limited by and invoked to protect dignity itself.
He was using a colloquial expression, which resonated deeply with the feelings of Arabs. And a country in which women are not respected has no dignity; for women are the sisters of men and partners in national gains and responsibilities. The state and society guarantee respect for dignity and its protection. Insulting or showing contempt toward any human being is prohibited. Dignity served as a shield against state power, as well as a justi- fication for government intervention in the context of hate speech.
Freedom, human dignity, and social justice are a right of every citizen. The state shall respect, guar- antee and protect it. While the interim Constitution of , being rather short in length, con- fined dignity to the narrowest understanding of protecting per- sonal liberty, both the and ones keep the idea of dignity as limiting the state while also viewing the state as the guarantor and enforcer of dignity. The Constitution, drafted by the Muslim Brotherhood majority, stressed the collective—even national—origin of individual liberty, whereas the one focuses more on individual liberty.
Jordan modified its Constitution in and introduced the idea of dignity. The idea of dignity is therefore con- ceived as a check on the state—a limit imposed on its role and power—rather than as a justification for its intervention. States such as Somalia have gone through a very special post- war journey, which has developed quite apart from the Arab Spring.
What follows is Note that the original Arabic seems to convey the meaning that dignity is retained by human beings as individuals as well as when they gather into collective bodies. The first prong enforces it as an It mentions this concept twice, first while speaking of the duty of the state to preserve and protect the dignity and free- dom of its citizens, and later while specifying that restrictions on freedom cannot entail that human dignity be demeaned.
Joseph L. The President of Sudan is committed to preserving the dignity of the entire people. Dignity also is expanded to support welfare policies, which should bring aid to people in need. Kouroutakis, supra note , at On the one hand, such texts confirm that the protection of human dignity against the state is among the main concerns of Arab legal culture.
On the other hand, however, they also show how dignity can have other facets. Dignity becomes a public affair, as it applies to everyone and legitimizes state intervention to protect individuals.
When it is intended to shield human beings against public or private powers, it certainly embodies human rights discourse; but when it bases the constitution on a theological ground, it then links back to Islam. See Cavedon, supra note , at It has entailed the need to protect such worthiness from state intrusion, as well as the requirement that the state actively protect and promote it against societal obstacles.
Finally, it has legitimized the constitutional structure itself through a theological discourse, which grounds human value on the special place that God has accorded to mankind. The degree of obscurity and ambiguity that surrounds dignity paradoxically incentivizes its use.
Each has been able to ground its own expectations of dignity. This vagueness has served to reinforce many of the characteristics of political morality that put a check on democracy, alongside the rule of law, human rights, and equality. Gamal Abd-al-Nasser predicated his fortune on It [was] a test of Arab patriotism, dynamism, wisdom and statesmanship. It constitute[d] a virtual touchstone of Arab capacities for self-preservation and self-determination. The wide usage of the term dignity also depicts the constitu- tional commitment to granting affordable education and medical care, testifying that extremely poor living conditions spurred the revolts and revolutions around Maxwell O.
See Fernandez, supra note 12, at — This is rather typical of civil law regimes, which highly value social rights and welfare. But this use of dignity does not exclusively pertain to Arab constitutionalism. Contemporary Arab constitutions may trace back the worthiness of the human person to his being created by and in the image of God. Courtney Jung et al.
See Jung et al. DALY, supra note , at See Samuel D. By saying that a legal order will first and foremost protect human dignity, as it stems from God, public institutions justify their very existence with religious tones. But placing dignity at the core of the constitution and tracing it back to God is not unique to Arab constitutionalism. Many Arab constitutions mentioned dignity well before the Arab Spring. The Spring pushed such constitutions to stress the role of dignity as a check on the state for the benefit of individuals; there is no lack of texts empowering the state with the enforcement of dignity, however.
But, again, this falls squarely within the scope of dignity widely considered. On the tensions between the communitarian ideal and the individualistic ideal of dignity, see McCrudden, Human Dignity, supra note 18, at — But none of them lies outside the spectrum of meanings that dignity has in contemporary global discourse; they speak of dignity where one could expect them to, according to global legal scholarship on this subject.
The trajectory of the concept of dignity in Arab constitutional- ism is not unique. The following Part illustrates how modern Western constitutionalism tapped the idea of dignity in its early foundational texts, and what it drew from. Several constitutions mentioned the concept of human dignity.
First came the Constitution of the Weimar Republic; a few years later came the Constitution of Ecuador, the Irish Constitution, and the Cuban Constitution. Char- ter. This was not just because there was a lack of will among the constitutional framers of several countries; it also depended on a rather quick transformation of dignity.
The first twentieth-century constitutional endorsements of dignity as something that attaches to human beings in themselves seem to derive mainly from the doctrinal developments of modern Christianity, with a prominent role played by Catholic thinking.
See U. Although scholars diverge on this point, it seems apparent that for a long time the Moyn, Secret History, supra note , at 97; see Ben A. Moyn, Secret History, supra note , at Law and Legal Theory Res. The thread that would make the idea of inherent human dignity shine through the decades was already present in nineteenth-cen- tury Europe, also thanks to the centuries-long efforts of Catholic theologians and philosophers who had been advocating in favor of indigenous peoples and against slavery in Latin America.
As already noted, the French abolition of slavery is considered the earliest visible sign of human dignity as a legal value. In the late s, Christian thinking was spreading this understanding of dignity, and after the turn of the century, the Weimar constitutional reference rose as a product of Chris- tian cultural strands. The reflection that took place mainly in French Catholic envi- ronments between the late nineteenth century and the s helped to sharpen the concept.
See Paolo G. Carozza, From Conquest, supra note , at Instead, it turned out to be a concept that depicted the inherent value of human persons. It was inherent in each human being, encapsulating his or her individuality and belonging to broader society.
It all took place within a few months. Pius XI used this concept in his Mit brennender Sorge declaration March 14, against Nazi acts, as well as in his Divini Redemptoris encycli- cal letter March 19, against communism.
The inherent worthiness of the human being would prevail over time as the foundation of human rights. The synthesis is particu- larly evident in the Irish Constitution, which was promul- gated shortly after the two pontifical documents and was deeply influenced by Catholic teaching. The main drafter of the text, the political leader Eamon de Valera, was familiar with the neo-Scho- lastic circles that promoted the idea of human dignity and shared critical points in the text, including the mention of dignity, with the papal nuncio in Ireland.
By the time the German Basic Law was Moyn, Constitutional Dignity, supra note , at The universalistic approaches of Islam and Christianity have come to universalize human dignity and expound the broadest consideration for human needs through the lens of dignity; for instance, both Christian social doctrine and Islamic constitutionalism encapsulate their special attention to human rights in the field of economics precisely in the idea of human dignity.
Constitutional texts are saturated with this word. See James Q. See Johnston, supra note 87, at And there is also quite a new attitude towards the role of the state in this field. Contemporary constitutions still contemplate broad state inter- ventions in society and the economy to protect human dignity, but there is also a new, widespread skepticism about the role of the state, which must be put in check precisely to protect this human dignity. Since the s, Arab countries have not ignored the meaning that dignity has in the Universal Declaration.
This does not mean that such an understanding monopolized the Arab lexicon—but it certainly affected it. Human persons became, at least prospectively, owners of dignity. Second, this understanding of dignity has prevailed over time, even if it took decades for it to take effect. Provisions protecting human dignity have multiplied with virtually every constitutional change. As already noted, this word traditionally con- veyed the idea of a special gift or honor that comes from God.
The Islamic legal tradition has been receptive to dignity insofar as it has incorporated it. The incorporation of dignity in Islamic discourse is not illusory because it came later. If this connection is fictional, then the same must be said about the whole discourse of dignity as the foundation of human rights. The process that aligned Islamic thinking to the dignity dis- course is bidirectional, however, and did not end with the post- World War II international law documents.
That dignity was used in the Universal Declaration as well as in more recent documents, such as the Declaration on Human Rights in Islam, has undoubt- edly modified the meaning of dignity once again. At the moment, the tendency to harmonize the Universal Decla- ration and documents, such as the Islamic Declaration, leans towards conforming the latter to the former.
The new constitu- tions seem to confirm this, as interpretative efforts try to make the Islamic tradition converge with the global concept of dignity, See supra Part IV. Breau eds. The constitution-building processes that have taken form in Arab countries lately largely focus on the topics that are commonly understood by the globalized discourse on human rights. That Arab constitutions draw heavily from a core global concept is not unusual in constitutional borrowing, nor does it say too much about the fate of dignity in the new constitutional regimes.
This is of no secondary importance, since domestic judiciaries such as the Egyptian Supreme Constitutional Court have proven to be extremely inde- pendent, not just toward the government but also toward their own legal tradition, with the ability to deploy more traditional or less traditional Islamic law interpretations depending on the contexts and subjects that they are called to adjudicate.
This attempt to square Islamic legal traditions with the human rights tradition is not unique to the concept of dignity; concepts from outside religious traditions have influenced religious interpretation throughout Islamic modernity. David S. See Mohamed A. Arafa, Whither Egypt? Just to name a few: in Canada, it led the Supreme Court to decide that assisted suicide was permissible; the European Court of Justice decided that it was possible under E.
Supreme Court in United States v. Wind- sor and Obergefell v. Carter v. Anyone who is the victim of an illegal arrest or detention has the right to compensation. Private life is sacred, and violation of that sanctity is a crime. Private life includes family privacy, the sanctity of the home, and the secrecy of correspondence and other forms of private communication.
The people are the source of authority. Political capacity is a right for every citizen of a legal age to be exercised in accordance with the law. Everyone residing on the territory of a State shall have freedom of movement and freedom to choose the place of residence in any part of the territory, within the limits of the law.
Citizens shall not be arbitrarily or illegally deprived from leaving any Arab country, including their own, or their residency restricted to a particular place, or forced to live in any area of their country. Every citizen has the right to seek political asylum in other countries, fleeing persecution. A person who was pursued for a common crime does not benefit from this right. Political refugees shall not be extradited. No citizen shall be arbitrarily denied of his original nationality, nor denied his right to acquire another nationality without legal basis.
The right to private ownership is guaranteed to every citizen. Under no circumstances shall a citizen be arbitrarily or illegally deprived of all or part of his property. Persons from all religions have the right to practice their faith. They also have the right to manifest their opinions through worship, practice or teaching without jeopadising the rights of others. No restrictions of the exercise of the freedom of thought, conscience and opinion can be imposed except through what is prescribed by law.
Citizens have the freedom of assembly and association in peaceful manner. No restrictions shall be imposed on either of these two freedoms except when it is necessary for national security, or public safety, or the protection of the rights and freedoms of others. The State shall ensure the right to form trade unions and the right to strike within the limits prescribed by law. The State shall ensure every citizen the right to work which guarantees a standard of living that provides the basic life necessities and ensures the rights to a comprehensive social security.
The freedom to choose employment is guaranteed, and forced labour is prohibited. Forced labour does not include compelling a person to carry out work in execution a judicial decision. The State shall ensure to citizens equal opportunity in employment, and equal pay for work of equal value. Eradicating illiteracy is a commitment and an obligation. Education is a right for every citizen.
Elementary education is compulsory and free. Secondary and university education shall be accessible to all. Citizens have the right to live in an intellectual and cultural atmosphere that reveres Arab nationalism and cherishes human rights. Racial, religious and other forms of discrimination are rejected, while international cooperation and world peace are upheld.
Everyone has the right to participate in the cultural life, enjoy literary and artistic production, and be given the chance to advance his artistic thought and creative talent. Another example of the crisis of the League is the situation in Iraq.
The league didn't do anything when Iraq attacked Kuwait in and we are asking now about his position concerning the occupation of Iraq? The main missions of this Commission are the promotion and the information about human rights. It can't make resolutions against Arab States who don't respect human rights. These missions haven't really changed since !
As we know this Inter-American Commission was created in The mission of this Commission was the promotion of human rights. But today, the mean mission is the protection of these rights because the Commission is an organ of the Organisation of the Americans States and an organ of the American Convention on Human Rights As I said the main missions of Arabic Commission stile the promotion since and its role is very limited concerning the mechanism of the Arab Charter on Human Rights!
It was a very important milestone for the League when it adopted the Charter in at its year anniversary. The adoption of the Charter symbolized that the members of the League recognized human rights, and the importance respecting human rights in the Arab World. This first version of the Charter has 43 articles following its preamble. The preamble speaks about the principles of religions "Which confirmed its Right to a life of dignity based on freedom, justice and peace".
However, there is significant tension between the Cairo Declaration and the UDHR, with many questioning the compatibility of the two instruments.
The Charter, however, proclaims essentially the same rights as those embodied in the other international and regional human rights instruments. The core problem with the Charter is the lack of any human rights enforcement mechanism, as compared with the mechanisms within the European and American Conventions on human rights, or with the African Charter on Human and Peoples' Rights. My own view is that the Arab Charter is primitive, compared to the other regional systems as far as enforcement mechanisms are concerned.
The Arab Charter is primitive because of the extremely limited system of monitoring state compliance with the Charter's provisions.
0コメント