ABSTRACT

Using the International Covenant on Civil and Political Rights (ICCPR)1 as a case study, this chapter provides a general analysis of the impact of Islamic law on the implementation of international human rights law in Muslim states where the Shari’ah is a source of law, and Islamic law (or elements thereof) is applied as part of the domestic law of the state. The relevance and prospective impact of Islamic law on international human rights law had been manifested from the very beginning of the United Nations (UN) human rights venture during the early debates on the draft provisions of the UDHR before its adoption on 10December 1948. During the UN General Assembly’s Third Committee article-by-article consideration of the draft provisions of the UDHR in November 1948, there were objections, particularly from Saudi Arabia, about the scope of the draft provisions of the UDHR on equal rights of spouses within marriage and at its dissolution, and the right to freedom of religion including freedom to change one’s religion or belief. The scope of the provisions that eventually became Articles 16 and 18 of the UDHR, respectively, was considered by the objecting Muslim states to be contrary to Islamic law.2 For example, among the Muslim states represented at the Third Committee deliberations on the draft provisions, only Lebanon voted in favour of Article 18 of the UDHR on the right to freedom of religion, including the right to change one’s religion or belief, for which Lebanon was criticized by the other Muslim states present.3 Although the objections of the Muslim states in that regard were defeated in the end, and eight4 of the 48 UN member states who eventually voted affirmatively in the UN General Assembly for the adoption of the UDHR on 10 December 1948 were Muslim states in which Islamic law had some domestic influence, Saudi Arabia maintained its stand and abstained from the voting, apparently in pursuance of its earlier objection to the scope of Articles 16 and 18 of the UDHR respectively, on grounds of Islamic law.