Protection of Minorities Rights to Cultural Identity – The Muslim Experience: A Case Study on Cultures in Support of Humanity29 June 201129 June 2011

Historical and Current Historical and Current Contribution of Cultures to Contribution of Cultures to

the the Enrichment of the Enrichment of the Concept of Human Rights Concept of Human Rights and Humanitarian Law;and Humanitarian Law;

The NAMCHRCD Maxim is:The NAMCHRCD Maxim is:

To To Unify Diverse Cultures Unify Diverse Cultures towards towards

the Advancement of the Advancement of

Human RightsHuman Rights

Cultures in Support of Humanity

•The First International Conference on Human Rights and Cultures

•Tehran, 24--26 November 2011

•“The aim is to arrive at a shared idea, experience and understanding of the historical role and contemporary capabilities of civilizations, cultures and religions, and the role of international and regional human rights mechanisms, on the following sub-topics:

• - Shaping the ideas or concepts behind human rights and humanitarian law principles such as human dignity, equality, non-discrimination, freedom and justice;

- Improving international and regional standard-setting and realization in areas such as:

•* freedom of religion, expression, information and communication in times of peace and war;

- Improving international and regional standard-setting and realization in areas such as:

•* freedom from discrimination of any kind in situations of war and peace;

- Improving international and regional standard-setting and realization in areas such as:

•* the rights of women, children, minorities, the disabled, the elderly, or migrant workers and their families in peace time and the time of violence and armed conflict;

- Improving international and regional standard-setting and realization in areas such as:

•* the right to social security, work, rest and leisure, an adequate standard of living, education, benefits of science and culture, protection of the family, food, housing, health or education in peace, war and occupation;

Improving international and regional standard-setting and realization in areas such as:

• - Sanctions in human rights law and law of armed conflicts.

Improving international and regional standard-setting and realization in areas such as:

• - Implementation of human rights law international humanitarian law;

Protection of Minorities Rights to Cultural Identity – The Muslim Experience: A Case Study on Cultures in Support of Humanity29 June 201129 June 2011

Obligation Erga Omnes Obligation Erga Omnes

obligations erga omnes, namely obligations which are not owed to any particular state but to the international community

Jus Cogens and Erga Omnes Jus Cogens and Erga Omnes

Jus cogens refers to the legal status that certain internationalcrimes reach, and obligatio erga omnes pertains to the legalimplications arising out of a certain crime’s characterization asjus cogens. Thus, these two concepts are different from each other These two concepts are relevant to doctrine of responsibility to protect

Oneness of mankind Oneness of mankind Saddi ( Iranian Poet) Saddi ( Iranian Poet) (c. 1213 - 1292). Saddi (c. 1213 - 1292). Saddi

• Human beings are members Human beings are members of a whole,of a whole,

• In creation of one essence In creation of one essence and soul.and soul.

• If one member is afflicted with If one member is afflicted with pain,pain,

• Other members uneasy will Other members uneasy will remain.remain.

• If you have no sympathy for If you have no sympathy for human pain,human pain,

• The name of human you The name of human you cannot retain.cannot retain.

• پیکرند یک اعضای آدم پیکرند بنی یک اعضای آدم بنیگوهرند یک ز آفرينش در گوهرند که یک ز آفرينش در که

• روزگار آورد درد به عضوى روزگار چو آورد درد به عضوى چوقرار نماند را عضوها قرار دگر نماند را عضوها دگر

• غمی بی دیگران محنت کز غمی تو بی دیگران محنت کز توآدمی نهند نامت که آدمی نشاید نهند نامت که نشاید

•   

Responsibility to Protect in Responsibility to Protect in the Holy Koranthe Holy Koran

And what is [the matter] with you that you fight not in the cause of Allah and [for] the oppressed among men, women, and children who say, "Our Lord, take us out of this city of oppressive people and appoint for us from Yourself a protector and appoint for us from Yourself a helper?"

The Cyrus cylinder The Cyrus cylinder "the world's first declaration of human "the world's first declaration of human rights“(c. 600 BC or 576 –530 BC)rights“(c. 600 BC or 576 –530 BC)

• I announce that I will respect the traditions, I announce that I will respect the traditions, customs and religions of the nations of my customs and religions of the nations of my empire and never let any of my governors empire and never let any of my governors and subordinates look down on or insult and subordinates look down on or insult them as long as I shall live. From now on, them as long as I shall live. From now on, while Ahuramazda (The God) lets me rule, I while Ahuramazda (The God) lets me rule, I will impose my monarchy on no nation. will impose my monarchy on no nation. Each is free to accept it, and if any one of Each is free to accept it, and if any one of them rejects it, I shall never resolve on war them rejects it, I shall never resolve on war to reign.to reign.

The Principle of Diversity The Principle of Diversity Recognised by the Holy KoranRecognised by the Holy Koran

• - “O Mankind, we created you from a - “O Mankind, we created you from a single pair of a male and a female, single pair of a male and a female, and made you into nations and tribes and made you into nations and tribes that you may know each other.” that you may know each other.”

The Principle of Diversity The Principle of Diversity Recognised by the Holy KoranRecognised by the Holy Koran

• - “Among God’s signs are… the - “Among God’s signs are… the difference of your languages and difference of your languages and colours. Verily in that are indeed colours. Verily in that are indeed signs for those who know”.signs for those who know”.

The Principle of Diversity The Principle of Diversity Recognised by the Holy KoranRecognised by the Holy Koran

• - “And if your God wished, it would - “And if your God wished, it would certainly have created all people as certainly have created all people as one single nation, yet they still have one single nation, yet they still have their differences . . .”their differences . . .”

Protection of Minorities’ Right to Protection of Minorities’ Right to Identity in International Human Identity in International Human Rights LawRights Law

Protection of Religious Minorities in Their Right to Protection of Religious Minorities in Their Right to IdentityIdentity

- Right of Religious Minorities to Be Legally Recognized

- Right of Minorities to Personal Legal Autonomy

Protection of Minorities’ Right to Protection of Minorities’ Right to Identity in International Human Identity in International Human Rights LawRights Law• Protection of Religious Minorities in Their

Right to Identity • - References to Identity in International

Human Rights Treaties • - Identity Rights or Characteristics Rights?• - Distinguishing between Identity Rights

and Principle of Non-discrimination • -Obligation of States with Regard to

Identity Rights

Right of Religious Minorities to Be Legally Recognized

• - The Treaty Based Recognition of Minorities

• - The Issue of Old and New Minorities

Right of Minorities to Personal Right of Minorities to Personal Legal AutonomyLegal Autonomy

•Right of Minorities to Personal Legal Autonomy

• - Legitimacy of Limitations on the Right of Minorities to Personal Legal Autonomy

Right of Minorities to Personal Right of Minorities to Personal Legal AutonomyLegal Autonomy • the ILO Convention No.169, recognizes the right to the ILO Convention No.169, recognizes the right to

personal legal autonomy regimes for indiginous personal legal autonomy regimes for indiginous people . This right is reaffirmed in Article 8 and people . This right is reaffirmed in Article 8 and elaborated upon and extended to other non-elaborated upon and extended to other non-personal laws such as penal law in subsequent personal laws such as penal law in subsequent Articles 9-12.Articles 9-12.

• Making no distinction between indigenous people Making no distinction between indigenous people and other minorities, in her working paper on and other minorities, in her working paper on minorities submitted in 1989, Claire Palley, the minorities submitted in 1989, Claire Palley, the Special Rapporteur of the Sub-Commission on Special Rapporteur of the Sub-Commission on Minorities, refers to various forms of autonomy as a Minorities, refers to various forms of autonomy as a requirement for the application of Article 27requirement for the application of Article 27 of of ICCPRICCPR

Muslim Traditions Muslim Traditions ((DhimmahDhimmah) and Religious ) and Religious Minorities Minorities • According to Muslims Traditions Based on a According to Muslims Traditions Based on a

contract with religious minorities they were contract with religious minorities they were ruled under their personal laws in marriage, ruled under their personal laws in marriage, divorce, inheritance, the selling of wine and divorce, inheritance, the selling of wine and the eating and trading of pork. Yet, in a civil the eating and trading of pork. Yet, in a civil suit between a Muslim and a non-Muslim, suit between a Muslim and a non-Muslim, the Muslim judge was required to apply his the Muslim judge was required to apply his own law.” This could be discriminatory own law.” This could be discriminatory against non-Muslims in mixed cases.against non-Muslims in mixed cases.

Historical Application of Muslim Traditions on Historical Application of Muslim Traditions on Religious Minorities: Millet System during Religious Minorities: Millet System during Ottoman Empire Ottoman Empire

• The main non-Muslim communities were The main non-Muslim communities were given legal recognition. In their private given legal recognition. In their private lives, marriage, inheritance, and education lives, marriage, inheritance, and education Christians and Jews were no longer direct Christians and Jews were no longer direct subjects of the Sultan. Instead they were subjects of the Sultan. Instead they were now subject to an authority from their own now subject to an authority from their own religion, to which Istanbul delegated power religion, to which Istanbul delegated power in matters pertaining to personal status. in matters pertaining to personal status.

Current Application of Current Application of Muslim TraditionsMuslim Traditions• Regarding legal plurality in Muslim Regarding legal plurality in Muslim

countries, Jones-Pauly points out that: “One countries, Jones-Pauly points out that: “One of the fundamentals of the non-European of the fundamentals of the non-European Islamic legal culture is the right to one’s Islamic legal culture is the right to one’s own legal culture especially in family and own legal culture especially in family and inheritance law. One finds an equivalent in inheritance law. One finds an equivalent in the European continental system, which the European continental system, which allows for the application of the law of the allows for the application of the law of the guest, for non-citizens residing in foreign guest, for non-citizens residing in foreign territory.territory.

Muslim Traditions and Muslim Traditions and Religious MinoritiesReligious Minorities

• Two main aspects of Muslim Two main aspects of Muslim Traditions , i.e. recognition of major Traditions , i.e. recognition of major religious groups and recognition of religious groups and recognition of their religious family law, have their religious family law, have survived until the present.survived until the present.

Current Application of Current Application of Muslim Traditions Muslim Traditions • Along with the issue of the recognition of Along with the issue of the recognition of

religious minorities in all Muslim countries , religious minorities in all Muslim countries , in the parliament of some Muslim countries in the parliament of some Muslim countries special seats have been allocated to the special seats have been allocated to the representatives of religious minorities. Also representatives of religious minorities. Also in Egypt traditionally two Copts are in Egypt traditionally two Copts are appointed as ministers to [the] cabinet and appointed as ministers to [the] cabinet and [the president] is authorized to appoint up [the president] is authorized to appoint up to ten members of the parliament, typically to ten members of the parliament, typically consisting of Copts and women.consisting of Copts and women.

Current Application of Current Application of Muslim TraditionsMuslim Traditions

• Similar to Muslim countries, in some Similar to Muslim countries, in some countries neighbouring to Muslim countries neighbouring to Muslim countries such as Ethiopia, Greece, countries such as Ethiopia, Greece, Singapore, Thailand, Ghana, Sri Singapore, Thailand, Ghana, Sri Lanka, India, Philippines and Israel , Lanka, India, Philippines and Israel , the marriage and personal law of the marriage and personal law of minorities, particularly of Muslims, minorities, particularly of Muslims, are afforded recognition.are afforded recognition.

Current Application of Current Application of Muslim TraditionsMuslim Traditions• The situation in Israel, succeeding the Ottoman The situation in Israel, succeeding the Ottoman

MilletMillet system, is as follows: system, is as follows:• [The legal system] recognizes the ten previously [The legal system] recognizes the ten previously

recognized religious communities, including [the] recognized religious communities, including [the] Jewish, Muslims, and a number of Christian sects, Jewish, Muslims, and a number of Christian sects, each with its own court system and judges and each with its own court system and judges and religiously based personal law, along with two religiously based personal law, along with two more communities added later by [the] Israeli more communities added later by [the] Israeli government (the Druz and the Baha’i ). The government (the Druz and the Baha’i ). The Israeli government deleted from the list of Israeli government deleted from the list of personal laws], adoption, inheritance, wills and personal laws], adoption, inheritance, wills and legacies. These matters are now handled in civil legacies. These matters are now handled in civil courts, unless both parties to a dispute consent to courts, unless both parties to a dispute consent to the jurisdiction of the relevant religious court.the jurisdiction of the relevant religious court.

Muslims and Minorities Muslims and Minorities

• Mayer points out that “[in particular, the Mayer points out that “[in particular, the treatment of the Jewish minority in Muslim treatment of the Jewish minority in Muslim societies stands out as fair and enlightened societies stands out as fair and enlightened when compared with the dismal record of when compared with the dismal record of Christian European persecution of Jews over Christian European persecution of Jews over the centuries. The annals of history point the centuries. The annals of history point out to the fact that the same degree of out to the fact that the same degree of religious freedom as granted by religious freedom as granted by ShariahShariah to to the non-Muslims living in Islamic state were the non-Muslims living in Islamic state were non-existent in the history of other non-existent in the history of other religions.religions.

Muslims and Minorities Muslims and Minorities

• Bielefeldt :Historic evidence shows that Bielefeldt :Historic evidence shows that some Christian minorities and some Christian minorities and dissidents preferred living under Islamic dissidents preferred living under Islamic rule to being persecuted by their fellow rule to being persecuted by their fellow Christians in the Byzantine and Christians in the Byzantine and Habsburg empires. Thus, with regard to Habsburg empires. Thus, with regard to religious tolerance, Islam seems to religious tolerance, Islam seems to have a better historical record than have a better historical record than Christianity.Christianity.

Muslims and Minorities Muslims and Minorities

• Muslims by applying the Muslims by applying the DhimmahDhimmah system have established the widest system have established the widest and oldest system for recognition and and oldest system for recognition and regulating the status of religious regulating the status of religious minorities within majority Muslims and minorities within majority Muslims and their protection; the system has their protection; the system has survived for about fourteen centuries in survived for about fourteen centuries in an extended area from Spain in an extended area from Spain in Western Europe to Pacific Ocean in Western Europe to Pacific Ocean in East Asia. East Asia.

My Heart is in the EastMy Heart is in the EastFor the first time ever in Dublin …For the first time ever in Dublin …AN EVENING OF SEPHARDIC & PERSIAN MUSICAN EVENING OF SEPHARDIC & PERSIAN MUSICSunday June 7 and Monday June 8, 2009, 6.30 PM.Sunday June 7 and Monday June 8, 2009, 6.30 PM. Samuel Beckett Theatre, Trinity College Dublin Samuel Beckett Theatre, Trinity College Dublin • Performed by Judith Mok (soprano) and Laurent Galili, withPerformed by Judith Mok (soprano) and Laurent Galili, with

• Nick Roth (sax), Oleg Ponamarov (violin), Francesco Turissi (percussion), Simon Nick Roth (sax), Oleg Ponamarov (violin), Francesco Turissi (percussion), Simon Jermyn (guitar), and Cora Venus LunnyJermyn (guitar), and Cora Venus Lunny

• (violin). (violin).

• ‘‘My Heart is in the East, and I in the uttermost West’ wrote the great Spanish My Heart is in the East, and I in the uttermost West’ wrote the great Spanish Jewish poet of the 11th century, Judah Halevi.Jewish poet of the 11th century, Judah Halevi.

• From Babylon and Baghdad to Cairo and Cordoba, Jews and Muslims lived From Babylon and Baghdad to Cairo and Cordoba, Jews and Muslims lived alongside one another and experienced mutually enriching cultural encounters. alongside one another and experienced mutually enriching cultural encounters.

• Medieval Jews knew their beloved Spain as Medieval Jews knew their beloved Spain as SepharadSepharad. Here. Here

• poetry and music flourished and when the Jewish community was expelled in the poetry and music flourished and when the Jewish community was expelled in the 15th century, they took their Sephardic ballads with them to their new homes. 15th century, they took their Sephardic ballads with them to their new homes. Settling across the eastern Mediterranean, from Turkey and the Balkans to North Settling across the eastern Mediterranean, from Turkey and the Balkans to North Africa and the Holy Land, this music of loss and longing absorbed local musical Africa and the Holy Land, this music of loss and longing absorbed local musical influences, to produce this incredibly Varietsyof Sephardic musi.influences, to produce this incredibly Varietsyof Sephardic musi.

•   

• considering the long-distance consistency and the wide geographical extension of their application, the system of recognition of religious minorities and their personal law in Muslim territories deserves to be recognized under international law as a regional customary system for protecting minorities. Further, considering its invaluable historical contribution to the protection of minorities and its capacity for further contribution, it might also be held as a model for protection of the right to identity of minorities by other multi-cultural, multi- religious communities.

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