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Anglia Ruskin University Ali Alkubaisy ANGLIA RUSKIN UNIVERSITY FACULTY OF ARTS, LAW AND SOCIAL SCIEINCES ‘ A CRITICAL ANALYSIS OF THE CONTINUED RELEVANCE OF SECULARISM TO CONTEMPORARY ISLAMIC STATES’ ATTITUDES TO INTERNATIONAL HUMAN RIGHTS LAW ’ ALI ALKUBAISY A Thesis in partial fulfilment of the requirements of Anglia Ruskin University for the degree of Doctor of Philosophy Submitted: June 2019 I AFFIRMATION This thesis, submitted for the Degree of Doctor of Philosophy, is an original work of my own and has not been submitted before for any other degree. II ACKNOWLEDGEMENTS I would like to express my great gratitude and very great appreciation to my supervisory team, Dr Alexander Murray and Dr Aldo Zammit Borda, for their encouragement, guidance and support throughout the years of my research from the beginning to the last stage. It was a pleasure to work under their supervision. I also wish to express my special appreciation to Professor Robert Home. Lastly, special gratitude to my great parents, my great wife for her support and for my great brothers whose help, support and encouragement helped me in all the time for writing of this thesis. III ABSTRACT This research aims to provide a critical and relevant exploration of the relationship between the major assumptions surrounding Islamic law and issues related to the protection of basic human rights vis-à-vis the different situations in secular and non-secular countries. The focus is on comparing the precise ways in which secular Islamic states and non-secular Islamic states tend to adopt basic principles pertaining to human rights. The main objective of this study is to discover whether secular Islamic states tend to demonstrate higher degree of compliance with international human rights law in comparison with non-secular Islamic countries. This research objective provides the backbone of the entire work, since a comparison between secular and non-secular Islamic countries may yield important practical implications, and can also determine to what extent the level of a Muslim country's implementation of international human rights law may be attributed to specific factors. Similar aspects are determined by the quality parameter of the work, which is regulated through the flexible organisation of codified law. The context of considering these aspects is comparative by nature, since the legal systems in secular Islamic countries differ from those of non-secular Islamic countries. This study applies both comparative, empirical research and library work. It seeks to provide a theoretical understanding of the specific context of various Islamic states’ attitudes in detail in order to ascertain their level of compliance with international human rights law. The study has provided that modern secular Islamic state seems to be more closely aligned with the principles of human rights than does the non-secular one. The study also provided that secular modern Islamic states do not use religion to regulate their justice systems and that this model emphasises international human rights instead, as secular Islamic state model is based on religious neutrality and does not use Islamic religious principles in dispensing justice, but rather is subject to a well-established justice system that respects human dignity and the rule of law. IV TABLE OF CONTENTS AFFIRMATION ............................................................................................................................ V ACKNOWLEDGEMENTS .......................................................................................................... V ABSTRACT ................................................................................................................................... V TABLE OF CONTENTS .............................................................................................................. V LIST OF CASES ........................................................................................................................... V LIST OF INTERNATIONAL INSTRUMENTS ........................................................................ V LIST OF NATIONAL INSTRUMENTS ..................................................................................... V ABBREVIATIONS ....................................................................................................................... V GLOSSARY ................................................................................................................................... V COPYRIGHT DECLARATION ................................................................................................. V Introduction ......................................................................... Error! Bookmark not defined. Introductory Remarks ........................................................................................................ 1 1. Defining the Problem, and the Significance of this Research ..................................... 8 2. The Gap in Conventional Literature .......................................................................... 16 3. Research Methodology ................................................................................................. 21 4. The Limitations of the Research ................................................................................. 38 5. The Structure of the Research ..................................................................................... 39 Chapter 1 – Islamic State and Secularism: Concept and Context ............................. 42 1. Religious State .............................................................................................................. 42 2. Islamic State ................................................................................................................. 44 3. Modern Islamic State ................................................................................................... 45 4. Secularsim .................................................................................................................... 46 V 5. Islamic State and Secularsim ..................................................................................... 55 6. Secularsim in the Republic of Tunisia ....................................................................... 57 7. Non- Secularsim .......................................................................................................... 63 8. Islamic State and Non- Secularsim ............................................................................ 65 9. Non- Secularsim in the Kingdom of Saudi Arabia .................................................... 68 Chapter 2 - The Evolution and Formation of Islamic Law and International Human Rights Law ....................................................................................................................... 76 1. The Emergance of Islamic Law................................................................................... 76 2. The Nature of Islamic Law .......................................................................................... 78 3. Sources of Islamic Law ................................................................................................ 83 4. Human Rights in Islamic Law .................................................................................... 85 5. An Overview of Human Rights in International Law ................................................ 90 6. The Cairo Declaration of Human Rights ................................................................ 109 7. The Historical Emergence of International Human Rights Law ............................ 112 8. The Nature of International Human Rights Law ..................................................... 117 9. Sources of International Human Rights Law ........................................................... 123 10. The Internationalisation of Human Rights Law Treaties ...................................... 131 Chapter 3 – The Application of International Human Rights Law in Islamic States ......................................................................................................................................... 138 1. Human Rights Law in Islamic Law (Shari’a) ......................................................... 138 2. Kingdom of Saudi Arabia`s System and Sources of Law ........................................ 142 3. Republic of Tunisia`s System and Sources of Law ................................................... 147 4. Human Rights in the Kingdom of Saudi Arabia ..................................................... 153 5. Human Rights in the Republic of Tunisia ............................................................... 158 6. Kingdom of Saudi Arabia`s Position on the Universal Decalration of Human Rights (1948) ............................................................................................................................. 163 7. Republic of Tunisia`s Position on the Universal Decalration of Human Rights (1948) ......................................................................................................................................... 167 8. Kingdom of Saudi Arabia`s Position on Cairo Decalration of Human Rights (1990) ......................................................................................................................................... 172 VI 9. Republic of Tunisia`s Position on the Universal Decalration of Human Rights (1990) ........................................................................................................................................
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