Inheritance Law Reform in Morocco: At the Intersection of Human Rights and Religious Identity

Last week, the president of Morocco’s National Human Rights Council (CNDH), Driss El Yazami, publicly released the Council’s most recent report on gender equality and parity in Morocco. The content and recommendations contained therein were broad, addressing a range of issues related to laws affecting women. However, one issue, in particular, received significant attention and has been the subject of heated debate here in the country: inheritance law.

The report comes four years after the adoption of a new, Arab Spring-inspired constitution and ten years after a controversial yet much celebrated reform of the Moroccan Family Code (al-mudawwana). While the CNDH has issued previous reports and memoranda on gender, the CNDH noted that the report was “the first of its kind” to review the efforts and achievements to promote and protect the rights of women in Morocco, but also to present the challenges, gaps, and obstacles that continue to prevent women from enjoying all of their human rights. The report is comprised of three chapters, addressing (1) gender equality and non-discrimination, (2) equality and parity in economic, social, and cultural rights, and (3) public policies and their impacts on women that are most vulnerable to human rights violations, and it offers 97 recommendations intended to ensure the full participation of women in society and their equal access to services and resources. From a human rights perspective, it is impressive.

In a press statement after the conference, El Yazami said, “There will be no democratic progress or fair and sustainable development in Morocco without the empowerment and full participation of women, who make up one-half of Moroccan society.”

The report provided many opportunities for controversy, but its recommendations relating to inheritance generated the most coverage in the Arabic- and French-language press. The report commented on current legislation around inheritance, which stipulates that male heirs receive double that of female heirs, among other such provisions. It then recommended an amendment to the Family Code giving women the same rights as men in the context of inheritance. In supporting its recommendation, the CNDH referred to both national and international law, citing Article 19 of the 2011 constitution and Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which Morocco is a party.

The most trenchant response has come from the Justice and Development Party (PJD), the ruling political party in Morocco since 2011. While they are often referred to as “Islamist,” the party describes itself as a political party with an Islamic frame of reference, an important distinction, I have learned, here in Morocco.

The party has referred to the report as an “unacceptable provocation,” criticizing its perceived overreach into the religious domain. Its principal objection has been that the recommendation to amend the inheritance laws contravenes explicit textual directives in the Qur’an, which the party says are not open to interpretation. Thus, they contend, the recommendation lacks legitimacy and legality in Morocco.

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Secrecy in international agreements

The recent P5+1 negotiations and the agreements reached so far have sparked much discussion and letter-writing. Part of this has to do with the obscurity of the negotiations and the simple reason that the few texts that have been made public are unlikely to present the totality of what the negotiations actually deal with apart from the nuclear issue. What is the deal with secrecy in international agreements?

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

Few things happen without a reason. Sometimes, what seems to be the apparent reason is only a piece, sometimes not even the right one, of a bigger picture. This includes international relations and the way in which they influence national, regional, and international developments. Part of what makes it difficult to dissect these developments, from the outside, is the use of secret agreements in international relations. Since they are secret, sometimes modestly referred to as “confidential”, such documents are released only after 20 years, 30 years, 50 years or whatever the confidentiality norm is in a country. Before World War I, the use of secret agreements or treaties, was quite common, typically dealing with alliances during war  and division of spheres of influence. The Treaty of Dover, the Sykes-Picot Agreement, the Molotov-Ribbentrop Pact, the Quadripartite Agreement and the Hoare-Laval Pact are only some of the many significant secret agreements of the past with major geopolitical impacts that have shaped our common history. While there can be good reasons for keeping certain agreements secret, secret international agreements are at the same time problematic from the perspective of sovereignty, democracy, rule of law, and an open society. They are also prohibited under international law.

Secret treaties under international law
At the Treaty of Versailles, marking an end to World War I, Woodrow Wilson proposed to include a prohibition against secret treaties by proposing that that all treaties should be made through the League of Nations. This proposal did not make it to the Treaty of Versailles, but was subsequently included in Article 18 of the Covenant of the League of Nations, which provided that “every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.” The new rule had become, in other words, publicness of international agreements, through a requirement of registration. This did not, to nobody’s surprise, end the use of secret agreements in practice, but for the first time such agreements were prohibited on a formal level.
The UN Charter continues this policy in chapter XVI. Article 102 provides that:
1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. “
Article 103 establishes the UN Charter as the superior law by stating that the obligations under the charter prevail in case of conflict the obligations under another international agreement.

The continued use of secret international agreements
Despite the clear prohibition under international law, secret international agreements continue in practice. For example, The United Kingdom- United States of America Agreement (UKUSA) between the UK, the US, Canada, Australia, New Zealand,and with several third parties subsequently joining, was entered into in 1946, but was not disclosed to the public until 2005 and its full text was not made public until 2010.
Because they are secret, contemporary secret agreements are hard to identify and such identifications often become mere speculations, giving rise to a variety of juicy conspiracy theories. However, sometimes such agreements are fairly easy to identify through a two-step process. The first is that there is knowledge that an agreement has been entered into. Second, the content of the agreement has not been made public. In such a case it is difficult to reach any other conclusion than that the agreement is secret.

A recent example of such a case is the P5+1 agreement with Iran. There is knowledge about an agreement, yet its content has not been made public. It has been referred to as the “Nuclear Agreement”, obviously dealing with some aspects of Iran’s nuclear programme, and indeed some of the obligations with respect to the nuclear issue have been referred to by the parties and an interim agreement has been published. Yet considering the geopolitical context of the agreement as well as the parties to it, it is highly probable that the P5+1 negotiations deals with broader issues than the nuclear issue. But we cannot know whether the terms of the agreement are in accordance with international law because the text has not been made public.

The context for the agreement- the location, the parties, the interests- bears resemblance to that of an agreement entered into almost a century ago, also that one a secret one. Whether or not the P5+1 agreement is the 21st century version of Sykes-Picot is impossible to know, because the content of the text, like that of Sykes-Picot (which became public in 1917, after the Bolsheviks came to power in Russia), has not been made public. Would it make a difference? That is the central problem of secret agreements. It is impossible to know since they are secret.

Starvation in Syria: Is it time to reconsider humanitarian corridors?

Photo credit: MSGT Robert Hargreaves Jr., USAF

Photo credit: MSGT Robert Hargreaves Jr., USAF

 

Hostilities in Syria have displaced millions and killed hundreds of thousands. Every day, people die because they lack goods and services essential for their survival. Much of the suffering is a consequence of the violence of the past three years, but the failure of aid efforts to relieve the attendant humanitarian crisis has undoubtedly contributed. With the suffering showing no signs of abating, and the violence expected to escalate in the coming days in response to the presidential elections, there is a case for reconsidering how aid operations are being carried out in Syria. In particular, it seems time to reconsider the use of humanitarian corridors, arguably the most controversial – yet potentially most effective – of all assistance models. Whilst reserving judgement on the question of whether corridors could work as a universal response to crises, it certainly seems reasonable to say that the scale and severity of suffering in Syria renders them viable in the present one.

Humanitarian corridors are strips of land, sea or air that are demilitarised to allow aid convoys safe and rapid entry into particular areas of a conflict zone (often besieged cities with large civilian populations). Pursuant to negotiations on geographic and temporal requirements, corridors are established in a certain location for a certain length of time and are then suspended. Some reopen regularly in the same place; others never open in the same place more than once.

On the face of it, it is clear why these delivery models are attractive. Properly established and protected (for example by a multi-State peacekeeping force), corridors provide a highly structured and swift way of delivering aid. Crucially in light of frequent attacks on aid workers, they also render that delivery much safer.

If humanitarian corridors are so attractive, then, why is there such resistance to their use in Syria? For one thing, historically corridors have not escaped the usual politicisation and corruption rife in conflicts. In the 2009 Gaza War, for example, aid delivered through corridors was misappropriated and sold to merchants affiliated with Hamas, a militant and political organisation that governs the Gaza Strip. Corridors are not alone in that regard. Most aid mechanisms, whether organised through major international organisations such as the United Nations or through local non-governmental organisation networks, suffer the same fate.

There is also a series of unanswered legal questions that undermines the establishment of corridors. We know, for example, that corridors are most effective when they are established with the consent of the respective parties.In fact, several international law instruments require that humanitarian relief only be delivered with the consent of the receiving State.[i] But we do not know, legally speaking at least, whether there are circumstances under which corridors can be established in the absence of that consent. Indeed, such establishment may constitute unlawful interference with the internal affairs of the receiving State, thus rendering any assisting States internationally responsible and, of particular concern, establishment without consent by assisting organisations may render the organisations and their personnel subject to prosecution under domestic law. In the absence of answers to these and other important questions, and in lacking the vital legal understandings that would flow therefrom, it is unsurprising that such resistance exists.

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Jordanian diplomat on Arab world & international justice & accountability

zeidCHAUTAUQUA, New York – Without the emergence of a genuine, contemporary Arab philosophy, a top Jordanian diplomat predicted today, stops and starts likely will remain the present and near future in the Middle East. To be precise, the diplomat, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Permanent Representative to the United Nations, told participants in the 7th International Humanitarian Law Dialogs here in upstate New York:

‘When we look at the Arab world, there is no authentic Arab liberal philosophy, and no authentic Arab liberal philosopher, at this moment.’

Citing developments in Iraq since 1968, Zeid said that an earlier such philosophy, the Baath movement, “a strong socialist Arab tradition,” fell apart. The “absence of a genuine drive to articulate something from within” has left a void:

‘If you don’t have an authentic Arab liberal philosophy … what you have in default is the Islamic ideologies which are authentic to the region.’

A new tradition rooted in Arab tradition is essential to “escape” from “mimicking” Western liberal philosophy, he said, noting that citations to documents like Rousseau’s Social Contract invite “the charge that these are important Western ideas. And so he urged liberals to “start writing,” to theorize liberal traditions “in Arab terms” and “grammar.” Until that happens, he predicted:

‘For a long time we are going to see this rather jerky movement backward and forward. … That will be the narrative for sometime to come.’

Zeid’s comments formed the opening lecture for a conference ostensibly devoted to accountability; after all, the centerpiece of the Dialogs (for which IntLawGrrls serve as a cosponsor) is the coming-together of chief prosecutors from each of the international criminal tribunals and courts. Yet Zeid – who helped draft founding documents of the International Criminal Court and served as the 1st President of the ICC Assembly of States Parties – stopped far short of recommending a rush to judgment. Citing history in post-World War II Germany as his example, Zeid called for creating post-conflict “space” within which fighters might come to terms with the conflict, before the onset and investigation of trials. Having spoken of events in Syria, Egypt, Libya, and Yemen, he said:

‘Many of us have been very passionate supporters of inserting courts into events where a tremendous amount of blood has been spilled. I really think we have to revisit this – not reduce support for the ICC, but we need to develop a more nuanced field.’

Given Zeid’s role in the establishment of the ICC, the comments seem to herald a new moment in the field accountability and transitional justice. Should that be, one hopes for a comprehensive, effective, and well-resourced mix of responses – not confusion that amounts to a retreat from the field.

(Cross-posted from Diane Marie Amann)

Human Rights and Lefts

If the left and the right support the right, who is then left to support the left?

The recent ousting of the Egyptian President has brought some noteworthy insights into the discussion about the academic right and left and their approach to human rights.

Before unearthing this insight, let’s take a step back and start with what is considered to be the normal perception of the left in academic discourse. We’ll stay in the region and take the scholarship on the Middle East and North Africa as a case.

In his book Ivory Towers on Sand: The Failure of Middle Eastern Studies in America (2011), Martin Kramer criticizes Middle Eastern studies in the United States for what he sees as left-wing biased scholarship. Inspired by that book, Norwegian editors Bernt Hagtvedt, Øystein Sørensen and Nik. Brandal published Venstreekstremisme (2012) which contains a similar criticism against Norwegian Middle Eastern scholarship. The essence of the criticism in both books is that leftist scholars have a tendency to romanticize the Third World and sympathize with political radicalism in the Middle East. In a human rights context, particularly when we find ourselves at the intersection of human rights and what is understood to be Islam or islamist actors, leftist scholars appear to defend the latter- sometimes with good intention- as a culturally appropriate alternative. Some of these scholars identify as left-wing, while others are deemed as such.

But does the identification of the scholar as left-wing, imply that the content of the scholarship also is left-wing?

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