The study re-examines the phenomenon of “Arab exceptionalism” from the perspective of human rights’ recognition. The formal changes introduced since 2004 in the new Arab bills of rights (comprising the Arab Charter on Human Rights plus the bills of rights of the new constitutions of Iraq, Morocco, Tunisia, and Egypt) are presented and analyzed with the purpose of answering the following questions: From a descriptive–analytical perspective, are the new Arab bills of rights adopting similar designs? From a formal perspective, do these new designs imply a shift with respect to previous patterns of Arab exceptionalism? Finally, from an explanatory perspective, is there an evolutionary rationale accounting for the specific designs adopted in the new Arab bills of rights?
The idea of an Arab exceptionalism has been a prominent and persistent paradigm (Beck 2015, 192), especially in the 1990s and 2000s when the stagnation and conservatism shown by the authoritarian political systems contrasted with the dynamism of the new constitutional waves, impetuously evolving across the globe. It was during this period that comparative analyses highlighted most the perception of Arab polities as an exception, divergent from globalized trends (Bellin 2012), offering a narrative that was certainly shaken as a result of the Arab uprisings. Be that as it may, the lines of inquiry into Arab exceptionalism have disregarded the legal–institutional perspective, creating a research deficit, which is particularly significant considering the conspicuous evidence of a formal change in the recognition of human rights in the Arab region since the 2000s.
Our point of departure is the verification that there has been a formal abandonment of the exceptionalist regional understanding of human rights (legally enshrined in the 1990 Cairo Declaration on Human Rights in Islam and the 1994 Arab Charter on Human Rights), to embrace progressively a universalist paradigm (legally enshrined in the International Bill of Human Rights, consisting of the Universal Declaration of Human Rights and the two 1966 Covenants), with a more complete incorporation of international human rights standards. From a descriptive–analytical perspective it is important first to ask whether Arab countries are adopting similar designs for their own bills of rights. To be considered here are the regional human rights instruments and the national constitutional bills of rights of the Arab countries that have approved new constitutions since 2004: Iraq, Morocco, Tunisia, and Egypt. Second, from a formal perspective, do these new constitutional designs imply a shift with respect to previous patterns of Arab exceptionalism? Third, from an explanatory perspective, is there an evolutionary rationale underlying the specific designs adopted in the new Arab bills of rights?
The study is divided into four parts. First, a reflection is made on the position of the Arab Charter on Human Rights and the new Arab bills of rights as milestones of legal evolution, marking a progressive abandonment of Arab exceptionalism. Second, five descriptive hypotheses are considered in relation to the new Arab bills of rights: three refer to their similar textual designs, testing them by means of a quantitative analysis; and two refer to the incorporation of the globalized patterns of human rights, testing them by means of a textual analysis. The next section analyzes the evolutionary rationale underlying the new constitutional designs. Finally, the main arguments are summed up as a way of conclusion, explaining the convergent evolution of the new Arab constitutional designs and supporting research arguments about the progressive weakening of regional forms of constitutional exceptionalism (Tushnet 2008, 987). The first hypothesis presented is descriptive–analytical, referring to the similarity in the designs of the new Arab bills of rights. The second hypothesis is formal, claiming that the new constitutional designs imply a shift with respect to previous patterns of Islamic-inspired Arab exceptionalism. The third hypothesis is explanatory, stating that certain design features are motivated by historical trends of globalized constitutional evolution, by virtue of which regional forms of exceptionalism persist, but are increasingly attenuated.
Arab Human Rights Exceptionalism
The historical relationship between Arab and globalized human rights paradigms has been dichotomous and oftentimes incompatible. This divergence was, in part, explained by certain legal understandings inspired by a strict interpretation of Islam (the same that led Saudi Arabia to abstain from voting for the Universal Declaration of Human Rights). Based on the 1960s’ and 1970s’ seminal works of Islamist thinkers such as Qutb and Mawdudi, Islamic cultural relativists have been brandishing, since the 1980s’ Islamist revival (Mayer 2018, 20–26) the idea that international human rights standards are incompatible with Islamic Law (Bielefeldt 2000, 105). An Arab-Islamist exceptionalism (Mallat 2006, 27) was expressed in the 1981 Universal Islamic Declaration of Human Rights, a non-legally binding declaration, adopted under the auspices of the Saudi-backed nongovernmental organization (NGO), Muslim World League. The Islamist revival challenged the universalist claim of legitimacy and validity of globalized international human rights standards, pointing out the need to build an Islamic human rights system different from the globalized one.
It was precisely during the 1980s, with the third wave of democracy starting to take place (Haggard and Kauffman 2016, 126), that the globalized human rights discourse was being decidedly taken up, with the signature of instruments such as: the Convention on the Elimination of All Forms of Discrimination Against Women (1979); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); and the Convention on the Rights of the Child (1989). At the continental level, the African Charter on Human and Peoples’ Rights was signed in 1981 (coming over the next decade to bind Tunisia, Somalia, Comoros, Libya, Mauritania, Algeria, and Djibouti; while Egypt ratified it with reservations). Meanwhile, the rest of the Arab region was under the sway of an intense current, advocating an essentialist interpretation of the Islamic Law, contributing to creating a clear disparity with the human rights discourses prevailing in the globalized world.
The idea of an Arab, Islamist-inspired exceptionalist human rights system, first expressed in the 1981 Universal Islamic Declaration of Human Rights, was legally enshrined in the 1990 Cairo Declaration on Human Rights in Islam and the 1994 Arab Charter on Human Rights (Bielefeldt 2000, 105; Rishmawi 2005, 368). The Cairo Declaration, a dogmatic expression of Arab constitutionalism at the time (Pin 2017, 18), presented important divergences with respect to international human rights standards (Mayer 1993, 307). In the same vein, the 1994 Arab Charter on Human Rights, while recognizing a broader catalogue of human rights, had substantial deficits with respect to international standards. First, with respect to civil rights, the right to be free from slavery was missing and there was no recognition of the right to a fair trial by an impartial tribunal with the death penalty for minors not excluded. Second, regarding public freedoms and political rights, the text failed explicitly to recognize full freedom of expression (there was just a recognition of the freedom of opinion in art. 26); freedom of religion was not fully recognized (art. 27) and there was no right to take part in the conduct of public affairs or recognition of the right to vote. Third, certain rights were recognized only for “citizens” (hence, potentially excluding non-nationals), in arts. 25, 28, 30, 32, and 34. Finally, the Charter included important legislative limitation clauses, allowing states to restrict the rights “by law” on the freedom of movement (art. 20), on the freedom of religion and conscience (art. 27), and on the right to form unions and the right to strike (art. 29).
The Arab-Islamist essentialist paradigm of human rights started to wane with the failure of the 1994 Arab Charter’s ratification (which was signed only by Saddam Hussein’s Iraq in 1996, receiving no ratification whatsoever). The 1994 Charter, which needed seven ratifications to become operative (art. 42) did not enter into force: it was too “advanced” for certain states (An-Na’im 2001, 714; Allam 2014, 40–42),1 while for others it was short of meeting the expected standards. In fact, many things began changing in the world after 1990, which contributed to the opening of a new era in the constitutional evolution of the Arab region. The 1990s were characterized by a progressive global resurgence of liberalism and the domestic desire of elites to allow for certain democratic concessions because of the need, first, to parry the opposition as regimes reduced welfare commitments while confronting fiscal crises; and, second, to plan for the very political succession of rulers (Brown 2003, 41). Furthermore, the Arab region came under increasing pressure to improve its human rights record, especially since the Gulf War and the Oslo Accords, which put the area under the scrutiny of the international community and transnational society. Against this backdrop, the content of the 1994 Charter was out of touch. The failure to ratify it spurred efforts, by the early 2000s, to achieve a charter more in line with international human rights standards. With the turn of the new millennium, the United Nations increasingly emphasized the concept of human security, drawing a strong nexus between human rights and peace (as could be seen in the Millennium Summit); while the events of 9/11 made it clearer that the Arab world needed a renewal of its human rights credentials (Zarrougui 2011, 8) to avoid being ostracized by an international community increasingly concerned that low human rights standards provided a breeding ground for international terrorism (Callaway and Harrelson-Stephens 2006).
From the start, the intent was to make the new charter more assimilated to, and compatible with, international human rights standards. It was in this vein that an agreement was signed between the Arab League and the UN High Commissioner for Human Rights in April 2002, with the purpose of providing technical assistance and consultative services (Arab Experts Group 2003). Accordingly, the drafters were Arab nationals, picked from officials serving in UN human rights organizations (Rishmawi 2005, 363; Allam 2014, 43). In this context, the Council of Ministers of the Arab League adopted two resolutions (6184 and 6243) explicitly encouraging the “modernization” of the Arab Charter (Shelton 2014, 102). The use of the term “modernization” denoted the acknowledgement that the 1994 Charter was very behind the times compared with “modern” globalized human rights standards (Hammami 2013, 42). Meanwhile, the NGOs in the region were playing a significant role in promoting human rights (Sait and Lim 2006, 103), as could be seen in the Casablanca and Beirut Declarations (1999 and 2003, respectively) (Mayer 2018, 13–14), the latter pointing out that the 1994 Charter lacked “a number of international human rights standards and guarantees that have been adopted in other regions of the world.” In fact, international, regional, and national NGOs were extremely interested in following and influencing the drafting process (Rishmawi 2005, 363). As a result, a socio-cultural, bottom-up approach and a politico-legal, top-down push became harmonized. The conjunction of internal demands and international pressure (Zarrougui 2011, 8) created fertile soil for norm localization (Baderin 2007, 6; Acharya 2004, 241) and it was in this context that the new Arab Charter was approved in 2004. The greater support given to this second version, expressed in its ratification and subsequent entry into force in 2008 (after seven instruments of ratification were obtained, as required by its art. 49.2), signified that Arab exceptionalist rhetoric was starting to be nuanced.
The 2004 Arab Charter expressed a more decisive stance to incorporate the international human rights acquis as enshrined in UN conventions (Allam 2014, 43). It affirmed in its preamble the principles of the UN Charter, the Universal Declaration of Human Rights, and the 1966 international covenants, and in art. 43 it set out that its interpretation should be made in conformity with international and regional human rights instruments. In the same vein, references were made to the universal value of human rights. In its preamble it stated the contribution to the protection of “universal and interrelated human rights,” while in art. 1.4, it categorically declared the aim to “entrench the principle that all human rights are universal, indivisible, interdependent and interrelated.” Furthermore, the 2004 Charter brought an almost complete incorporation of the main international human rights standards, with a full catalogue of: civil and political; economic; social and cultural; solidarity rights; and specific provisions relating to women, children, migrants, and the disabled. In this vein, it prefigured the content of the new Arab bills of rights2 with some exceptions, which denoted the persistence of a certain degree of regional specificity.
First, the references to Zionism, made in 1994, were taken up. Second, with respect to civil rights, art. 26 introduced a limitation clause on the freedom of movement; art. 8 implicitly admitted the possibility of continued use of corporal punishment and the death penalty, and they were not totally ruled out for minors. Third, regarding public freedoms and political rights, there was no full recognition of the freedom of religion (which covered just the right to worship); and art. 24 only recognized the right to peaceful assembly and association for “citizens.” Fourth, with respect to economic and social rights, art. 41 recognized the right to education only for “citizens”; and art. 34 did the same with respect to the right to work; while art. 35.2 introduced a limitation on the right to form unions. Finally, there were limitation clauses on the freedom of religion and conscience (art. 30), whose exercise could be limited according to national law. Notwithstanding these elements, denoting the persistence of a certain degree of regional idiosyncrasy, the 2004 Arab Charter marked a movement forward in developing a human rights’ “governmental discourse” in the region (Rishmawi 2005, 364).
In contradistinction to other regional instruments protecting human rights, the Charter contained only four articles on monitoring mechanisms (while the International Covenant on Civil and Political Rights and the African Charter contain eighteen and thirty articles, respectively). This shows that not much importance was granted to the practical implementation of the charter, which was rather configured as a rhetorical device. A Human Rights Committee was conceived as a very modest monitoring mechanism (Mattar 2013, 143), with no involvement of civil society much unlike any other international human rights committees), and was limited to receiving triennial reports from the states parties (art. 48).
The 2004 Charter has been ratified by most of the Arab states, except Morocco, Tunisia, Djibouti, Somalia, Oman, and Comoros. What explains this lack of complete ratification? First, it must be considered that the 2004 Charter was approved at a moment of transition within the Arab League, the Charter of which was amended in 2005. Subsequent proposals for reform heightened in the following years, which have come to integrate the recognition of human rights (Rishmawi 2015, 14–16). In this volatile context, discussions have also been ongoing on the approval (and, after 2014, ratification) of a Statute for an Arab Court of Human Rights. All this contributed to congest national foreign policy agendas for Arab human rights, hence delaying and preventing ratifications. Second, it has to be considered that the ratification of the 2004 Charter (as well as of the 2014 Statute for an Arab Court of Human Rights) met with resistance on the part of international actors and civil society on the grounds that it was offering a level of recognition and protection below the international standards (Rishmawi 2009).3 Tunisia, Morocco, and Djibouti have ratified, respectively, fifteen, thirteen, and twelve of the eighteen main UN human rights treaties and protocols, and these are precisely the Arab countries with the greatest number of ratifications, above the 9.5 average for the Arab League States. In contrast, Somalia, Oman, and Comoros have ratified seven, six, and six, respectively; in fact, these are three of the worst performers in this sense (United Nations High Commissioner for Refugees (UNHCR) 2020). Hence, we can see that the 2004 Charter offered too little for the states most committed to the international human rights instruments, while it offered too much for those least committed. Furthermore, as will be shown below, the Moroccan and Tunisian constitutional bills of rights are almost completely assimilated into the international human rights standards. In this context, the prospect of agreeing to a regional treaty, setting lower standards, was certainly inconsistent.
Notwithstanding its substantive and procedural limitations, and despite the refusal of certain states to ratify it, the 2004 Charter represented a significant step forward in the recognition of human rights and it raised the stakes for human rights advocates. Furthermore, it conveyed a transformative sense, missing in the 1994 charter, by virtue of which human rights would have to be placed “at the center of national preoccupation in the Arab States” (art. 1). Crucially, according to art. 44, the states’ parties would have to undertake to adopt “the necessary laws or other measures in order to give effect to the rights” therein recognized. These measures, to bring their national laws into conformity with the Charter, ultimately called for constitutional amendments (Mattar 2013, 116). The first move, in the sense of translating the new human rights paradigm into national constitutional law, was taken by the 2005 Iraqi Constitution (Mattar 2006, 126), which was followed by a cascade of changes that took place after 2011. It was this diachronic context that provided the background for the new Arab bills of rights, which should be seen in the framework of a broader adaptive trend to globalized human rights standards.
The New Arab Bills of Rights
The assimilation of the globalized constitutional paradigm expressed in the 2004 Arab Charter of Human Rights, the evident historical commonality of social aspirations in the Arab world (and, more specifically, the Middle East and Northern Africa (MENA) region) at the outset of the twenty-first century (Sakbani 2011; Gause 2011, 86–87; Sawani 2012, 394), together with the networking and emulation effects linking successive constituent processes (Mallat 2006, 56) (especially those that swept across the region since 2011) (Della Porta 2016, 308) have determined, since 2005, important changes in the new Arab bills of rights, expressed in terms of both form and content. With respect to form, there was a tendency towards: (1) greater scope, that is, a greater extension, measured by the total number of words; and (2) greater detail (or “density”), measured by the number of words per article. With respect to content, the main characteristics were: (1) a greater concern for economic, social, and cultural rights and on solidarity rights; (2) a greater number of references to human rights as a legal category; and (3) the incorporation of the basic standards of international human rights. In order to analyze the first three design features, a descriptive quantitative study is useful. First, the study will examine the measures of the total numbers of words and density of the bills of rights4 in the official Arabic versions of the constitutions of Iraq (2005), Morocco (2011), Tunisia (2014), and Egypt (2014);5 and how they evolved with respect to the immediate precedents of Iraq (1970), Morocco (1996), Tunisia (1959), and Egypt (1971) (Table 1).
As can be seen in Table 1, all the new Arab bills of rights are lengthier, in both articles and words, which means they have a greater scope. They also tend to be denser, which means they are written in greater detail; more rights are recognized and former rights are more specifically regulated. Furthermore, their increase in words is more than proportional than the overall increase of the constitutional charters,6 which shows the particular importance conferred to constitutional rights. These trends were also present in the progression from the 1994 to the 2004 Arab Charters:7 they passed from 1005 to 2858 words in length, and from 25.77 to 66.47 words per article in density. With respect to the advances made in the economic, social, cultural, and solidarity rights, they were substantial: the increase in the number of words dedicated to these rights was more than proportional than the overall increase in the number of words of the bills of rights.8 This trend was also present in the Arab Charter.9
On the other hand, the incorporation of specific rights comes to be reinforced with references to the respect of human rights as a legal category. If we count all the mentions made to the expression “human rights” (“h’qooq al-insan”), Iraq makes four, Morocco nine, Tunisia ten, and Egypt nine (in the previous versions they were zero, one, three, and one, respectively). This upward trend can also be seen at the regional level: the 1994 Charter made nine references, while the 2004 version made sixteen.
Besides the references to human rights as a legal category, the catalogues of rights contained in the new charters have been drawn mostly from international human rights. In essence, there is almost a complete assimilation of the basic human rights standards in the new constitutions, and from the 1966 International Covenants, missing are only: (1) the right to marry, which is not recognized in any of the four constitutions; (2) the freedom of religion, limited in Morocco, Egypt, and Iraq (covering only the “freedom of worship,” and, in the case of Egypt, protecting only the “revealed religions”—that is, Islam, Christianity, and Judaism); (3) the right to life, not recognized in Egypt, and the right to have access, on terms of equality, to the civil service, not recognized in either Tunisia or Iraq; and (4) in Egypt, the right to education (art. 19), the right to use public communications (art. 57), and the freedom of assembly (art. 73) are recognized only for “citizens.” As a result, the non-recognition of the freedom of religion (in a region where certain literal interpretations of the Islamic Law do not recognize the right of Muslims to change religion) (Saeed 2011, 32) and the right to marry (some interpretations of the Islamic Law do not recognize women’s rights to marry non-Muslims, providing for other instances of discrimination regarding polygamy), and a certain tendency to not recognize the rights of non-nationals (in a region with high levels of immigration, such as the Gulf, as well as a substantial influx of communities of refugees) can be considered to constitute a minimum common denominator of a persistent, but more nuanced form of Arab idiosyncrasy.
Explaining the Progressive Abandonment of the Exceptionalism
Breaking away with previous exceptionalist paradigms, the 2004 Arab Charter and the new Arab constitutions can be conceived as the result of a legal evolution, in the sense of the progressive assimilation of globalized human rights instruments. The evolutionary trend had a telos identified with the human rights standards, giving a sense of macro-direction, connected to the liberal ideal of human autonomy (Fitzpatrick 2001, 120). As a legal evolutionary process (Deakin 2002, 4), it was characterized by an iterative dialectic, where the thesis was the particularistic Arab-Islamic charters. The antithesis consisted of the globalized legal corpus of human rights, as demanded by the combined pressure of the international community and civil society. The synthesis resulted in a new bill of rights, which would provide a renewed referential discursive frame, to be contrasted again with globalized human rights standards. This continuous iteration, where the thesis and synthesis vary but the antithesis remains the same, engendered a virtuous spiral of demands leading to a “race to the top” (considering the “top” to be the globalized templates of human rights). The successive iterations were characterized by coincident vectors of international and social pressure (Chekir 2005, 73), which contributed to a norm localization process, reinforcing the sustained demand for change.
The 1994 Arab Charter was not ratified, and its failure spurred greater efforts to assimilate international human rights standards. Still, the 2004 Charter presented points of divergence with respect to the International Bill of Human Rights, failing to ensure its ratification by those countries that were more advanced in human rights’ recognition, which in turn approved new constitutions enlarging the scope of human rights. The successive iterations were evolutionary, building one upon the other: the 1990 Islamic Declaration provided a basis for the Islamist-inspired 1994 Charter (An-Na’im 2001, 712), while the 2004 Charter operated as a “modernization” of the latter, and in turn exerted an influence on the new Arab constitutions (as it purported to do, according to its arts. 43 and 44).
The trends present in the 2004 Charter were translated in the new Arab constitutions. The greater scope, detail, inclusion of economic, social, cultural, and solidarity rights, number of references to human rights as a legal category, and incorporation of the basic standards of international human rights were all characteristics incorporated in the 2004 Charter and taken up in the new Arab constitutions. These commonalities were functionally motivated by analogue ideological, historical, processual, economic, and political circumstances prevailing in the world, in the Arab region, and in specific Arab countries during the corresponding constituent processes. However, they are also signs of a common evolutionary trend and a successive causal influence.
The influence of the 2004 Charter on the new Arab constitutions was dogmatically manifested by the creation of an axiological perception more favorable to international human rights standards. The dogmatic influence could be specifically seen in pronouncements of political officials during constituent processes (e.g., GnetNews 2013). Besides, international advisory bodies, such as the Venice Commission, were explicitly mentioned the Arab Charter in its rule of law checklist.10 The weight of this dogmatic influence can be seen in the permeation of the legal milieus, as in Egypt, where the Administrative Court referenced the 2004 Charter to ground its ratio decidendi (Mattar 2013, 136–37). In addition, the Arab Human Rights Committee played an active role in the promotion of human rights, especially during the early stages of the Arab uprisings (Hammami 2013, 60). In fact, the committee went as far as expressing the wish that the constitutional changes instantiated by the uprisings should “lead to total respect of human rights” (Hammami 2013, 61). Furthermore, it paid crucial visits to the Arab countries, advocating for the ratification of the 2004 Charter, but also for the national assimilation of human rights (La Tribune 2015). Beyond the dogmatic influence, the 2004 Charter offered a benchmark to be surpassed and a basis for social demands. Hence, the fact that the 1994 Charter was staunchly opposed by national human rights movements (especially in Tunisia and Morocco) reinforced the antithetical push for the full recognition of universal human rights (Agence France Presse 2005; El Watan 2005).
Incorporating extensive catalogues of human rights offers a way of building international legitimacy (Johnson 2015, 1008), in a process of acculturation (Catá Backer 2007, 33). In this respect, it should be considered that the Islamic and Arab regional charters were, to a great extent, explicitly conceived as “regional protective fences” to relieve some of the pressure on the international community (An-Na’im 2001, 715). This search for legitimacy became particularly crucial after 2011 when original constituent powers operated in a legal vacuum, with no previous legal base upon which to lay their foundations. In these scenarios there is a great need for legitimacy, which can be drawn from the international community (in fact, the United States directly advised in the drafting of the Iraqi Constitution, and the Tunisian constitutional draft was reviewed by the Venice Commission). Targeting the international community as a stakeholder reinforced isomorphic tendencies (Fombad 2012), especially in scenarios where important flows of official development aid are involved (Joseph 1999, 61), which enhanced the credence given to the globalized design templates (Beck, Drori, and Meyer 2012, 487).
From an analytical–descriptive perspective this study has shown a trend within the Arab region towards the increasing assimilation, at a formal level, of international human rights standards. The regional instruments increasingly resemble the International Bill of Human Rights, and new national constitutional designs have aspired in their scope to international standards. Under important isomorphic pressures, in a context apt for norm localization, these new designs are expressing a departure from previous conceptions of Arab exceptionalism, reflecting the incorporation of a higher normativity of universal character drawn from globalized human rights law. In this vein, the generalizing research hypothesis of the progressive weakening of regional forms of constitutional exceptionalism and the embracement of universal human rights templates (as proclaimed in the 1993 Vienna Declaration) can be confirmed. From an explanatory perspective, it has been demonstrated that the new design features are motivated by a common evolutionary dynamic. The new Arab bills of rights are inserted in a broader and convergent process of progressive incorporation of the Arab world into the globalized trends of human rights, breaking with the previous narrative of exceptionalism, and the 2004 Arab Charter on Human Rights can be conceived as the precedent and precursor in this sense.
However, the incorporation of the globalized trends of human rights law has not effaced the sense of regional idiosyncrasy. The emphasis laid on economic, social, and cultural rights is one of the distinguishing Arab features, showing alternatives to the liberal individualist framework of liberal human rights. A persistent discrimination based on gender, religion, and nationality constitutes the second characteristic regional feature. However, even if the new Arab bills of rights offer a substandard protection of international human rights, as enshrined in the globalized templates, they imply a categorical acknowledgement of the very universal human rights concept, and as such represent a step in the globalization of the Arab law.
On a final note, this study can help to illuminate the path for future research agendas. With the benefit of hindsight, it is time to assess the material changes effected by the presumed wave of democratization that has swept through the Arab region in recent years, and to delve into the persistence of elements of Arab exceptionalism, especially at the organic constitutional level. In fact, the configuration of the general scheme for the separation of powers seems to continue the long-term Arab trend of constitutions as politically enabling documents (Brown 2003, 35). As a result, authoritarian retrogression, particularly evident in the cases of Egypt and Iraq, brings out the chasm between the constitutional promises enunciated by the formal bills of rights and the material progress really made in terms of their implementation. Events such as the 2019 Egyptian constitutional reform (extending the mandate of the president and strengthening his power over the judiciary) seem to confirm the persistence of inherent drives towards forms of authoritarian leadership, choking the regular exercise of human rights. However, at the same time, the 2019 popular protests, demanding constitutional change, in Algeria (causing the resignation of Abdelaziz Buteflika), in Sudan (with the resignation of Omar el Bashir), and in Lebanon (with the resignation of Saad Hariri) show that for those countries that did not undergo reforms, there is a social rejection of authoritarianism and a strong drive for the adoption of constitutional frameworks assimilated to the globalized models of constitutional law. Constitutional isomorphism and the demands for incorporating the human rights acquis, enshrined globally in international conventions, seem an undeniable supra-positive factor pushing for the progress of constitutionalism in the Arab world. While certain commentators have tended to decry the fall of Arab countries into some sort of “Arab winter” (Falk 2016, 10), the formal constitutional reconfiguration experienced by Arab countries seems an undeniable change left to history, and can give important clues as to the most likely evolution of the Arab region in the years to come.
Certain states positioned against previous drafts by virtue of their human rights advances: Bahrain, Kuwait, Oman, Saudi Arabia, Sudan, United Arab Emirates (UAE), and Yemen.
With respect to the 2011 Moroccan Constitution, in the preamble the following are affirmed: “the attachment to the human rights as they are universally recognized”; and the commitment to “protect and to promote the mechanisms of the Rights of Man […] and to contribute to their development within their indivisibility and their universality.” In the case of Tunisia, there was also a categorical reference in the preamble of the 2014 Constitution to expressing the people’s commitment to “the highest principles of universal human rights.” Finally, in the case of Egypt, there is the already mentioned reference in the preamble, which states that the Constitution “is in line with the Universal Declaration of Human Rights.”
This is the set of articles analyzed as part of the bills of rights: Iraq 1970: arts. 10–30, 32–34. Iraq 2005: arts. 2.2, 4, 14–46. Morocco 1996: arts. 5, 8–15, 17–18. Morocco 2011: arts. 3, 5–36, 117–27. Tunisia 1959: arts. 5–14, 17. Tunisia 2014: arts. 6–8, 21–49, 108. Egypt 1971: arts. 7–57, 59, 62–63, 66–71. Egypt 2014: arts. 6, 8–37, 39–100. Duties are excluded from this list. Clauses restricting possible limitations of rights are included (such as art. 49 of the Tunisian Constitution). Rights and principles are included regardless of the chapter of the Constitution they are in (hence, some rights are also enunciated as “general principles”; arts. 117–27 of the Moroccan Constitution and art. 108 of the Tunisian Constitution are also included).
The 2014 Constitution builds upon the 2012 Constitution, almost identical in terms of rights, and it was decided to focus on the 2014 version currently in force. The rights in the 2012 Constitution not taken up were: the reference to Arabization in art. 12; the reference to developing the desert in art. 16; and the protection of religious endowments in arts. 21 and 25. Two substantive limitations were removed in art. 48 (on the freedom of the press) and in art. 44 (on the freedom of expression).
In terms of the total number of words in the constitution, Iraq increased by 2.79 times, Morocco by 2.33 times, Tunisia by 1.66 times, and Egypt by 1.59 times, while the bills of rights increased in Iraq by 2.79 times, Morocco by 2.33 times, Tunisia by 1.66 times, and Egypt by 1.59 times.
Following the same counting procedure, these articles were examined in the Arab Charters: arts. 1–39 in the 1994 Charter; and arts. 2–42 in the 2004 Charter.
In Iraq they increased by 1.25 times, in Morocco by 27 times, in Tunisia by 10.92 times, and in Egypt by 5.94 times.
The number of words increased by 2.84 times, while the economic, social, and cultural rights increased by 4.5 times.