The Application of Human Rights Treaties in Dualist Muslim States: The Practice of Pakistan

Abstract

I argue that Islamic law treats ratified human rights treaties as part of the law of the land and as directly applicable in courts in Muslim states such as Pakistan where Sharia is the main source of law. The Islamic approach is the better and more effective approach for the enjoyment of human rights. Article 227(1) of the 1973 constitution of Pakistan demands Islamization of all existing laws and prohibits the enactment of laws incompatible with Islamic law. Pakistan has failed to Islamize its constitutional provisions on the ratification and status of ratified treaties and continues to practice the dualist doctrine inherited from the British colonial era. Pakistan has acceded to seven core human rights treaties, but they are not incorporated in the legal system of Pakistan. This has led to a legal culture where human rights treaties are seen as applicable on the international plane only. I make a case for the Islamization of the constitutional provisions in relation to human rights and other treaties and until the constitution is amended under Article 227(1), I propose an ad hoc framework for relying on unincorpo-rated human rights treaties and customary international law based on the developed British dualist doctrine which will contribute to the enjoyment of human rights in Pakistan.