Two conflicting Preambles:The Charter of Social Contract of Rojava

And

The Cairo Declaration on Human Rights in Islam

By: Sohrab Mabadi

1

Abstract:

This paper investigates two preambles (The Cairo Declaration

and the Charter of Rojava) to show how they are conflicting

through focusing on important words and terms of their texts.

In so doing, firstly I try to show importance of preambles to

put legal and political value and impact on these two

preambles. Then, I go through the texts of the preambles in

order to show the nature and contents of the preambles, which

are theoretical and philosophical bases for all articles of

the documents. By doing it, I reach to my conclusion and

ending words as showing conflict between these two instruments

that come from the same region but different solutions and

impacts.

Key words:

The Cairo Declaration, the Charter of Rojava, Rojava,

Democratic Confederalism, Ocalan, Social Contract, Ummah,

Shariah

2

Table of Contents:

1-Introduction

2-The importance of preambles

3-Some notions from the Preambles

4-The final words

1-Introduction

Since 1948 and giving birth to the Universal Declaration of

Human Rights there have been plenty of discussions on Human

Rights and Islam. In 1990, the Organization of Islamic

Conference gathered the majority of Islamic states in Cairo to

provide a declaration on human rights. The result is named the

Cairo Declaration on Human Rights in Islam (CDHRI). This

declaration is supposed to be a response to UDHR 1948. It has

in its content almost all rights as mentioned in UDHR but also

it contains Islamic legal term "Sharia". It refers in itself

whole articles and content of the document to the Islamic

Sharia. One may say CDHRI is consist of two points of view as

two major opposite understanding of Islam: Liberal Islam and

Conservative Islam. Islamic states provided CDHRI as a

3

response to their own critics on UDHR by which they claimed

that the latter instrument does not include Islamic cultural

and religious values rather it consists of western secular

norms. The CDHRI has been under criticism for lots of its

contents; among them religious freedoms, gender, sexuality and

political rights.

The Kurds, Middle East and even the world will not forget

about November 2013. It is the month in which the Kurds, in

Northern Syria, declared autonomy in three cantons and adopted

the Charter of Social Contract of Rojava- declared officially

in 29 January 2014. This document is not a constitution

because it is not coming from nation-state or any traditional

or classic form of sovereignty. The Charter of Social Contract

of Rojava is not seeking any monopoly of state rather it is

seeking to establish popular consent for administration of

society. ( Ahmed, 2014)

This Charter has risen from the heart of Syrian rebellion and

efforts of Kurdish population for liberating their society and

other population from dictatorship in Syria. It is not just

for and by Kurdish population. It represents all suppressed

people of Syria who live in Northern Syria along with Kurdish

population. The Charter is not by no way a declaration of

establishing new country inside of Syria. It declares that the

different populations, from different ethnic-tribal, religious

and linguistic backgrounds, have decided to make their right

to self-determination through democratic autonomous. The

Charter names variety of rights and freedoms; among them with

a deep concentration gender equality, community rights,

4

environment sustainability, minority rights and freedom of

religion.

2-The importance of Preambles

Here, we need to explore why the preambles are important and

what kinds of role they play in enforcement and interpretation

of the instruments.

The first question here may be if the preambles are part of

constitutions or not. One may say that preambles are not a

section of legal part of constitutions concluding that they

cannot be included in legal and political effects and ambient

of constitutions. In order to ratiocinate against this argue

it can be said preambles are proposed amended and adopted

exactly such as any other article in constitution and moreover

preambles pass the same process of enactment as all articles

of constitutions. (Frosini, Page 3) Therefore, preambles are

part of constitutions and they are there to do their job as

the writers put this duty on them.

Preambles are known as preliminary part of constitution. They

work as introduction to status or constitution stating its

purpose. Preambles contain philosophy and fundamental values

on which the other parts and articles of constitutions are

based and goals that makers of constitution want to reach by

making the constitution. Therefore, preambles are key elements

to understand mind of founders of constitution and their

general purposes. This will give preambles an essential legal

role especially in interpretation when there are some

ambiguities for courts, parliaments, judges and lawyers.

5

Preambles are sprit of constitutions and in so doing they work

as guiding factor. They are roots and source of constitutions

and/or statutes. (Role of Preamble in the Interpretation of

Constitution, http://law-projects.blogspot.com)(Keremidchieva,

Page 9)

Talking in the context of nation states, preambles express

political unity of a nation. They show values by which a

nation passed their process of integration and values on which

this process is based. (Frosini, Page 2) this character helps

lawyers, judges and law makers to understand goals and aims of

constitutions makers and their values by which they made the

present constitution in order to interpret and clarify any

article or even words in it. (Keremidchieva, Page 5) Legally

speaking legal scholars mention role of preambles as a legal

valid sources for interpretation and policy. (Ibid, Page 15)

In addition, preambles are foundational political decisions of

a nation, international organization or group. "The

foundational political decisions stated in the preamble are

the principal intentions for the creation of such text.

Therefore, preambles can be legally binding constitutional

clauses and serve as independent sources for rights and

obligations." (Ibid, Page 9-15)

Some authors talk about three kinds of preambles: ceremonial

preamble, interpretive preamble, and substantive preamble. To

understand what the ceremonial preamble is I mention Plato's

words as Liav Orgad brings it:

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Just as a ‘free’ doctor explains the patient’s illness to him, and tries tomake him understand the reasons for the measures to be prescribed, inorder to gain his co-operation, so the legislator must explain and justifyhis laws. Hence every law must be headed by a preamble justifying itsprovisions. (Orgad, 2010, Page 8)

However, the second one, interpretative preambles, is rooted

in common law tradition although using preambles as

constitutional interpretation tools is common in civil law

system as well. In common law system when there are several

different interpretations about legal issues and articles

courts prefer ones which are more consonant with the preamble.

"William Blackstone referred to preambles as a factor intended

‘to help the construction of an act of parliament.’ Blackstone

noted that whenever the statute is dubious, ‘the proem, or

preamble, is often called in to help the construction of an

act of parliament." (Ibid, Page 10)

Preambles can be legally binding and have a complete legal

effect. Considering the point that there are differences

between constitution and constitutional law, we can recognize

preambles as part of constitutional law, which are stating

major values and basic goals of constitutions makers and the

nation. Therefore, accepting it, preambles are sources of

rights, which are not mentioned in constitutions. It is what

we call substantive preambles. (Ibid, Page 12)

To sum up, in order to interpret a constitutions we cannot

exclude its preambles. The shadow of preamble is always on

articles of constitutions and/or statutes. Each articles and

words must be used and interpreted upon what stated in

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preamble as fundamental values and norms of legal and

political system. In relation with this, these two preambles

are of the legal value and importance along with political and

normative values both of them carry.

3-Some notions from the preambles

In two preambles considered here there are some notions seem I

need to clarify separately in order to lead this paper to its

hypothesis.

Ummah:

The word "Ummah" is an Arabic word means nation, community. It

comes from Quran (the holy book of Muslims) and Sunna (act,

omission of act, speech and in general the way that the profit

has lived) of Muhammad, the profit of Islam. The word Ummah is

used to refer to Islamic community members although does not

exist a simple definition of this word and it may refer to

Muslim and non-Muslim community as one can conclude it from

"the constitution of Medina". The word Ummah also can be meant

as Muslim, Christians and Jewish, generally nations who have a

profit and are known in Islam so. (Denny, 1977, p. 39-47)

(http://philosophy\-religion.blurtit.com/) (http://islamic-

dictionary.tumblr.com/)

The word Ummah corresponds something different from Nation-

State. It is different from citizenship. In the view of Islam

and its loyal and honest followers there is no propriety based

on race, region, language and etc, the only important thing

matters is being Muslim. However, it is not in contrast with

8

Nation-State. From the point of view of Islam Ummah is "Ummah

Islamiyyah" with just one acceptable state, Islamic State or

Caliphate. It recognizes all Muslims all around the world from

whatever nationality they might be. Because one is Muslim it

includes into Ummah with its rights and responsibilities

depend on Islamic Sharia or Law. (What is the Muslim

Understanding of "Ummah"?, CBN.com)

The preamble of the Cairo Declaration on Human Rights in

Islam's refers to Ummah in some parts. Firstly, in its first

paragraph, it recognizes the Ummah as "the best nation". The

Ummah has some character upon this preamble. It has made by

God. This nation (Ummah) presents humanity with "universal"

and "well balanced civilization". The Ummah has established

harmony between this world life and "hereafter". Knowledge in

this universal and best society is "combined with faith" not

"materialistic" one.

The preamble puts a duty on Ummah to guide humanity "confused"

by "competing trends and ideologies" and it must provide

"solutions" for a confused society, "materialistic

civilization". Therefore, Ummah is not just a society of

Muslim. It would be a universal society with responsibility to

guide others and offering solutions for all problems of the

world. In first paragraph of the preamble, the member states

of Islamic Conference has "reaffirmed" above mentioned.

At the end of its fourth and last paragraph, this preamble

uses another time the word Ummah. It puts a collective

responsibility on Ummah, as same as individuals, to

9

"safeguard" of "divine commandments" which includes "universal

freedoms" and "fundamental rights". Ummah not only has

responsibility to guide other societies but it is responsible

to safeguard of universal freedoms and fundamental rights. It

is what upon the Declaration the states of Islamic conference

"believe".

Islamic Sharia:

In defining Sharia (Shariah or Sharia') there are some

differences between what western journalists and even

academicians say and what we find in Islamic texts and

explanation. The difference relies on the viewpoint that each

one choose to see the subject. For this reason, I will try to

bring some western and Islamic, both Sunni and Shia,

definition of the notion and concept of Sharia very shortly

just to get into the same point from all.

Based on Oxford Dictionary online Sharia is

"Islamic canonical law based on the teachings of the

Koran [Quran] and the traditions of the Prophet (Hadith and

Sunna), prescribing both religious and secular duties

and sometimes retributive penalties for lawbreaking."

(http://www.oxforddictionaries.com) Moreover, Cambridge

Dictionary online in this regard says: “Sharia is

the holy laws of Islam, which cover all parts of a

Muslim's life." (http://dictionary.cambridge.org/) Oxford

Dictionary of Islam rightfully differing between Fiqh and

Sharia considers Fiqh fallible and changeable but Sharia

infallible and immutable. In some other explanation of Sharia,

10

it is defined as a legal system as one writer says: "The

Islamic Sharia is a system of law. It is a collection of

prohibitions, admonitions and commands about human behavior.

The Sharia is not an internal matter that only concerns Islam

and Muslims. The Sharia includes a large number of provisions

about people who are not Muslims." (Jansen, 2012) In addition,

it is known as "Muslim or Islamic law, both civil and criminal

justice as well as regulating individual conduct both personal

and moral."

(http://www.duhaime.org/LegalDictionary/S/ShariaLaw.aspx) When

we read the latter definition along with the former one

(especially the part that adds inclusion of non-Muslim people

in the definition) we reach to a definition enough general and

complete to cover the concept.

It seems Islamic journalists and texts see the definition of

Sharia in a more general way. "The collection of [Islamic]

religious convictions, ethics and sentences is called Sharia."

(http://www.wikifeqh.ir/, in Persian). On the other hand,

definitions of Shria in Arabic (Sunni) tradition would be

"Sharia is the rules and provisions legislated by God Almighty

for humans to organize religious and materialistic life of the

human beings. It includs worship, transactions, etc., and thus

through it they will achieve to happiness, stability and

justice .The word "Sharia" means water supplier or the

straight path." (http://mawdoo3.com, �ة عة� الاس��لام�ي ي� ر �ف� ال�ش عري! (in Arabic ,ي��Sharia is everything that the law of God establishes and the

Muslim must apply the law of God without controversy to comply

11

with his order. (http://jblo9.blogspot.com/, س�لام اروق� ا& March 15 ,ف��2012)

The sources of Sharia are: The Quran (The text that Muslims

believes is the God's words brought by prophet), the Hadith

(the sayings and conduct of the prophet Muhammad (What is

sharia law?, February 08 2008), the Fetwa, and Islamic

scholars opinions and interpretations. Its goals are

preserving five things: Religion, wisdom, property, self

(oneself), and honour and generation.

(http://jblo9.blogspot.com/, س�لام اروق� ا& (March 15 2012 ,ف��Islam is a political religion. Every political entity needs

political power. To have political power it is necessary to

define a complicated and holistic legal system. Islam has all

these criteria to be a legal-political religion. Islam seeks

to guide and lead all aspects of private and public life. It

defines laws for every action and every social as same as

individual behaviors of its followers and even non followers

living within Islamic society or – in some cases out of it-

through the Islamic Sharia.

The Preamble of the Cairo Declaration refers to Islamic Sharia

two times. First, it brings the word Sharia in its second

paragraph stating that the member state of Islamic conference

wish to protect "dignified life" of "man". Here, at the last

words of this paragraph, the preamble talks about the word

“Islamic Sharia” but without any clarification on the kind of

12

Islamic school or Sharia. It puts Islamic Sharia as a

condition for "dignified life" of "man". It means the life

that is in accordance with Islamic Sharia is dignified and the

member states will protect it.

In the fourth paragraph of the preamble, the Declaration talks

about divine commandments that are universal and fundamental

freedoms and rights, as mentioned above. The paragraph is

saying these freedoms and rights are divine commandments

stated in Quran as the words of God and are sent through the

last prophet, Islam prophet. Obviously, the Quran and prophet

are two main parts of Islamic Sharia. Therefore, it seems this

part of preamble is trying to propose an answer to all

criticisms about contradictions between Islamic Sharia and

Human rights norms. Whether would be successful or not is a

question which cannot be discussed here and now.

At the end of the preamble there are some words saying

"Proceeding from the above-mentioned principles" the member

states of Islamic conference "declare the articles and text of

the Declaration. Therefore, the articles of this declaration

are under the principles and words of the preamble and would

be interpreted according with the preambles when they need to

be.

Democratic Autonomy/Confederalism:

Democratic autonomy or democratic confederalism is a notion

which is heard everywhere after the Kurdish revolution in

Syria (western Kurdistan or Rojava) and Kobane resistance

13

against ISIS. However, it is a concept which years ago has

been brought out by leader of P.K.K (Kurdish military party in

Turkey named as Kurdistan Workers Party) Abdullah Ocalan,

inspired by thoughts of Murray Bookchin, as an alternative to

nation-state and capitalism modernity in which people are

administrated by themselves not by government or state

sectors. (Ozcan, 2014) So, one may say the roots of the

democratic autonomy mentioned in Social Contract of Rojava can

be understood only through the history of the Workers’ Party

of Kurdistan (PKK). (From Chiapas to Rojava- more than just

coincidences, Petar Stanchev, 2015)

As the Social Contract of Rojava is the social contract

administrating and directing people – Kurds and non-Kurds -

living in northern Syria and since the preamble of this

contract has used the words "democratic autonomous region",

"confederation" and "democratic autonomy" I need to talk a

little about these two concepts in order to reach more

objective comparison between the preambles.

Since democratic confederalism is "self-management", it is

contrary of state and overcoming nation-state is an important

goal of it. It tends to change every structure into "self-

management" and "self-organization". In doing so, it means

that a politicized society will manage itself instead of a

state. (Biehl, October 10 2014) Democratic confederalism is

far away from not only state and capitalism but also any

representative form of political structure.

(Kolokotronis, November 2 2014) In a democratic confederal

society, coordination and implementation are on the hands of

14

assemblies, councils and so on but only communities will do

decision-making. (Ocalan, 2011)

The Social Contract of Rojava uses "democratic autonomy" but

Ocalan uses it as "democratic confederalism" in his writings

(the books "Declaration of Democratic Confederalism" and

"Democratic Confederalism"). In addition, democratic autonomy

refers to direct and indirect practices of collaboration and

engagement by which people try to produce and reproduce

conditions of living as they wish and need. (Jongerden, 2013,

P: 171) Considering in mind the ambiguity in choosing

democratic confederalism or autonomy Murray Bookchin defines

and explains confederalism as:

"Confederation is thus the ensemble of decentralization, localism, self- sufficiency,

interdependence — and more. This more is the indispensable moral education and

character building — what the Greeks called paideia — that makes for rational active

citizenship in a participatory democracy, unlike the passive constituents and consumers that

we have today." (Bookchin, 1990)

Therefore, it seems that democratic autonomy may be the final

goal of democratic confederalism. In other words, the

confederalism will help societies to make an administration

system by which they lead themselves to an autonomous society

which for sure must be locally culturally, economically, and

politically self-sufficient

Social diversity is one of the bases of democratic

confederalism in contrast to the nation-state that is based

on coercive homogenization of identity. Other bases would be

collective consensus, voluntary participation, ecology and

15

feminism. Moreover, democratic confederalism demands an

economic system, which is not based on exploitation of

neither labour nor natural resources and environment.

(Manoharan, 2014)

To explain about this notion there is no way unless referring to

writings of Abdullah Ocalan. Ocalan, in his writing "The

Declaration of Democratic Confederalism", calls “the democratic

confederalism” "a pyramid-like model of organisation" "that

will derive its strength directly from the people, and not

from globalisation based on nation states" as "the only way

out" from oppression, violence and war in Middle East. He

considers it "the only alternative" in which there are

"communities who talk, debate and make decisions." Ocalan

explains that this system will derive its power from the people

and it would be seeking "self-sufficiency" in all aspects even

economy. Then he notes "democratic confederalism is based on

the principle of the recognition, and preservation of all

cultural identities as well as the promotion of the right to

freedom of expression", "liberation struggle of women" and "an

ecological society." (Ocalan, 2005)

Ocalan contradicts centralism, nation-states and borders. He

says:

"The nation-state aims at creating a single national culture, a single national identity, and a

single unified religious community. Thus it also enforces a homogeneous citizenship. The

notion of citizen has been created as a result of the search for such homogeneity.

Democratic autonomy is a flexible, multi-cultural, anti-monopolistic, and consensus-

oriented. In the frame of this kind of self-administration an alternative economy will

16

become necessary, which increases the resources of the society instead of exploiting them

and thus does justice to the manifold needs of the society."(Canton Based

Democratic Autonomy of Rojava May 2014)

For Ocalan democratic confederalism replaces representative

democracy by participatory democracy, "centralized

administration" by "local administration", (Ibid) and

"capitalism, nation-state and industrialism" by "democratic

nation, communal economy, and ecological industry." (Taylor,

2014) As the final words, Democratic confederalism/autonomy is

"the contrasting paradigm of the oppressed people." (Ocalan,

2011)

Social Contract:

The preamble of the Charter of Rojava brings the term "Social

Contract" two times, first in second paragraph and then in the

last lines of the preamble. Firstly, the social Contract, for

me, refers to decentralization and anti-nation-state thought

of the Charter. It is based on "coexistence" and "mutual

understanding" between all cultures and people in Syria or

"the rich mosaic of Syria" as the Charter says.

The "Social Contract" is an instrument used to function as a

response to variety of culture, religion, tribe and identity.

It dedicates to assure, at least in paper that political power

in Rojava is not a centralized one but instead it is a

"political system and civil administration" based on respect

for all this different identities. It is very far from a

nation state and indirect democracy. Thus, the Charter is

considered as a contract between "all strand of society" not a

17

constitution made by so-called representatives of people

forming parliaments. The "Social Contract" leads us to direct

democracy instead of indirect and parliamentary model of

administration.

4-The final words:

Presenting the preambles with legal-political value and impact

and recognizing them as part of whole document subject to

interpretations, we consider both the preambles of the Cairo

Declaration and the Charter of Rojava as important part s of

whole documents with all political and legal value.

Moreover, using contents of two preambles and focusing on

words and terms mentioned in both, which are of high

importance in order to understand the documents, I consider

two preambles as conflicting preambles. The Cairo Declaration

is loyal to nation state model of political administration. It

talks about some basic rights of people but restricted those

rights to Sharia and leaves the rights and freedom under the

Sharia. Therefore, it lets all contents and goals of the

document itself under the shadow of an ambiguity of Sharia and

human rights. The Charter of Rojava instead is not to

establish another nation state administration. The Charter of

Rojava is talking about a new form of society. It is in its

nature a revolutionary document.

The Charter of Rojava talks about gender equality,

environmental sustainability and ecology, religious rights and

respect, and coexistence. It never refers the rights to

18

something else out of society but the Cairo Declaration is

referring all the rights and freedoms to Sharia and the

responsibility of Ummah.

The Charter of Rojava responds to needs and desire of people

in the Middle East to seek peace. It makes legal and political

bases for this peace. On the other hand, the Cairo Declaration

includes, in its first step, only Muslims that simply means

excluding non-Muslims. Therefore, it is far from reaching

peace and equality. The Cairo Declaration is, mostly, some

lines trying to combat against the Human Rights Declaration.

The Charter of Rojava, instead, is a practical legal

instrument formed through the practice. There is a reality on

the ground in Syria, alongside with more than 30 years

political and military struggle, made the Charter. The Cairo

Declaration seems to be a reaction of some – not all- Islamic

countries – not cultures, populations and identities- to human

rights discourse after the Cold War and human rights hegemony

of Western powerful countries.

To sum up, I understand these two preambles in a contradictory

nature. They are in conflict with each other. It is important

when we know both of them are coming from the Middle East and

out of geographic sovereignty of Islamic world but 24 years

(from 1990 to 2014) of uselessness and negligence to struggle

against dictatorship and massacres in the region and Islamic

world was enough to prove nature and objectives of the Cairo

Declaration. The Charter of Rojava is born to make changes. It

was born from very inside of the Kurdish struggle for freedom

19

and self-determination. It is the child of Genocide, massacre

and servitude of Kurdish population in Middle East. It gives

the alternative: Democratic confederalism. At the end, it

brings the existing and ongoing reality into the words on

paper. Therefore, it looks like very far from abstract legal

and political instrument.

The lesson remains for other human rights and international

law instruments being and doing the same as of the Cairo

Declaration.

Refrences:

1- Ahmed, Bilal (Nov 18 2014).The Rojava Revolution in

http://souciant.com

2- Biehl, Janet (October 10 2014). Democratic Autonomy in

Rojava in http://new-compass.net

3- Bookchin, Murray (1990). The Meaning of Confederalism,

http://theanarchistlibrary.org

4- Canton Based Democratic Autonomy of Rojava (Western

Kurdistan–Northern Syria); A Transformations Process from

Dictatorship to Democracy, Kurdistan National Congress

(KNK), May 2014

5- Denny, Frederick M (1977). Ummah in the Constitution of

Medina in Journal of Near Eastern Studies, Vol. 36, No. 1, The

University of Chicago Press Stable

20

6- Frosini, Justin O. The role of preambles in establishing

new trends in Latin American constitutional law in

http://www.juridicas.unam.mx

7- Jansen, Hans (July 16 2012). What is Sharia? in

http://www.frontpagemag.com

8- Jongerden, Joost and Ahmet Hamdi Akkaya (2013). The

Kurdish Spring: geopolitical changes and the Kurds, Mazda

Publisher

9- Keremidchieva, Zornitsa and Ezequiel Jimenez. The

Constitutive Effect of Preambles: Creating the

International Community? In Political Communication, 272

10- Kolokotronis, Alexander (November 2 2014). The No

State Solution: Institutionalizing Libertarian Socialism

in Kurdistan in http://newpol.org

11- Manoharan, Karthick (November 11 2014).The battle for

Kobane offers a glimpse of Kurds’ new model democracy in

https://theconversation.com

12- Ocalan, Abdullah (02/04/2005). The declaration of

Democratic Confederalism, http://www.kurdmedia.com

21

13- Ocalan, Abdullah (2011). Democratic Confederalism,

Transmedia Publishing Ltd. International Initiative

Edition, first edition.

14- Orgad, Liav (2010). The Preamble in Constitutional

Interpretation in International Journal of Constitutional Law, Page 8

15- Ozcan, Giran (March 22 2014).Which Syria? In

http://kurdishquestion.com

16- Role of Preamble in the Interpretation of

Constitution, http://law-projects.blogspot.com

17- Stanchev, Petar (February 06 2015). From Chiapas to

Rojava- more than just coincidences in

www.Kurdishquestion.com

18- Taylor, Rafael (August 17 2014). The new PKK:

unleashing a social revolution in Kurdistan, in

http://roarmag.org/

19- What is the Muslim Understanding of "Ummah"?,

CBN.com

20- What is sharia law?, http://www.telegraph.co.uk/,

February 08 2008

21- http://philosophy\-religion.blurtit.com

22- http://islamic-dictionary.tumblr.com

22

23- http://www.oxforddictionaries.com

24- http://dictionary.cambridge.org/

25- http://www.duhaime.org/LegalDictionary/S/

ShariaLaw.aspx

26- http://www.wikifeqh.ir/, in Persian

27- http://mawdoo3.com, �ة عة� الاس�لام�ي ي� ر �ف� ال�ش عري! in Arabic ,ي��

28- http://jblo9.blogspot.com/, by: س�لام ا& اروق� ,ف�� March 152012, in Arabic

23