In this chapter I seek to analyse the potential of human rights law as an effective tool for women’s empowerment. Starting from a brief overview of the international norm of non-discrimination and equality culminating in the adoption of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the chapter explores the difficulties arising from employing notions of formal equality to seek empowerment for women in a diverse world. I do so by examining the alternative ‘Islamic’ discourse of human rights and instruments presented from Muslim forums.
Modern theories of human rights and women’s rights have historically developed in two separate theoretical strains (Eisler 1987). Leading philosophers, such as John Locke in the seventeenth century and Jean Jacques Rousseau in the eighteenth century, defined men as individuals innately possessed of certain ‘natural rights’ (Rousseau 1947). Women, on the other hand, were defined not as individuals, but as members of men’s households and thus, along with their offspring, under male control (Eisler 1987).
The UN has been key in acknowledging that women’s rights have been marginalized both institutionally and conceptually from national and international human rights movements.1 Starting from the UN Charter, a wide array of human rights instruments promulgated by the UN and regional organizations included provisions for the protection of women’s rights and non-discrimination on the basis of sex (see Brownlie 1992; Ghandhi 1995). These include the UN Charter (1945), the Universal Declaration of Human Rights (UDHR 1948), the International Covenant on Civil and Political Rights (ICCPR 1966), the International Covenant on Economic, Social and Cultural Rights (ICESCR 1966), the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the Religious Declaration 1981), the European Convention on Human Rights and Fundamental Freedoms (ECHR 1950), the American Convention on Human Rights (ACHR 1969) and the African Charter on Human and People’s Rights (African Charter 1987). All these documents prohibit discrimination on grounds of sex (article 2, UDHR; article 2, ICCPR; article 2, ICESCR; Preamble, the Religious Declaration).
Statements of formal equality and non-discrimination in general human rights instruments were considered inadequate, however, and, since 1945, more than two dozen international legal instruments have been drafted that deal specifically with women. Each of these instruments reflects an international consensus on particular problems relating to women and provides a unique insight into the apparent international consensus on the rights of women in society (see Hevener 1983). However, because of their restricted scope and lack of provisions for enforcement, these instruments have had little impact on the condition of women worldwide. Neither did they succeed in integrating women’s human rights into the mainstream human rights framework. From the mid-1960s, the impact of existing instruments has inspired efforts to develop international instruments that would conceptualize the human rights of women globally and contain concrete measures for implementation and supervision. These efforts led to the adoption of the Declaration on the Elimination of All Forms of Discrimination Against Women (United Nations 1967) and culminated in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979. CEDAW thus recast concepts of ‘women’s rights’ in a global perspective and established a supervisory machinery with terms of reference similar to those of existing human rights organs.
CEDAW highlights the inequities faced by women and affirms non-discrimination and equality as an overarching human right for women. The treaty has been hailed as a major breakthrough in international human rights law since it adopts a holistic approach toward human rights law as an effective tool for women’s empowerment. It recognizes the need to go beyond legal documents to address factors that will help to eradicate de facto inequality between men and women (CEDAW 1979: Preamble). The establishment of a New International Economic Order, the eradication of apartheid, racism, foreign occupation and domination, and the strengthening of international peace and security, including nuclear disarmament, are all viewed as being essential to the equality of men and women.
In adopting CEDAW, the UN sought to lay the foundation for an international women’s law of human rights that transcends the borders of national, religious and customary laws (Hellum 1999). CEDAW was to provide ‘a sociolegal tool which within a single and unified framework is intended to help women fit into social, economic and political modernization processes in all parts of the world’ (Hellum 1999).
Rebecca Cook sees CEDAW as the third stage of overlapping and interactive developments within women’s human rights law (1994: 4–7). During the first phase of development, states focused on the promotion of specific legal rights of particular concern to women in regard to employment. During the second stage, states included sex as a prohibited ground for discrimination in instruments such as the UDHR, the ICCPR, the ICESCR and regional human rights conventions. CEDAW, as the third stage of this development, addresses the structural nature of violating women’s human rights. As such, Hellum argues that CEDAW is informed by various theories that address women’s roles in development processes (1999: 23).
The definition of discrimination against women put forward in CEDAW is important as it transcends the traditional public/private dichotomy by calling for the international recognition of women’s human rights both inside and outside the familial sphere (article 1). The framers of this Convention realized that customs and practices as well as formal legislation often perpetuate discrimination against women (article 2). Article 5 of the Convention, for example, addresses this issue by committing state parties (i.e. signatory states to the Convention) to modify ‘the social and cultural patterns of conduct of men and women’ in order to eliminate prejudices and practices based on notions of inferiority and superiority of either sex. Other substantive provisions demand that state parties grant women complete equality in every field of life, be it nationality, family matters, contracts, right to property, etc. (articles 9, 13, 15 and 16).
The four parts of the Convention cover the major areas of women’s rights within the rubric of the human rights discourse. As overlapping areas, addressing historical/cultural exclusion through affirmative action (Part 1) sits well with endorsing women’s participation in public political life (Part 2) and is substantiated through covering in Part 3 the arena of socio-economic rights, including of education and employment. These rights are stabilized within a legal regime of equal rights in civil law (Part 4).
The implications for states are potentially far-reaching. Not only must they abolish all existing discriminatory legislation and practices, they are also obliged to eliminate stereotyped concepts of male and female roles in society. Hiding behind ‘traditional customs and practices’ will not do. The Convention’s language is essentially universalist and non-discriminatory, and emphasizes a rights-based framework, representing a significant difference from previous legislation that was usually welfarist and ‘protective’ in tone.
While obliging state parties to provide the socio-legal framework for women’s equality, CEDAW also provides local struggles with a possibility of speaking a global legal language. It creates the possibility for local groups and movements to bypass national institutional constraints and structures, and appeal to the international legal institutions for redress. However, as the study of the monitoring processes of CEDAW show below, nation states and cultural norms can place considerable limitations on a universal rights discourse that women seek to employ as part of their strategy for empowerment.
Part 5 (articles 17–22) of the Convention outlines the monitoring rules for CEDAW. Pursuant to these provisions, the Convention established the Committee on the Elimination of All Forms of Discrimination Against Women, a body of twenty-three experts, elected by the state parties to serve in their personal capacity (see Byrnes 1988, 1989–90). The Committee was established ‘for the purpose of considering the progress made in the implementation of the Convention’ (article 17(1)), to be carried out by examining reports submitted by state parties – to be submitted every four years or whenever the Committee requests them.
However, unlike the Convention on the Elimination of All Forms of Racial Discrimination (on which CEDAW is closely modelled), no provision was made for one state to complain about a violation by another state. Neither was there any provision for an individual who claims to have suffered a violation of the Convention to submit a complaint against a state party.2 The approach taken toward the enforcement of the Convention is one of ‘progressive implementation’ rather than a requirement of immediate action. ‘Constructive dialogue’ rather than formal censure has been the preferred practice. The result has been that, while countries remain party to the Convention, and are not alienated within that system, there is little immediate pressure to implement and conform to the requirements of the Convention.
Until June 1999, the reporting procedure was the only enforcement mechanism established under the Convention.3 This is perhaps the least effective method devised by international law to enforce human rights standards. Its success or failure depends heavily on the goodwill of state parties. The Committee’s ability to assess the accuracy of state reports and comment upon them has been hampered by the lack of information on the status of women in state parties. This problem has been compounded by the lack of any formal procedures to ensure effective consultation between non-governmental organizations (NGOs) and members of the Committee. Such consultation is essential to ensure that Committee members have access to independent information that enables them to assess the accuracy of state reports.4
Women’s human rights, as set out in CEDAW, are based on a predominantly Western liberal feminist discourse that insists on individual rights of woman to the exclusion of the multiplicity of her identities. Several writers argue that this approach is premised on a combination of law, modernization theory and Western liberal feminist jurisprudence (Charlesworth et al. 1991; Hellum 1999: 412). It assumes an identifiable human nature is at the heart of recognizing appropriate rights to develop, protect and contain elements of this core human identity. Further, it assumes that underdevelopment and gender inequality in the Third World are caused by traditional values and social structures. The prescription for attaining equality for women is therefore to address the human rights of women without reference to the cultural embeddedness of these rights in Western liberal states. However, the question that is being posed by women around the world is: to what extent are the concepts of equality and non-discrimination cast within the Western liberal framework equally beneficial for all women? For example, in the African and Asian contexts most women rely on entitlements embodied in family and community relationships that do not relate to ‘equal rights’ language. Similarly, religion forms an important part of many women’s identity. They are not comfortable with being asked to frame their identities within a discourse that is avowedly secular. Is the monolithic and individualistic concept of abstract equality able to meet the everyday needs of such women?
Critiques of CEDAW point to the presence of conflicting human rights principles such as gender equality on the one hand and the right to freedom of religion, culture and custom on the other. Indeed, it may be argued that the Religious Declaration of 1981, in conjunction with article 18 of the Universal Declaration of Human Rights and articles 18, 26 and 27 of the International Convention of Civil and Political Rights (ICCPR) create an invisible hierarchy of human rights by placing freedom of religion at a higher level than right to equality irrespective of sex and gender. It follows therefore that if the freedom to manifest and practise one’s religion or belief led to discrimination against women, such discrimination could be upheld on the basis of these conventions. Thus, despite its holistic approach toward questions of women’s empowerment through human rights, CEDAW fails to provide a clear methodology to resolve these conflicting rights.
Initially, CEDAW received little support from Muslim states.5 This situation has improved considerably, and presently forty-one Muslim jurisdictions are party to the treaty (Afghanistan has signed but not ratified).6 For the most part, Muslim states today accept and participate in the UN system in order to contribute to the development of universally acceptable principles of international law. Since the inception of the UN, they have actively collaborated in drafting and ratifying human rights instruments, including the UDHR (see Kelsay 1988), the Convention on Rights of the Child and the CEDAW (see Rehof 1993; Connors 1996). Furthermore, the principle of pacta sunt servanda is entrenched as a religiously sanctioned norm in the Quran – the primary source of Islamic law. Hence, if a Muslim state has given its consent to human rights treaties, it incurs the strict legal obligation to honour it in international law as well as to ensure enforcement at home (Schacht 1959).
Muslim states have addressed the issue of CEDAW’s implementation by making ‘reservations’ to the Convention. These reservations are based on the legal supremacy of the Islamic religion, the country’s constitution, cultural practices and other laws related to the substantive rights protected in CEDAW. Complementarity of rights has been used to explain the need for reservations. For example, the Egyptian state presents the following argument in favour of its reservation to article 16 of the UDHR:
Reservation to the text of article 16 concerning the equality of men and women in all matters relating to marriage and family relations during marriage and upon its dissolution, without prejudice to the Islamic Sharia’s provisions whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them. This is out of respect for the sacrosanct nature of the firm religious beliefs which govern marital relations in Egypt and which may not be called into question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementarity which guarantees true equality between the spouses.
(United Nations 1997: 172–3)
Reservations to CEDAW formulated by Muslim states demonstrate the disparate positions on the subject of women’s human rights. The signature and ratification of some, such as Algeria, Egypt, Malaysia, Pakistan, Tunisia and Turkey, are subject to substantial reservations. Others, such as Albania, Bosnia and Herzegovina, Burkina Faso, Cameroon, Guinea, Nigeria, Sierra Leone, Tajikistan and Uzbekistan, have ratified CEDAW without reservations. The reservations of Indonesia and Yemen are confined to article 29(1), relating to the settlement of disputes that may arise concerning the application or interpretation of CEDAW (United Nations 1999). Muslim states are not the only parties hedging their positions on important aspects of women’s human rights. What sets them apart is that these qualifications are often based on Islamic traditions. Women’s rights as enunciated in CEDAW are seen as valid only to the extent that they conform to principles of Islamic law in a particular state. This is another way of adopting a relativist stance toward human rights and declaring the divergence between women’s human rights in international human rights laws and those acknowledged within the Islamic tradition. The fact that there is no monolithic view of women’s human rights in Islam, and that religion combines with culture, economic and political conditions, is reflected in the various reservations by Muslim countries to CEDAW. Thus, of the forty-one Muslim countries that are party to CEDAW, eight countries (Bangladesh, Egypt, Iraq, Kuwait, Libya, Malaysia, Maldives and Morocco) make their reservations to the Convention on the basis of conflict with Sharia, while the others (Algeria, Indonesia, Jordan, Pakistan, Turkey, Tunisia and Yemen) do not expressly mention it. It is also important that the most reserved articles relate to rights of women in the area of family law, which has always been jealously guarded by Muslim states as being regulated by Islamic law. Other fields of life, including the running of governments and financial institutions, are not so guarded against ‘infiltration’ of ‘secular’ laws.
Alongside the UN and regional political systems, Muslim states have in the past few decades aligned themselves at the international level in a loose association known as the Organization of Islamic Conference (OIC). In recent years, OIC has convened several conferences and meetings focusing on human rights (both in general terms and specifically on women’s human rights). Some of these human rights documents suggest there is a Muslim view of women’s rights. What I wish to highlight here is that while the starting points of the human rights instruments emanating from the UN and the OIC were quite different, in recent years we see a growing convergence between the two, particularly in the way the language of human rights has been adopted by the Islamic human rights discourse.
Since the adoption of the UDHR as the foundational human rights document emanating from the UN, Islamic scholars and politicians, as well as official statements of Muslim states, have declared human rights a basic norm of the Islamic tradition. Over the years, and in response to international human rights instruments, politico-legal discourses offering the Islamic contribution and perspective to human rights have emerged. While some Western scholars regard these debates as evidence of neglect of women’s rights within Islamic human rights discourse (Mayer 1995), I would argue that this view is hardly plausible considering that even the harshest critics of the Islamic tradition have conceded that Islam does accord several fundamental human rights to women.
On 19 September 1981, a Universal Islamic Declaration of Human Rights (UIDHR) (see http://www.alhewar.com/ISLAMDECL.html) was adopted by the Islamic Council. In the foreword, Salem Azzam, the Secretary-General of the Council, states that the Declaration ‘is based on the Quran and Sunnah and has been compiled by eminent Muslim scholars, jurists, and representatives of Islamic movements and thought’. The UIDHR does not take note of any international human rights document, treaty or convention, recalling in its preambular statements only the Islamic tradition. For example, article 3 is entitled ‘Right to Equality and Prohibition against Impermissible Discrimination’. The phrase ‘impermissible discrimination’ gives the impression that, where permissible, discrimination will be permitted. The inference is that on literal, traditional readings of the religious text in Islam, women may be discriminated against (Mayer 1995: 102–9). Similarly, article 19 of the UIDHR outlines the ‘Right to Found a Family and Related Matters’, within which, under the Islamic legal tradition, a Muslim woman may found a family only by marrying a Muslim male whereas a Muslim male may marry a Muslim woman or a woman professing one of the revealed religions (kitabia)7 and under the husband as head of the household by obligating him to maintain his wife and children (article 19(c)).8 Despite the divergence outlined above, article 19(i) of UIDHR appears in line with UN human rights provisions in stating that ‘No person may be married against his or her will, or lose or suffer diminution of legal personality on account of marriage.’9
Since the publication of the UIDHR, various Muslim states have agreed on three other declarations: the Cairo Declaration of Human Rights in Islam (August 1990), and the Tehran and the Islamabad Declarations (both in 1995). The latter are distinctive in that women debated, drafted and adopted the issues relating to the rights of Muslim women in conferences where these rights were the focus of discussion. These declarations are also important statements of Muslim women’s perspectives regarding their human rights prior to the Beijing Conference held in September 1995.
The first of these conferences, the Organization of Islamic Conference Symposium of Experts on the Role of Women in the Development of Islamic Society, was held in Tehran.10 The recommendations of the Symposium to the Twenty-third Conference of Islamic Foreign Ministers present several interesting points of departure from other documents coming from Muslim forums, including the UIDHR and the Cairo Declaration. The most prominent of these, the Preamble, reiterates the commitment of member states of the OIC to the principles and objectives of the UN Charter. Second, it clearly acknowledges and upholds the interdependence and indivisibility between civil and political, and economic, social and cultural rights, and underscores recognition of ‘cultural’ Islam and the manner in which it adversely affects the rights and status of women in Muslim countries. However, adverse cultural encroachments that are detrimental to the identity and personality of Muslim women are rejected (para. 1.4). This commitment is further elucidated by demanding the:
eradication of all forms of violence and exploitation of women, including domestic violence, sexual exploitation, pornography, prostitution, trafficking in women, sexual harassment, genital mutilation and other negative traditional and cultural practices.
(para. 1.6)
The fact that women’s roles are not confined to motherhood is also made clear by the need for:
facilities to effectively meet the requirements of women and encourage their participation in public life thus enabling them to reconcile their family and professional responsibilities with their political rights and participation in decision making.
(para 1.8)
A particularly ground-breaking provision of the recommendations is one that accepts that women may be heads of households, thus moving away from the traditional statement that men alone are, or can be, providers and maintainers of households.11 The recommendations also demand the facilitation and enhancement of women’s full access to appropriate, readily available and free, quality healthcare and related services and facilities, including family planning, and reproductive, maternal and infant health in the context of Islamic principles. This contradicts the position held by some that Islam prohibits family planning (para. 1.18). The importance of education as an effective tool of empowerment is underscored, as is the recognition of women’s roles as Mujtahid (one who can make Ijtihad).12
The Islamabad Declaration was adopted at the first Muslim Women Parliamentarians’ Conference in Islamabad, 1–3 August 1995, prior to the Beijing Conference.13 The main objective of the conference was to allow women parliamentarians from Muslim countries to meet in order to forge closer links and to develop a deeper understanding of the problems facing Muslim women. The conference adopted the Islamabad Declaration on the Role of Muslim Women Parliamentarians in the Promotion of Peace, Progress and Development of Islamic Societies (Islamabad Declaration).
Like the Tehran Declaration, the striking feature of the Islamabad Declaration is its recognition of and commitment to international human rights instruments affecting women. It resolves to ‘promote the implementation, as appropriate, of the provisions of international conventions on the rights of women and urge all countries to adhere to these conventions’ (Shirkatgah 1995: 4). It may be argued that by specifically taking note of human rights conventions affecting women’s rights, the Islamabad Declaration appears to be formulating an ‘operative’ Islamic international law norm of non-discrimination on the basis of sex, evidence of which was barely visible in either the UIDHR or the Cairo Declaration. A further outstanding feature of the Islamabad Declaration is its recognition of Muslim women’s rights to participate in public and political life and decision-making, including the right to become head of state and government.14 This pronouncement, I would argue, indicates an emerging ‘operative’ Islamic law regarding women’s right to public life. Building upon the Tehran Declaration (although the two documents had no official connection), the Islamabad Declaration seeks to establish the interdependence and indivisibility of all three generations of rights, and also echoes the linkage and interdependence now being sought within the UN system between the United Nations Convention on Rights of the Child (CRC) (1989) and CEDAW (p. 3, para. (a)). Furthermore, the provisions of the Tehran and Islamabad Declarations, and those of human rights documents adopted at the UN, emphasize women’s central role within the family, which is seen as the basic unit of society.15
As compared to the UIDHR and the Cairo Declaration, the Islamabad and Tehran Declarations present a tone and terminology that is closer to the women’s rights language of the UN. However, some differences are also discernible, the most pronounced being the fact that interdependence of rights and obligations is highlighted in the Muslim declarations. That is not to argue, however, that UN human rights documents lack the element of corresponding obligations; the distinction appears to be one of emphasis.
Further, obligations of state parties, as opposed to individuals as key participants in the fulfilment of rights, has been the norm in UN human rights instruments. This lack of emphasis on private actors has been critiqued on the basis that, beyond state institutions, it is in the private sphere and at the level of society and community that human rights are denied to women. In contrast, ‘Islamic’ human rights documents place responsibility both on the shoulders of recipients of these rights, i.e. individuals within the state, and on state structures and institutions.
However, the question arises: how representative of Muslim thought, belief and views are these forums and writings? This question does not lend itself to an easy response. It is a very complex problem indeed, and no straightforward answer is possible. It is evident, however, that male interpretations of the Islamic tradition with regard to women’s rights are invariably more restrictive than the formulations of women’s forums. For instance, the Tehran Symposium, despite being hosted by Iran, a regime widely known for its strong religious conviction and inhibiting laws for women, sought to present the more positive side of rights for Muslim women (OIC 1995).
It has to be conceded that the documents reviewed fail to adequately spell out and address the problematic areas relating to women’s rights in Islam. The areas awaiting deliberation include evidence rights of women, polygamy, divorce, inheritance rights and custody and guardianship of children. However, the Tehran and Islamabad Declarations have drawn attention to these difficult areas by subsuming them under the heading of ‘problems’ to be resolved by Muslim women or through progressive ‘women-friendly’ interpretations of religious texts considered as legitimate grounds for the human rights of Muslim women.
This chapter has explored the potential of women’s human rights, emanating from two streams of legal tradition, i.e. international human rights law and human rights in Islam as an effective tool for women’s empowerment. In this section I analyse the similarities and differences between these two legal traditions in order to present a clearer understanding of how commonalities of human rights concepts may be used to advance the position of women in diverse societies.
The first inference that may be drawn from developments outlined above is that, at the level of international law, a hierarchy of rights has been created in existing human rights discourse. Of the human rights that form jus cogens, i.e. a peremptory norm of international law from which no derogation is permissible, genocide, slavery, torture and racial discrimination appear on the list with a certain degree of consistency. Non-discrimination on the basis of sex fails to find the same level of acceptance, leading to the view that jus cogens is gendered and male-biased. Gender discrimination has also been omitted from the identified categories of what constitutes the contemporary customary international law of human rights (Section 702 of the Restatement (Third), Foreign Relations Law of the United States). Likewise, in describing peremptory norms of international law, General Comment 24(52) of the Human Rights Committee does not include non-discrimination on the basis of sex in its list (General Comment 1995).
On the other hand, some writers have also pointed out that the norm of non-discrimination on the basis of sex constitutes a non-derogable right under major human rights instruments, including the ICCPR, the ICESCR, CEDAW and the CRC (Bayefsky 1994: 352). Practice however points toward a different direction. For example, some European countries, such as the United Kingdom, reserve the right to give the throne to a male over a first-born female child. How might we argue then that the norm of non-discrimination on the basis of sex has become a part of jus cogens? This argument is particularly important with regard to the UDHR, considered by many as constituting a norm of customary international law. The problem arises due to the gulf between standards and enforcements as this reflects a virtual non-recognition of these rights (Bayefsky 1994). If this was not the case, then the question of the extent of legal obligations incurred on the part of states that have not ratified the above mentioned human rights instruments would become essentially a non-issue, as states are bound by norms of customary international law.
A similar analysis of women’s human rights in Islam also points towards a hierarchy of rights. Esposito classifies women’s rights in the Islamic legal tradition of muamalaat and ibadaat categories of rights. The ibadaat set of rights in the Islamic tradition denotes entitlements with spiritual, moral and ethical dimensions, and these rights are accorded to men and women equally. For example, the concept of equality in human dignity and worth, crime and punishment rewards in the hereafter, and responsibility for performing religious obligations fall within this category of rights. In contrast, adult male Muslims are accorded a higher degree of responsibility and rights in the muamalaat or socio-economic sphere of life. Thus, share of a female heir is half that of a male; the husband has the superior right of talaq (divorce) over his wife; the father is the legal guardian of his children; the Muslim husband can marry more than one wife, and so on. It may therefore be argued that both international human rights law and the Islamic tradition create and indeed lend support to a hierarchy of rights, relegating women’s human rights to the lower rungs of the rights ladder.
A particularly striking contradiction is manifested in the various human rights instruments affecting women’s right to equality and non-discrimination. CEDAW proclaims complete equality to all women in all areas of life. Thus, article 16 demands equal rights to women within the family including equal rights to inheritance, entrance into marriage, the right to dissolve a marriage and so on. On the other hand, the Religious Declaration affords everyone the right to manifest his/her religion as he/she understands it. As indicated above, traditional interpretation of Islamic law clearly provides women with fewer rights than men within the sphere of family life. If one were to respect the right to religious freedom of an individual or a group to practise this version of their religion, then arguably this right to religious belief would negate article 16 of CEDAW.
Closely linked to the hierarchy of norms, jus cogens and the generational concept of rights is the public/private dichotomy. One of the main areas of focus within human rights is the division drawn in most Western legal systems between the public and private spheres of society. Moreover, this distinction is central to Western legal thought and the philosophical traditions from which it grows. A defining feature of liberal political theory has been commitment to spheres of individual autonomy free from state intrusion. Thus, the law, it has been argued, operates in the public sector of the legal, economic and political spheres, leaving the private sector of home and family, in which most women operate, unregulated (see Charlesworth 1989–90). The reality, however, is more nuanced than this supposedly straightforward division. In the present day, it is difficult to believe that the private or domestic spheres go unregulated. What actually transpires is that in the so-called private sphere of life, which is purportedly immune from law, there is always a selective application of law (Schneider 1992).
Human rights discourse, especially its practice, continues to focus primarily on the public and political spheres. The result is that abuses of women’s human rights, many of which occur in the private or familial sphere, are excluded from the human rights agenda and are perceived as a private, cultural or individual issue, not a political matter justifying state action. Thus, beating a ‘disobedient’ wife has societal sanction in some cultures. Likewise, the practice of female circumcision has only recently been exposed to public attention and to date international human rights organizations have failed to adopt a firm position on the issue (see Boulware-Miller 1985; Slack 1988; Abdul Haleem 1992). Charlesworth et al. (1991) argue that the marginalization of women by domestic legal systems is exacerbated not only by the structure of international law, which emphasizes the abstract entity of the state, but also by the almost total exclusion of women from its processes (see Halliday 1991; Clapham 1993). This, for example, accords precedence to the state as the sovereign political actor. The UN Charter states:
Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter.
(article 2(7))
The UN has watered down this provision on several occasions. For instance, CEDAW, the CRC and the UN Declaration on Elimination of Violence against Women address this problem and demand that the state, in accepting the legal obligation for protecting the human rights of its citizens, move beyond the public sphere and take cognizance of any violations of these rights taking place within the private sphere and by private actors. However, state primacy enshrined in the UN Charter continues to weaken the human rights documents affecting women that emanate from the UN (Coomaraswamy 1994: 15–16, para. 70).
On the other hand, the Islamic view of the state mitigates against a public/private dichotomy as each and every sphere and aspect of life is regulated by Islamic law, principles and norms. The concept of autonomy, either at an individual level or for the state, is alien to the Islamic tradition (Moinuddin 1987: 16). Each person is accountable to God for his or her actions. At present, however, the practice of Muslim states does not reflect this Islamic concept and women’s human rights are violated with impunity in most Muslim jurisdictions in the name of Islam. It may be argued that the ‘Western’ concept of state sovereignty and an autonomous private sphere of life beyond state regulation present major obstacles toward enforcement and implementation of women’s human rights.
Finally, in assessing the reality of equal rights for women in international human rights law, we must question the meaning, adequacy and efficacy of the term ‘equality’ for empowering women. It may be argued that interpretations and manifestations of the concept remain flawed on several counts. Equality continues to be perceived and is defined as ‘being like a man’ except where women’s difference is emphasized, largely attached to the biological and private/social spheres. Further, international human rights as well as domestic legal systems appear to function on the premise that formal equality translates into substantive equality. Nothing could be further from the truth. People, whether men or women, starting from an inherently unequal position resulting from weak economic, social, health or other factors, will end up being unequal, despite the equality provisions in laws. Several questions flow from this statement. For instance, why and how has the UN human rights movement marginalized women’s rights? Is it because the political and public face of rights so crucial to men is replicated and placed at a higher level on the hierarchy of rights at the international level? Coupled with this issue, is the lack of similar value placed on rights that are crucial to making women’s rights a reality? Thus economic, social and cultural rights, including the right to education, health and employment, which can make the difference to women’s lives, fail to make an impact in international human rights instruments. Men and women therefore start the race for equal rights from totally different starting points. Having the legal right to education rings hollow if there are no schools for girls and custom requires segregation of male and female children. The legal right to employment is even more far-fetched where basic education and skills necessary for that employment are unavailable to women. Hilary Charlesworth therefore raises a very fundamental question in relation to the human rights of women when she asks: ‘Do legal rights really offer anything to women? Women’s disadvantages are often based on structural injustice and winning a case in court will not change this’ (cited in Cook 1994: 4).
The ‘equality’ concept in various human rights instruments also fails to take account of the special needs of women. Thus, women’s needs as pregnant and nursing mothers or as basic carers of family members are obscured in the equality debate. Within the Islamic tradition, child bearing and rearing are considered a joint parental as well as social responsibility, and the need to provide help and support to women in child bearing and rearing situations is emphasized (Ali and Jamil 1994). Further, although the point is controversial in feminist discussions, mothers are under no obligation to breastfeed or look after their children should they so choose. The father is legally obliged to provide financial and other support to a woman who decides to nurse their child (Ali and Jamil 1994). Likewise, household work must be remunerated and taken account of in the event of dissolution of the marriage contract. The latest legislation in Iran provides an example of this Islamic norm. However, these rights are undermined by social norms that continue to assume the nurturing role of the mother and emphasize the male role of breadwinner, even though this places him under contract to provide for the wife and family.
In summing up this analysis of the limits of the international norm of non-discrimination on the basis of sex, it has to be admitted that the journey on the road to equal human rights for men and women within the UN system has indeed come a long way from 1945. From modest beginnings in the UN Charter and the UDHR, the ICCPR and the ICESCR expanded the concept. The decades of the 1970s, 1980s and 1980s lent tremendous impetus to these initiatives, and women’s human rights can no longer be ignored. The UN efforts were greatly facilitated by the international NGO community, particularly at the four world conferences on women. Each conference expanded the content of women’s human rights to a point where virtually every aspect of women’s lives are touched by the rights discourse. Although many problems persist, the major ones relating to state sovereignty and weak and ineffective enforcement mechanisms, a beginning has been made.
Judgements using the rights language in general and CEDAW in particular are mushrooming in non-Western jurisdictions. These include the Unity Dow case from Botswana where Unity was not allowed by the law to pass on her nationality to her husband and children; the Shrin Munir vs. Government of Punjab (PLD 1990 SC 295) case from Pakistan where applicants to medical schools won their right to admission to these schools on the basis of the equal rights arguments; and Naseem Firdous vs. Punjab Small Industries Corporation (PLD 1995 Lah. 584) from Pakistan who won the right to apply for a job on a basis of equality with her male colleagues. However, these judgements also portray in their formulation the centuries-old customs, culture and (male-defined) religious traditions that cling tenaciously to the laws and institutions from which equal rights and equality flow. Although the plurality of norms compete to undermine whatever empowerment women might achieve through formal laws, this factor may also be perceived as a strength of CEDAW. Article 5 of CEDAW provides the space for women to challenge custom, culture and traditions by asking whose custom, as defined by whom, when and under what circumstances. By deconstructing customs and religious tradition from a woman’s standpoint and reconstructing it on the basis of their own experiential norms and lived realities, CEDAW may emerge as an effective tool in the empowerment strategy for women.
In the context of non-Western women including Muslim women, complete equality as the term has come to be understood in modern-day usage is difficult to infer from any of the human rights schemes available to them. Women in these societies are considered a ‘protected’ section of the community. It might therefore be strategically opportune to seek a rigorous implementation of all the protective/corrective categories of rights before embarking upon the ‘equality’ and non-discrimination path. A move toward substantive as opposed to mere formal equality for all may be possible if we apply the Islamic paradigm of equality of human dignity and worth, and require ‘those in authority’ (i.e. men and the state) to accept responsibility for fulfilling the material needs of women, children and other disadvantaged sections of society in their charge and for providing them with access and control over resources.
1 For a detailed discussion of how the human rights of women have been split off from the mainstream of the international human rights movement, see Hosken 1981.
2 In June 1993, the World Human Rights Conference in Vienna emphasized the need for ‘the adoption of new procedures to strengthen implementation of the commitment to women’s equality and the human rights of women’. It called upon the CSW and CEDAW to examine the possibility of introducing the right of petition through the preparation of an optional protocol to the Women’s Convention. Since January 1994, efforts have been underway toward the achievement of this goal, including discussions on a draft optional protocol, but these have not yet reached fruition. See A. Byrnes, ‘Highlights in the Development of an Optional Protocol to the Women’s Convention and Selected Background Materials’, circulated at a consultation meeting organized by the International Women’s Rights Action Watch (IWRAW) in New York in January 1998.
3 An optional protocol adopted recently has enabled the right of individual petition to women.
4 In this regard, the International Women’s Rights Action Watch (IWRAW), based at the University of Minnesota, regularly monitors the implementation of CEDAW through annual parallel meetings with CEDAW. IWRAW has brought together thousands of women from around the world to participate in these meetings, as well as for lobbying members of CEDAW.
5 The identifying criteria for Muslim countries are many and varied. One criterion is to consider those countries where Muslims constitute over 70 per cent of the total population as Muslim countries. Weeks (1984: 882–911) uses member states of the Organization of Islamic Countries (OIC) as the determining criteria for identifying states with large numbers of Muslim populations.
6 Afghanistan, Albania, Algeria, Azerbaijan, Bangladesh, Benin, Bosnia and Herzegovina, Burkina Faso, Cameroon, Chad, Comoros, Egypt, Gabon, Gambia, Guinea, Guinea-Bissau, Indonesia, Iraq, Jordan, Kuwait, Kyrgyzstan, Lebanon, Libyan Arab Jamahiriya, Malaysia, Maldives, Mali, Morocco, Mozambique, Nigeria, Pakistan, Senegal, Sierra Leone, Suriname, Tajikistan, Togo, Tunisia, Turkey, Turkmenistan, Uganda, Uzbekistan and Yemen. Muslim countries that have so far refrained from signature/ratification of the Women’s Convention include Bahrain, Brunei, Djibouti, Mauritania, Niger, Oman, Qatar, Iran, Kazakhstan, Saudi Arabia, Somalia, Sudan, Syria and the United Arab Emirates. Updated information on signatures, ratifications and accessions is available on the Internet. A useful website is gopher://gopher.un.org:70/00/ga/cedaw/RATIFICA.
7 Cf. article 16(1) of the UDHR, which provides: ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family’. Article 16 of the Women’s Convention provides: ‘States Parties shall take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: a) the same rights to enter into marriage.’
8 Cf. discussion in the Quran, verse 4:34, stating that men are providers and maintainers of women since they are obligated to provide for them out of their earnings.
9 Cf. article 16(2) of the UDHR which provides: ‘Marriage shall be entered into only with the free and full consent of the intending spouses’. Article 16(b) of the Women’s Convention makes a similar statement: ‘The same right freely to choose a spouse and to enter into marriage only with their free and full consent.’
10 This Symposium was organized in accordance with Resolution 10/7-C (IS), adopted by the Seventh Islamic Summit Conference. Delegates from thirty-four Islamic countries participated in the deliberations. Three documents were submitted to the Seminar: Recommendations of the Seminar to the Twenty-third Islamic Conference of Foreign Ministers; Principles Presented as Guidelines to the Fourth World Conference on Women in Beijing; and the Tehran Declaration on the Role of Women in the Development of Islamic Society.
11 Paragraph 1.15 provides for ‘provision of necessary financial and social support and protection and empowerment of women heads of household’.
12 A person with the capacity to engage in independent legal reasoning. Paragraph 1.3 of the Tehran Declaration calls this process Ijtihad.
13 Thirty-five high-level delegations from Muslim countries participated, including representatives from Pakistan, Libya, Chad, Malaysia, Oman, Azerbaijan, Morocco, Syria, Yemen, Albania, Algeria, Kyrgyzstan, Iraq, Bangladesh, Egypt, Palestine, Jordan, Senegal, Iran, Indonesia, Sudan, Turkish Republic of Northern Cyprus, Turkey and a representative of the International Parliamentary Union.
14 Cf. Tabandeh’s view that women are not allowed in public life. Also note the Hadith where it is stated that ‘Those who entrust their affairs to a woman will never know prosperity.’
15 See Preamble of the Islamabad Declaration, which states: ‘Recognising that woman, as enshrined in the Quran and Sunnah, is the centre of the family which is the basic unit of society and hence the cornerstone of the edifice of a stable, peaceful and prosperous polity.’ UN human rights instruments articulate similar formulations. See, for example, article 23 of the ICCPR and article 10 of the ICESCR.
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