Islamic View of Women's Rights: An International Lawyer's Perspective

• Author: Ekaterina Yahyaoui Krivenko
• Position: Ph.D. and D.E.S. (Geneva), LL.M. (Friburg), LL. B. (Belarus and Switzerland) is a postdoctoral research fellow at the Centre for International Studies (CÉRIUM) of the University of Montréal. Her research interests include philosophical, religious and feminist perspectives on such areas of law as human rights, refugee and migration law
• Pages: 103-128

Page 104

I Introduction

In adopting an international lawyer's perspective, one obviously places oneself at the level of international law and has to look for both women’s rights and an Islamic view of them in international law. Traditional doctrine of international law recognizing states as principal subjects and lawmakers of international law, although often questioned now, remains largely valid.¹ For this reason the present inquiry will start with an analysis of the major international treaty dealing with women’s rights, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).² This international treaty ratified by 185 states³ is the main codification of human rights norms in their specific application to women.⁴

Where does one look for an Islamic view of these rights at the level of international law? From the perspective of traditional international law, only states can express this view. Although strictly speaking states do not have a religion, many states proclaimPage 105Islam as their official religion and ultimate source of legislation.⁵ A significant number of these states became parties to the CEDAW.⁶ What they claim to be an Islamic view of women’s rights appears firstly at the level of their reservations which they enter when becoming parties to the CEDAW.⁷ Later, when fulfilling their reporting obligations, they clarify and give more details on their Islamic view in periodic reports and also in answering questions of the members of the CEDAW Committee, the treaty-monitoring body of the CEDAW.⁸ This latter way of expressing views is particularly important not only because it offers an opportunity to get more information and a deeper understanding of various issues involved, but also because states which claim to be Islamic but did not enter reservations when becoming parties to the CEDAW can also express their Islamic vision of women’s rights. The vision which otherwise remains invisible and forgotten thus leaving to the outside observer the impression that an Islamic view of women’s rights can be conceived only as an opposition - be it partial (reservation) or total (non-adherence to the treaty) – to provisions of human rights law. However, I will not limit my analysis exclusively to states’ vision of what qualifies as Islamic view of women’s rights for two reasons. Firstly, it would be too narrow and unrepresentative of Islam as a social phenomenon. Secondly, modern international law recognises the significant role played by NGOs in the international arena at variousPage 106stages of law-formation and application.⁹ In the context of the CEDAW, as in the work of the U.N. in general, NGOs play a very active and sometimes influential role.¹⁰ They introduce to the international arena a distinct, new voice of persons, human beings concerned. Although, they cannot claim to represent all facets of various human experiences, the introduction of this distinct voice is still important and can offer useful insights for analysis of human rights issues. For the purposes of the present analysis, reference will be made to NGO reports submitted to the CEDAW Committee in preparation for review of states parties’ periodic reports.

This paper begins with the analysis of the CEDAW, its genesis, the content of its provisions, followed by a general historical overview of Muslim states’ participation in this Convention. The next part will attempt to describe in some detail the most important characteristics of what might be called an ‘Islamic view’of women’s rights and preliminarily explain the author’s use of this term. Finally, the paper will discuss what this view can suggest to an international lawyer, particularly a feminist international human rights lawyer.

II Women’s Rights as Human Rights

A Historical Development

There have been a number of important stages in the gradual recognition of women’s rights by international human rights law, although one should keep in mind that the struggle of women for the recognition of their rights has a much longer history. Both the UN Charter in paragraph 3 of its Article 1, and the Universal Declaration of Human Rights¹¹ in Article 2, recognized the formal equality between men and women as one of the fundamental principles. At this initial stage the concept of human rights was limited to civil and political rights and the main task of women’s rights movements was to struggle for transformation of this formal principle into practice of states. However, thePage 107realization of equality in political spheres responded only partially and inadequately to women’s interests as discrimination in other areas continued. The adoption of the U.N. Covenant on Economic, Social and Cultural Rights (CESCR)¹² to a certain extent allowed women to articulate their claims in the so-called ‘private’domain. The requirement set in Article 3 of the CESCR according to which states in addition to guaranteeing exercise of rights without any discrimination as required by paragraph 2 of Article 2, also “undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights”[emphasis added], played important role in this context. However, the CESCR could not respond adequately to specific experiences of women not only because of its weak enforcement provisions, but also having been conceived by men and written from a man’s perspective it still left untouched many issues central to women’s lives. Moreover, the recognition of some women’s needs often had a detrimental effect of reinforcing the traditional division of roles between men and women.¹³

Thus, the struggle for recognition of the specific experiences and needs of women and elimination of the traditional division of roles became a focal point of the women’s movements. Growing influence of these movements in the international arena resulted in consideration by the UN of the necessity and possibility of adopting a convention dealing specifically with women’s rights. The preliminary stage of seeking opinions of governments on the possibility of the adoption of such a convention (prior to the year 1975)¹⁴ took a long time and revealed a religious and ideological divide among states which influenced the wording of the convention. The CEDAW, finally adopted in 1979¹⁵ is conceived as a comprehensive instrument dealing with all relevant aspects of women’s lives and responding to specific needs and experiences of women. The comprehensiveness of the CEDAW is due to its wide scope which encompassed all previously guaranteed women’s rights oftentimes reformulating them in a morePage 108inclusive fashion. Moreover, it covered many new areas previously left outside of the realm of the legal sphere.

What are internationally protected women’s rights?

Without reproducing here the text of the convention, it is important to note some of the most significant features of this instrument which are essential to the understanding of its stance towards the protection of women’s rights and important for the understanding of the position adopted towards the CEDAW by reserving and non- reserving Muslim states.

The substantive provisions of the CEDAW are divided into two major parts the first of which can be identified as the general part of the convention (articles 1 to 6), and the other as the special part of it (articles 7 to 16). The general part, in addition to containing a definition of discrimination against women,¹⁶ also enumerates all general measures which states should undertake in order to eliminate all forms of discrimination. These measures are not limited to the traditional legal sphere, but also address such areas as culture, media, and the elimination of stereotypes in education. Article 5 of the CEDAW, which addresses culture, is an important and highly controversial provision. The most problematic part of this article requires states to take all appropriate measures:

[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

This provision has as an aim the simple elimination of customary practices based on the idea of inferiority or superiority of the sexes. However, many anthropological and sociological studies have demonstrated high complexity of many customs, including religious practices which even if appearing detrimental to women to a western observer, cannot simply be eliminated without causing significant additional prejudices to women. Rather, there is a need for a complex web of re-negotiations and internal reforms which are far from being as simplistic as the provision tends to representPage 109them.¹⁷

The special part of the CEDAW enumerates rights to be granted and measures to be taken in various specific areas, such as public and political life, education, employment, health and social services, legal and judicial spheres, and most importantly, private and family life. Since it is this latter provision which, as will become clear later, appears to be the most problematic for Muslim states, it will be discussed in more detail.¹⁸

Article 16 first requires states to “take all appropriate...