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THE CEDAW IN THE SHARIA PERSPECTIVE

THE CEDAW IN THE SHARIA PERSPECTIVE

13 Ağustos, 2014 , , 6875
Leyla SARIKAMI?

Leyla SARIKAMIŞ

“A woman is like a tea bag. You can’t say how strong she is, until you put her in hot water.”

These wise words belong to Eleanor Roosevelt. Because of her, the word ‘sex’ was included in the ‘Universal Declaration of Human Rights’ in 1942, which was groundbreaking for that period of time. Subsequently, several attempts were made to give attention to the special position of women in treaties. In 1946, the UN-Commission on the Position of Women concluded that the discrimination towards women was still persisting in practice, despite of the attempts to solve it.[1]  Therefore, they have designed the Convention on the Elimination of all Forms of Discrimination against Women. This treaty is one of the most crucial and progressive treaties in history. After years of preparations, the General Assembly of the United Nations has adopted the treaty on the 18th of December 1979. Today, 180 countries have signed this treaty, in which women are explicitly mentioned.

The reservation and its context

Regarding ‘Women’s Rights’, it is possible to argue that states hold different views. Women have different positions in different cultures and religions. Therefore, a lot of reservations were made within this treaty. This was done especially with Article 16 of the Convention, in which important provisions have been laid down, such as rights regarding gender equality, marriage and family relations.[2] These rights include the right to enter into marriage with free and full individual consent, to choose a spouse freely, rights regarding dissolution, rights and responsibilities as parents. [3]

The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) provides states the possibility to invoke a reservation. However, the reservations may not violate the object and purpose of the convention. Several states have made reservations to articles of the CEDAW based on national law or traditional, religious and/or cultural perspectives. [4]

The Egyptian government made the following reservation against this article:

Reservation to the text of article 16 concerning the equality of men and women in all matters relating to marriage and family relations during the 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 in 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 complementary, which guarantees true equality between the spouses. The provisions of the Sharia lay down that the husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not obliged to spend anything on her keep. The Sharia therefore restricts the wife’s rights to divorce by making it contingent on a judge’s ruling, whereas no such restriction is laid down in the case of the husband.[1]

This reservation is based upon religious beliefs. Since 1980 the Islamic regulations, the Sharia, are the main source for the Egyptian constitution. In the reservation they assume that Article 16 of the CEDAW will be in conflict with the Sharia’s provisions regarding marital relations. According to article 16, men and women are equal in all matters related to marriage and family. In the Sharia law, women have been given rights equivalent to those of their spouses so as to ensure a just balance between them. Therefore, a women’s right to divorce is restricted.

This is not a unique reservation, because it is also made frequently by other states that are bound to the Islamic regulations, the Sharia or other religious regulations. The following countries made the same reservation against article 16 of the CEDAW: Algeria, Bahrain, Iraq, Jordan, Kuwait, Israel, Morocco, Oman, Syrian Arab Republic, Tunisia, Turkey and the United Arab Emirates. They all state that the provisions of article 16 concerning equal rights for men and women related to marriage, both during marriage and it dissolution, should not contradict the provisions of either the Sharia or the national codes. All these countries, except Israel, have an Islamic background. Israel states that the reservation is “made to the extent that the laws on personal status, which are binding on the various religious communities in Israel, do not comply with the provisions of that article”.[2] This argument is also based on religious beliefs.

Similar reservations made on the ICCPR

This reservation can be regarded as an expression of a consistent state policy. These countries, except Turkey, are not secular countries and they are bound by the Sharia or other religious regulations. The constitutions of most Islamic countries are based on the Sharia law.[3] The most rights of the Sharia law are guaranteed and covered by international treaties. However, there are difficulties to some issues including the application of women’s rights.[4] According to the Sharia law, men and women have unequal rights.[5] Many of these countries believe in the structure of the family, in which the father holds a favorable position. Within this context, the most Islamic countries, including Egypt also made similar reservations in other treaties.

Most of the countries mentioned above made the same reservation to several articles regarding gender equality and non-discrimination within the International Covenant on Civil and Political Right (ICCPR). Algeria made a reservation to article 23 (4) regarding equality of men and women in civil and political rights. Bahrain made a reservation to article 3 regarding equality of men and women in civil and political rights, to article 18 regarding the freedom of religion, and to article 23 regarding family and marital rights. Kuwait made reservations to article 2 (that includes the guarantee of all rights in the Covenant without discrimination of any kind), article 3 (regarding the equality of men and women in civil and political rights) and article 23 (regarding equal rights and responsibilities of marital spouses). [6]Egypt made a declaration in which it states that the provisions in the ICCPR must not be in conflict with the provisions of the Sharia.[7] As we can see, the reservations made to the ICCPR articles are similar to the reservations made to article 16 of the CEDAW. Therefore, we can conclude that this is a consistent state policy, based on religious perspectives.

Objecting parties

The objecting parties[8]state that the reservations made by the countries do not comply with the objective and purpose of the present convention. The objecting parties have three choices they can make under the VCLT. First of all, they can choose to maintain a relationship with the reserving state. Secondly, they can choose not to maintain their relationship with the serving state. The last option is that the objecting state can maintain their relationship with the party.[9]A further analysis shows that the objecting parties recommend the governments who made the reservation to reconsider this reservation. Although, they believe that the reservations are violating the core of this Convention they are still willing to be a part of the Convention.[10] They utilize the more diplomatic way by making recommendations to the states which invoked the reservations.

CEDAW monitoring body

There are three categories of international mechanisms for the monitoring of human rights treaties; reporting by governments, international complaints and inquiry procedures.[11] The CEDAW has a system of periodic reporting by governments.[12] The Committee of the CEDAW has an important role and it is mandated by the Vienna Declaration and Program for Action. The Committee exists of a large group of experts who have the responsibility to monitor and they can be seen as the ‘treaty monitoring body’.[13] The Committee of the CEDAW states that reservations to article 16 are impermissible. In this regard, according to the Committee, it doesn´t matter whether these reservations are based on traditional, religious or cultural grounds.[14] The CEDAW Committee considers article 16 as one of the core articles of this treaty.[15] Therefore, the Committee of the CEDAW emphasizes the recommendations made by the objecting parties and it encourages state parties to note, adopt and implement them.

The violation of the core and purpose of the treaty

The reservations made by the Islamic countries affect the core of the treaty. The core of the treaty is to maintain gender equality and provide women all over the world their rights. In most of the Islamic countries practices such as female infanticide, early marriage, violence against women, crimes in the name of honor are committed against women.[16]Whether these practices are truly related to Islam, is another discussion. However, these crimes against women influence the whole family and community.[17] Article 16 can be considered as the core article of the Convention. The implementation of article 16 could solve a great deal of the abovementioned issues. Therefore, we can conclude that the reservation affects the core of the treaty.

Legal effect of the reservation

According to article 19 of the VLCT reservations are impermissible if incompatible with the object and purpose of the treaty. In accordance with article 28 of the CEDAW, Egypt and other Islamic countries have invoked a reservation on article 16. This reservation may not violate the object and the purpose of the treaty. However, the CEDAW does not contain criteria for the object and the purpose of the treaty. The reservation made by Egypt does violate the object and the purpose of the treaty. Thus, the reservation violates both treaties.

The universality debate on human rights and the Sharia.

After the Second World War, nations all over the world jointly came together and discussed the need for universal human rights norms. In this regard, the Vienna Convention in 1993 stated that human rights claim to be universal, indivisible, interrelated and interdependent. Since then, the Vienna Convention has been overloaded with critique that there is in fact nothing universal about this convention. The universalist view claims that human rights have priority over local laws, habits and practices. However, cultural relativists claim that different cultures have different norms. Universally valid standards are impossible and human rights are highly culturally relative. Some argue that human rights are Western regulations poured down in another form.

The number of states is growing. The use of reservations in treaty laws is increasing. Therefore, international law has a big challenge to face. The Islamic countries made reservations on article 16, by basing their arguments on religious perspectives. The high number of reservations reflects a conflict that is not only related to CEDAW. This conflict emphasizes the issue of the debate between the universalist view on the one side, and the cultural relativism view on the other side. Islamic countries see human rights not as universal, but as a cultural development.[18] The Sharia has its own view on the equality rights between men and women despite the fact that the CEDAW wants to promote genderequality. In this case, the reservations against article 16 of the CEDAW show us that the rights regarding women can´t be seen as universal, because of the high number of reservations against this article. Universalists acknowledge the need for cultural sensitivity.[19] Therefore, the approach regarding the universality of human rights should be expanded and the relationship between local culture and international human rights standards should be taking into account.[20]

Conclusion

Regarding the CEDAW, I have to conclude that the reservations made by Egypt and other Islamic countries do violate the purpose and the object of this Convention. A lot of discrimination against women take place in domestic environments. Women deal with violence and other abuse by their husbands or other family members. Therefore, in my opinion article 16 of the CEDAW is the core obligation of this Convention which can be a solution for many women who are standing in these situations. By making a reservation, Egypt limits the core obligation and therefore violates the purpose and the object of the CEDAW. This reservation is not acceptable.

In my view, by using the example of the reservation made by Egypt and several other Islamic countries, I have to conclude that the debate on universality versus cultural relativism should be expanded. We have to consider many other aspects, such as social, economic, religious and local factors. The declarations of human rights and the system of human rights seem to make efforts to universalize human rights. However, the application of human rights is the responsibility of the state. Every state is different. Every state has its own cultural background and religious perspectives. Therefore, cultural relativism should be regarded as ‘analyzing human rights in different perspectives’. When interpreting human rights, the cultural, religious and local aspects should be considered. We should seek for a way to improve the elaboration of human rights in other cultures, instead of pushing them aside. By doing this, we have to include the local religious leaders. The religious aspects of the Islamic countries should be well considered in their own perspective and context

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Leyla SARIKAMIŞ
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Bibliography

[1]United Nations Entity for Gender Equality and the Empowerment of Women: Division for the Advancement of Women. Department of Economic and Social Affairs, New York, 2000-2009. (accessed 04-03-2014). (http://www.un.org/womenwatch/daw/cedaw/reservations.htm)

[2]United Nations Entity for Gender Equality and the Empowerment of Women: Division for the Advancement of Women. Department of Economic and Social Affairs, New York, 2000-2009. (accessed 04-03-2014). (http://www.un.org/womenwatch/daw/cedaw/reservations.htm)

[3]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009. P 607

[4]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009. P 607

[5]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009. P 608

[6]United Nations Treaty Collections. United Nations New York, 2013 (accessed 03-03-2014). (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en)

[7]Arab Republic of Egypt, (accessed 02-03-2014) (http://www.law.emory.edu/ifl/legal/egypt.htm)

[8] Denmark, France, Netherlands, Belgium, Austria, Portugal, Estonia, Finland, France and Germany

[9]Aistė Akstinienė, RESERVATIONS TO HUMAN RIGHTS TREATIES: PROBLEMATIC ASPECTS RELATED TO GENDER ISSUES, Institute of International and European Union Law, 2013

[10]Aistė Akstinienė, RESERVATIONS TO HUMAN RIGHTS TREATIES: PROBLEMATIC ASPECTS RELATED TO GENDER ISSUES, Institute of International and European Union Law, 2013

[11]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009. P 657

[12]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009. P 660

[13]Statements on reservations to the Convention on the Elimination of All Forms of Discrimination against Women adopted by the Committee on the Elimination of Discrimination against Women, (Accessed 02-03-2014) (http://www.un.org/womenwatch/daw/cedaw/cdrom_cedaw/EN/files/cedaw25years/content/english/Reservations-English.pdf)

[14]United Nations Entity for Gender Equality and the Empowerment of Women: Division for the Advancement of Women. Department of Economic and Social Affairs, New York, 2000-2009. (accessed 04-05-2014). (http://www.un.org/womenwatch/daw/cedaw/reservations.htm)

[15]Aistė Akstinienė, RESERVATIONS TO HUMAN RIGHTS TREATIES: PROBLEMATIC ASPECTS RELATED TO GENDER ISSUES, Institute of International and European Union Law, 2013

[16]Ageng‘o, C. Harmful Traditional Practises in Europe, Judicial Interventions. London: Yale University press. 2009, p. 11

[17]Aistė Akstinienė, RESERVATIONS TO HUMAN RIGHTS TREATIES: PROBLEMATIC ASPECTS RELATED TO GENDER ISSUES, Institute of International and European Union Law, 2013

[18] Baderin M, International Human Rights and Islamic Law, Oxford University Press, 2002

[19]Milica Subotić, Cultural Relativism for Universality of Human Rights

The Case of Reservations to Human Rights Treaties, University of Bologna, April 2005

[20]Milica Subotić, Cultural Relativism for Universality of Human Rights

The Case of Reservations to Human Rights Treaties, University of Bologna, April 2005

 

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