Womens Rights and Religious Practices on Islamic law - Essay Example

? Women’s rights and religious practices as expressed in certain Parties’ reservations to CEDAW that are based on Islamic law  Introduction TheUN General Assembly in 1979 first adopted an extensive treaty on women’s rights that was known as the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)1, with the primary aim of removing all ‘de facto and de jure’ bias and discrimination on the basis of gender. Till date almost 90% of the UN members (a total of 186 countries and 98 signatories are compliant to this treaty, as of present), which also includes a large number of Islamic states. 2 However, it has been observed that along with the high rate of ratifications, CEDAW also has the largest number of reservations amongst all the other important international human rights treaties. Almost all the nations that are either Islamic in nature, or have a strong Islamic presence within their population, have at some point of time entered reservations. Amongst these, some states have entered their reservations by citing the Sharia law, while other states have based these reservations by categorising the Sharia as ‘domestic family law’. Such high number of reservations portrays the existence of a contention that relates directly to the women’s laws pertaining to human rights, while also indirectly relating to the theory and practice of the international human rights law. This conflict thus showcases a direct confrontation between the idea of universalism of human rights; and the so called ‘cultural relativism.’ Even a casual glance at the reservations will show us that some of them that cite the Islamic Sharia laws, are completely at oddity with the very nature and objective of the Convention, and often undermines the primary goal that aims to the remove all kinds gender bias and bring in equal status for all human beings, irrespective of whether he is a male or a female. In my article I will examine the tension that arises from the certain state parties’ reservations to CEDAW that are based on Islamic laws, and related to the issues of women’s rights and religious practices. Discussion The human rights and the Islamic laws: The status of human rights within the subject of Islamic laws has always controversial right from the formation of the Universal Declaration of Human Rights (UDHR) in 1948. As one tries to integrate human rights law, which is a more recent legal entity (or a treaty), based on certain universal standards, it is inevitable that it will come into direct confrontation with the Islamic laws, that are based on ?qh (Islamic caveat); which in reality is a sum total of the opinions of various individual people and their interpretations of the Islamic law, as are stated within the Quran. These interpretations undoubtedly differ from one scholar to another, and are also transient in nature, thus liable to change from time to time, based on the transforming social beliefs and philosophies. Thus, there are no two countries that have same fiqh or Islamic caveat, with which each country having a different perspective of the UDHR. This conflict or tension between the Islamic law and the UDHR was created when the cultural relativists expressed the opinion the laws that guided the religion of Islam were not in tune with UDHR treaty, as the latter is mostly a phenomenon created by the westerners, thus is based on the tenets of Christianity. The ‘cultural relativists’ further added that UDHR cannot be applied to Islamic laws, since Islam firmly believes in the role of the family as a social institution, where each family member has certain responsibilities towards upholding the values and sanctity of this institution.3 Since a woman generally forms the core of family, nothing is more relevant than the cultural relativists’ objections to the jurisprudence of CEDAW on the Islamic laws. It is for this reason that we observe the large number state parties’ reservations to CEDAW, on the issue of women’s rights and religious practices, supposedly based on the tenets Islamic law.  Islamic laws and women rights: If we take a look at the section of human rights as accorded by Islam,4 and focus on rights accorded to women under its tenets we find that the section of women rights originated directly from the Quran,5 the Hadith (a compilation of the actions and teachings of the Prophet Mohammed, created after his death), the Ijma (opinion formed with the consensus of the various scholars at different time periods on the issues of various laws), and Qiyas (which forms the fourth source of Islamic laws).6 The term Sharia (meaning a watering place or a flowing stream), which has now become synonymous with stringent Islamic laws, was originally more flexible and dynamic in nature.7 The laws became less malleable and more stringent, and especially harsh on the Muslim women, owing to the historical fact that it were men who were socially, legally, and politically, more powerful than women, and it were the former that acted as interpreters and commentators on Islamic laws,8 thus forming a new set of laws under the Sharia, that were discriminatory to the women in general.9 Reservations pertaining to the CEDAW: The various reservations as expressed to the CEDAW treaty, is monitored and governed under the provisions made by the Vienna Convention on the Law of Treaties or VCLT. The VCLT states that a “Reservation [is] a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”10 The subject of reservation under the Vienna convention, in the context of human rights issue, has always been a controversial topic.11 It came into vogue after the ruling of the International Court of Justice in the case of the Genocide Convention, where it categorically stated that the aim of the Convention limits the scope of entering reservations and that of remonstrating against the entered reservations, and “an objection to a minor reservation” should not work towards nullifying the ratification,12 and this ruling of the court after being categorised within the VCLT, became the yardstick for measuring all reservations made in any human rights treaty. CEDAW and the validity of the reservations: To get a better overview of the entire issue, here one must take a brief look at the case of the Egyptian law of nationality. The nationality law 26/1975 was much hyped and declared to be bringing in equal rights to both men and women, while passing on their citizenship rights to their children. In reality, the legal provision is fraught with many loopholes. Under the new amendments brought in by the government, the children born to Egyptian women having husbands of foreign nationality are given Egyptian citizenship status only when they reach the age of 21 (with further conditions that they must have be residents of Egypt for a minimum period of 10 years, and accomplished in the Arabic language). Owing to such stringent conditions, the child of mixed parentage (only when the father is a foreigner) cannot get public education (at normal subsidised rates), or any other privileges, akin to other Egyptian children. Before this law was created, Egypt had put in its reservation to Article IX, stating that changing a family domestic law would be going against the Sharia and hence not viable, and this reservation was put in “a way of averting insecurity and a prejudicial future for children who carry dual nationality. However, this argument contradicts itself since children of Egyptian men married to foreign women are automatically entitled to dual nationality without the restrictions imposed by Egyptian law”13. This goes in direct opposition to what had been stated in CEDAW as regards gender discrimination, “... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Contrary to the Egyptian reservation argument, we find that in Quran it has been categorically stated in chapter 5 (1st verse) “Oh ye who believe! Ful?ll (all) obligations” Thus, logically when an Islamic state signs a treaty, it is obligatory for it to honour the Uqud (contracts or obligations). The new amendment, though better than having nothing at all, does not follow by the Quran rules, which orders its followers to abide by any commitment made to a treaty. So this amendment, which though not based on religion, is discriminatory against women, and so violates the CEDAW, and in turn violates the Quran; and under Uqud obligation the reservation placed by Egypt in CEDAW can be deemed as void. 14 Many Islamic states have also placed their reservations against the provisions made in Articles II and XVI of the Convention that specifically aim at removing all kinds of gender bias, and make the norms of this convention applicable to all the present and future domestic policies of any member state. Thus, all reservations that promotes gender bias and discrimination against women, actually goes against the basic principles of the entire convention while also violating the Uqud in Quran, and so must be done away with immediate effect. All the 40 Islamic member states of UN (the only exceptions being Indonesia Yemen and Turkey) that have ratified the CEDAW have expressed their reservations based on Islamic laws and its concept of human Rights. States like Kuwait, Iraq, Libya Bangladesh, Jordon, Tunisia, and Maldives, have clearly stated that their reservations are based on Sharia laws. Saudi Arabia had placed a reservation against the Article IX that gives equal rights to all human beings (male or female) passing on their nationality to the children. Maldives, in its reservations stated that it would not follow the articles with “principles... the government may consider contradictory to the principles of Sharia.” Again, Libya’s reservation against CEDAW states that the Convention is against Islamic laws, as regards “personal status derived from the Islamic system of Sharia.”15 Thus we find, that these reservations have been primarily aimed at changing the entire nature of the human rights convention, and violates the basic principles of CEDAW, while also giving the states right to discriminate against women, under the garb of religion. Conclusion: Since there are quite a large number of Islamic states worldwide, it is imperative that one must take cognizance of their concerns regarding domestic laws and other religious issues. However on the other hand frivolous reservations that undermine the very concept of human rights must not be tolerated. To come to an amicable settlement one must take a middle path, where the proponents of the universal human rights and well known reputed Islamic scholars (excluding the hardliners), must come together and formulate new women rights laws that would be deemed agreeable to both the sides. Bibliography Al-Hibri, A. 1982. A Study of Islamic Herstory: Or How Did we Ever Get into this Mess? Women Studies International Forum, Vol. 5. Ali, S. 2000. Gender and Human Rights in Islam and International Law Equal Before Allah, Unequal Before Man? The Hague: Kluwer Law International, 42- 91. CEDAW. 1981. UN GA Res. 34/180, 34 GAOR, Supp. (No.46) 194, UN Doc. A/34/46, at 193 (1979), 2 U.K.T.S. (1989); 19 I.L.M. (1980) 33. Connors, J. 1996. “The Women’s Convention,” chapter 16. In, Feminism and Islam, (ed.) Mai Yamani and Andrew Allen. New York: New York University Press. Hassan, R. 1990. ‘An Islamic Perspective,’ In, J. Belcher (ed.) Women, Religion and Sexuality. Geneva: WCC Publications. Rahman, F. 1983. ‘Status of Women in the Quran.’ In, G. Nashat (ed.) Women and Revolution in Iran. Boulder: Westview Press. Rehman, J. 2009. International Human Rights (2nd ed.). New York: Longman. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ICJ Reports, 1951, 15. Cited in Lijnzaad, L., Reservations to Un- Human Rights Treaties: Ratify and Ruin? London: Martiuns Nijhoff Publishers, 1995. Ruda J. Cited in Lijnzaad, L. 1995. Reservations to Un-Human Rights Treaties: Ratify and Ruin? London: Martiuns Nijhoff Publishers. Shehata, J. Islam and Human Rights: Revisiting the Debate. Retrieved from, http://www.arabinsight.org/aiarticles/128.pdf Vienna Convention on the Law of Treaties, 1969, Article 2(d), 5. Retrieved from, http://www.worldtradelaw.net/misc/viennaconvention.pdf. United Nations treaty collection. 2011. Chapter IV Human Rights. Retrieved from, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en Welchman, L. 2002. “Islamic Law: Stuck with the State?” in, Andrew Huxley, (ed.) Religion, Law and Tradition. London: Routledge. Read More