The concept of nondiscrimination and equal rights for both men and women in all spheres of their lives as enshrined in the CEDAW Convention (1979) and all other Human Rights Frameworks generated a new realization and discourse in the Islamic world. The Universal Declaration on human Rights (1948) states in Article one that ‘all human beings are born free and equal in dignity and rights’. By ratification of these International human rights frameworks States parties are in obligation to domesticate these human rights standard in their own legal system.
At present about 187 states parties have ratified the CEDAW convention which is almost a universal ratification for the Convention. Except Iran, Sudan and Somalia all other Muslim countries have ratified or acceded to the CEDAW convention. Many of these Muslim countries imposed reservations under Article 28 of the convention on certain core Articles, such as Article 2, 16, 9 etc of the convention in the name of Islamic Sharia law.
More or less 20 Muslim States parties are maintaining reservations on the Convention (on Article 2 and 16) on the basis of Islamic Sharia laws. These are namely, Algeria , Bangladesh , Brunei , Egypt, Iraq, Jordon, Kuwait, Libya , Malaysia, Maldives Mauritania , Morocco , Niger ,Oman, Pakistan, Saudi Arabia, Syria, Tunisia and UAE.
SCOPE OF THIS ARTICLE
In this article we will examine the Islamic jurisprudence in the spirit of International human rights norms and how reform process in different Islamic countries could minimize differences in the area of women’s equal access to public goods such as education, health , employment, rights to justice and political participation as well as equal rights in the family relations such as marriage, divorce, custody rights and inheritance to the property and most importantly withdrawal of the reservations on the CEDAW Convention. In the elaboration of this article we will also touch upon the issues like gender stereotyping , violence against women, patriarchy, harmful traditional practices, like FGM, honour killing, dowry related crime etc also minimum age of marriage, consequence of early marriage , polygamous union etc which affect women in realization of equality and non discrimination status. We would also examine how women’s human rights, International human rights frameworks, i.e., CEDAW and Islamic jurisprudence are not contradictory to each other.
DIVINE LAWS UNCHANGEABLE IN CHARACTER
Implications of these reservations indicate that provisions of those Articles are not binding upon those countries imposed reservations as it is not compatible with Quranic law. It is often argued that Muslim family law systems cannot be amended to allow equality between men and women because these are divine laws and therefore unchangeable, or that practices cannot be changed because they are part of the Islamic tradition.
Many Muslim countries view that the CEDAW as culturally biased towards the western
nations and have consequently placed reservations on the elements that they see as in fundamental contradiction with Islamic Sharia laws based on Holy Quran and Sunna. Also most Muslims regard the advent of Sharia laws as a significant force in the improvement of women's rights.
Women human rights activists and Islamic feminists’ consider this notion as patriarchal interpretations of Islam based on unequal family relations that aim to subordinate women. They argue that justice is inherent to the philosophy of law in Islam, thus laws or legal amendments introduced in the name of Sharia and Islam should reflect the values of equality, justice, love, compassion and mutual respect among all human beings. These are values and principles on which Muslims agree and which Muslim jurists hold to be among the indisputable objectives of the Sharia, and are also consistent with universal human rights principles and values.
In the present paper we will try to examine the reconciliations of the Quranic injunctions on women’s rights with the existing human rights frame works i.e CEDAW.
ARTICLE 2, 9 AND 16 AND OBJECT AND PURPOSE OF THE CONVENTION
Article no. 2 of the Convention Says that States parties should eliminate discrimination against women in all its forms through appropriate legislation and repeal all national penal provisions which are discriminatory to women. Article 16 governs family relations, such as equal rights & responsibilities for marriage & dissolution of marriage, custody rights etc. and article 9 represents equal citizenship rights.
The General recommendation 28 of the CEDAW convention clearly mentions that those reservations on Article no 2 and 16 goes against the object & purpose of the convention. Practical realization of the principles of equality and nondiscrimination cannot be achieved keeping reservations on article no. 2 and 16.
ARTICLE 16 OF THE CONVENTION AND MUSLIM FAMILY LAWS
It is important to note that Islamic Nations imposed reservations mostly on the article 2 and 16 of the CEDAW Convention. Article 16 is the most debated legal position in the Muslim world which represents the following core themes of the family matters.
- Equal Right to Marry and Choose a Spouse
- Equal Rights and Obligations of Spouses during the Marriage
- Equal right for the dissolution of Marriage
- Equal rights for Custody and Guardianship of Children
- Same rights for the ownership and acquisition of the property
Here lies the real tension and challenge for the Islamic States to realize women’s human rights as covered by the CEDAW Convention.
CEDAW CONVENTION AND STATE OBLIGATION
Ratification of the CEDAW Convention, which is one of the core international human rights treaties of the UN treaty system, requires Member States to undertake legal obligations to respect protect and fulfill human rights. In other words States parties are committed to adopt international human rights standard in their national legal system and incorporate those in the constitution.
There are several Islamic countries have ratified CEDAW without imposing any reservations on the Convention, such as Afghanistan. Many States Parties in the recent times have withdrawn reservations on the Convention, such as Morocco on Article 16, Maldives on Article (7) and Bangladesh on Article 9 etc.
Many Islamic Nations such as Morocco, Tunisia, and Turkey complied with the CEDAW principles and brought amendments accordingly in their national legal system. As a signatory to the CEDAW Convention States parties are liable to submit reports to the committee every 4 years and explain the situation of women’s advancement in respect of their rights and legal protection for them in the country in light with the convention.
WHAT IS THE CEDAW CONVENTION?
The United Nations adopted the Convention on the elimination of all forms of discrimination against women (CEDAW) in 1979 which is the only legally binding international instrument to prohibit all forms of discrimination against women committed by public authorities or by any person or organization in the full range of civil, political, economic, social & cultural areas, covering both public & private life. The convention also targets culture & tradition as the influential forces shaping gender roles. The purpose of this treaty is to eliminate de facto and de jure discrimination and inequality on the basis of sex.
The CEDAW convention aims at achieving uniform development for women all over the world using global normative standards that has been enshrined in the 16 substantive articles of CEDAW and its 28 general recommendations. The CEDAW convention’s profound impact on the legal and socio political development of States parties including Muslim States who are party to the Convention are visible in the strengthening of institutional provisions for the protection of women’s rights and efforts to bring existing legislation in to conformity with convention principles, improvement in the capacity of national institutions to guarantee equality between men & women. Furthermore, increasing use of the convention, and the committee’s general recommendations by the States parties provide an important roadmap in developing its short term and long term national plan for advancement of women.
CEDAW legally binds all States Parties to fulfill, protect and respect women’s human rights – this means that States are responsible not just for their own actions, but also for eliminating discrimination that is being perpetrated by private individuals and organizations. Gender inequalities must be addressed at all levels and in all spheres, including the family, community, market and state.
Muslim scholars ,women human rights activists and NGOs; are continuously working to achieve gender equality through a more dynamic interpretation of the Holly Quran which permits consideration of the opinions of individual jurists from different schools of thoughts . This could open a door for a new egalitarian vision of women’s rights in conformity with the requirements of the CEDAW at the same time respecting the Islamic heritage.