Islamic Reservations to CEDAW and Universality of Human Rights within the Cultural Relativists Paradigm
Author: Linda Osman
Department: Women’s Rights Team
The Convention on the Elimination of all Forms of Discrimination of Women (CEDAW, 1979) ambitiously seeks to eradicate female oppression on a global scale. However, the ability of States to opt-out of its provisions, by making reservations, can undermine those aims. This article will explore the tension between the principles of Universality and cultural relativism before turning to look at this tension in the context of Islamic reservations to CEDAW. It argues that while reservations can promote the self-determination of specific cultures, they also can undermine the rule of law and the ability to eradicate oppression and injustice, globally.
Principle of universality v cultural relativism
Universality is the principle that human rights apply equally to every person around the world, based on the inherent dignity of being human. The Universality principle was first set out in the United Nations’ (UN) Universal Declaration of Human Rights (UDHR) in 1948. Following the atrocities of World War II, UN member States considered that the only way to promote global harmony and to safeguard human dignity was for human rights to be protected by the rule of law. Accordingly, the Convention declares a bill of rights which each State covenants to protect through national provision. Its preamble regards such rights as the foundation of global freedom, peace and justice, and the key to human flourishment. These rights are conceived of as existing prior to the Convention (which merely articulates them) by the virtue of humanity (Preamble of UDHR, 1948; Mcbeth, 2008).
Since 1948, the human rights project has expanded several international treaties. However, as Fraser notes, critics have challenged the concept – even the desirability – of universality (Fraser, 2020). A core critique has been that human rights reflect Western, Judeo-Christian values and that it is hegemonic and imperialistic to impose a Western rights-based framework on the rest of the globe. While some critics call for tweaks to the human rights system to account for cultural nuances, some have called for its rejection, suggesting it lacks legitimacy (Fraser, 2020; Mutua, 2002).
Cultural relativists argue that the validity of a social norm can only be determined within the culture from which it arises – there is no absolute morality. Accordingly, they argue that communities should be allowed to self-determine cultural norms (Fraser, 2020). Claiming that human rights are ‘universal’ or axiomatic belies the fact that rights discourse is a cultural artifact, born out of a specific socio-historical context. A rights system may not suit all communities. For example, there were concerns in the 1990s about whether the international human rights system reflected Asian values. Similar concerns arose in relation to Africa (Fraser, 2020; Engle,2002).
The concerns of cultural relativists are not unreasonable: culture itself is a human right and worthy of respect and protection. Also, pragmatically, there will be resistance to uphold human rights treaty provisions if these do not chime with the cultures that are being embedded into. Nonetheless, some cultural practices can seem so incompatible with preserving human dignity that it is difficult to accept that they should be left unheeded by the global conscience. For example, female genital mutilation and child marriage. As Donnelly (2007) suggests, when authoritarian rulers regularly appeal to ‘culture’ to justify heinous or self-serving acts, a strong emphasis on universalism ‘seems not merely appropriate but essential.
Total deference to local cultural practice may lead to failure of eradicating global suffering and injustice. But conversely, Donnelly also notes how American foreign policy regularly appeals to “universal” values in its pursuit for ideological and political domination (Donnelly, 2007). Clearly, there must be a pragmatic approach that will allow the international community to strike the right balance between promulgating human rights and preserving cultural self-determination. Later, we review whether the practice of making treaty reservations strikes this balance.
Ending discrimination against women
Sex inequality around the globe has threatened both the human rights movement and the principle of universality. Despite the UDHR providing that its rights should be enjoyed equally by both sexes, discrimination against women continued to be a global crisis, undermining human dignity, the rule of law and hampering social flourishment. Key issues were the global gender gap, the exclusion of women from political participation, nationality matters, and abuses of marriage. Accordingly, the UN issued a draft of international treaties to safeguard women’s rights, culminating with CEDAW. CEDAW was adopted in 1981 and is the UN’s most ambitious project to address the gender gap (Ahmad et al, 2017).
In essence, the Convention seeks to put women on an equal footing with men in their enjoyment of human rights. Key provisions include requiring nation States: to outlaw sex discrimination; to ensure full participation of women in political and public life; to eliminate sex-based prejudices and notions of female inferiority; to prevent sexual exploitation; to uncouple a woman’s nationality from her husband’s; to allow women full access to healthcare, education, employment; to ensure women’s equality before the law, and to free women from abuse and disadvantage in marriage and family life.
As Ahmad (2017) notes, the instrument owes its effectiveness to ‘broad mandates and continual reporting mechanisms that require signatory member States to report the steps taken to comply with CEDAW. An important feature was the creation of a Committee into which States report and which makes recommendations on what individual States can do to further the elimination of sex inequality. This Committee function helps to ensure that the bill of women’s rights has more than mere symbolic value and is actually implemented (Ahmad et al, 2017).
Islamic concerns about CEDAW
The tension between cultural relativism and the principle of universality can be readily seen in how CEDAW was received by Muslim States. A core tenet of the Islamic faith is that rights must give way to divine law derived from the most important Islamic sources: the Qur’an and Sunnah. This is known as Sharia law. Many areas of Sharia law have been abolished, following Western colonial influence. However, certain aspects of the religious law are preserved in most countries, particularly on matters relating to family life and values (Ahmad et al, 2017).
Being divine law, Sharia is extremely well-regarded and protected by Muslim communities (Ahmad et al, 2017). Many Muslim countries for example Brunei, Saudi Arabia, and Malaysia had concerns about CEDAW’s compatibility with Sharia law with regard to gender and gender relations. Accordingly, they entered reservations when ratifying the treaty, to the effect that the treaty was only binding in so far as it was compatible with Islamic law. The doctrinal foundation for these reservations have been hotly contested by Islamic scholars , but there is limited scope for doctrinal discussion here (Bydoon, 2011). Nonetheless, the legitimacy of universality is somewhat undermined if human rights can be incompatible with the world’s second largest religion. Nonetheless, if cultural values are oppressive for women who live within certain localities, it may not be desirable to allow States to opt-out of upholding CEDAW rights.
Before considering this further, it is helpful to discuss reservations generally. A reservation is a notification from a signatory State to a treatise that it intends to modify the way in which certain provisions apply to it (Article 2 Vienna Convention on the Law of Treaties, 1969). When considering reservations to the Genocide Convention, the International Court of Justice noted how reservations facilitated a trade off when attempting to get as many States as possible to sign a treaty (International Court of Justice Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951). As Bydoon notes, the purpose of a reservation is to ‘respect the integrity of internal law’ by maintaining the balance between the consent of States and the treaty’s objectives (Bydoon, 2011). However, questions arose over when such reservations will be valid (in the context of a multilateral convention) – particularly when one more signatory State objects to the reservation (Schutter, 2010).
The Vienna Convention on the Law of Treaties resolved some matters by determining that a signatory State may formulate a reservation unless it a) is prohibited by the treaty; b) does not fall within the class of permissible reservations outlined in the treaty; or c) is incompatible with the object and purpose of the treaty (Article 19 Vienna Convention on the Law of Treaties, 1969) . Generally speaking, the fact that a State objects to a reservation will not prevent the entry into force of the treaty as between the objecting and reserving parties unless the objecting State expressly says so (Article 20 Vienna Convention on the Law of Treaties, 1969). The effect of a reservation is that it bilaterally modifies the relevant provision between the reserving State and the other States only – it does not modify that provision for the other parties inter se (Article 21 Vienna Convention on the Law of Treaties, 1969). Evidently, reservations may dilute the integrity and the purpose of the Convention, undermining the universal enjoyment of rights.
Islamic reservations to articles 15 and 16
Article 28 CEDAW permits reservations when they are not incompatible with the object and purpose of the Convention, and many States have made reservations. Several Muslim States expressed specific concern about the compatibility of Articles 15 and 16 CEDAW with Sharia law (Ahmad et al, 2017). Article 15 holds that member States shall accord women legal equality with men and that any restriction on women’s legal capacity is restricted. Accordingly, rejection of this provision has considerable ramifications for the rule of law (and its sub-principle of equality before the law) within those States. Article 15(2) provides that women shall have equal right to enter into contracts and administer property. Article 15(4) mandates that the law relating to freedom of movement and domicile must apply equally to both sexes. Many Islamic States have made reservations in relation to Article 15, like Bahrain, Oman, Syria, Tunisia, and others (UN, 2006). Only Jordan has recently lifted its reservation to Article 15 in 2009; demonstrating that such reservations are not always of an enduring nature and they can be useful when allowing States to ‘catch up’ with the demands of the Convention ( Jordan’s CEDAW Shadow Report, 2012). Nonetheless,t is apparent that excluding the operation of Article 15 provisions could leave women extremely disadvantaged and bereft of enjoying rights and freedoms.
Article 16 seeks to eliminate discrimination against women in all matters relating to family relations and marriage, ensuing that women have the same rights as men to choose a spouse and enter into marriage freely and consensually; the same rights and responsibilities within marriage and at its dissolution; equal parenting and family planning rights, and the same rights between spouses to hold property and pursue employment. The Article also outlaws child marriage. As Bydoon notes, the freedom of Muslim women to marry and choose a spouse under Sharia law is debatable, as is their right to dissolve a marriage (Bydoon, 2011).
Jordan, Saudi Arabia, Morocco, Egypt, Kuwait, and many other Islamic States had made reservations in relation to Article 16 (UN, 2006). Islamic scholarly objections to Article 16 have tended to argue that it is a purposeful attack on Arabic culture and tradition, and undermines the family unit as the building block of society (Bydoon, 2011). However, while patriarchal values and specific gender roles may be a part of Islamic culture, depriving women of the protection of Article 16 could readily perpetuate female oppression and exploitation. It is not difficult to see how rejecting these rights could lead to marital unhappiness, life dissatisfaction and greater suffering.
A number of States objected to the Islamic reservations as being incompatible with CEDAW’s overall objectives, therefore engaging Article 28(2) of CEDAW. For example, Austria, Canada and Sweden objected to the Islamic reservations made by the Maldives (UN, 2006). However, as Bydoon (2011) notes, a key problem is that the Vienna Convention does not set out a procedure for determining whether reservations are compatible – nor is it clear which body is competent to assess the validity of reservations or what the consequences of non-validity are . The UN Committee on CEDAW has a supervisory capacity to monitor how States are advancing women’s rights and can make recommendations to States under Article 21(1) CEDAW. Nonetheless, it is silent on the actual mechanism for determining the compatibility of reservations and potential remedial steps. Accordingly, political pressure is likely to be the chief means through which States will be persuaded to refrain from, or lift reservations.
As can be seen, the issue of Islamic reservations to CEDAW dramatically highlights the tension between respecting local customs and cultures – particularly those based on cherished religious doctrine – and promoting the universality of human rights, particularly women’s rights. It is undeniable that, if a woman does not have legal capacity on par with her male counterparts, she cannot enjoy equal rights before the law. Accordingly, her right to claim legal entitlements and remedies, and avail herself of legal protections are seriously impacted. Her standing as a political and legal subject is radically diminished.
Likewise, a woman who is unable to make autonomous decisions about marriage and family life may also experience hardship, although she may be acculturated so that she accepts these circumstances. This begs the question, at what point is it right for the rest of the globe to dictate how a woman should be treated in her own culture? Nonetheless, the claims of countries who argue that the Islamic reservations to articles 15 and 16 are, prima facie, incompatible with the goals of the conventions are compelling. It is submitted that the balance between universality and cultural relativism should be tipped in favor of bringing equal rights to womankind across the globe.
Through the Islamic reservations to CEDAW, one can see the sharp tension between allowing States to self-determine in accordance with the culture of its people, and promulgating universal human rights, which aim to apply to everyone equally for the purpose of raising living standards and ending suffering and injustice. However, it is submitted that freeing women from oppression is a noble cause and that cultures should attempt to align with the provisions of CEDAW as much as possible.
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