Table Of Contents
- About the author
- About the book
- This eBook can be cited
- Table of Contents
- Chapter 1 The Definition of Gender Discrimination according to International Human Rights Treaties: Historical Introduction
- A. The Right to Equality in International Human Rights Law
- A.1 General Overview of Fundamental Human Rights
- A.2 The Right to Equality and Non-Discrimination
- A.2.1 The Concept of Equality and Discrimination
- A.2.2 The Structure of Equality and Non-Discrimination
- A.2.3 The Sources of Equality and Non-Discrimination in International Law
- A.3 The Principle of Equality and Non-Discrimination in Practice
- B. Gender Discrimination in International Human Rights Treaties
- B.1 Universal Declaration of Human Rights (UDHR)
- B.1.1 The Nature of Articles Based on Equality and Non-Discrimination
- B.1.2 The Status of the UDHR
- B.2 International Covenant on Civil and Political Rights (ICCPR)
- B.2.1 Article 2 (1): General Principle of Equality and Non-Discrimination-Accessory Character
- B.2.2 Article 3: Discrimination Based on Gender- Accessory Character
- B.2.3 Article 26: Right to Equality before the Law and Right of Non-Discrimination- Freestanding Character
- B.3 International Covenant on Economic, Social and Cultural Rights (ICESCR)
- B.3.1 Article 2 (2): The General Principle of Equality and Non-Discrimination — Accessory Character
- B.3.2 Article 3: Non-Discrimination Based on Gender- Accessory Character
- B.4 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- B.4.1 Short History of CEDAW
- B.4.2 The Purpose and Structure of CEDAW
- B.4.3 The Concept of Equality and Discrimination
- B.5 Conclusion
- Chapter 2 Potential Violations of Gender Equality Based on Religion
- A. Gender Discrimination to Participation in Public Decision-Making Processes
- A.1 The Right to Participation in Political and Public Life
- A.2 Women’s Equal Participation in Public Decision-Making Processes
- A.3 The Status of Women’s Participation in decision-making Processes under International law
- A.4 Legal Barriers to Women in Public Decision-Making Processes for Religious Reasons
- A.4.1 Political Parties
- A.4.2 Executive Branches
- A.4.3 National Parliaments
- A.4.4 Judiciary Bodies
- A.4.5 Conclusion
- B. Gender Discrimination Based on Family Laws
- B.1 The Right to Equality in Family Laws
- B.2 The Essential of Gender Discrimination in Family Laws
- B.2.1 Divorce
- B.2.2 Custody of Children
- B.2.3 Inheritance
- C. Conclusion
- Chapter 3 International Monitoring Mechanisms of the Implementation of Women’s Human Rights
- A. Introduction to Human Rights Monitoring Mechanisms
- B. The Committee on the CEDAW
- B.1 Functioning of the Committee to Monitoring
- B.1.1 Consideration of States’ Periodic Reports
- B.1.2 Suggestions and General Recommendations
- B.2 Optional Protocol to the CEDAW (OP-CEDAW)
- B.2.1 Communications Procedure
- B.2.2 Inquiry Procedure
- B.2.3 Challenges of the OP-CEDAW in Practice
- C. Reservations by Islamic Countries on the CEDAW for Religious Reasons
- C.1 The legal Regime of Reservation
- C.2 Objections to Reservations
- C.3 Reservations to Specific Obligations by Islamic Countries
- C.3.1 Articles Affected Based on Religious Reasons
- C.3.1.1 Article 2
- C.3.1.2 Article 9
- C.3.1.3 Article 15
- C.3.1.4 Article 16
- C.3.2 Practice of the Committee
- C.3.2.1 Constructive Dialogue and Concluding Comment
- C.3.2.2 General Recommendation
- C.3.2.3 Conclusion
- D. Monitoring Mechanisms of the International Covenants
- D.1 Human Rights Committee
- D.1.1 The Scope of the Consideration of Gender Discrimination under HRC
- D.1.2 HRC and Religious Reasons
- D.2 Committee on the ICESCR
- E. Conclusion
- Final Remarks
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CESCR The Committee on Economic, Social and Cultural Rights
CSW The Commission on the Status of Women
ECHR The European Court of Human Rights
G.C General Comment
G.R General Recommendation
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
OP Optional Protocol
UDHR Universal Declaration of Human Rights
UN United Nations
VCLT The Vienna Convention on the Law of Treaties
The human rights system creates mechanisms to promote and protect fundamental human rights. The first step is to define the fundamental rights as basic human rights that belong to everyone without any discrimination. Second, human rights law obliges states to ‘respect, ensure and fulfill’ fundamental rights through appropriate measures in their legislation and policies; and the third step contains monitoring mechanisms that determine to which degree states meet their obligations under human rights treaties.
Equality and non-discrimination are fundamental human rights because respect for human rights and fundamental rights will be guaranteed when discrimination is not permitted. However, the right to equality and non-discrimination have two different concepts. Still, in parallel, they promote the right to equality and endeavor to eliminate any and all forms of discrimination. Therefore, in human rights law, this is known as ‘the right to equality and non-discrimination’, which must be guaranteed in the law (de jure) and also in practice (de facto).
The concept of discrimination provides a list of ‘prohibited grounds’; the particular reference to ‘or other status’ or ‘any kind of discrimination’ creates an ‘open-ended’ situation for the recognition of extending the ambit of a ‘prohibited ground’.1 Gender-based discrimination is one of these and recognizes in general and specialized international human rights treaties; these set forth international gender equality standards.
Although several states recognize the general terms of gender equality and non-discrimination in their national constitution, which does not formulate any detailed framework. Thus, they put forth their specific interpretation of gender equality and non-discrimination that in general, do not comply with legal standards of gender equality and non-discrimination as enshrined in international treaties law. In fact, they justify their limitations on unequal gender rights in culture, religion, traditional, political, and socio-economic aspects. Therefore, the realization of gender equality rights may be hindered under the state’s jurisdiction of gender equality rights, while they affirm the legal obligations to “respect, protect and fulfill equal rights” for women.←17 | 18→
Religious reasons also might be used to impose serious discrimination against women. In Islamic countries, Islam is recognized as an official religion in their constitution law, so much that they prioritize the Sharia law in their domestic laws. Typically, religious clerics have the competence to interpret Islamic law; that creates a male domination system and often assumes unequal rights for women compared to men. Discrimination against women defers to religious reasons and results in two consequences for women; first, there is legal gender discrimination where women face severe legal obstacles. Second, non-legal gender discrimination is a social-cultural obstacle for religious reasons.
As much as the legal system of Islamic countries is based on Islam, the degree of Islamic law interpretation varies across the spectrum. In other words, the extent of the understanding of Sharia impacts the capacity of women’s access to equal rights. These differences are due to social norms, economic factors, and the nature of politics in each Islamic country. For example, in principle, Pakistan and Saudi Arabia are Islamic countries and create gender discrimination based on Sharia. But, in Pakistan, the social and political dynamics have provided areas for women’s activities and religious-liberal communities to review Islam’s re-interpretation for promoting women’s rights as a whole, as far as women access higher government levels or serve as judges in high courts, which indicates the dynamic between Islam and gender issues. Nonetheless, Pakistani women still face discriminatory laws related to inheritance under Islamic jurisprudence. In contrast, Saudi Arabia has a strict interpretation of Islam, restricting women’s presence in public decision-making, as well as discriminating against women in family law.
The potential legal gender discrimination based on religion occur more during participation in the public decision-making process and family law, where women have been a significant subject to discrimination. By and large, women’s participation in the decision-making processes demonstrates whether they will be politically marginalized or whether their presence in different levels of decision-making positions would seek to promote gender equality laws. Additionally, discrimination in family law often justifies on religious grounds, and women do not have the same rights as men in family matters.
Even though Islamic countries impose their jurisdiction over gender discrimination in domestic laws under Islam’s name, the majority of them have ratified international human rights treaties. Islamic countries by ratifying the international human rights treaties show that they are engaging with international mechanisms. Still, they have put in place the ‘reservation based on Islam’ concerning articles on gender equality rights. Thus far, such reservations create a gap ←18 | 19→to integrate women’s human rights. In doing so, they want to exclude the legal effect of specific provisions in their obligations.
Moreover, such reservations lead to extending a general interpretation of gender equality. In this context, the Human Rights Committee (General Comment No. 24) states that reservations must be ‘specific and transparent’; however, these reservations have had a general character, and their meaning is vague. Therefore, according to the Vienna Convention (1969), they are incompatible with ‘the object and purpose of the treaty’. Furthermore, for other states parties, such reservations are unacceptable, and they made objections to the reservation on the grounds of the ‘compatibility test’. Hence, they call on reserving Islamic states to be soon able to withdraw or modify their reservations based on Islam; in doing so, these states indicate their commitment to comply with international law.
Furthermore, Islamic countries have accepted the various procedures for monitoring within a ‘Committee’ by the ratification of international human rights treaties. Thus, through monitoring mechanisms will be identified to which degree states parties meet their obligation to gender equality rights, in practice. In this regard, it must add that most Islamic countries have ratified the international human rights treaties, but have not ratified separate their Optional Protocols, which include complaints’ procedures. By these procedures, the committees agree to consider the submission of claims by an individual or group of individuals within the jurisdiction of a state that alleged violations must be related to “any of the rights set forth in the relevant Convention”.2 That means Islamic countries have been denied access to a legal instrument for lodging communications against them. As a result, the monitoring mechanisms for Islamic countries limit the consideration of their periodic reports that open ‘constructive dialogue’, especially about the scope of the reservations based on Islamic law and their justification. Moreover, the Committee makes its interpretation of substantive provisions in the form of general comments/ recommendations.
Nevertheless, there is a fundamental conflict in gender issues between Islamic law and international women’s human rights. On the one hand, Islam intertwines in culture, social, legal, and political structures; on the other hand, Islamic countries are not marginalized from the international human rights system. Therefore, the following issues need to address:←19 | 20→
1) the degree to which international law has accepted gender discrimination for religious reasons in practice, and
2) the future tendency of international law concerning the recognition of this particularity, with regard to the tension between international women’s human rights and women’s rights in Islamic law.
These questions will be analyzed and discussed in successive Chapters.
Chapter one presents a theoretical overview of the principle of equality and non-discrimination in international law and the term of each concept. Moreover, this chapter briefly defines gender discrimination in international human rights treaties. The general principle of gender discrimination endorses the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights (1966). These international covenants create general terms of gender equality rights, and oblige states parties to implement them ‘immediately the substantive equality rights’; however, these articles do not establish a framework for implementation of the prohibition of non-discrimination. Also, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is a specialized treaty addressing women’s human rights issues. The CEDAW contains more details of equality rights by ‘eliminating any discrimination against women’; in other words, it takes up the structural obstacles that makeup discrimination against women when rooted in culture, religion, traditional, political, and socio-economic aspects. The most crucial point in this chapter will discuss the existing obstacles to realizing equality and non-discrimination concerning diversity in international communities. Several states recognize the general term of non-discrimination, but they set forth their jurisdiction of gender equality in domestic laws. Therefore, there is a conflict between their definition of gender discrimination and the establishment of gender equality as requested in international law, where they do not undertake the legal consequences of violating or ignoring the relevant articles.
Nonetheless, Islamic countries impose a series of legal and public policies discriminating against women based on religion, while claiming a form of legality. In doing so, women face structural barriers that establish in domestic laws. Therefore, chapter two provides essential violations of gender discrimination based on Islamic law, includes women’s participation in the public decision-making process and family law. The most important areas for women’s participation in public decision-making include political parties, executive branches, national parliaments, and judiciary bodies. In general, the political structure has ←20 | 21→mobilized the religious scholars (ulama) to restrict women’s political activity for religious reasons, when they have initiated a process of Islamisation.
On the other hand, the political structure has understood that they need women to embrace in public life for their legitimacy. As a result, today, women participate in decision-making processes under the watch of conservative and religious lines, even at a lower level of participation. Moreover, family law often justifies on religious grounds, and most discrimination against women occurs in matters of divorce, custody of children, and inheritance. It would also be addressed under which conditions reformed some issues in family law if family law amended in some of the Islamic countries.
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- Publication date
- 2021 (January)
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2021, 200 pp.