Islam, CEDAW and International Law

Farah

In the past few years I’ve noticed a disturbing trend. Now I don’t have a problem with trends. Trends are fun, they make me cool, and that means I can relate to the young people. The problem is with this new trend is that its called “Let’s Obsess about Human Rights.” The other problem with this trend is that every time it rears its god ugly head its accompanied by its really, really irritating friend “Don’t worry about engaging in critical dialogue with human rights because then you might just realise it’s a load of crap.” I don’t really have a problem with human rights in principle… alright, I do. Actually, this whole post is all about the main issue that I have with women’s rights in particular (codified in the Convention on the Elimination of Discrimination Against Women – CEDAW). Specifically, the fact that international law is an ineffective tool within which to realise women’s rights, especially when in relation to Islamic states. There are two main issues which have not been wholly reconciled within the literature. With this limitations in mind, it is argued that norms and principles for the empowerment of women are more stable and fundamental when adopted freely from within the state. Any determined project for the empowerment of women must be addressed from a bottom-up approach.

Firstly, women’s rights discourse is rooted in western feminist’s assumption that the oppression of women in Islamic states is solely attributable to the culture and to Islam. They argue (in response to the concerns of cultural relativism) that basing rights discourse on differing cultural values will undermine women’s rights because certain ‘undesireable’ elements of the culture are antithetical to women’s rights. ‘Oppressive’ cultural practices must be rejected before progress can be achieved. This assumption that discrimination is rooted in culture is reflected in CEDAW at Article 5(a). It states:

5. States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices … and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

Blaming the culture undermines the substantial evidence that the disenfranchisement of women is rooted in economic and social conditions. (For a fuller discussion on this point I’ll direct you to read Sahar’s post “Women and Culture”) Within the context of CEDAW and international law it is important to note that this approach is attempting to initiate top-down ‘cultural’ change and ignores the wider economic and social problems which contribute to the injustices against women. What is needed is grass-roots change; Muslim women must examine the justifications for, and the extent to which, the system have been corrupted by the influence of colonialism and current social and political conditions. There are a number of contemporary Muslim women’s organisations that are actively engaging in such a dialogue. Their efforts in engaging with rights discourse on their own terms are hampered by Western feminists (and CEDAW) who insist on culture-blaming and thus deny the Muslim women her agency. At best, the role that treaties like CEDAW can play is as pieces of public persuasion that may help grass-roots activists and politicians eager to promote a process of domestic reform.

The next point that I think needs to be addressed a lot more critically within the literature on human rights is its status as international law. Regardless of what journalists love to claim when pointing fingers at other cultures, human rights is not customary international law and states are not under an obligation to protect and promote those rights. Additionally, enforcement of human rights is also an issue that needs to be addressed. It is difficult to use enforcement mechanisms available for breaches of international law to enforce breaches of human rights. The traditional rules regarding accountability, state responsibility and enforcement are based on essentially reciprocal rights and obligations like those found in international law generally. These enforcement mechanisms operate horizontally and are subject to the political will of individual states. Human rights discourse sits uneasily within this framework. Admittedly, there has been vigorous development of treaty-based human rights law, like CEDAW, which have specific committees to investigate claims of breaches brought by individuals. However, the treaty regime presents an ad-hoc approach to human rights which ultimately undermines its claims to ‘universality’. Additionally, access to those committees is contingent on states granting their citizens access. Individuals have no status in international law. The fundamental driving force in the development of all international law remains the sovereign State.

By highlighting the two issues above regarding women’s rights I have tried to establish that the protection of human rights is a process which depends largely upon strengthening internal institutions, structures and procedures for challenging violations and denials of rights. Governments must develop civil society to ensure that the social and economic conditions aid the enfranchisement of women. Empower grass-roots women’s rights organisations to re-interpret the role of women in their society. None of these happen over night. Change takes time. And even though time isn’t something that a lot of women have, for the rights to be meaningful and fundamental change to occur, people need to wait.