Abstract

The incompatible reservations have adversely affected the uniform application of the CEDAW Convention. A significant number of incompatible reservations have been formulated by the Muslim states. Such reservations have undermined the CEDAW provisions and conceivably doubt the state’s accountability for its obligations under the Convention. The research comprises of two parts; first, it examines the reservations of the Muslim states in the context of their obligations under the Convention. Second, it adopts an analytical approach to analyze women rights in Pakistan, Saudi Arabia and Iran (as a non-state party). Our findings reveal that despite the incompatible reservations, the Muslim states that have ratified the CEDAW Convention have shown significant improvement in women rights as compared to the states that are not members of the Convention. It suggests that Muslim states should revisit the scope of their reservations and adopt a rational approach towards women rights and fulfilling the obligations under the CEDAW Convention.

Key Words

Qualms of Muslim States to CEDAW, Women Rights in the Muslim States and        Implementing CEDAW Convention in the Muslim States.

Introduction

The Convention (CEDAW), also known as the international bill of women rights, was adopted in 1979. Three years after its adoption, it came into force after gaining the required number of ratifications in 1981. The CEDAW comprehensively addresses the rights of women and the yardstick to appraise all sort of discrimination against women on the basis of gender. It sets an agenda for the national governments to eliminate discriminatory provisions in their respective laws (Amnesty International, n.d.). The Convention is considered an authentic and primary source of women rights across the world. The authority of the CEDAW Convention is evident from two facts; first, it is the second highly ratified human rights instrument following the CRC. Second, the Convention has managed to create a consonance on women rights among the states having diversified cultures and social norms. Besides all these achievements, the Convention is facing many challenges. One of these challenges is the irreconcilable doubts that have been formulated to the CEDAW Convention. It carries the largest number of reservations than any other multilateral treaty (UN Women, n.d.). Over fifty member states are maintaining reservations to the CEDAW Convention. The other challenges include the application of the provisions of the Vienna Convention on Law of Treaties, 1969 to the human rights treaties and the absence of an authority to determine the compatibility of the reservations. 

The distinguishable group of states that have formulated incompatible reservations includes Muslim states (Bonner, 2009). The ill-assorted qualms oppose the very entity of the Convention and create a doubt on the part of the reserving states to fulfill its undertakings. The incompatible reservations of Muslim states can be divided into two broad categories; religion-based reservations and reservations entered in the name of constitutions. The Kingdom of Saudi Arabia, Bangladesh and Turkey fall in the first group and Pakistan, Libya, Algeria and Malaysia in the second, respectively (United Nations Treaty Collection, n.d.). Iran, Sudan and Somalia are the only three Muslim states that have not ratified the Convention. This research analyzes women rights in the selected states, i.e. Pakistan, Saudi Arabia and Iran. The three selected states represent each category, i.e. Saudi Arabia has entered reservation in the name of religion, Pakistan’s reservation is based on the constitutional law, and Iran represents the non-state parties, respectively. The analysis of women rights in these states would identify which state has better women rights conditions. Keeping in view the emphasis of the CEDAW Committee on de jure gender equality, this research focuses on the legal or formal gender equality and outlines the experiences of these states in this context.




Reservations of the Muslim States to the CEDAW 

The CEDAW, in article 28 (2), allows lenient rule, i.e. determining the compatibility with the ‘object and purpose’ of the treaties, was introduced in 1951 by the International Court of Justice in the Genocide case. The reservations provide a mean to the reserving states to modify the legal effects of certain provisions of the treaties. The beneficial aspect of the reservations is that they have promoted the universality of the human rights treaties and have created harmony among the states having different traditional and cultural practices. One could hardly imagine the participation of a large number of states in the international human rights network without reservations. However, the reservations that are general in nature have exhausted the efforts of the international community to promote the agenda of the CEDAW Convention. This has happened because the state parties have formulated the reservations without considering the end-results and impact of their reservation on women rights in their respective jurisdictions. A good example of such reservations is the Muslim states’ reservations drawn to the CEDAW Convention. Many Muslim states have taken a stance on religion and constitutional laws. The religion-based reservations imply that Sharia law stands against women’s rights. This seems to be the reason that the early set of Muslim states that ratified the Convention relied on religion. Later, they drew reservations in the constitutional or national laws. Elizabeth M. called such reservations as ‘Blanket Reservations’ and has argued that it is deliberate concealment of the religion as the constitution of most Muslim states incorporate consistency of local laws with Sharia (Mayer, 1998).

Considering the examples of Pakistan and Saudi Arabia, Pakistan ratified the CEDAW in 1996 with a declaration that its accession is subject to the provisions of the states (Murphy, (2014).  Constitution. In addition, Pakistan formulated a reservation to article 29 (1) of the Convention (United Nations Treaty Collection, n.d.). Article 29relates to the dispute settlement mechanism between the state parties regarding interpretation or application of the provisions of the Convention. The scope of Pakistan’s reservation is very clear as it is limited to a specific article of the Convention. However, the declaration is general in nature on account of being open-ended and broad. Its scope cannot be limited to a certain provision or provisions of the Convention. As a result, states’ accountability against their obligations under the Convention remains unclear and doubtful. Four state parties, including Austria, Finland, Netherland and Norway, filled objections to the declaration of Pakistan. It further argued that provisions and the core principles of the Convention must be respected and followed. Austria expressed that international law does not permit such reservations, and the unspecified reservation of Pakistan has undermined the international human rights norms.

. Saudi Arabia also stated that it is not bound by any provision that contradicts Islamic Law. It is a general and broad reservation that nullifies the elemental principles upon which the Convention was established. The religion-based reservations of Saudi Arabia attracted criticism from the other state parties. Eleven state parties, i.e. Denmark, Finland, France, Germany, Ireland, Netherland, Norway, Portugal, Spain, Sweden and the United Kingdom, expressed their dissatisfaction with the reservation of Saudi Arabia (United Nations Treaty Collection, n.d.). The government of France, in its objection, declared Saudi reservation as general and blank that provides no idea to the other states about the affected provisions of the Convention. There are a number of other Muslim states that have formulated reservations that are general and broad in nature based on religion and internal laws.   

Women Rights in the Muslim World

The concept of gender equality has generated awareness across the world. The voices for the equal treatment of women in all spheres of life are being heard globally. Muslim states have been criticized for the measured progress in empowering women and eliminating gender discrimination. In this regard, the incompatible and general reservations of Muslim states are believed to be an impediment in the protection and promotion of the rights of women. Despite the incompatible reservations, Muslim states have taken initiatives to reform their internal laws in line with the CEDAW provisions. However, they are rarely appreciated. The next part of the research examines the women rights conditions in the selected Muslim states and the measures taken in fulfilling their obligations under the CEDAW Convention. In addition, it highlights certain domains that require reforms in order to realize women rights in accordance with the CEDAW provisions. 

Women in Pakistan

Pakistan has amended many existing provisions that discriminate against women, enacted new laws, adopted policies and established several departments under its CEDAW obligations to promote and protect women against discrimination. Some of the legislative initiatives and policies are included in this research. One of the primary issues concerning women in Pakistan was harassment at workplaces and public places. Eighty percent of females working in Pakistan have faced sexual harassment, including 93 percent of women in the formal sector, according to a study conducted by Alliance Against Sexual Harassment in 2002. Between 2008 and 2010, 520 cases of workplace harassment were filled, and there were many that went unaddressed (Sadruddin, 2013). The Protection against Harassment at Workplaces Act was enacted in 2010. It declared the act of harassment punishment with imprisonment of 3 years or fine or both. In this regard, anti-harassment committees have been constituted in the government departments and private enterprises. It is mandatory to have at least one female member in the Committee to ensure the transparency of the fact-finding. Another significant instance of women protection can be seen in the number of cases of acid attacks that have dropped to 50 percent since 2014. From 2007 to 2018, 1485, cases were reported. The dropped ratio may be attributed to the enactment of Acid Control and Acid Crime Prevention Law (Criminal Law, Second Amendment), 2011. The law enacted life imprisonment and a fine of one million rupees (The Guardian, 2020). Furthermore, Pakistani women were subjected to age-old traditional and customary practices. The Prevention of Anti Women Practices Act,2011 (Criminal Law, Third Amendment) declared many customary practices that discriminate against women and deprive them of their legal rights as illegal. For instance, the practise of marrying a female as compensation for a crime such as murder, i.e. Badla-e-Sulah, was declared unlawful. In some parts of Pakistan, the female members of a family were married to the divine book of the Holy Quran. The purpose was to keep the property safe from the division. This practice has been abolished under the Criminal Law (third amendment). Depriving a woman of inheriting property and forced marriages is also punishable under the law.

Over the decades, women’s rights have experienced several conceptual developments. The existing domains have been refined, and new areas being included in the protection of women rights. Protection of women from violence is one such example. It took years to convince the international community that gender-based violence is not a private matter, and it involves social concerns. In 1992, the agenda was taken up by the international community. In 1993, The Vienna Declaration and Program of Action, Commission on Human Rights, the World Conference, held in 1995 and General Recommendation No. 35 of the CEDAW Committee reaffirmed the commitment against gender violence (OHCHR, n.d.). Promoting the international agenda, the provincial government of Punjab passed a bill in 2016 called the Punjab Women’s Protection Act. The act gave unprecedented protection to women from violence, including domestic, psychological and sexual violence. The act establishes a toll-free line for abuse reporting and provides for the establishment of shelter homes for women that are victims of violence. The act gave rise to retaliation from the strong religious, political groups (Munshey, 2016). As a result, it was unfortunate, and the Council of Islamic Ideology declared the act as un-Islamic, unconstitutional and void (The Express Tribune, 2016). Adding further misery, the Council issued a report recommending a ban on co-education, certain professions and mixing with strangers. The report was condemned by NGOs and civil societies. It was not the first time that a law was declared void on account of being contradicting religion. 

Besides the legislative initiatives, the judicial policy was reviewed in 2009. Several reforms were introduced for the better enhancement of women’s access to justice and empowerment. The reforms include speedy disposal of cases involving women and juveniles. The policy also emphasized deciding the family cases within 6 and appeals within 4 months. Similarly, the development and advancement of the institutions have been on the priority agenda. The mandate to deal with the human rights aspect of gender mainstreaming and women empowerment is entrusted with the Ministry of Human Rights. Several agencies and departments at the federal and provincial level have been created to make sure that the laws are implemented in the true spirit. For instance, the Gender Crime Cell was established in the National Police Bureau in 2006. The cell collects and analyzes the data of the cases of violence against women, including gang rape, abduction, kidnapping and honor killing. The National Commission on Human Rights and the National Commission on the Status of Women monitor and analyze the efficacy of national policies regarding the issues related to women and equality of rights. The National Commission on the Status of Women was given greater financial and administrative powers in 2012. It can make recommendations and review the existing law and policies. The Commission proposed several legislations like Hindu Marriage Bill 2012, Christian Marriage (Amendment) Bill 2012, Christian Divorce Amendment Bill 2012 and legislation for the protection of home-based workers.

Women in Saudi Arabia

Western seculars have blamed Islam to oppress women. Nicolas S., former French President and Laura Bush, former U.S. first lady, portrayed Islam as violent to women and affirmed to liberate Muslim women from the confines of Islam (Bryan, 2012). The notion is not true, as the gender inequalities may be linked with cultures rather than religion. Although, there are societies in the Muslim world that undermine women rights, e.g. the Saudi men control the entire life of women as male guardians (Murphy, 2014). However, many Muslim states have shown significant improvement in women rights conditions. One may look at Tunisia as a progressive Muslim state in promoting the agenda of gender equality that may be connected with the CEDAW Convention (Brandt, & Kaplan, 1995). It is because of the effective persuasive of the CEDAW Committee that even the hard-line Muslim societies, e.g. Saudi Arabia, are experiencing women empowerment, although at an uneven rate. The government of Saudi Arabia has taken many steps in fulfillment of its obligations under the CEDAW Convention. The journey was started in 2005 by King Abdullah bin Abdul Aziz, and in Mohammed Bin Salman’s regime, the women conditions have seen remarkable improvements. King Abdullah directed the Council of Ministers to review and propose amendments in the local laws to bring them in line with the CEDAW provisions (UAB, 2017). The ‘General Presidency of Girls Education’, an independent department at the ministerial level, was responsible for female education. Realizing that the opinion of women is not less important than men, King Abdullah approved the appointment of 30 women, a total being 150, in the advisory Shura Council (UAB, 2017). Most recently, Mohammed Bin Salman introduced several reforms in the ‘Saudi Vision 2030’. The Saudi women are allowed to drive, pay for equal work, the option of mixed-gender offices, travel permission without the approval of male guardians. They are permitted to apply for the birth certificates of their children and death certificates; the rights were previously limited to males (International Policy Digest, 2019).

Despite all these efforts, there remain certain areas that need prompt action. The domestic violence and abuse cases in KSA are increasing, despite the increase in the literacy rate and other reforms in the society. In KSA, its prevalence is increasing dramatically, ranging from 39% to 58%, including physical and emotional abuse. The major factors related to the abuse in the state include ignorance regarding women rights, social approval of the violence, obstacles in reporting the cases, protecting the privacy of the family, threats to face post reporting the case, less education and non-working husbands (Ahmed el at.,2017). Furthermore, the protection and promotion of women rights remains a dilemma and need immediate attention to those in authority. Laws that govern nearly every aspect of women’s life give a challenge to them. They have restrictive guardianship rights. The male family members, i.e. father, brother, husband or in some cases, her son is socially considered to be in authority to decide many matters regarding her choices, including marriage, divorce, choosing a profession and approval of the male custodian for elective surgeries. Although Mohammed Bin Salman has relaxed the dress code for non-Muslim tourists in the state, local women are still facing restrictions of dress and hijab before going to public places. Women cannot start a business without the sponsor of a male family member (CNN, 2017). The list is not exhaustive; there are many more instances where women in the state are deprived of basic rights. 

Women in Iran

The ratification of the CEDAW Convention was discussed at various periods by the Iranian government. In the mid-nineties of the last century, an initial proposal was prepared to evaluate the ratification of the Convention. However, President A. H. Rafsanjani remains engaged in the economic and social reconstruction of the state, and women rights never came on the agenda. In 1996, the Foreign Affair Ministry gave the task to the experts to study the Convention and recommend the conditions under which the Convention could be ratified. The Committee of the experts proposed to ratify the Convention with reservations to certain articles of the Convention and to amend certain laws. In 1997, the Supreme Council expressed that the provisions of the CEDAW Convention are not consistent with Sharia and national laws in 40 and 70 cases, respectively (NCRI Women Committee, 2016). In its report, the Council stated that the CEDAW Convention contradicts the national laws and Sharia in many cases. For instance, only article 1 of the Convention contradicts 90 provisions of the constitution and other statutes. The Council argued that under such conditions the even reservations to the CEDAW Convention could not serve the purpose and would be meaningless. As a result, the Council rejected the proposal to ratify the Convention. In 2001, during President Mohammed Khatami’s regime, a bill was passed by the parliament to ratify the Convention. Two reservations were proposed; first, the state is not bound by any provision that contradicts Sharia law. However, it was vetoed by the Guardian Council, a council having the mandate to veto any law, on the ground that the bill contradicts Islamic principles (BBC News, 2007). 

An analysis of the women rights in the state reveals that women in Iran have long been demanding rights but have received much less in response. The conditions of women rights in Iran may be perceived from the fact that in 2019, they were allowed to watch football matches at stadiums after 40 years of the ban. The government was forced to lift the ban when a female football fan was caught entering a football stadium disguised in male dress. She committed suicide; as a result, the incident prompted public reaction (Amnesty International, 2019). As far as the social and cultural aspects are concerned, the women in Iran are considered inferior to men; they remain under the control of their male guardian. In case of personal status, including the right to marriage, getting a unilateral divorce, having the custody of their children and right to maintenance, they have been deprived of many privileges given to women under the international bill of women rights (Milica, 2005). They are required to cover themselves, i.e. wear hijab; husbands have the legal power to control the family matters, including the wife’s passport, travelling and choosing a profession. In certain cases, females are forced to take virginity tests. 

Besides the poor women rights situation in the state, the government has taken steps in response to the women right campaigns. The most recent example is granting citizenship rights to the children born as a result of a marriage between Iranian women and non-Iranian men. The new law would benefit the Iranian mothers to get Iranian citizenship for their children, even if the marriage was not registered in Iran or if the husband is an undocumented immigrant. The law also does not require consent by the husband and, therefore, cannot block or contest the citizenship of the child. According to Ahmed Meidari, the deputy of the Ministry of Social Welfare, some 49,000 children would be benefited from the law. The bill has been passed by a strong majority in the parliament, and even the hard-line parliamentarians have supported the bill. The law was long demanded by national and international women rights advocates. Several campaigns, including “One Million Signatures Campaign” and “My mother is Iranian, What Am I” have helped to bring the issue in the parliament (Center for Human Rights in Iran, 2019b).

Conclusion

The reservations have undoubtedly provided an opportunity to attain the universality of human rights, without which the adoption of the human rights treaties at the universal level would not have been possible. The incompatible reservations of the Muslim states require reconsideration in order to uphold the global agenda on women rights. The government of Pakistan has taken several steps in the fulfilment of its obligations under the CEDAW Convention. However, the women rights activists and the NGOs seem not satisfied. The foremost demand from civil societies is the withdrawal of the reservation. The CEDAW Committee has also stressed the withdrawal of the reservation in its country reports to Pakistan. The CEDAW Committee, in her concluding observation, 2013 Para 14 & 15, have also noted that Pakistan has not incorporated the definition of ‘discrimination’ in its constitution or other laws (Concluding observation, n.d.). In Saudi Arabia, women rights are on the change, but it seems to be slow and complex. The critics and women rights activists opined that the desired goals of promoting women rights are far away from the current situation in the state. According to a Saudi scholar, Amani Hamdan, reforms to promote women rights in accordance with the international bill of women rights had never been a simple task (Qureshi R., 2014). Iran has expressed its concerns on the principles of equality enunciated in the CEDAW Convention. The discriminatory practices against women are justified that women’s social roles are not charged equally with the social, political and economic responsibilities. 

References

• Ahmed A, H. A., Abid A, A. Z., Alsadah, A., Abdullah S, A. A., Abdullah H, J. S., Saeed, A. B., & Abdulwahab, A. F. (2017). Prevalence and risk factors for abuse among Saudi females, KSA. The Egyptian Journal of Hospital Medicine, 68(1), 1082-1087.
• Amnesty International. (2019, Sep 10). Iran: Shocking death of football fan who set herself on fire exposes impact of contempt for women's rights. Available at
• Amnesty International. A Fact Sheet on CEDAW: Treaty for the Rights of Women. Available at
• BBC News. (2007, Jul 31). Fattahi Kambi. Women's bill 'unites' Iran and US, BBC News, Washington. Available at
• Bonner, A. S. (2009). Muslim States' Reservations to CEDAW and Possibilities for the Reconciliation of Shariah Law with International Women's Rights Norms. HKJ Legal Stud., 3, 27.
• Brandt, M., & Kaplan, J. A. (1995). The tension between Women's rights and religious rights: reservations to Cedaw by Egypt, Bangladesh and Tunisia. Jl & relIGIon, 12, 105.
• Bryan, D. (2012, Aug 2). Women in the Arab World: A Case of Religion or Culture?
• Center for Human Rights in Iran. (2019a, May 11). Tehran University Student Speaks Out Against
• Center for Human Rights in Iran. (2019b).
• CNN. (2017, Dec 6). Women in Saudi Arabia still can't do these things. Available at
• CommonLII. Law and justice Commission of Pakistan. Filling a Legal Vacuum. Available at
• Concluding observations on the fourth periodic report of Pakistan, adopted by the Committee at its fifty-fourth session (11 February-1 March 2013). Available at
• International Policy Digest. (2019, Oct 20). Women's Rights Reforms in Saudi Arabia under Mohammed bin Salman. Available at