Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations

By Monforte, Tanya | Columbia Journal of Gender and Law, Summer 2017 | Go to article overview

Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations


Monforte, Tanya, Columbia Journal of Gender and Law


INTRODUCTION

A. Opposition in International Law

One of the most politically charged as well as legally technical problems occupying the field of international women's rights revolves around the reservations made to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). (1) An opposition among states became heated as several Muslim-majority states entered reservations to CEDAW invoking norms of Islamic Law, or Shari'a (sometimes referred to as either "Islamic reservations" or "Shari'a based reservations"). Several European states in turn lodged formal objections to these reservations. The row between European states and Muslim-majority states over the reservations has formed the basis for the technicalization of conflicting views on women's rights, in the depoliticizing sense of turning a political conflict into a seemingly technical legal one.

Reservations in international law are unilateral statements made by states to exclude or modify the legal effect of a treaty on the reserving state. (2) Reservations to multilateral human rights treaties have been considered contentious because individual states enter reservations modifying treaty application not only between themselves and other state parties to the treaty, but also between themselves and individuals under the jurisdiction of the reserving state. This has been seen as effectively tailoring the meaning or application of human rights for individuals and groups within a state according to that state's will.

CEDAW, an international treaty agreed upon among states, creates obligations for states to eliminate all formal discrimination against women, but also requires them to take steps to ensure that women are able to enjoy their basic human rights fully and on an equal footing with men. Due in part to the high number of states which entered reservations to CEDAW, reservations to this treaty have become particularly contentious. The mainstream human rights position on reservations, developed in the 1990s within legal debates about international human rights law in general, maintains that reservations entered by state parties to CEDAW are, generally speaking, a problem for women and should be dealt with as such, that is, as being in principle in contradiction with the Convention itself. State parties who entered reservations, however, based their position on the consensual nature of international treaty making, invoking their sovereign right to enter reservations to any treaty that does not formally prohibit such reservations. A dominant progressive position on women's rights thus emerged, which maintained that the Shari'a based reservations, especially those to Article 2 of CEDAW, (3) are incompatible with the object and purpose of the treaty and are thus, under international law, impermissible. (4)

The debate over the Shari'a based reservations can be understood as a concrete example of what some have viewed as a necessary clash between international law and Islamic law, or the issue could be addressed as an opportunity to rethink the relationship between the two, and to find a way to mediate a false opposition. (5) This paper addresses how a dominant international human rights position on reservations, which assumes that human rights law and Islamic law are both internally coherent and in conflict with one another, may contribute to the production of a false opposition with paradoxical consequences. This conflict could arguably be making it more difficult to produce internally generated dissent within Muslim-majority countries that utilize Islamic Shari'a as a primary source of law, as well as producing an exclusionary and therefore deficient human rights discourse for progressive social and political forces.

In the following sections I address how the issue of reservations to CEDAW has become the location for the crystallization of several latent conflicts in international law. …

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