CEDAW and the Jurisprudence of UN Human Rights Mechanisms: Women's Human Rights in the Context of Religion and Culture

By Raday, Frances | Canadian Woman Studies, Summer-Fall 2018 | Go to article overview

CEDAW and the Jurisprudence of UN Human Rights Mechanisms: Women's Human Rights in the Context of Religion and Culture


Raday, Frances, Canadian Woman Studies


This article presents clear evidence of a developing policy in the UN human rights system that rejects deference to cultural or religious traditionalism where it discriminates against women. It shows that according to the proper and prevailing interpretation of the international human rights standards, freedom of religion or culture cannot justify derogation from States' obligation to guarantee women's right to equality and to eliminate discrimination against women, under international human rights norms and standards, including the international bill of rights, in general, and under the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) in particular. Pervasive patriarchy in traditionalist cultures and religions--excluding women from public power or free access to the public space and subjecting them to male domination in the family--denies individual women the right to choose their way of life from a basis of liberty and autonomy that is not inferior to that enjoyed by men. State obligation under the human rights treaties requires the prevention of such forms of discrimination or oppression against women whether carried out by public or private agents. Furthermore freedom of religion combines with women's right to equality under the human rights regime to protect the right of women in religious minorities to choose to remain within the context of her religious beliefs and practices--provided these are not prohibited harmful practices--while carefully guarding her right to claim equality within her religious tradition and community, either by a civil right of exit from the religious community or by seeking the support of the state in claiming equality within it.

The Universal Declaration of Human Rights and CEDAW

The 1948 Universal Declaration of Human Rights, which has been transformed into a binding regime of international human rights law by nine human rights treaties, gave expression to the rights to which all human beings are inherently entitled (Morsink 33). These rights are universal and indivisible (Donnelly 1). In 1980, CEDAW further entrenched women's entitlement to equality in an international bill of women's human rights, requiring State Parties to ensure formal, substantive, and transformative equality for women in all aspects of their lives and mandating the modification of the traditional roles of men and women in order to achieve full equality between them. Thus, CEDAW took "an important place in bringing the female half of humanity into the focus of human rights concerns" (Raday "Gender" 512, 515).

The secular character of the normative system embodied in human rights doctrine is essential to its comprehension. All its premises, values, concepts, and purposes relate to ways of thought freed from transcendentalist premises and from the jurisdiction of religious authority. This nexus between human rights and secularism applies at the State not individual level. The secular regime of human rights does not dictate a secular agenda for individual belief systems but rather sets a neutral normative context for the thriving of pluralistic beliefs within a state, based on the foundations of "dignity, liberty, equality, and brotherhood [sic]," and on the non-distinction principle which prohibits discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status (UDHR art. 2).

The traditionalist regimes of orthodox religions pose an ideological challenge to the international human rights regime's clear mandate of equality for women. State reservations to CEDAW have been focused on the refusal of states to apply women's right to equality where it conflicts with religious norms, and have thus themselves identified religion as the core source of resistance, based on ideological patriarchy (Raday "Gender" 515-6). (1) These reservations have been entered on the basis of the three monotheisms: Judaism, Christianity, and Islam. …

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