Global Ethics final paper

+ 2(,1 1/,1( Citation: 9 Whittier Law Review 491 1987-1988

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THE RIGHTS OF WOMEN AND INTERNATIONAL LAW IN THE

MUSLIM CONTEXT

BY ABDULLAHI AN-NA'IM, PH.D.*

The religious nature of Islamic Law (Shari'a), makes it difficult for Muslims to appear critical of that law. They tend to regard the specific jurisprudential interpretations and formulations of Shari'a as divine and heavenly as the sources of Islam itself, namely the Qur'an and Sunna.1 Whether in relation to the rights of women, or any other aspect of Shari'a, a Muslim cannot be comfortable in his or her criti- cism of the establishment formulations of Shari'a and, more impor- tantly, expect other Muslims to accept and act upon such criticism, depends on whether, he or she can base the criticism on some provi- sions of the Qur'an and Sunna.

For Muslims, the debate and controversy over the interpretation and implications of texts of Qur'an and Sunna are acceptable, if not expected, although the intolerance of some Muslims may cause those

* Faculty of Law, University of Khartoum, Sudan. Visiting Professor of Law, UCLA, 1985-87. I am grateful to Professor Nancy Galleger of the Department of History, University of California at Santa Barbara, for reading a draft of this article and making helpful suggestions and comments.

1. The Qur'an is the Arabic text of what Muslims believe to be the literal and final word of God as revealed to the Prophet Muhammad between 610 and 632 A.D.

Sunna are the records of what the prophet is believed to have said and done in the interpre- tation and application of Islam.

The Qur'an was recorded shortly after the Prophet's death and its Arabic text is accepted by all Muslims as authetic and beyond dispute. Sunna, however, was not collected and recorded until the second and third centuries of Islam, eight and ninth centuries A.D. Certain records of Sunna, such as those of Bukhari (died 869 A.D.) and Muslim (died 874 A.D.) are accepted by Muslims in general as containing authentic (sahih) Sunna. Nevertheless, controversy continues among the Muslims as to the authenticity of some Sunna reports and the relationship between the Qur'an and Sunna. It is not settled, for example, to what extent Sunna may restrict or otherwise affect the interpretation of some of the verses of the Qur'an. These jurisprudential and methodological questions can be relevant to the reform of Shari'a in relation to the rights of women suggested in this article.

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holding unorthodox views to suffer for their opinions. 2 Complete sec- ularism, however, is unacceptable to the majority of Muslims. Mus- lims believe that they have a very clear and definite obligation to conduct every aspect of their public, as well as private, life in accord- ance with principles of the Qur'an and Sunna.3 While subscribing to this sense of religious obligation as a matter of principle, and appreci- ating the political fact that this sense of obligation is shared by the vast majority of Muslims throughout the world, one may nevertheless question the appropriateness of the modem application of certain his- torical formulations of Shari'a. The obligation to maintain the reli- gious law, I submit, does not necessarily mean the application of Shari'a in its historical formulations.4

This article discusses some aspects of the relationship between Shari'a and current international standards on the rights of women. The article starts with a statement of the main relevant principles of Shari'a on the rights of women not only because of the historical role of Shari'a but also in view of the likely re-establishment of Shari'a in the public domain. This trend, however, is unlikely to have free field because of the impact of secularization in recent Muslim history. Fol- lowing a brief assessment of the interaction between secularization and re-Islamization in the sense of the application of Shari'a, the article proceeds to consider the role of international law on the rights of women in the Muslim world. In conclusion, the article proposes an approach to the rights of Muslim women, combining traditional and modem forces in order to promote the rights of women in a coherent and realistic fashion.

2. Although the Prophet is reported to have said that the differences of opinion among the Muslims is a blessing from God, and despite the existence of a wide range of schools of Islamic jurisprudence, often with differences of the opinion within the same school, proponents of unor- thodox interpretations of the sources are sometimes charged with apostasy (heresy) punishable with death. For a discussion of the recent trial and execution of a Muslim scholar because of his unorthodox views, including a call for the reform of Shari'a in relation to the rights of women, see A. An-Na'im, The Islamic Law of Apostasy and its Modern Applicability: A Case from the Sudan, 16 Religion 197 (1986).

3. The Qur'an 5:44-47. 24:51 and many other verses require the Muslims to conduct all their public and private affairs in accordance with what was revealed by God and decreed by the Prophet.

4. The religious obligations is to the sources, the Qur'an and Sunna, and not to their his- torical interpretation by Muslim jurists, The technique for reinterpretation of the Qur'an and Sunna in order reconcile Islamic law with the full range of human rights, including the rights of women, to which I personally subscribe, is the one advanced by the late Sudanese Muslim reformer Ustadh Mahmoud Mohamed Taha. For an authoritative statement of his theory, see the English translation of his book, THE SECOND MESSAGE OF ISLAM (A. An-Na'im trans. 1987).

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Although reference will be made to the need for reform of Shari'a on the rights of women, and to a specific proposal to achieve such reform, this subject will not be considered in detail for two reasons. First, this is an internal debate for the Muslims to conduct and settle among themselves. Second, such reform involves consideration of alternative approaches and technical matters which may not be of interest to the readers of this article. The need for such reform, and the existence of proposals to realize it in practice, must nevertheless be noted here.

THE THEORY OF THE RIGHTS OF WOMEN IN SHARI'A

The Muslim world is a vast geographical area, extending from west and north Africa, through the Middle East and the southern Soviet Union to Indonesia. According to generally accepted estimates, there are approximately 837-million Muslims in the world today.5 As can be expected, the vast spread of Muslim lands and the tremendous diversity of their cultural and ethic composition have affected the interpretation and application of Islam.6

Since its initial phenomenal expansion within the first few decades of its existance, Islam has tended to incorporate and assimilate the social customs and institutions of the various regions and communities which converted to Islam.7 As Shari'a was gradually developed as a comprehensive system of law and a way of life over the first three cen- turies of Islam, around the eighth to the ninth centuries A.D.,8 it was supposed to be used as the criterion for screening and admitting, or

5. MUSLIM PEOPLES, A WORLD ETHNOGRAPHIC SURVEY, xxi (R. Weeks, ed. 1984) [hereinafter cited as WEEKS, MUSLIM PEOPLES]. See also C. Geertz, ISLAM OBSERVED: RELI- GIOUS DEVELOPMENT IN MOROCCO AND INDONESIA (1968).

6. For current manifestations of the different cultural perspectives on the interpretation and application of Islam, see the articles on various Muslim peoples in WEEKS, MUSLIM PEOPLES.

7. On the expansion of Islam and assimilation and Islamization of various cultures, see generally CARL BROCKELMAN, HISTORY OF THE ISLAMIC PEOPLES (J. Carmichael and M. Perlmann trans. 1960) and REUBEN LEVY, THE SOCIAL STRUCTURE OF ISLAM (1969).

8. On the history and Development of Shari'a see generally N.J. COULSON, A HISTORY OF ISLAMIC LAW (1964). The major jurists, and the schools of thought (Madhahb) they established, tended to be concentrated in the main urban centers of Arabia, southern Iraq, Syria and Egypt before spreading throughout the Muslim world in subsequent centuries.

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rejecting, local custom and social institutions.9 Although a purist may conceive of this process in terms of a preexisting and fully intregrated body of Shari'a influencing and validating local customs and institu- tions, I would agree with the more realistic view which perceives the process as a dynamic process of interaction between Islamic principles and endogenous norms and practices. Local customs, attitudes and institutions have naturally influenced the interpretation and applica- tion of Shari'a as law in the particular region, as well as being them- selves influenced by Islam and its Shari'a law.

Disentangling and distinguishing the "pure" Shari'a from local custom may be a fascinating subject for some, while others may declare this to be an impossible task. Fortunately, we need not under- take this difficult, if not impossible, task for our present purposes.' ° What needs to be emphasized here is that there is a body of general principles and detailed rules which the Muslims as a whole accept as the authoritative statement of Shari'a." In particular, the prevailing conceptions of Shari'a are either the law of the land or at least very influential in the formulation and maintenance of certain attitudes and policies with regard to the rights of women. It is for this reason that we have to take Shari'a into account as a very important consideration in assessing the current position and future porspects of the rights of women in the Muslim world.

Although it is difficult to generalize, in view of the wide cultural diversity of the Muslim peoples and the extensive scope of Shari'a,' 2

9. Coulson in A HISTORY OF ISLAMIC LAW, id. at 38, descibes the process of Islamization as follows:

"[Tihe starting point was the review of local practice, legal and popular, in the light of their principles of conduct enshrined in the Qur'an. Institutions and activities were individually con- sidered, then approved or rejected according to whether they measured up or fell short of these criteria."

10. The difficulty or impossibility of this task is due to two problems. First, there is the problem of the lack of verifiable information on the pre-Islamic customs of the Islamized peoples. Second, since Shari'a took two to three centuries to evolve as a comprehensive system of law, it would be extremely difficult, if not impossible, to determine the precise point in time when Islamization took place. A people and their customs may have been influenced by Islamic norms for generations prior to the formulation of Shari'a as legal rules and principles or prior to its formal application in the particular region.

11. Subject to some differences between the established schools of Islamic jurisprudence adhered to in the various regions of the Muslim world, Shari'a signifies an identifiable and gener- ally agreed upon main principle of law and ethics accepted by all Muslims.

12. Shari'a provides for codes of ethics, social interaction and a positive legal system. It regulates the full range of human activities, from religious rituals, social manners and political institutions and relationships, to positive legal rules in civil, commercial, criminal and family law matters. Generalizations on such a comprehensive scale for the extremely wide diversity of Mus- lim cultural traditions is obviously difficult. Reference to principles and rules relevant to the

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one can confidently assert that Shari'a has had, and for a very long time, a positive impact on the rights of women. 13 From its very begin- ning in the seventh century, Shari'a guaranteed all Muslim women an independent legal personality, including the capacity to hold and dis- pose of property in their own right, a specific share in inheritance, access to education (provided it is conducted in facilities seperate from men) and some participation in public life.14 At the family law level, for example, Shari'a restricted polygamy and guaranteed a wife's right to maintenance and decent treatment.15 It also provides for the right to judicial divorce, on certain specific grounds. 16 This level of achieve- ment may not appear impressive by some modem standards, but it has meant very signficant improvements in women's rights when viewed in historical perspective. 17 Shari'a on the rights of women, I would sug- gest, compares very favorably with any other legal system until the nineteenth century.

A historical perspective, however, is a poor excuse for the current inferior status of women under Shari'a when compared to other con- temporary legal systems or when judged by the emerging international standards. Although the Muslim women's legal personality is com- plete in theory,1 8 their access to opportunities for making that person- ality meaningful are rather restricted. Gender segregation and requirements of the veil and confinement to the home, as a general

rights of women will therefore be confined to the most fundamental principles which are accepted as binding by the vast majority of Muslims.

13. It is not suggested here that the position of women in pre-Islamic Arabia was uniform or necessarily bad in every respect. There is clear evidence of some recognition and relatively good status for some women prior to the coming of Islam. See, generally, L. SABAGH, AL- MAR'A Fi AL-TARIKH AL-'ARABI (WOMEN IN ARAB HISTORY - IN ARABIC) (1975). What is suggested, however, is that women in pre-Islamic Arabia generally had a status inferior to that of men. In particular, women suffered from a number of legal and social institutions which Islam sought to redress. See, for example, Fazlur Rahman, "Status of Women in the Qur'an" in WOMEN AND REVOLUTION IN IRAN 37 (G. NASHAT ED., 1983). The improvements introduced by Shari'a should therefore be seen in relation to the general status of women, and with reference to the specific problems addressed by Shari'a in that context.

14. See generally, AMEER ALl, THE SPIRIT OF ISLAM, 222-57 (1922). 15. JOHN ESPOSITO, WOMEN IN MUSLIM FAMILY LAW, CHAPTER 3 (1982). 16. M. El Arousi, Judicial Dissolution of Marriage, 7 Journal of Islamic and Comparative

Law 13, (1977). 17. LEVY, THE SOCIAL STRUCTURE OF ISLAM, supra note 7 at 91-96; R. Smith, Kinship

and Marriage in Early Arabia, 92-94 (1939). 18. While all the major schools of Islamic jurisprudence accept the right of women to hold

and dispose of property in their own right, the Maliki school, currently prevailing in West Africa, denies unmarried women capacity to conclude contracts and restricts the right of married women to dispose of their own property. See NOEL J. COULSON, COMMERICAL LAW IN THE GULF STATES, THE ISLAMIC LEGAL TRADITION, 36-37 (1984).

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rule, tend to diminish the practical value of Muslim women's theoreti- cal entitlement to certain rights and limit their abilities to realize eco- nomic independence and educational and other public achievements.'

9

Although women are not prohibited by Shari'a from expressing their opinions in public affairs, and may vote on those competing for public office, the above noted restrictions tended to inhibit their ability to exercise these rights in practice. They are also denied competence to hold general high-ranking public office themselves.2 °

Although Shari'a guarantees members of the family of the deceased specific shares in his or her estate, a woman's guaranteed share in inheritance is generally half the share of a man of the same degree of relationship to the deceased. 2 Restrictions on polygamy generally mean that it is lawful for a man to take up to four wives.2 2 In contrast to a woman's right to seek a judicial divorce (before a male judge and for specific grounds) man can divorce his wife at will by unilateral repudiation without having to explain his reasons to any- one. 23 A woman's right to decent treatment is subject to the guardian- ship which a father, brother, husband, uncle or even a son may have on his women wards.24

19. The complex and amorphous subject of the veil and gender segregation with clear cul- tural variations, does not permit a brief summary. See, generally, SEPARATE WORLDS: STUDIES OF PURDAH IN SOUTHEAST ASIA (H. PAPANEK AND G. MINAULT EDS., 1982); WOMEN AND REVOLUTION IN IRAN, supra note 13, chapter 7; M.U.H. Kah, Purdah and Pologamy (1983); and F. MERNISSI, BEYOND THE VEIL: MALE-FEMALE DYNAMICS IN MODERN MUSLIM SOCI- ETY (REV. ED. 1987). It is important to note, however, that the relevant principles and practices do have the very clear and definite sanction of the Qur'an as in 33:33 and 53.

20. The disqualification of women to hold high-ranking public office is partly based on what is believed to be Qur'anic requirements of the veil and gender segregation noted above which restrict women's ability to seek and exercise the responsibilities of public office. The more impor- tant soures of disqualification, however, are Qur'anic, as in 2:282 and 4:34 and Sunna statements which have been given this interpretation by the agreement of all schools of jurisprudence. Cf. Fazlur Rahman supra note 13.

21. Qur'an 4:11 and 176. 22. Qur'an 4:3 authorizes a man to take up to four wives provided that he maintain justice

among them. This requirement, when read with verse 129 of the same chapter which rules that justice among co-wives is impossible to achieve, can be used to restrict pologamy. Although this interpretation has been adopted to justify such restrictions in some Muslim countries, the tradi- tional view, which leaves compliance with the requirement of justice to the discretion and subjec- tive responsibility of the husband, continues to prevail among the vast majority of Muslims. For an example of progressive reform of Muslim family law see N. Anderson, The Tunisian Law of Personal Status, 7 International and Comparative Law Quarterly 262 (1958).

23. See generally Talak in SHORTER ENCYCLOPEDIA OF ISLAM, 564-7 (H.A.R. Gibb and J.H. Kramers eds. 1953).

24. Id. 633 et seq. under Wilaya, male guardianship over women. According to Qur'an 4:34, the main verse on male guardianship over women, a husband may discipline his wife in a number of ways, to the extent of beating her "lightly" in exercise of his guardianship.

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It must be emphasized here that this is Shari'a as accepted by the vast majority of Muslims. Space does not permit statement of slight variations among the various schools of Islamic jurisprudence. In any case, none of these established schools challenges the basic principles of these limitations on women. Moreover, the concern here is not with the justifications of these restrictions on the rights of women because such inquiry will not affect the content of the rules. In a religious legal system such as Shari'a, policy arguments are insufficient bases for challenging the rules and replacing them with an alternative set of rules unless one can also rely on scriptural authority. Although a few Muslims are prepared to challenge Shari'a on the rights of women today,2 5 they are a tiny minority while the vast majority of Muslims continue to subscribe to the validity of Shari'a restrictions on the rights of women.

It is true, in my view, that the provisions of the Qur'an and Sunna on women's rights can be interpreted differently. In fact, I am sug- gesting that we should now rely on this alternative interpretation of the Qur'an and Sunna in the reformation of Shari'a on the rights of women. The possibility of an alternative interpretation, however, should not be confused with the current authoritative view of Shari'a as accepted by the vast majority of Muslims. We must state Shari'a for what it is, and deal with it in relation to the rights of women, until we are able to replace it with the proposed alternative interpretation.

In general, Shari'a was concerned with guaranteeing certain mini- mum rights for women and not with achieving complete legal equality between men and women. It is obviously true that complete legal equality was never achieved anywhere in the world until very recently. Some would contend that it is yet to be achieved by even the most advanced and enlightened human societies. I do not believe, however, that complete legal equality between men and women is achievable and must be our objective in the Muslim world today. Although much needs to be done under even the most progressive legal and social systems, the ideal of substantive equality between men and women has found sufficient expression and concrete realization else- where to have had a profound impact on many Muslim women, and on some Muslim men.

25. Such as Ustadh Mahmous Mohamed Taha. See note 4 supra.

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THE IMPACT OF SECULARIZATION

Since the nineteenth century, the Muslim peoples have exper- ienced the massive influence of external forces of increasing seculariza- tion and westernization.26 The main centers of Muslim civilization (in Turkey, Egypt, Persia and India) have experienced western cultural influences far greater and more profound than the experiences of mili- tary defeat and political subjugation. In due course, especially after the end of the First World War, nationalism and secular constitutions replaced pan-Islamism and the ideal of Shari'a as the sole legitimate system. 2

During what may be called the liberal age, Muslims borrowed extensively from western ideas of equality and emancipation of women. Even in those Muslim countries which professed an Islamic ideology, many practices and policies incompatible with Shari'a were allowed, or maybe forced themselves into the consciousness and life- style of many Muslims. To a varying degree, Muslim women became increasingly successful in claiming equality in education, employment and access to public life. 28 This process, I submit, cannot be expected to completely transform the rights of Muslim women for two reasons.

First, secular movements towards equality and emancipation tend to be largely confined to the urban centers. The rights and actual liv- ing conditions of rural and nomadic women, who are the vast majority of Muslim women, are likely to remain substantially unaffected by western ideas and institutions. 29 For the most part, the status and

26. HERBERT J. LIEBESNY, THE LAW OF THE NEAR & MIDDLE EAST, READINGS, CASES & MATERIAL, CHAPTER 3 (1975).

27. Id. Chapter 4; and Aharon Layish, The Contribution of the Modernists to the Seculariza- tion of Islamic Law, 14 Middle East Studies 263 (1978).

28. See, for example, N. AL-RAZAZ, MUSHARAKAT AL-MAR'A Fi AL-HAYAH AL-'AMA Fi SURIYA (Participation of Women in Public Life in Syria, in Arabic, 1975); D. INGRAMS, THE AWAKENED: WOMEN IN IRAQ (1983); WOMEN IN IRAN: THE CONFLICT WITH FUNDAMEN- TALISM IN IRAN, 179 F. AZARI, ED. 1983); and E. SULLIVAN, WOMEN IN EGYPTIAN PUBLIC LIFE (1986).

29. J. Bauer, "Poor Women and Social Consciousness in Revolutionary Iran," in WOMEN AND REVOLUTION IN IRAN, supra note 13; and A. MAHDI, WOMEN, RELIGION AND THE STATE: LEGAL DEVELOPMENTS IN TWENTIETH CENTURY IRAN 7 (Michigan State University Working Paper #38, 1983). It is not suggested here that secularization and western cultural influences had no impact whatsoever on rural and nomadic women. Under some trickle-down theory, one can see some benefits reaching rural and nomadic women from the social and legal reforms manifested primarily at the urban centers. What is suggested is that these benefits are so little and are so much successfully resisted and neutralized through traditional adjustment mech- anisms in favor of maintaining the status quo for these "reforms" that they cannot have a signifi- cant and lasting effect on the rights of women in the countryside. This assertion is subject, however, to variations in the degree of penetration of reforms as affected by the clarity and

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rights of the vast majority of Muslim women continue to be almost exclusively defined by traditional norms, including Shari'a. Shari'a principles, moreover, are easily used to resist the demands even of urban Muslim women. In particular, the strict application of Shari'a law of personal status in marriage, divorce, custody and inheritance mean that women's rights in these crucial areas are not affected by the secularization and westernization of the legal system as a whole.3 0 As a result, a fundamental tension exists between women's civil and polit- ical rights under the constitution and the general legal system on the one hand, and their private rights as determined by the Shari'a law of personal status on the other hand.

The second related limitation is the resurgence of the so-called Islamic fundamentalism which challenges the basic premise of secular- ization of public life. The declared aim of these re-Islamization move- ments, known by various names in the different regions of the Muslim world, is to re-establish Shari'a as the sole source of all aspects of the law, both public and private.31 To some extent, these movements can be seen as a reaction to western secularization, which is blamed by many Muslims for the political frustration, economic deprivation and social disorganization of Muslim communities.3 2 A more fundamental cause of Islamic resurgence, in my view, is the inherent power of Islam as intellectual and spiritual forces. The forces of Islamization were merely suppressed and never neutralized or assimilated in the seculari- zation processes of the liberal age. The forces are now coming to power in Iran, Pakistan and the Sudan, seeking to reverse changes introduced through secularization. In almost all other Muslim coun- tries, the forces of re-Islamization are undermining recent reforms and

determination of governmental policies targeting rural and nomadic populations and the socio- economic factors facilitating or obstructing such penetration.

For an example of the interplay of reform and tradition in a Muslim context, see P. J. Higgins, Women in the Islamic Republic of Iran: Legal, Social and Ideological Changes, 20 Signs: Journal of Women in Culture and Society 477 (1985).

30. MAHDI id. at 5. Even in the most secularized Muslim countries, family law and inheri- tance continue to be governed by Shari'a. J. SCHACHT, INTRODUCTION TO ISLAMIC LAW 76 (1964).

31. See generally, VOICES OF RESURGENT ISLAM (J. L. ESPOSITO ED., 1983), and ISLAMIC RESURGENCE IN THE ARAB WORLD (A.E.H. DESSOUKI, ED. 1982).

32. For an analysis of the causes underlying re-Islamization, or Islamic resurgence, see K. Ahmad, "The Nature of the Islamic Resurgence" in VOICES OF RESURGENT ISLAM, id. at 218.

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resisting further changes that may be introduced through the seculari- zation of constitutions and legal systems and progress in the realiza- tion of the rights of women, even in terms of civil and political action of the forces of re-Islamization. 3

Such reversal and regression, however, 4 are unlikely to be com- plete because the liberal age has already succeeded in changing the awareness of both women and men. Woman's movements, and liberal political forces in general, have taken root and are expected to struggle to maintain their achievements and resist regression under re- Islamization." The best way for doing this, I suggest, is through what may be described as alternative Islamization through the reformation of Shari'a. 36 Islam is too powerful a political and cultural force to abandon to the fundamentalists. As already demonstrated by their challenge to changes achieved through secularization, Islamic move- ments can easily mobilize mass support for their agenda by appealing

33. In relation to Iran, for example, the Khomeini regime has repealed legislation and reversed policies of the previous regime granting women rights in family and public life. See Higgins, Women in the Islamic Republic of Iran: Legal, Social and Ideological Changes, supra note 29 at 483; MAHDI, supra note 29 at 11; WOMEN IN IRAN, supra note 28 at 217-21.

According to sections 5 and 46 of the Retribution Act of 1981, diyah, compensation for unlawful homicide, for killing a women is fixed as half that for killing a man. Section 33A of the same Act provides that the testimony of women in homicide cases is completely unacceptable. See SUROOSH IRFANI, IRAN'S ISLAMIC REVOLUTION: POPULAR LIBERATION OR RELIGIOUS

DICTATORSHIP, 211 (1983). As reported by Omar Asghar Kan, Political and Economic Aspects oflslamization is ISLAM,

POLITICS AND STATE: THE PAKISTAN EXPERIENCE 147 (M. A. KHAN, ED. 1985), when Pakis- tani women protested in February 1983 against legislation aimed at making the evidence of two women equal to that of one man, they were brutally beaten. The author also reported that a section of the 'ulama,' religious scholars, demanded the death penalty for these women whom they regarded as guilty of apostasy (heresy) for demonstrating against Qur'anic injunctions.

It should be noted that the Qur'an 2:282 specifically requires two male witnesses or one male and two female witnesses for commercial transactions. To apply Shari'a is therefore to disqualify women as witnesses in homicide cases and hold a woman to be half a witness in commercial matters.

34. A recent good example of organized women's action in support of their rights is the International Conference on the Challenges Facing Arab Women in the Coming Decades - held on September 1-3, 1986 at the Arab League Building, Cairo, Egypt, by the Organization of Arab Women Solidarity. For other evidence of action by women in support of their rights see sources cited in supra note 28; and IN THE SHADOW OF ISLAM: THE WOMEN'S MOVEMENT IN IRAN (A. TABARI AND N. YEGANEH, EDS. 1982).

35. Added to balance with second 34 in text. 36. The call for reform has so far been confined to efforts to seek favorable formulations of

the rules of Shari'a applicable to women from within traditional jurisprudence. This process of selection from the various schools of jurisprudence and the opinions of individual jurists will not, I submit, achieve the necessary degree of reform. Fundamental reform of the basic principles of Shari'a in relation to the rights of women is unavoidable if Muslim women are to achieve com- plete legal equality with men.

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to the religious sentiments and allegiance of the vast majority of Mus- lims. As evidenced by the vocal presence of educated, intelligent and well-organized fundamentalist women, Islam can motivate women themselves to challenge the achievements of the rights of women when conceived as alien western notions.3 7 The best way to challenge this, it would seem, is to show that the rights of women are Islamic and not alien western notions, albeit they may find expression in other cultural and religious traditions, both western and nonwestern.

By alternative Islamization I therefore mean the assumption of an Islamic platform in advocating fundamental reform of Shari'a on the rights of women and the provision of Islamic foundations for these rights. This must be done internally through the adoption of imagina- tive reform techniques for the evolution and reformulation of Shari'a rules relative to women's rights. The two essential characteristics of an appropriate reform technique are, in my view, the ability to provide Islamic legitimacy and effectiveness in achieving the necessary degree of reform. Without legitimacy, on the one hand, the technique may be defeated as secularist and alien. On the other hand, the rights of women would not be served by an approach which does not change substantially the status and rights of women under Shari'a. The choice of an appropriate reform technique is an internal debate for the Muslim advocates of the rights of women to conduct with other Mus- lims in light of the suggested dual criteria of legitimacy and efficacy. It can neither be settled, nor should it be addressed, by the present paper."8 What is relevant and must be addressed here is the role of international law in the advocacy of women's rights in the Muslim world.

37. "Moslem Feminists in Discord," N.Y. Times, July 25, 1985, 15-16. It should not be assumed, however, that women speaking from an Islamic platform express uniform views or accept all the restrictions imposed by the prevailing interpretation of Shari'a. For samples of differences in opinion among Muslim spokeswomen see IN THE SHADOW OF ISLAM, supra note 34 at 171-200.

38. The position of Ustadh Mahmoud Mohamed Taha, supra note 4, is an example of a modern Islamic approach to achieving respect for the rights of women from within Islam. As indicated earlier, however, this is a minority position. It is up to the Muslim women themselves, with the support of some sympathetic Muslim men, to advance their cause within their own religious and cultural traditions through the work of the late Ustadh Mahmoud or a similar approach.

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INTERNATIONAL LAW AND THE RIGHTS OF WOMEN

As in the case of other aspects of human rights, customary inter- national law has very little to say on the rights of women. Since indi- viduals were traditionally regarded as objects rather than direct subjects of international law, custom did not address their rights as such.3 9 Therefore, the most significant developments in the rights of women have been achieved through treaties and conventions. This was accomplished by both the general human rights instruments and those specialized in the rights of women. Before offering a brief survey of the provisions of these binding treaties, it may be appropriate to refer to the relevance and force of the Universal Declaration of Human Rights (UDHR) as a non-treaty document of special significance."

The provisions of the UDHR include the fundamental principles of equality and freedom from discrimination on grounds such as sex, in relation to any of the rights set forth in the Declaration. 4 Are any of the provisions of the UDHR, and especially the equality and non- discrimination principles, binding on States as a matter of interna- tional law? The UDHR was the first major and most widely sup- ported United Nations document giving an authoritative interpretation to the human rights provisions of the United Nations

39. The abolition of slavery in the nineteenth century may be taken as an example of cus- tomary international law protection of a human right. It is hard to think of another example of a human right based on custom. Section 702 of the Restatement (Revised) of the Foreign Relations Law of the United States does not include gender discrimination, even as a matter of state policy, in its list of customary international law human rights. Nevertheless, INTERNATIONAL LAW, CASES AND MATERIALS (L. Henkin, R. C. Pugh, 0. Schachter and H. Smit, editors, 2nd ed. 1987) (hereinafter cited as Henkin et a..) at 998 assert that "[w]hile gender-based discrimination is still practiced in many states in varying degrees, freedom from gender discrimination as state policy, in many matters, may already have become a principle of customary international law."

40. G. A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948). This document and all the instruments discussed or cited below may be found in INTERNATIONAL HUMAN RIGHTS INSTRUMENTS (R. Lillich, ed. 1985) [hereinafter cited as Lillich 1985]. For the Universal Decla- ration of Human Rights see id. 440.1.

41. Articles 1 and 2 of UDHR. These rights include the right to life, liberty and security of the person (Art. 3); freedom from slavery and servitude (Art. 4); guarantee against torture and cruel, inhuman or degrading treatment or punishment (Art. 5); equality before the law (Art. 7); freedom of movement and residence (Art. 13). Obviously, any of these and the other rights set forth in the UDHR are, however, of special significance to wqinen in the sense explained below, namely that women have traditionally been, and continue to be, the most frequent victims of gross and consistent violations of these rights. These especially significant rights under the UDHR include the right to marry and found a family upon free and full consent and with equality at all stages of marriage (Art. 16), the right to participate in government and have equal access to public service (Art. 21), and rights in relation to work (Art. 23).

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Charter which is a binding treaty.4 2 As such, the UDHR may have more persuasive authority than other resolutions of the General Assembly. Some would even argue that, when taken together with the United Nations Charter and other developments, the UDHR has achieved the status of binding custom.4 3 Whether any of its principles, and if so which ones, have become international custom remains to be seen. In any case, the provisions of the UDHR enjoy special moral and political weight and can be used anywhere in the world to support claims to at least the underlying principles of its main provisions.'

In the following brief survey of human rights instruments, the focus will be on rights and principles which are of special significance to women. This should not be taken as implying that women are not concerned with the full ranges of human rights. It simply means that besides being equally affected by and concerned with all the social, economic, cultural, civil and political human rights, women have tra- ditionally been victims of certain types of oppression and discrimina- tion which make certain rights specifically applicable to them. In view of space limitations and the subject of this essay, the following brief survey will focus on this second category of rights.

The general human rights instruments, namely the International Covenant on Social, Economic and Cultural Rights (ICSECR) and the International Covenant on Civil and Political Rights (ICCPR), gener- ally give more precise treaty formulation for the principles of the

42. Article 55 of the United Nations Charter provides that the U.N. shall promote, inter alia, "c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." The Preamble to the U.N. Charter and Articles 1(3), 13(l)(b), 62(2), 68 and 76(c) also refer to human rights in a variety of contexts. Nevertheless, the Charter neither defines nor enumerates human rights.

Another difficulty with using the U.N. Charter as a treaty source of the rights of women is due to the fact that the Charter is unlikely to be treated as a self-executing treaty directly creating enforceable rights. See Henkin et al. at 984-85.

43. As early as 1968, the Montreal Statement for the Assembly for Human Rights described the UDHR as "an authoritative interpretation of the [United Nations] Charter of the highest order, and has over the years become a part of customary international law." See 9 Journal of the International Commission of Jurists, 94 at 95 (June 1968). In M. McDOUGAL, H. LASSWELL & L. CHEN, HUMAN RIGHTS AND WORLD PUBLIC ORDER, 274 (1980), the UDHR is also described as "now hailed as an authoritative interpretation of the human rights provision of the United Nations Charter and as established customary law, having the attributes ofjus cogens and constituting the heart of a global bill of rights." See also LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS, 145-60 (1950, 1973), and SCHWELB, THE INTERNATIONAL COURT OF JUSTICE AND THE HUMAN RIGHTS CLAUSE OF THE CHARTER, 66 A.J.I.L. 337 (1972).

44. J. G. Starke, Human Rights and International Law in HUMAN RIGHTS, 113 at 122 (E. Kamenka & A.E.S. Tay, eds. 1978).

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UDHR, thereby making them legally binding on the States Parties.4 5 Both Covenants embody the fundamental principle of non-discrimina- tion on grounds such as sex, in relation to any of the rights enunciated, or recognized, in each Covenant.46 Moreover, Article 3 of both Cove- nants specifically provides for the obligation undertaken by the States Parties to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights, or civil and political rights, set forth in the respective Covenant.

The rights enunciated in the ICSECR which appear to be of spe- cial significance to women include the right to freely choose or accept work under just and favorable conditions, especially in relation to equal renumeration for work of equal value and equal opportunity to be promoted on no consideration other than seniority and compe- tence.4 7 Also especially significant to women is the recognition of the widest possible protection and assistance to the family. Marriage must be entered into with the free consent of the intending spouses. 4 8 More- over, the Covenant provides for special protection to mothers during a reasonable period before and after childbirth when working mothers should be accorded paid leave or leave with adequate social security benefits.49

Because of the special problems of implementing the full range of social, economic and cultural rights within the limited resources of many countries, Article 2(1) of ICSECR generally requires of each State Party steps with a view to achieving progressively the full realiza- tion of the rights recognized in this Covenant.5" Compliance by the State Parties with their undertakings under the Covenant, in light of this consideration, is supposed to be monitored through State reports

45. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6136 at 490 (1966); entered into force on January 3, 1976. International Covenant on Civil and Political Rights, R. A. Res. 2200 (XXI) 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 at 52 (1966); entered into force on March 23, 1976. For the texts of both Covenants see Lillich 1985 at 170 and 160, respectively.

46. Articles 2(2) of the IOCSECR and 2(1) of ICCPR. The use of the terms "enunciated" in the ICSECR and "recognized" in the ICCPR may be due to the nature of the rights covered by the particular covenant. This has no bearing, however, on the principle of nondiscrimination on the grounds of sex being emphasized in the present context.

47. Articles 6 and 7 of the ICSECR. The obligation under Article 7(c) to ensure equal opportunity to employment promotion "subject to no considerations other than those of seniority and competence" may create difficulties for adopting policies of affirmative action in favor of women, for example, to compensate for previous discrimination. This, however, is a premature concern for Muslim women who are struggling to establish basic legal equality.

48. Id. Article 10(1). 49. Id. Article 10(2). 50. Emphasis supplied.

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to the Secretary-General of the United Nations, with copies for the consideration of the Economic and Social Council.5 1 The Secretary- General must also transmit copies of the reports to the specialized agencies in so far as these reports relate to any matter which falls within the responsibilities of the particular agency. 2 The Covenant also provides for arrangements between the Economic and Social Council and the specialized agencies with respect to progress made in achieving observance of the provisions of the Covenant as well as the study of States' reports and general recommendations by the Commis- sion on Human Rights with opportunities for States and specialized agencies to comment on the general recommendations of the Commis- sion on Human Rights.53 The Economic and Social Council may also submit occasional reports to the General Assembly reports with gen- eral recommendations on information received from the States Parties and specialized agencies on the measures taken and progress made in achieving general observance of the rights recognized in the Cove- nant.5" On the whole, it is clear that compliance with the obligations under the ICSECR is dependent on the voluntary cooperation of the States, prompted by any political pressure and persuasion through the Social and Economic Council, specialized agencies and the General Assembly of the United Nations.

The ICCPR recognizes as legally binding treaty obligations sev- eral rights which may be especially significant to women, such as guar- antees against torture, cruel, inhuman or degrading treatment or punishment,55 freedom from slavery and servitude,56 and equality before the law.5 7 Of particular significance to Muslim women, how- ever, are the provisions relating to marriage and participation in public affairs. Not only is there a right to marry freely and with full consent, but also a requirement on the States Parties to take appropriate steps to ensure equality of rights and responsibilities of spouses as to mar- riage, during marriage and at its dissolution.5" Every citizen (of a State Party), has the right and the opportunity, without any distinc- tions on grounds such as sex, to take part in the conduct of public affairs; this includes the right to vote and to be elected and to have

51. Id. Article 16(2)(a). 52. Id. Article 16(2)(b). 53. Id. Articles 18 to 20. 54. Id. Article 21. 55. ICCPR Article 7. 56. Id. Article 8. 57. Id. Articles 14 and 26. 58. Id. Article 23.

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access, on general terms of equality, to public service in his [or her] country. 59

It seems that general agreement among the States Parties on the feasibility of immediate implementation of the full range of the civil and political rights covered by the ICCPR, unlike those of the ICSECR, permits relatively stronger enforcement mechanisms. Thus, the ICCPR provides for the establishment of a Human Rights Com- mittee which considers reports from the States Parties on the measures they have adopted which give effect to the rights recognized in the Covenant and on the progress made in the enjoyment of these rights.' Furthermore, Article 41 of ICCPR provides for an optional feature whereby a State Party may lodge complaints that another State Party is not fulfilling its obligations under this Covenant, provided that the two States have both made declarations accepting this complaint pro- cedure. The Article sets out a three-stage process of direct settlement between the two states, mediation by the Human Rights Committee (with a view towards a friendly solution) or through an ad hoc Concil- iation Commission with the prior consent of the States Parties concerned.

It is obvious from the great emphasis placed in this State com- plaint procedure on the consent of the States Parties, and the need for a friendly or amicable solution, that States are unwilling to surrender their national sovereignty over questions of human rights to independ- ent international adjudication. Nevertheless, this optional procedure is a positive move towards greater international jurisidiction over human rights.

A more positive move, however, is to be found in the Optional Protocol to the ICCPR which provides for a procedure whereby an individual may petition the Human Rights Committee when a viola- tion of the rights set forth in ICCPR occurs by a state to whose juris- diction the individual is subject.6 ' Such individual petition can be received only against States which recognize the competence of the

59. Id. Article 25. 60. Articles 28 to 39 of the ICCPR are devoted to the composition and regulation of the

Human Rights Committee. Article 40 provides for the obligation of States Parties to submit reports, and the process of consideration of these reports and communications with other organi- zations and specialized agencies of the U.N.

61. Optional Protocol to the International Covenant on Civil and Political Rights. G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 26), U.N. Doc. A/6316 at 59 (1966); entered into force on March 23, 1976.

It should be noted, however, that as of January 1, 1986, this Optional Protocol was ratified by only 34 states while the ICCPR was ratified by 82 states. Henkin et al. 990.

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Committee in this regard,6 2 and subject to several procedural require- ments.63 The Optional Protocol provides for a timetable for commu- nications, comments and consideration by the Committee in closed meetings, leading up to the formulation by the Committee of its views, which must then be forwarded to the State Party concerned and the individual.' Further, the Committee must include a summary of its activities under the Optional Protocol in its annual report.6 5 Although ultimately dependent on the voluntary acceptance of its procedure by the States, and on the moral weight of the Committee and possibilities of political pressure on the States Parties to avoid negative publicity, the Protocol is significant in its provision of a treaty framework for individual petition.6 6

Most of the rights of women covered by these general instruments are also provided for in specialized instruments of the International Labor Organization (ILO) and other international conventions. Besides the ILO, there are the 1951 Convention Concerning Equal Renumeration for Men and Women Workers for Work of Equal Value,6" and the 1958 Convention Concerning Discrimination in Respect of Employment and Occupation.68 Other specialized interna- tional conventions include the 1953 Convention on the Political Rights of Women,6 9 the 1958 Convention on the Nationality of Mar- ried Women,7 ° the 1960 UNESCO Convention Against Discrimina- tion in Education, 7 and the 1962 Convention on the Consent to

62. Article 1 of the Optional Protocol. 63. Such as the requirement of exhaustion of local remedies under id. Article 2. Article 3

prescribes that communications or petitions which are anonymous or which the Human Rights Committee consider to be an abuse of the right of submission of such communication or to be incompatible with the provision of the Covenant are all inadmissible.

While space does not permit a discussion of the merits of these procedural requirements, it may be noted that they are likely to inhibit or discourage individual communications, at least from certain countries.

64. Id. Article 5. 65. Id. Article 6. 66. For a brief discussion of procedure for the consideration of private (individual) commu-

nications on human rights violations in the U.N. system, see HUMAN RIGHTS IN INTERNA- TIONAL LAW: LEGAL AND POLICY ISSUES, 384-92 (T. Meron, ed. 1984).

Individual communications are the general rule in the Inter-American system for the pro- tection of human rights while they are only optional under the European Convention for the Protection of Human Rights and Fundamental Freedoms. See id. chapters 12 and 13, respectively.

67. ILO No. 100. 165 U.N.T.S. 32. For the text of this Convention see Lillich 1985 at 270. 68. ILO No. 111. 362 U.N.T.S. 32. For the text see Lillich 1985 at 320. 69. 193 U.N.T.S. 135. For the text see Lillich 1985 at 60. 70. 309 U.N.T.S. 65. For the text see Lillich 1985 at 310. 71. 429 U.N.T.S. 93. For the text see Lillich 1985 at 330.

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Marriage, Minimum Age for Marriage and Registration of Marriage.7 2

The most comprehensive and important specialized instrument is the 1979 Convention on the Elimination of All Forms of Discrimina- tion Against Women. 7" This Convention defines discrimination against women as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullify- ing the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."' 74 Other provisions of the Convention impose very specific obligations to eliminate all forms and types of discrimination against women. Besides general condemnation of inequality and requirement of specified types of action to achieve equality and to eliminate discrimination; whether official or private, collective or individual,7 5 the Convention follows up with more spe- cific and precise provisions in the fields of political and public life, education, employment, health care, and other areas.76

Moreover, this Convention makes a serious attempt at monitor- ing progress made in the implementation of its provisions through the work of the Committee on the Elimination of Discrimination Against Women.7 7 The Committee is required to receive reports from States Parties on the legislative, judicial, administrative or other measures

72. 521 U.N.T.S. 231. For the text see Lillich 1985 at 150. 73. G.A. Res. 34/180, U.N. Doc. A/Res/34/180 (1980); 19 I.L.M. 33 (1980); entered into

force on September 3, 1981. For the text of this Convention see Lillich 1985 at 220. 74. Id. Article 1. 75. Id. Article 2. The requirements of this Article include the embodiment of the principle

of equality of men and women in national constitutional and other appropriate legislation, ensur- ing through the law and other appropriate means the practical realization of this principle, and adopting legislative and other measures to prohibit all discrimination against women. Most sig- nificantly, this Article also requires States to take appropriate measures to eliminate discrimina- tion against women by any person, organization or enterprise.

76. Id. Articles 3 to 16. It is interesting to note that Article 5 requires States Parties to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices, customs 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. This goes to the heart of the matter because no legal or other official and formal measures can possibly achieve the objectives of equality and human dignity for women without the necessary education and elimination of attitudes and social norms and practices which are antithetical to the rights of women.

77. Id. Article 17.

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which they have adopted to give effect to the provisions of the Conven- tion, and on the progress made in this respect. 78 The report may indi- cate factors and difficulties affecting the degree of fulfillment of obligations under the present Convention. 79 The Committee must also report annually to the General Assembly of the United Nations through the Economic and Social Council, with copies transmitted to the Commission on the Status of Women for its information. 0

In conclusion of this brief survey it may be observed that the rele- vant international instruments create an impressive body of interna- tional standards on the rights of women. Unfortunately, like other aspects of human rights, international law on the rights of women suf- fers from the inadequacy of enforcement or compliance mechanisms even in relation to the States Parties to the conventions. The reason for this deficiency is presumably the unwillingness of States to submit to international jurisdiction regarding their human rights practices. Since States are likely to continue to be the primary subjects of inter- national law for the foreseeable future, the enforcement of interna- tional human rights standards will have to be pursued from within each State. Governments cannot be expected to submit voluntarily to independent international scrutiny without substantial and continuous pressure from their own population. It is with a view to assessing the existence and efficacy of a human rights constituency in the Muslim world, especially in relation to the rights of women, that consideration be given to the record of ratification of the relevant instruments by Muslim countries. It is also extremely important to reflect on possible inconsistencies between Shari'a and the international standards of the rights of women. This is true not only because of the current legal force of certain relevant aspects of Shari'a,8 ' but also because of its

78. Id. Article 18(1). 79. Id. Article 18(2). According to Article 22 of this Convention, specialized agencies are

not only entitled to be represented at the consideration of the implementation of such provisions of the Convention as fall within the scope of their activities, but also to be invited by the Commit- tee to submit reports on the implementation of the Convention in areas falling within the scope of their activities.

80. Id. Article 21. This annual report may include the Committee's suggestions and general recommendations based on the examination of the State reports and other information received from the States Parties.

81. As noted earlier, note 30, and accompanying text, Shari'a constitutes family law and inheritance for Muslims throughout the Muslim world. The rights of women in these areas, therefore, directly submit to the limitations of Shari'a. Moreover, efforts to implement Shari'a in other spheres have already achieved some success in Iran, Pakistan and the Sudan. In these and other "traditional" muslim countries such as Saudia Arabia and the Gulf States, Shari'a's impact on the rights of women affect a wide range of social, civil and political rights such as access to public office and participation in public life.

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continuing strong influence on Muslim public opinion, even where it is not binding as law at the present time.

MUSLIM REACTION TO INTERNATIONAL STANDARDS ON THE RIGHTS OF WOMEN

Ratification of international instruments by any government, whether of a Muslim or a non-Muslim country, is obviously not con- clusive evidence of the actual practice of that country in terms of a given set of rights. What motivates governments to ratify, or fail to ratify, can be a complex phenomenon and may not be necessarily related to the real policies and concrete conditions of life in their countries.

For one thing, a government may have failed to ratify these instruments simply because the issue was not raised at the appropriate levels of decision-making. Alternatively, the issue may have been raised at a politically inopportune moment or the case for ratification may have been made poorly and impersuasively. The mere fact of fail- ure to ratify cannot, therefore, be taken as conclusive evidence of a conscious and deliberate policy rejecting a commitment to the content of the particular international instrument.

Ratification, on the other hand, may have been decided by an individual ruler or official, without sufficient political support from the country as a whole. The official or regime which effected the ratifica- tion, may change or be overthrown, with possible significant conse- quences to the country's commitment to the policy underlying ratification. 2 Alternatively, the decision to ratify may be taken for ulterior motives other than a genuine commitment to the contents of the particular international instruments. On the one hand, ratification may have been effected, for example, to satisfy certain temporary political ends at home or abroad. On the other hand, the decision to ratify or not, may be motivated by some ideological or political consid- erations unrelated to the specific issue. It therefore may not be valid to

82. In Iran, for example, secular reforms and ratification of international human rights doc- uments by the Shah were effectively reversed after the Islamic revolution of 1979. See S. H. AMIN, MIDDLE EAST LEGAL SYSTEMS, chapter 3 (1985). It is not assumed here that the Shah's motives in ratifying human rights conventions were genuine. The point being made here is that his policies, whatever their motives and effects may have been, were reversed after his overthrow.

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assume, for example, that a Muslim country refused to ratify a con- vention on the rights of women specifically because of Shari'a consid- erations. Finally, ratification may be subject to reservations that substantially diminish its political value.83

Thus, neither ratification nor failure to ratify can be taken as con- clusive evidence of deliberate and effectively pursued policies. Never- theless, the ratification or its absence may provide some evidence of policy. So long as one is aware of the complexity of motivation and the possible impact of the nature of the political process in the particu- lar country at a given point in time, the ratification or nonratification of an international instrument may be taken as a relevant considera- tion. It is in this light that the record of ratification by Muslim coun- tries of the three main instruments relevant to the rights of women will be considered.8 4

The ICSECR, has been ratified by twelve Muslim countries and the ICCPR, by eleven.85 Special care must be taken with regard to the significance of the ratification of these general human rights docu- ments. Objection to ratification, to the extent that it was a conscious and deliberate decision, may be due to apprehension over some provi- sions or general implications of rights, other than those especially sig- nificant to women. In such cases, women would be affected with the policies which are negative to those other human rights, but there may

83. The example of Egypt's reservation on the Convention on the Elimination of All Forms of Discrimination Against Women is discussed below.

84. The criteria for identifying Muslim countries can be problematic and may depend on the purpose of such identification. For the purposes of this article, all countries where the Mus- lims constitute over 70% of the total population are taken'to be Muslim countries. According to the statistics quoted in WEEKS, MUSLIM PEOPLES at 882-911, the following 32 countries may be regarded as Muslim countries: Afghanistan 99%, Algeria 90%, Bahrain 99.3%, Bangladesh 82.9%, Comoros 99.5%, Djibouti 90%, Egypt 91.1%, The Gambia 87%, Indonesia 80%, Iran 98%, Iraq 96%, Jordan 93%, Kuwait 96%, Libya 98%, Maldive Islands 100%, Mali 80%, Mauritania 99%, Morocco 99%, Niger 87.4%, Oman 99%, Pakistan 97%, Qatar 95%, Saudia Arabia 99%, Senegal 91%, Somalia 99%, Sudan 72%, Syria 87%, Tunisia 99.4%, Turkey 99.2%, United Arab Emirates 90%, Arab Republic of Yemen 99%, Peoples Republic of Yemen 99%.

The vast majority of these countries are not constituted as Islamic states in accordance with Shari'a. Nevertheless, in all of them family law and inheritance for Muslims are governed by Shari'a. Moreover, the fact that Muslims constitute over 70% of the total population indicates, to the present author, that Shari'a considerations are likely to affect the rights of women in these countries.

Since the rights of women provided for in the earlier specialized conventions are now cov- ered by the three main instruments noted below, there is no need to consider Muslim ratification of the earlier specialized conventions.

85. As of June 30, 1986, according to BASIC DOCUMENTS SUPPLEMENT TO INTERNA- TIONAL LAW: CASES AND MATERIALS, 403 and 388, respectively (L. Henkin, R.C. Pugh, 0. Schachter, H. Smit, eds., 2nd ed. 1987).

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still be some support in the country for the special rights of women in other areas. The Convention on the Elimination of All Forms of Dis- crimination Against Women has so far received only five ratifications by Muslim countries.8 6

What are the implications of the fact that the obligations under- taken by Muslim countries under these three main conventions cannot be reconciled with Shari'a rules on the rights of women? As noted above, Shari'a sought to guarantee certain minimum rights for women rather than strive for the complete equality with men. This may have been justified as the only realistic objective in the past, and I believe that it can be so justified, but the result remains that current efforts to achieve complete equality and remove all discrimination are bound to be viewed as contrary to Shari'a.

Nevertheless, several Muslim countries have in fact ratified all the three main instruments. Egypt, Senegal and Turkey, for example, have ratified the extensive and advanced Convention on the Elimina- tion of All Forms of Discrimination Against Women. Since these countries have undertaken international obligations inconsistent with the established Shari'a, as accepted by all Muslims, their position can only be explained in one of three ways: either they do not feel bound by Shari'a; they do not take their international obligations seriously; or they have taken a view of the relevant principles of Shari'a which is consistent with these international obligations. The last mentioned explanation is the one favored by the present author, for reasons explained in the last section of this article.7 The facts, unfortunately, do not seem to support this as the true explanation of the position of, for example, Egypt.

Egypt has entered reservations with regard to only three Articles of the Convention on Discrimination Against Woman, namely Arti- cles 9, 16 and 29.88 The reservation with regard to Article 9, granting women equal rights to those of men, with regard to the nationality of their children, may raise serious objection as a matter of principle. The reasons for Egypt's position on this issue may well be due to national policy independent of Shari'a. Again, the reservation on Article 29, regarding submission to arbitration, does not seem to be based on

86. As of June 30, 1986 according to id. at 425. Part of the reason for the low ratification of this Convention may be due to its recent adoption, since it was adopted in 1979 and came into force in 1981.

87. See text accompanying note 92 infra. 88. For the full texts of these reservations see Lillich 1985 at 1t.

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Shari'a. It is Egypt's reservation on Article 16, concerning the equal- ity of men and women in all matters relating to marriage and family relations during the marriage and upon its dissolution, which is clearly based on established Shari'a, as accepted by Muslims in general. In the text of this reservation, Egypt justifies its position by saying that its obligations "must be without prejudice to the Islamic Shari'a provi- sions .... This is out of respect for the sanctity deriving from firm religious beliefs which govern marital relations in Egypt and which may not be called in question. . ". ."" The reservation cites principles of Shari'a whereby the husband is required to pay bridal money to the wife, maintain her fully out of his own funds and also to make a pay- ment to her upon divorce. The wife retains full rights over her prop- erty and is not obliged to spend anything on her keep. The reservations concludes by saying: "The Shari'a therefore restricts the wife's rights to divorce by making it contingent on a judge's ruling, whereas no such restriction is laid down in the case of the husband."9

In light of the clear language of the reservation, it can neither be said that Egypt does not feel bound by Shari'a nor that it has devel- oped an alternative view of Shari'a. Paradoxically, Egypt has under- taken other international obligations under the same Convention which are clearly inconsistent with Shari'a.9" Does this mean that Egypt does not take its international obligations seriously? I think not. Egypt would not have bothered to enter a reservation on Article 16 if it had no intention of attempting to comply. The explanation for this apparent inconsistency in Egypt's position seems to be due to the fact that while Shari'a is the law of personal status for Muslims in Egypt, which would make the country's obligation under Article 16 inconsistent with an unalterable aspect of its current law, other aspects of Egyptian law are not currently based on Shari'a. Therefore, the question is how would the adoption of Shari'a as the sole, or even the main, source of legislation affect the rights of women in Egypt or else- where in the Muslim world? If Shari'a is to be strictly applied, no law, policy or practice will be allowed to stand if it is perceived to be in violation of Shari'a. 92 Such is the probable impact of Shari'a on the

89. Id. 90. Id. 91. The Convention's general prohibition of all discrimination against women, as defined in

Article 1, and the specific obligations to eliminate discrimination against women in the field of employment, as defined in Article 11, are impossible to reconcile, for example, with Shari'a rules disqualifying women from holding general judicial office.

92. This is not an unlikely possibility, even in a country like Egypt. Article 2 of the Egyp- tian Constitution of 1971 used to provide that "Islamic jurisprudence is a principle source of

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international standards as applied to the Muslim world, unless a fun- damental reformulation of the relevant rules of Shari'a is undertaken.

AN APPROACH TO THE RIGHTS OF WOMEN IN ISLAM

When viewed in the Muslim context, the rights of women are the function of the interplay of two powerful forces. On the one hand, Muslims have a strong and enduring commitment to Shari'a, with its negative implications for the rights of women. On the other hand, secularization and external cultural influence have already trans- formed the consciousness of Muslim women and men and created an expectation of complete equality and full respect for the rights of women. More recently, emerging international standards on the rights of women have also provided strong support for equality and non-discrimination for all women, including the Muslim women. The question now is how to sustain the emerging Muslim awareness of, and commitment to, the rights of women in the face of likely and pow- erful opposition by the proponents of Shari'a?

In view of the dominant role of Islam in this part of the world, I believe that the advocacy of the rights of women must come from within the Islamic tradition itself. As indicated at the end of the intro- duction of this article,93 to maintain Islamic religious law does not necessarily mean the application of Shari'a in its historical formula- tions. Reference has also been made to the possibility of an alternative interpretation of Islamic sources. It is true that what has been described in this article as alternative Islamization, is an internal struggle for the adoption of imaginative reform techniques for the evolution and reformulation of Shari'a. The dual essential characteris- tics of this alternative Islamization are Islamic legitimacy and efficacy in achieving the necessary degree of reform to realize the full rights of equality and freedom from any shade or form of discrimination against women. This article can neither discuss in detail nor hope to win this internal struggle for the Muslim women. However, it may be helpful to reflect on the possible contribution of international advo- cates of the rights of women. In what ways can they be constructive

legislation." An amendment to the Constitution in 1980 changed that last part of the clause to make Shari'a "the" principle source of legislation. 1985 FACTS ON FILE, INC., August 2, 1985, at 578EL. See volume IV of CONSTITUTIONS OF THE COUNTRIES OF THE WORLD - EGYPT (A.P. Blaustein ed. 1986). Even if the whole legal system was not transformed over time through this constitutional mandate, it is not unlikely that the rights of women may suffer some regression to bring Egyptian law and practice into greater conformity with Shari'a, international obligations notwithstanding.

93. See note 4 supra and accompanying text.

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or destructive in their efforts to promote the rights of Muslim women? How can international standards be most relevant and helpful to Mus- lim women?

International standards are meaningless to Muslim women unless they are reflected in the concrete realities of the Muslim environment. Like members of other cultural traditions, Muslims tend to be suspi- cious and unreceptive towards what they perceive to be an attempt to impose alien standards. To obtain their cooperation in implementing international standards on the rights of women, we need to show the Muslims in general that these standards are not alien at all. They are, in fact, quite compatible with the fundamental values of Islam. In other words, we need to provide Islamic legitimacy for the interna- tional standards on the rights of women.

The balance of universality and cultural relativity of human rights, especially the rights of women, is extremely difficult to achieve and maintain in practice.94 It requires giving each cultural tradition an opportunity to contribute in the standard formulation process with- out allowing any tradition to dictate to the others. The balance also requires recognition of the ethical standards and substantive norms of the cultural tradition while rejecting or disallowing archaic and oppressive norms. To avoid even the appearance of dictation by out- siders, which is likely only to be counterproductive, the classification of certain cultural (legal or religious) norms, as archaic and oppres- sive, must be done by the members of the cultural or religious group themselves. Yet, they cannot be left to themselves completely to do whatever they, or their elites, deem fit and appropriate.

There must be room for external influence which is considerate and sensitive to cultural concerns, while committed to enlightened ide- als which can be shown to be the common wisdom of mankind. Sensi- tive and reflective regard to the totality of the human experience, not only to the dominate cultures or that of the rich and developed socie- ties, can provide us with a core of fundamental rights which are either accepted or can be acceptable to all the cultural traditions of the world. We can then act immediately on these core fundamental rights while working progressively towards developing consensus on, and agreed formulations of, more rights.

94. For an explanation of the present author's thesis as applied to the human rights of religious minorities, see An-Na'im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 Human Rights Quarterly 1 (1987). Cf. Teson, International Human Rights and Cultural Relativism, 25 Virginia Journal of International Law 869 (1985).

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Both principle and pragmatism, I believe, would recommend this approach to the rights of women. Our commitment should not be to the rights of women in the abstract, or as contained in high-sounding international instruments signed by official delegations. It should be a commitment to the rights of women in practice; the rights of rural and nomadic African and Asian women to live in very "traditional" or tribal communities and practice Islam, or other religious beliefs, out of genuine conviction. These women cannot and should not be invited to subscribe to a supposedly "international" feminist vision without enabling them, at the same time, to live in harmony with their immedi- ate environment. It is irresponsible and inhumane to encourage these women to move too fast, too soon and to repudiate many of the estab- lished norms of their culture or religious law, without due regard to the full implications of such action. It must be remembered that it is these women who will have to remain there to endure the full conse- quences of their actions.

In conclusion, the wholeness of women as human beings must be emphasized. Efforts to promote the full range of human rights, social, economic and cultural, as well as civil and political, are as conducive to maintaining respect for the rights of women, as efforts to promote rights especially significant to women. What does equality with men and freedom from discrimination mean if both men and women are equally poor and hungry? Can women enjoy any rights when their children are starving, their countries ravaged by civil war or external aggression, or their communities denied their collective right to self- determination? In the final analysis, the rights of women are an inte- gral part of the individual and collective human rights of their men and children.

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