BROAD STROKES AND BRIGHT LINES: A RECONSIDERATION OF SHARI'A BASED RESERVATIONS.

• Author: Monforte, Tanya

INTRODUCTION

1. 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. I trace some of the ways in which the debate over the permissibility of Shari'a reservations is based on disagreements about the nature of international law, about feminist theory in women's rights, about how religion and gender could or should be constituted through the state, and about who the proper subject of rights should be.

   After establishing the theoretical orientation of the argument in the following section. Part I will examine how parties to CEDAW, as well as United Nations (UN) human rights experts entrusted with monitoring CEDAW's application, have attempted to constrain states through the treatment of Shari'a based reservations. In Part II, I look at the reservations debate as a prism that makes visible the way in which women's rights have at times been constructed on the assumed necessity for secularism, and the concurrent compulsion to push religion out of the public sphere and into the private domain.

   Throughout the paper, the critique rests on the competing assumption that we need not fall prey to moral relativism or give upon women's universal empowerment simply because we may want to allow for diversity in women's rights. However, by painting Islamic law and human rights with broad strokes as coherent, homogeneous and singular, and creating bright lines along the public/private distinction, some international law advocates and scholars have contributed to a contrived opposition that may have damaged the legitimacy of international human rights law as a vehicle for universal human emancipation and progress.

2. Women's Rights: A Theoretical Framework

   At one point the privileging of liberal feminism over other traditions contributed to the creation and structure of the opposition between international law and Islamic law, as it fit easily within a rights framework. (6) This is because feminism, as a politically and theoretically heterogeneous position, had for a time at least become unpalatable in comparison to the more apparently neutral and comprehensible discourse of women's rights. That is to say, it is much more difficult to assert one's opposition to women's rights than to feminism. So, as the discourse of women's rights took over the academic and policy fields of gender, purging them of some explicitly feminist positions and theoretically rich traditions, it should not be surprising that feminist methodology had, at least for a time, fallen out of fashion. (7) The mainstreaming of gender in international relations may have exacerbated this process as gender analysis became an empirical endeavor of counting women, and women's empowerment became reducible to merely adding female bodies within institutions. (8) More dramatically, the radical nature of CEDAW may have been defanged in the global North by the sacrosanct value of individual freedom as supposedly private choices of women comprising gender differences between women and men have been granted a veil of protection. (9) Without the vibrant debate that differing feminist positions produced, and the very different insights of those positions, the gender discourse in international relations has veered toward methodological abstinence and political dogmatism. (10) However, rather than "taking a break from feminism" (11) in the age of women's rights, a moment in which women are increasingly regulated by law, committed political positions on gender in law that explicitly employ feminist methodologies should be discussed, theorized, and acted upon. (12) While we are currently witnessing a renaissance of feminism, what it will ultimately look like is yet to be determined. We can only hope that this new wave of feminism will be an open, large-tent discourse that is capable of empowering women and seeing beyond our own subject positions while not silencing marginal voices. In the area of international women's rights, there is a need to revisit human rights dogma and push back against mainstream dominant positions that deal with gender oppression superficially. This requires conceptual shifts in the categories that have dominated the mainstream debate in the field. In this context, it is not surprising that there is something problematic about the way in which the debate in women's rights has played out around the issue of Islamic law and gender oppression.

   In the field of international women's rights, and specifically when talking about women in the Middle East, an opposition was set up in the 1990s and was put rather pointedly by Ann Elizabeth Mayer: "There are two basic positions one can take on women's rights, the universalist and the cultural relativist ... according to the universalist position, all women are entitled to the rights set forth in international covenants ... relativists argue that members of one society may not legitimately condemn the practices of societies with different traditions...." (13) This opposition has been given more nuance over the years by Mayer herself and others. Instead of arguing simply that women's rights are universal, the claim is rather that relativist arguments do not constitute a legitimate defense for the oppression of women, while at the same time that the defense of human rights cannot be grounded in ethnocentric reasoning. (14) The attempt to reconcile the particularity of local contexts and a universal discourse appears to be one of the many challenges the U.N. faces.

   The universality of human rights and their validity in a given local context have often been contested through relativist discourses that brand them as foreign ideas incompatible with local culture. However, the Special Rapporteur in the field of cultural rights has warned against discourses that disregard the fact that culture is not static and changes over time.... The Special Rapporteur on violence against women, in her report on intersections between culture and violence against women, argues that it is possible to negotiate human rights with culture, challenging discriminatory and oppressive aspects of culture while retaining its positive aspects. (15)...