Women, Islam and International Law: Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women »

Dr. Ekaterina Yahyaoui Krivenko received her Ph.D. with specialization in international law from the Graduate Institute of International Studies in Geneva, Switzerland, in 2004. She also received a D.E.S. from the same institution in 2000, and a LL.M. from the Albert-Ludwigs University in Freiburg i. Br., Germany, in 1998. She holds a diploma in law from Belarusian State University in Minsk, Belarus, and LL.B. from University of Geneva in Switzerland. Currently, she is a research fellow at the Canada Research Chair in International Migration Law of the Centre for International Studies (CÉRIUM) of the Université de Montréal, Canada.

Islam and women’s human rights entertain an uneasy relationship. Much has been written on the subject. This volume addresses it from a new perspective. It attempts to define some basis for constructive dialogue and interaction in the context of international law and, more precisely, in the context of participation of many Muslim States in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.
Having discovered a constructive potential in both Islam and women’s human rights, the author concentrates on the role which international law should play in promoting dialogue and constructive interaction. This is done mainly through analysis of the regime of reservations and of the practice of reservations developed in the context of Muslim States’ participation in the CEDAW.
The basic thesis defended is the following: Islam as articulated in the practice of States and women’s human rights, as reflected in international instruments, are both results of human activity. Their analysis in this study reveals more commonalities than one might expect. International law should be more attentive to their voices and more innovative in using these commonalities in order to promote constructive dialogue between them and thus help to improve the situation of women suffering from discrimination and inequalities.

Abbreviations xi

Introduction Theory and Reality of Human Rights 1

I Framework, Goals and Structure 1

II On Methodology 7

A Feminist Legal Methods 7

B Applying Feminist Methods to Human Rights Law 8

C Whose "Right" and Who is "Right"? 11

Chapter I Where and What are Women's Rights for One and for the Other 13

I International Law, Human Rights, and the Status of Women 13

A Introductory Remarks 13

B Human Rights Law and the Status of Women: Defining Women's Needs as Human Rights 15

1 A Historical Perspective 15

2 Where and What are Women's Human Rights 19

3 Human Rights of Women v. Women's Rights: Feminist Critiques of the Way Human Rights Law Addresses Women's Interests 41

C Conclusions 43

II Women in Islam and Islamic Law 44

A Introductory Notes 44

B Terminological Clarifications 45

C Islamic Law: A Search for the Divine Will 46

1 General Clarifications 46

2 Islamic Law in its Traditional Form 49

D Status of Women under Islamic Law: Between Tradition and Modernity 56

1 General Differences between Approaches 57

2 Right to Marry and Choose a Spouse 60

3 Rights and Obligations of Spouses during the Marriage 63

4 Dissolution of Marriage 67

5 Custody and Guardianship of Children 69

6 Polygamy 70

7 Conclusions 71

III Islamic Law as a Process 72

IV Concluding Remarks 74

Chapter II Reservations to Treaties: Some Theoretical Issues 75

I Introduction: Why Reservations? 75

II Reservations in International Law in General 76

A Concept of Reservations 76

1 Definition and Historical Remarks 76

2 Theories 78

B The Vienna Convention Regime 81

1 Permissibility of Reservations 81

2 Reactions of States toReservations and their Effects 89

3 Possibility of Modification of Reservations 92

C Purposes, Functions and Mechanisms of the Reservations Regime in International Law in General 94

III Reservations to Human Rights Treaties 95

A Are Human Rights Treaties Different? 95

B Reciprocity and Reservations to Human Rights Treaties 97

C Attitude of States and Treaty-Monitoring Bodies in Face of Reservations to Human Rights Treaties in the Light of the Doctrine 99

1 General Trends in the Practice of Treaty-Monitoring Bodies 99

2 Developments in the Practice of States 108

IV Regime of Reservations and Dynamism of Human Rights Treaties 111

Chapter III Practice Developed in the Context of Reservations to the CEDAW Based on Islam 115

I Content of Reservations to the CEDAW Based on Islam 115

A Articles Affected 115

1 General Remarks 115

(i) Note on the Practice Adopted with Regard to Modifications of Reservations 118

2 Article 2 122

3 Article 9 125

4 Article 15 126

5 Article 16 128

6 Conclusions 130

B Nature of Reservations 130

1 Algeria 130

2 Bahrain 134

3 Bangladesh 135

4 Brunei 139

5 Egypt 139

6 Iraq 143

7 Jordan 147

8 Kuwait 150

9 Libya 152

10 Malaysia 154

11 The Maldives 157

12 Mauritania 159

13 Morocco 160

14 Niger 163

15 Oman 165

16 Pakistan 165

17 Saudi Arabia 167

18 Syria 169

19 Tunisia 171

20 United Arab Emirates 174

C Conclusions 175

II Reactions of States to Reservations 177

A Introductory Remarks 177

B Objections 178

1 Determination of the Nature of Reservations 181

2 Effects of Reservations and Objections 183

3 Other Types of Statements 185

C Other Reactions 190

1 "Late Objections" 190

2 Reactions to Modifications 193

3 Views of States Parties to the Convention Submitted at the Request of the Secretary-General 195

D Conclusions on General Trends in State Practice 197

III Practice of the Committee 199

A The Committee's Comments on Reservations as Part of Examination of States' Periodic Reports 199

1 Discussing the Impact of Reservations with States 200

2 Determining the Nature of Reservations 202

B Other Statements on Reservations 204

C The Optional Protocol and the Issue of Reservations 206

D Conclusions 207

IV From Statement to Process? 208

Chapter IV Promoting the Dialogue 211

I Approaching Conclusions 211

II International Law and Municipal Legal Orders 213

A Some Theoretical Premises 213

B Situation with the Municipal Law of Muslim States 215

III Suggestions 220

A Summary of the Analysis 220

B Proposals 222

Bibliography 227

Index 263