Tensions between the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Cultural/Religious Practices: Call for Activist and Grassroot Reforms

Although the Universal Declaration of Human Rights confers protection to all individuals irrespective of gender, it has proven largely inefficacious in promoting women’s rights [1]. In recognizing the need for a comprehensive treaty that ensures de facto and de jure women’s equality, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations (UN) in December 1979 [2]. Although over 187 UN member states have ratified this treaty, this convention is effectively undermined by reservations by more states than any other human rights treaty. The reasons for reservations range from the incompatibility of CEDAW with societal and cultural practices to discordance with religious laws (i.e., Sharia [Islamic] law) [3].

Using a human rights-based framework, this paper will argue that while it is important to uphold culture and religion, in the instances in which these practices violate fundamental human rights (i.e., women’s rights), they are not morally justified and, rather, serve to directly and indirectly harm women’s health. To reconcile tensions between culture/religion and human rights, it is necessary for local activist and grassroot organizations to utilize CEDAW as the platform upon which to advocate for gender equality and petition their governments to remove reservations. This paper will also present limitations to CEDAW, arguing that weaknesses of the convention have limited its widespread implementation.

Overview of Tensions Inherent within CEDAW

While accepting CEDAW commits governments to undertaking all appropriate measures to end discrimination against women and ensure women’s equality, as with other human rights documents, there is limited enforcement power by the UN on states that have ratified CEDAW [2,4]. Merry notes that state compliance to the convention and its implementation depends on the will and commitment of national political actors [5]. Moreover, reservations that allow states to “exclude or modify the legal effect of certain provisions of the treaty in their application to that state” have further undermined the convention’s objective and purpose [1,6]. Indeed, CEDAW has had more reservations than any other human rights treaty, particularly to articles that call for the abolishment of laws and customs that discriminate against women (Article 2) as well as ensure women’s equality in family life (Article 16).

As of 2019, 10 countries have reserved their obligations to CEDAW Article 2, on the basis of confliction with Sharia law (e.g., Tunisia, Egypt), personal laws (e.g., Singapore), and/or cultural practices (e.g., New Zealand) [2,7]. With these reservations in place, many countries continue to conduct questionable practices, including female genital mutilation (FGM), virginity testing, honour killings, and domestic violence amongst others [8]. These practices are directly discriminatory towards women. For example, while legal laws in South Africa do not distinguish between virginity testing for boys and girls, girls are disproportionately affected by this practice [9]. Further, virginity testing has proven to result in social isolation, stigmatization, and humiliation [9]. It not only clearly violates the basic dignity of women, but also causes downstream psychological concerns such as depression and mood disorders [10]. On the other hand, FGM, which is supported in several of the same states that reserve Article 2 (e.g., Egypt, Iraq), often occurs because of societal norms that aim to maintain an inferior perception of women, to reduce their sexuality, as well as maintain a girl’s virginity before marriage [7]. Unfortunately, these patriarchal norms prioritize cultural practices above women’s rights, directly endangering women’s health. Indeed, FGM can cause both short-term and long-term health risks, including excessive bleeding, infections, possible human immunodeficiency virus (HIV) infection, perinatal risks, and female sexual health problems, amongst others [11].

Other CEDAW articles also face reservations, including Article 16. States that refuse to be bound by this article, however, neglect their women’s rights in the most personal and pervasive aspects of their lives. Sexual and reproductive rights are disregarded, and women are not protected against explicit and implicit violence [12]. Extant literature posits that societal conditions (which include the woman’s position both within and outside the home) are the most adverse causes of ill health [10]. Limitations of economic and social power as well as legal autonomy in personal/private matters leads to multiple gender-specific health problems (e.g. early and coerced onset of sexual activity, bride-burning and dowry deaths, inadequate nutrition, high rates of sexually transmitted infections [STIs], gender-based violence etc.) [10].

It is important to note, however, that cultural and religious practices are important; culture itself has been posited as a social good that should be protected and offers identity to its society’s members[9]. Nevertheless, as Behrens argues, cultural practices can only be considered a contingent right, to be protected only if they are not “morally unjustified on other compelling grounds” (i.e., health and human rights) [9]. On this basis, virginity testing, FGM, lack of autonomy in family matters, and other cultural entrenchments that continuously degrade and humiliate women, constitute as violations to human dignity and rights, and should be effectively discontinued. The question that then results is: how do we appropriately reconcile the tensions apparently inherent within culture, religion, and human rights?

Reconciliation between Culture and Human Rights?

In order to reconcile these tensions, change needs to come from local activist and grassroot organizations that utilize CEDAW as the platform to advocate for gender equality. Indeed, as previously stated, the limitation of any human rights treaty is that it cannot be forced upon states; to this extent, while some argue that the appropriate solution is to completely disallow CEDAW reservations, this course of action will only serve to alienate countries from the UN and its treaties [7]. The underlying problem (i.e., attainment of women’s rights) will not be resolved. As such, it is essential that non-governmental organizations (NGOs) and activist groups look to utilizing both CEDAW as well as sources from their own culture and religion to attain gender equality [13]. For example, Tunisia used Islamic law to enforce CEDAW Article 16, justifying that the legal age of marriage should be held at 18, and using the Quran to justify women’s free and full consent in the contract of marriage [7]. Further, the NGO Singapore Council of Women’s Organizations as well as the Singapore AWARE advocacy group both submitted reports to the CEDAW committee advocating for the government to lift its reservations to Articles 2 and 16 [14]. Multiple other grassroot organizations are also fighting for societal change within their communities utilizing CEDAW as their platform, including the national Centre for Reproductive Rights and Women’s Global Empowerment Fund that helps to facilitate women’s professional independence in Uganda [15,16].

Limitations to the CEDAW Treaty

There are further concerns that CEDAW itself is a weak legal instrument with vague provisions that fail to adequately address women’s rights violations across the world [7,17,18]. For example, while Articles 2, 3, and 24 ask states to take “appropriate measures” to ensure the elimination of discrimination against women, the exact requirements of these “appropriate measures” are not specified and left entirely to the discretion of the states themselves [2]. Indeed, there is no explicit mention of gender-based violence (which remains extensive within public and private spheres), nor any mention of FGM, virginity testing, and/or forced marriages, amongst other issues [7]. This is in accordance with perhaps one of the greatest limitations of CEDAW, that stems from the fact that it is unable to reflect the experiences of women in non-Western countries; Krivenko argues that “the convention is hardly suited to address specific experiences, needs and stations of women living in circumstances different from the standard western style of life…” [19] This not only explains why gross violations were excluded from the treaty, but also its failure in widespread implementation in non-Western countries. To this extent, some argue that “vernacularizing human rights” can allow human rights to finally be in line with both local and international conceptions of justice [4, 20].

Conclusions

As a legal document aimed at improving the social standing of and discrimination against women, it can be expected that CEDAW would also directly and indirectly improve women’s health [21]. However, reservations against multiple CEDAW articles due to cultural and religious practices work to undermine the convention’s objectives and, as a result, endanger women’s health. To resolve tensions between culture, religion, and gender-based human rights, NGO, activist and grassroot reforms that utilize CEDAW as a platform to advocate for women’s rights within institutional law are required. 

References

[1] Ariany, B. (2013). The Conflict between Women’s Rights and Cultural Practices in Iraq. Int. J. Hum. Rights, 17(4): pp. 530-566 . doi:10.1080/13642987.2013.784492

[2] United Nations Division for the Advancement of Women, D. of E. and S. A. Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979. Available at: https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx. (Accessed: 15th November 2019).

[3] Cook, R. J. (1990). Reservations to the convention on the elimination of all forms of discrimination against women. Virginia Journal of International Law, 30(3), 643-716.

[4] Holmes, C. E. (2019). Conventions, courts, and communities: Gender equity, CEDAW and religious personal law in india. Journal of Asian and African Studies, 54(7), 965–979. https://doi.org/10.1177/0021909619846535.

[5] Merry, S. E. (2003) Constructing a Global Law-Violence against Women and the Human Rights System.Law and Social Inquiry, 28(4), 941-977. doi:10.1111/j.1747-4469.2003.tb00828.x.

[6] Collection, U. N. T. Vienna Convention on the Law of Treaties. (2019). Available at: https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en. (Accessed: 15th November 2019).

[7] El-Masri, S. (2012). Challenges facing CEDAW in the Middle East and North Africa. The International Journal of Human Rights, 16(7), 931–946. https://doi.org/10.1080/13642987.2011.629096.

[8] Girls Rights Factsheet; Reservations in International Law. Plan Canada (2017). Available at: https://www.girlsrightsplatform.org/sites/default/files/2018-02/Factsheet_Reservations in International Law_EN.pdf. (Accessed: 15th November 2019).

[9] Behrens, K. G. (2014). Virginity testing in South Africa: A cultural concession taken too far? South African Journal of Philosophy, 33(2), 177–187. https://doi.org/10.1080/02580136.2014.912471.

[10] Birn, A.-E., Pillay, Y., & Holtz, T. H. (2017). Textbook of global health (Fourth edition). Oxford University Press.

[11] Organization, W. H. Health risks of female genital mutilation (FGM). World Health Organization Available at: https://www.who.int/reproductivehealth/topics/fgm/health_consequences_fgm/en/. 

[12] Reservations to the Convention on the Elimination of All Forms of Discrimination against Women Weakening the protection of women from violence in the Middle East and North Africa region. (2004). Stop Violence Against Women. Available at: https://www.refworld.org/pdfid/42ae98b80.pdf. (Accessed: 15th November 2019)

[13] Fournier, P. (2011). En-gender-ing legal reforms: Islamic law in Africa and East Asia. Amsterdam Law Forum, 3(2), 103-129. Retrieved from http://amsterdamlawforum.org/article/view/213.

[14] Keller, L. (2014). The Impact of States Parties’ Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women. Michigan State Law Rev. 309–325.

[15] Center for Reproductive Rights. Available at: https://reproductiverights.org/. (Accessed: 15th November 2019).

[16] Women’s Global Empowerment Fund. Available at: https://wgefund.org/. (Accessed: 15th November 2019).

[17] Donner, L. A. (1994). Gender Bias in Drafting International Discrimination Conventions: The 1979 Women’s Convention Compared with the 1965 Racial Convention. Calif. West. Int. Law 24, 241–254.

[18] Rosenblum, D. (2011). Unsex CEDAW, or What’s Wrong with Women’s Rights. Columbia J. Gend. Law.

[19] Yahyaoui Krivenko, E. (2009). Women, islam and international law: Within the context of the convention on the elimination of all forms of discrimination against women. Martinus Nijhoff Publishers.

[20] Cerna, C. M. (1994). Universality of human rights and cultural diversity: Implementation of human rights in different socio-cultural contexts. Human Rights Quarterly, 16(4), 740. https://doi.org/10.2307/762567.

[21] Tait, C. A., Abdillahi, I., Wong, W., Smith-Cannoy, H., & Siddiqi, A. (2019). Can the health effects of widely-held societal norms be evaluated? An analysis of the United Nations convention on the elimination of all forms of discrimination against women (UN-CEDAW). BMC Public Health, 19(1), 279. https://doi.org/10.1186/s12889-019-6607-6.