Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-24T14:01:56.510Z Has data issue: false hasContentIssue false
  • English
  • Français

The Tension Between Women's Rights and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia

Published online by Cambridge University Press:  24 April 2015

Michele Brandt  and
Jeffrey A. Kaplan
Get access Rights & Permissions [Opens in a new window]

Extract

Since women's rights first entered the agenda of the United Nations (“U.N.”), there has been a running tension between the expression and codification of those rights and the right to freedom of religion. Thus far, this tension has resulted in an uneasy relationship between U.N. instruments regarding religious rights and U.N. instruments on women's rights. The former stand mute with respect to the relationship between women's rights and religion. The latter are encumbered with substantial reservations by countries concerned with safeguarding their religious tenets and traditions.

This paper will examine the tension between women's rights and religious rights as expressed in certain State Parties' reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) that are based on Islamic Law and the extent to which CEDAW can ensure adherence to its norms while recognizing the right to freedom of religion or belief. The article does not purport to offer any authoritative commentary of Islamic law. Rather, its objective is to highlight connections between CEDAW's tenets, the nature of Islam-based reservations, and the course of women's lives in certain reserving countries.

Type
Articles
Information
Journal of Law and Religion , Volume 12 , Issue 1 , 1995 , pp. 105 - 142
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1995

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Convention on the Elimination of All Forms of Discrimination Against Women, GA Res 34/180, 34 UN GAOR Supp (No 46) at 193, UN Doc A/34/46, entered into force Sep 3, 1981 (hereinafter CEDAW).

2. Twenty states initially ratified the Convention. Id at Art 27(1).

3. Id at Art 3.

4. Cook, Rebecca J., ed, Human Rights of Women 469 (U Pennsylvania Press, 1994)Google Scholar.

5. The inclusion of a provision allowing reservations, if compatible with CEDAW's goals, represented a compromise to encourage broader ratification. Cook, Rebecca J., Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 Va J Intl L 643, 673, 686 (1990)Google Scholar.

6. Hossain, Sara, Women's Rights and Personal Laws in South Asia in Cook, , Human Rights of Women at 470 (cited in note 4)Google Scholar.

7. CEDAW at Art 28(2) (cited in note 1).

8. Tomasevski, Katarina, Women and Human Rights 116 (Zed Books Ltd, 1993)Google Scholar.

9. Cook, , 30 Va J Intl L at 673 (cited in note 5)Google Scholar (quoting Imbert, P.H., Reservations and Human Rights Conventions, 6 Hum Rts Rev 28, 31 (1981)Google Scholar).

10. Tomasevski, , Women and Human Rights at 119 (cited in note 8)Google Scholar.

11. Id.

12. Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its forty-third session, Geneva, 5-30 08 1991Google Scholar. UN Doc E/CN 4/Sub 2/1991/65 of 24 Oct 1991, at 145,146 (this document can also be found cataloged under E/CN.4/1992/2). In connection with this, the Sub-Commission has considered seeking an advisory opinion from the International Court of Justice on the legality and effect of reservations to CEDAW. See Hossain, , Women's Rights at 484 (cited in note 6)Google Scholar.

13. An-Na'im, Abdullahi, The Rights of Women and International Law in the Muslim Context, 9 Whittier L Rev 491, n 84 (1987)Google Scholar.

14. Tomasevski, , Women and Human Rights at 116–17 (cited in note 8)Google Scholar.

15. See UN Doc CEDAW/SP/1992/2. This article relies primarily on secondary sources, many which describe the effects of law from a women's rights perspective, due to their availability. The laws of the countries reviewed rely heavily on various schools of religious law, and this article does not attempt to describe or fill in the underlying religious law which governs these areas of state jurisprudence. For a summary of marriage laws, see al-Hibri, Azizah, Marriage Laws in Syrian, Moroccan and Tunisian Marriage, 4 Intl Rev of Compar Pub Pol'y 227, 240 (1992)Google Scholar. See also al-Hibri, Azizah, Family Planning and Islamic Jurisprudence, Religious and Ethical Perspectives on Population Issues 6–7 (Relig Consult on Population, Reproductive Health & Ethics, 1993)Google Scholar.

16. See Jenefsky, Anna, Permissibility of Egypt's Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women, 15 Md J Intl L & Trade 199, 219 (1991)Google Scholar. President Sadat, to avoid the legislature blocking family law reform as it had done in 1975, issued Law No 44 as a presidential decree during a parliamentary recess. Esposito, John L., Women in Muslim Family Law 62 (Syracuse U Press, 1982)Google Scholar. The Supreme Court ruled that such a decree substantively fell outside the president's decree authority which was limited to “emergency” situations. Jenefsky, , 15 Md J Intl L & Trade at 219 (cited above)Google Scholar.

17. See Lief, Louise, An Old Oasis of Tolerance Runs Dry, Egypt's Women Face a New Islamic Backlash, 117 US News & World Rep 39 (08 29, 1994)Google Scholar (noting the rise of an “Islamic feminism”).

18. Dwyer, Kevin, Arab Voices: The Human Rights Debate in the Middle East 185 (U of California Press, 1991)Google Scholar.

19. Zenié-Ziegler, Wédád, In Search of Shadows: Conversations with Egyptian Women 83 (Zed Books, 1988)Google Scholar.

20. Sipress, Alan, In Egypt, Ruling on Veils Exposes Dissension, Philadelphia Inquirer A3, (09 26, 1994)Google Scholar; North, James, Egyptian Feminists Battle Fundamentalist Backlash, Montreal Gazette F2 (12 20, 1993)Google Scholar (75% of women in Cairo wear headscarves or “hejab”).

21. Personal Status Code of Egypt n 25 (1929) concerning center personal status rules (al-Banna, 1976). Fleuhr-Lobban, Carolyn, Islamic Society in Practice 127 (U Press of Florida, 1994)Google Scholar.

22. If a husband was absent for one year or more without just cause, a wife was entitled to sue for an irrevocable divorce. The husband, if possible, had to be informed of the suit and given the opportunity to rejoin his wife or make arrangements for her to join him. If contact with an absent husband was impossible, a wife was immediately granted a divorce. Esposito, , Women in Muslim Family Law at 57 (cited in note 16)Google Scholar.

23. Maltreatment as a grounds for divorce required a woman to prove that the mistreatment was detrimental to the marital relationship and reconciliation was impossible. Id at 56.

24. Law No 20,1920. But see Esposito, , Women in Muslim Family Law at 55 (cited in note 16)Google Scholar identifying Law No 25 as the origin of these grounds. Other grounds for divorce include, mon alia, divorce for harm (not mistreatment only) or because the husband has been imprisoned. See Law No 25, 1929. A contagious disease is found in the earlier law. While Islamic law had always granted wives the right to support or maintenance, absent a specific agreement, past-due maintenance was not grounds for divorce. Before the issuance of Law No 25, the maximum penalty for failure to pay presently due support was imprisonment. Id at 54.

25. Id at 58.

26. Id at 59-61 (outlining family law reform efforts preceding the enactment of Law No 44); see also Jenefsky, , 15 Md J Intl L & Trade at 218 and n 76 (cited in note 16)Google Scholar; Fleuhr-Lobban, , Islamic Society at 125 (cited in note 21)Google Scholar. Referring to the obstacles to reform specific to Egypt such as the presence of its famous Islamic university, Nassar was quoted as saying, “I would like to do what Bourgiba has done [in Tunisia] but the obstacles are greater here in the heart of Islam at the gate of Al-Azhar.” Id at 126.

27. Esposito, , Women in Muslim Family Law at 61 (cited in note 16)Google Scholar; Jenefsky, , 15 Md J Intl L & Trade at 218 (cited in note 16)Google Scholar; Dwyer, , Arab Voices at 237 n 2 (cited in note 18)Google Scholar.

28. Jenefsky, , 15 Md J Intl L & Trade at 218 (cited in note 16)Google Scholar; Esposito, , Women in Muslim Family Law at 63 (cited in note 16)Google Scholar.

29. Fleuhr-Lobban, , Islamic Society at 127 (cited in note 21)Google Scholar.

30. Id; Esposito, , Women in Muslim Family Law at 61 (cited in note 16)Google Scholar.

31. Esposito, , Women in Muslim Family Law at 62 (cited in note 16)Google Scholar.

32. Id; Report of the Committee on the Elimination of Discrimination Against Women, UN GAOR Supp (No 45) at 29 UN DOC A/39/45 (1984)Google Scholar.

33. Jenefsky, , 1 Md J Intl L & Trade at 219 (cited in note 16)Google Scholar. Wives who left the marital home and refused to return to their husbands after receiving formal notice could have their marriages terminated from the date of refusal. Esposito, , Women in Muslim Family Law at 61–62 (cited in note 16)Google Scholar.

34. Id at 62. See also al-Hibri, , 4 Int'l Rev of Compar Pub Pol'y at 227, 240 (cited in note 15)Google Scholar.

35. Esposito, , Women in Muslim Family Law at 62 (cited in note 16)Google Scholar.

36. al-Hibri, , 4 Int'l Rev of Compar Pub Pol'y at 237 (cited in note 15)Google Scholar.

37. Fleuhr-Lobban, , Islamic Society at 129 (cited in note 21)Google Scholar. The divorce action on these grounds also had to be timely filed. al-Hibri, , 4 Int'l Rev of Compar Pub Pol'y at 237 (cited in note 15)Google Scholar.

38. Fleuhr-Lobban, , Islamic Society at 130 (cited in note 21)Google Scholar.

39. al-Hibri, 4 Int'l Rev of Compar Pub Pol'y at 238–40 (cited in note 15)Google Scholar.

40. Tomasevski, , Women and Human Rights at 24 (cited in note 8)Google Scholar.

41. Zenié-Ziegler, , In Search of Shadows at 114 (cited in note 19)Google Scholar.

42. See Dwyer, , Arab Voices at 184 (cited in note 18)Google Scholar.

43. Murphy, Kim, Martyr, Schoolgirl, Soldier, Terrorist: The Battle for Egypt, LA Times, Magazine 28 (11 27, 1994)Google Scholar.

44. See Lief, , 117 US News & World Rep at 41 (cited in note 17)Google Scholar.

45. Id. A non-profit group, the Association for the Development and Enhancement of Women, making loans to small businesses run by women in urban slums was challenged before the Fatwa Office of the Ministry of Religious Affairs for using interest payments, a violation of Islamic law. Id.

46. See Sami, Mariam, Women's Rights in Muslim Marriages are Focus of Model Egyptian Contract, Rocky Mountain News 73A (09 18, 1994)Google Scholar. While marriage contracts are a long-standing Muslim custom, the practice of delineating women's rights in them is not often used these days in typical contracts. The proposed model marriage contract will contain 10 questions to be answered by the man and woman. Id.

47. See Bhatia, Shyam, Circumcision Sparks International Row, The Edmonton J A9 (10 16, 1994)Google Scholar.

48. Lief, , in US News & World Rep at 41 (cited in note 17)Google Scholar.

49. See Sami, , Rocky Mountain News at 73A (cited in note 46) (quoting an Egyptian Justice Ministry official)Google Scholar.

50. Fleuhr-Lobban, , Islamic Society at 147 (cited in note 21)Google Scholar.

51. Lief, , 117 US News & World Rep at 41 (cited in note 17)Google Scholar.

52. Murphy, LA Times at Magazine 28 (cited in note 43). Employment discrimination based upon gender remains pervasive. A female lawyer, for example, has sued Egypt's Public Prosecution Office to become Egypt's first female judge. While some Islamists disagree, most Egyptians, including Egypt's highest religious authority, do not see the Koran but rather tradition barring female judges. See Fleuhr-Lobban, , Islamic Society at 163 (cited in note 21)Google Scholar (noting other Islamic countries that have female prime authorities); Morello, Carol, Egypt Balks: Lawyer Fights to be First Woman Judge, The Times-Picayune A20 (07 3, 1993)Google Scholar. Although Egypt's Constitution guarantees women equal rights to any job, some Islamic scholars interpret Shari'a to allow women to judge civil and family cases but not criminal cases. See Cordahi, Cherif J., Women: Law Suit in Egypt Highlights Debate on Women's Role (Inter Press Service 06 11, 1993)Google Scholar.

53. McLeod, Ramon G., Egypt Turns to Family Planning, SF Chronicle A1 (09 12, 1994)Google Scholar. As part of its effort to curb its population growth, the Egyptian government jointly finances family planning clinics with the International Planned Parenthood Federation. Still, the average Egyptian family has 4.2 children. Id.

54. See Sipress, , Philadelphia Inquirer at A3 (cited in note 20)Google Scholar.

55. Id.

56. Egyptians practice both minor and radical circumcision, the latter linked to pharaoic origins. Al-Mar'ah, al-Arabiyan (The Arab Woman) (N Tob'ya, ed). See Waldman, Peter, Some Thinkers Want to Reinterpret Islam, The Asian Wall Street J 12 (03 21, 1995)Google Scholar. Egypt's most prestigious Islamic university, al-Azhar University, opposed the government's partial ban on female circumcision. The most authoritative jurist supporting female circumcision, al-Haq, is now deceased. Interestingly, the Azhar report from the Beijing Conference prepared under his authority, does not mention this practice, perhaps reflecting disagreement at Azhar. Sheikhs Ahmad Shaltutt and Abdal-Gaffar Mansour from Azhar have similarly argued that it is wrong. Id. By contrast, Egyptian jurist Abd-al-Halim Abu Shuqqa argued that female circumcision is clearly not religiously mandated and all hadiths (statements of the prophet) related to this practice are weak and unreliable. Abd al-Halim Abu Shuqqa, Tahir al-Mar'anfi Asr al-Risahah 150 (the Liberation of Woman in the Days of Revelation). Id. Circumcision persists in some areas under pressure from local mullahs claiming the practice is part of women adhering to Islam, and therefore beyond challenge. Kerr, Joanna, ed, Ours by Right 53, (Zed Books Ltd, 1993)Google Scholar. However, many women favoring female circumcision do not follow the practice due to Islamic demands highlighting the cultural, as opposed to religious, foundations of the practice. See Murphy, Caryle, Mother, This Isn't Fair; In Egypt, Female Circumcision is an Unyielding Tradition, Wash Post A1 (08 28, 1994)Google Scholar.

57. Bhatia, , The Edmonton J at A9 (cited in note 47)Google Scholar. A senior Egyptian official said that some 250,000 girls are circumcised each year. Murphy, Wash Post at Al (cited in note 56). A 1959 decree permits only partial circumcisions that leave the clitoris intact, and if performed by physicians. Associated Press, A Daughter; 4 Men Arrested in Circumcision of 10-Year-Otd Girl, Wash Post A12 (09 13, 1994)Google Scholar. The government later banned state medical facilities from performing circumcisions and disallowed midwives undertaking the operation. Murphy, , Wash Post at A1 (cited in note 56)Google Scholar. Despite the illegal nature of most female circumcisions in Egypt, midwives perform most circumcisions and prosecutions are rare. Id. Egypt's Parliament is considering a bill on children that includes provisions fining parents who circumcise their daughters. Id.

58. Zenié-Ziegler, , In Search of Shadows at 97 (cited in note 19)Google Scholar. (Addressing someone whose job was to carry out female circumcisions, Mohammed reportedly said, “Reduce, but do not destroy”). Id.

59. Bhatia, , The Edmonton J at A9 (cited in note 47)Google Scholar.

60. Murphy, , Wash Post at A1 (cited in note 56)Google Scholar; see also Winokur, Julie, Uncensored—Egypt's Most Outspoken Feminist Sets Up Her Soapbox at the UW—A Class Struggle—Nawal El Saadani Continues to Sound Off in Exile, The Seattle Times 12 (04 24, 1994)Google Scholar (98% of rural girls and 62% of educated females undergo circumcision).

61. See Lief, , 117 US News & World Rep at 39 (cited in note 17)Google Scholar; Winokur, , The Seattle Times at 12 (cited in note 60)Google Scholar.

62. Associated Press, Arab Women in the Middle East, SF Examiner A15 (03 8, 1994)Google Scholar.

63. Id.

64. Tomasevski, , Women and Human Rights at 124 (cited in note 8)Google Scholar (citing Report of the Committee on the Elimination of Discrimination against Women, Volume II, Third Session, UN Doc A/39/45 (1984) paras 215-16).

65. Id at 118.

66. An-Na'im, , 9 Whittier L Rev at 513 (cited in note 13)Google Scholar.

67. Id.

68. UN Doc CEDAW/SP/13/Rev 1 (1989).

69. Jenefsky, , 15 Md J Intl L & Trade at 211 (cited in note 16)Google Scholar.

70. UN Doc CEDAW/SP/13/Rev 1 at 11 (1989).

71. Id.

72. Egypt's reservation states that compliance with Article 16:

must be without prejudice to the Islamic Sharia provisions whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them. 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 into question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementarity which guarantees true equality between the spouses and not a quasi-equality that renders the marriage a burden on the wife.

UN Doc CEDAW/SP/13/Rev 1 at 11 (1989). Egypt's reservation continues by explaining how a husband's financial obligations toward his wife, from dowry to upkeep to alimony, leaving the wife without an obligation to give up rights to her property or contribute to the marriage monetarily, is balanced by his right to divorce without judicial approval. Id.

73. Cook, , 30 Va J Intl L at 703–05 (cited in note 5)Google Scholar.

74. Id at 705.

75. Report of the Committee on the Elimination of Discrimination Against Women, Volume II, Third Session, UN Doc A/39/45 (1984) paras 215-16.

76. Kerr, , Ours by Right at 36 (cited in note 56)Google Scholar.

77. Id.

78. Id.

79. See Cook, , ed, Human Rights of Women at 474 (cited in note 4) (outlining the Constitution's provisions regarding equality and women)Google Scholar.

80. Id at 476 (discussing the development of Bangladesh's personal laws).

81. Muslim Family Laws Ordinance, Ordinance No VIII of 1961 XIV Pakistan Code 1966 at 67 (Gov't of Pakistan, 1966)Google Scholar.

82. Cook, , ed, Human Rights of Women at 473 (cited in note 4)Google Scholar.

83. Kerr, , Ours by Right at 36 (cited in note 56)Google Scholar.

84. See Cook, , ed, Human Rights of Women at 476 (cited in note 4)Google Scholar.

85. Id.

86. A husband failing to obtain prior consent from the Arbitration Council may be fined or imprisoned, and compelled to repay his previous wife's dowry. However, polygamous marriages lacking Council consent remain valid, and divorce laws leave women few alternatives to accepting subsequent marriages. Id at 476.

87. Id at 477. Women may access this process only when the husband delegated a right of divorce in the marriage contract. See id.

88. Act No VIII of 1939, Pakistan Code 1966 at 716 (cited in note 81).

89. Id at 6.

90. Sue Montgomery, , Muslim Fundamentalists Threaten Bangladeshi Women, The Edmonton J D6 (07 9, 1994)Google Scholar.

91. Islam, Tabibul, Bangladesh-Women: Dowry Demands Disrupt Social Fabric (Inter Press Serv, 12 30, 1994)Google Scholar.

92. Id. The courts, however, are unable to act in most cases involving rural women whose marriages are typically unregistered. The government has also established “women persecution resistance cells” in some districts to adjudicate dowry disputes and other family matters. Lawyers employed by each cell represent women in cases of harassment before courts. Such measures, however, have made few inroads into the entrenched tradition of dowry in Bangladesh. Id.

93. Dentsche Presse Agentur, Bride Murders for Dowry Grow in Bangladesh, The Houston Chronicle A22 (03 12, 1995)Google Scholar.

94. Id.

95. Id.

96. Goodman, Ellen, Islam's Newest Most-Wanted Writer Everywhere I Look I See Women Being Mistreated and Their Oppression Justified in the Name of Religion!, Pitt Post-Gazette B3 (07 27, 1994)Google Scholar; see also Wagner, Thomas, Bangladesh an Odd Place for Feminism; Yet 2 Female Leaders, Writers are at Center of Power Struggle, SF Examiner A3 (07 3, 1994)Google Scholar (Islamic clerics have accused volunteer groups of using relief programs to convert poor Bangladeshis to Christianity and liberate women).

97. Corre, Philippe Le, Unrepentant Exile, Far E Econ Rev 32 (11 24, 1994)Google Scholar; Wagner, , SF Examiner at A3 (cited in note 96)Google Scholar. Nasrin has written, “Everywhere I look, I see women being mistreated and their oppression justified in the name of religion.… Some men would keep women in chains, veiled, illiterate and in the kitchen.” Goodman, , Pitt Post-Gazette at B3 (cited in note 96)Google Scholar.

98. Lijnzaad, Liesbeth, Reservations to UN-Human Rights Treaties: Ratify and Ruin? 338 (Martinas Nijhoff Publishers, 1995)Google Scholar.

99. Cook, , ed, Human Rights of Women at 471 (cited in note 4)Google Scholar. Mexico also pointed out Bangladesh's pre-existing obligations to uphold women's rights:

The principles of equality between men and women and of nondiscrimination on the basis of sex are enshrined in the second preambular paragraph and in Art 1, para 3, of the Charter of the United Nations, and Bangladesh has accepted the obligations contained therein, as well as in other internationally recognized instruments.

Id at 472.

100. Id.

101. Id.

102. See. for example, Clark, Belinda, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 Am J Intl L 281, 299 (1991)CrossRefGoogle Scholar.

103. See, for example, Cook, , ed, Human Rights of Women at 471 (cited in note 4)Google Scholar; Clark, , 85 Am J Intl L at 288 and n 118 (cited in note 102)Google Scholar (noting that Canada posed this question in comments submitted to the Secretary-General).

104. Cook, , 30 Va J Intl L at 690–91 (cited in note 5)Google Scholar.

105. Cook, , Human Rights of Women at 472 (cited in note 4)Google Scholar.

106. Id.

107. Id.

108. Id at 475.

109. Id at 478-83 (discussing decisions extending women's rights while also noting recent judicial backsliding).

110. CEDAW, Consideration of Reports Submitted by States Parties Under Article 18 of the Convention: Combined initial and second reports of state parties - TUNISIA, at 19, CEDAW/C/TUN/1-2, 12 04 1994 [hereinafter Tunisia Report]Google Scholar.

111. Id at 17.

Not mentioned in Tunisia's report is another Tunisian philosopher known as Ghannouchi. Echoing Haddad's thoughts on Islam, Ghannouchi states, “‘Islam did not come with a specific program about our life. It brought general principles. It's our duty to make this program through interaction between Islamic principles and modernity.’” Wright, Robin, Islamist's Theory of Relativity, LA Times A1 (01 27, 1995)Google Scholar.

Ghannouchi has also said that an Islamic State should encompass “majority rule, protection of minorities, full women's rights and equality of all secular and religious parties.” Id. Viewed as challenging the state, he was repeatedly imprisoned in Tunisia until he was forced into exile in Europe.

112. Tunisia Report at 177 (cited in note 110).

113. Personal Status Code of Tunisia; Art 18 (1956).

114. Bronner, Ethan, For Women, Tunisia Sets Itself Apart, The Boston Globe 2 (11 1, 1993)Google Scholar; Tunisia Report at 178-79 (cited in note 110); Personal Status Code Decree, (Aug 13, 1956 as amended 1993) Bk 1, Art 6 (minors), Art 9 (adults).

115. Tunisia Report at 185 (cited in note 110).

116. Id at 186.

117. Fleuhr-Lobban, , Islamic Society at 120 (cited in note 21)Google Scholar.

118. Ladin, Sharon, International Women's Rights Action Watch 38 (Hubert H. Humphrey Institute of Public Affairs, 1994) [hereinafter IWRAW]Google Scholar.

119. Act No 93-74 of 12 July Amending Certain Articles of the Personal Status Code (reprinted in TAinisia Report at 204) (Article 6).

120. Id (Article 23).

121. Id at 205 (Article 32).

122. Id at 206 (Article 53). The Tunisian government established a fund to guarantee the payment of court-ordered alimony and child support. Id at 201-02, 211.

123. Id (Article 67).

124. Litherland, Susan, Tunisia-Women: Government Intends to Extend Rights of Women (Inter Press Serv, 11 10, 1994)Google Scholar. Prenatal care has likewise increased. Nearly three quarters of all basic health care centers provide family planning services and pre- and postnatal services. In 1989, over 70% of Tunisian women consulted a doctor at least once during their pregnancy. Postnatal care lags behind. A mere 39% of all mothers had any such consultations. Tunisia Report at 136-37 (cited in note 110).

125. Tunisia Report at 130 (cited in note 110). As early as 1965, Tunisia permitted abortions, if performed by a doctor in a hospital or authorized clinic, during the first 3 months of pregnancy for couples with five children, if the mother's health was threatened, or if malformation threatened the viability of the fetus. Id at 24. In 1976, a decree authorized abortions within the first three months and eliminated the requirement of five living children. Abortions for medical purposes are permitted at any time. Id at 130.

126. al-Hibri, , Family Planning and Islamic Jurisprudence at 6–7 (cited in note 15)Google Scholar. National Public Radio, Tunisian Women at the Forefront of Family Planning, Morning Edition (09 8, 1994)Google Scholar (also discussing family planning services offered at Tunisia's rural health clinics). However, if there are not good reasons, some Hanafi regard early abortion as makruh (disfavored). al-Hibri, , Family Planning and Islamic Jurisprudence at 6, n 25 (cited in note 15)Google Scholar.

127. Bouabid, Ihsan, Women-UN: Tunisia Hailed as Model Among Islamic Nations, (Inter Press Serv, 01 25, 1995)Google Scholar. Tunisia, in 1993, amended its Personal Status Code to permit Tunisian women married to non-Tunisians to give their nationality to minor children of the marriage, even if born outside Tunisia, subject to the husband's consent. Tunisia Report at 211 (cited in note 110) (address by President Zine el Abidine Ben Ali on the Occasion of Women's Day, 13 Aug 1992).

128. See Ladin, , IWRAW Report on Tunisia at 189–90 (cited in note 118)Google Scholar.

129. IWRAW to CEDAW Country Reports 32 (1995).

130. Id.

131. Bejar, Abdel Majid, Tunisia-Women: Wives Continue to Be Beaten in the Name of Islam (Inter Press Service, 12 10, 1993)Google Scholar.

132. Ladin, , IWRAW at 3 (cited in note 118)Google Scholar

133. Litherland, Government Intends to Extend Rights of Women (cited in note 124). The Tunisian government, however, reports lower figures for female attendance in primary and secondary schools. See Tunisia Report at 82-90 (cited in note 110).

134. Id at 167 (statistics on illiteracy rates among Tunisian women).

135. Id at 33.

136. Borowiec, Andrew, No Refuge in Tunisia for Fundamentalism, Wash Times A8 (03 19, 1993)Google Scholar (discussing, in part, professional inroads made by Tunisian women).

137. Ladin, , IWRAW at 3 (cited in note 118)Google Scholar.

138. Id.

139. Fleuhr-Lobban, , Islamic Society at 123 (cited in note 21)Google Scholar.

140. Amnesty International, Tunisia: Women Victims of harassment, torture and imprisonment (06 1993) [hereinafter Amnesty Report]Google Scholar.

141. Nduru, Moyiga, Algeria Slammed by Amnesty Over Torture Cases (Inter Press Serv, 06 3, 1993)Google Scholar; Amnesty Report at 11-13 (cited in note 140).

142. Fleuhr-Lobban, , Islamic Society at 123 (cited in note 21)Google Scholar.

143. Id. See also Amnesty Report at 1-4 (cited in note 140). Two women, wives of prominent al-Nahda members, fled Tunisia after being tortured, beaten and harassed. Id. at 8-9.

144. Tunisia - Militant Secularism vs. Human Rights, Arab Press Service Organization (06 6, 1994)Google Scholar.

145. Associated Press, SF Examiner at A15 (cited in note 62).

146. Many batterer husbands justify their marital abuse on Islamic tenets, falsely interpreted many say, which is read to instruct husbands “if you fear a deviation on their part, beat them.” Bejar, Inter Press Serv (cited in note 130). Other Islamic scholars consider this a misinterpretation, stressing that the Prophet Mohammed married several women but never struck one of them. See also Ladin, , IWRAW at 34 (cited in note 118)Google Scholar.

147. Bejar, Inter Press Service (cited in note 131).

148. Id.

149. Bertelson, Christine, 2 Women Dispel Some Ideas of Life in Islamic Nations, St Louis Post-Dispatch B1 (03 21, 1995)Google Scholar.

150. Clark, , 85 Am J Intl L at 301 (cited in note 102)(citing UN Doc A/41/608 at 32)Google Scholar.

151. Tunisia Report at 195 note C and accompanying text (cited in note 110).

152. Id at 25.

153. UN Doc E/1987/SR 11.

154. Interestingly enough, the government of Tunisia in 1992 directed a special “Women and Development” Commission and its High Committee on Human Rights to study how to promote and strengthen women's advances while maintaining the country's Islamic identity. It would seem, however, political considerations inhibit other Islamic countries from supporting CEDAW's effort to study the relationship between Islam and women's rights.

155. Declaration on the Elimination of Violence Against Women, GA Res/48/104, 23 Feb, 1994.

156. See Cook, , 30 Va J Intl L at 687–692 (cited in note 5)Google Scholar (outlining the yearly meetings of States Parties between 1986-90). Some States have directly questioned reserving States regarding their reservations and annual CEDAW progress reports. Id at 708. Yet, according to the U.N.'s Legal Adviser, neither CEDAW nor the Secretary-General is empowered to judge the compatibility of reservations. Id.

157. See Coulson, Noel J., A History of Islamic Law 149–162 (Edinburgh U Press, 1964)Google Scholar (discussing the impact of Western laws on the development of Islamic jurisprudence).

158. Id at 161.

159. “[T]he advancement of Muslim women toward the goal of equality between the sexes, desirable an end though it may be in itself, is merely part of a much more fundamental evolution of Muslim society.” Coulson, Noel J., Conflicts and Islamic Jurisprudence 97 (U Chicago Press, 1969)Google Scholar.

160. See id. Coulson observed, in 1964, that:

Western standards and institutions ha[ve] created an impetus for reform in the field of family law also, and this at first seemed to have brought about the same apparent impasse between the needs of society and an allegedly immutable law as had caused the adoption of Western civil and criminal codes. … With the determination to preserve the influence of the religious law means have been sought, and found, whereby traditional Shari'a doctrine could be adapted to the circumstances of modern life.

Coulson, , History of Islamic Law at 161–62 (cited in note 157)Google Scholar. One might add that developments in international law have also encouraged changes in Islamic personal status laws. The status of women, Coulson maintains, has improved immeasurably. See Coulson, , Islamic Jurisprudence at 97 (cited in note 159)Google Scholar.

161. Fleuhr-Lobban, , Islamic Society at 150 (cited in note 21)Google Scholar. In Tunisia, for example, most Islamists and religious scholars, viewing polygamy an unalterable part of Shari'a and a major issue, support a review of the Code of Personal Status. Id at 124. The al-Nahda movement calls for the return of polygamy. Id at 123. In Egypt, the husband's right to polygamy was the focal point of the Muslim Brotherhood's attacks on Law No 44, widely referred to as “Jehan's law” because of the perceived influence of President Sadat's wife on the law's development. Id at 126-27.

162. Id at 150.

163. Id at 491.

164. As Coulson has noted:

[One] feature of modern Islamic law which is relevant to the question of potential future development is the fact that many of the substantive reforms must appear, on a long-term view, as temporary expedients and piecemeal accommodations. This is not to deny the present efficacy of the reforms in solving the immediate problems of the areas in which they have been introduced. But certain provisions, such as the partial restrictions placed upon polygamy and repudiation, point inevitably towards the direction which future progress must follow and can represent only an intermediate stage in the advancement of a society along this road.

Coulson, , History of Islamic Law at 221 (cited in note 157)Google Scholar. While highlighting the impermanent, even precarious, position of developments in personal status laws, advancement of those laws in Islamic countries need not approach the standards set in CEDAW. In certain countries, political or social pressures may lead to a retrenchment of more conservative interpretations of Shari'a.

165. Cook, , ed, Human Rights of Women at 465 (cited in note 4)Google Scholar.

166. Tunisia Report at 17 (cited in note 110).

167. In Bangladesh, for example, ‘cultural’ and ‘religious’ resistance to amending or abolishing personal laws as articulated by strong and organized conservative religious lobbies has ensured that any attempts at more comprehensive reform have been stifled. Cook, , ed, Human Rights of Women at 483 (cited in note 4)Google Scholar.

168. As this phenomena has been eloquently described:

The fortress of the traditional law has been breached beyond repair, but the complex structure that has taken its place does not as yet rest upon the same solid foundations, and its substance is almost volatile by comparison. … so today traditional Shari'a law has crumbled … [a]nd modern reformers … have managed to control the sudden surge of events by ad hoc measures adopted under a policy of pragmatism and expediency.

Coulson, , History of Islamic Law at 222–23 (cited in note 157)Google Scholar; see also Coulson, , Islamic Jurisprudence at 115–16 (cited in note 159)Google Scholar. “Islamic jurisprudence has succeeded, by what are essentially ad hoc measures, in solving the immediate problems of family law, but it has not yet evolved any firm or systematic principles to ensure that it is equipped to deal with future developments.” Id at 116.

169. GA Res 2200(XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966).

170. Id.

171. See Cook, , 30 Va J Int'l L at 709–11 (cited in note 5)Google Scholar.

172. Id at 711 (discussing the American Convention on Human Rights).

173. Id at 690.

174. See Clark, , 85 Am J Intl L at 302 (cited in note 102)Google Scholar.

175. See id (many states view examination and discussion of differences in interpretations of treaty obligations to be outside the function of treaty law).

176. Artide 26 of the Vienna Convention on the Law of Treaties, 23 May, 1969, 1155 UNTS 331, states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Treaties in force, by extension, include the reservations of State Parties.