Introduction

International law is a significant symbolic tool, but may be a very weak device in reality to assist in improving the actual lives of women around the world, including Muslim women. This entry examines one major aspect of international law – the role of conventions or treaties, which are “international agreements concluded between States in written form and governed by international law” (art. 2(1)(a), Vienna Convention on the Law of Treaties). They cover a wide array of topics, including human rights, arms control, trade, international humanitarian law, and terrorism. Since conventions constitute agreements that bind governments, these documents are usually negotiated and drafted by representatives of those states, whether the individuals work in a foreign ministry or other executive branch agency or in an international institution like the United Nations. Multilateral treaties with a large number of countries involved may be drafted at special diplomatic conferences where each state has a delegation that includes legal advisers.

As women were rarely represented in the professional upper echelons of these entities during the twentieth century when most conventions were drafted, female input and the concerns of women have been minimal in the development and application of most international treaties. Many conventions lack any references to gender or sex, such as environmental agreements like the Convention for the Protection of the Ozone Layer, or trade agreements like the Uruguay Round Final Act, creating the World Trade Organization. Even human rights agreements like the Convention on the Elimination of Racial Discrimination (CERD) may not mention gender. As such conventions are “genderless,” one view is to regard them as applying to “people” or “human beings,” so that they should not be applied in any gendered manner, that is, only to one sex. Thus, protecting the ozone, for example, would be seen as equally applicable to both genders. Another view is that since these types of conventions cover “people,” they include either or both genders. It would thus be permissible to apply them to one gender. For example, CERD could be applied to assist minority group women, including Muslim women of color in non-Muslim predomi nantly white countries like the United States, who face special kinds of multiple or intersectional discrimination (Wing 2003).

Some conventions may specifically mention the masculine “he.” For example, the Convention against Torture, and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT) defines torture as “intentionally inflicted on a person for such purposes of obtaining from him… a confession” (art. 1, CAT). One interpretation is to regard “he” in the “traditional” fashion as the generic term for he or she. Both men and women are tortured around the world, including in a number of Muslim countries. Another view is to read such phrases literally, as only applying to men, leaving women outside the scope of protection.

Other agreements clearly state that the convention applies equally to men and women. The International Covenant on Civil and Political Rights (ICCPR) says, for instance, “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights” (art. 3, ICCPR). Its companion agreement, the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that states protect the equal rights of males and females to enjoy economic, social, and cultural rights (art. 3, ICESCR).

Some conventions contain language clearly meant to refer in part to women, such as the Genocide Convention's definition of genocide including, “imposing measures intended to prevent births within the group” (art. 2(d), Convention on the Prevention and Punishment of the Crime of Genocide). This statement could include abortion against the will of the mother or the killing of pregnant women and their fetuses. During the 1990s, there were also examples of Bosnian Serbian Christian fighters impregnating Bosnian Muslim women and holding them as captives to ensure the birth of non-Muslim babies, the religion of the child being determined by the father's (Wing and Merchan 1993). These kinds of clauses could also be applied to men as well. Using the same example, rounding up, imprisoning, and exterminating Bosnian Muslim men and boys clearly affected births in the group.

There are some conventions that may disproportionately affect women, such as the Hague Convention on the Civil Aspects of International Child Abduction. With respect to the Muslim world, there are numerous examples where Western court child custody decrees grant custody to the mother, and fathers from Muslim countries abduct the children and take them to their home country, where the law recognizes that the child in a divorce belongs to the father after a certain age (Andrews 2000). This convention is designed to prevent such abductions and make sure the children are returned to the custodial parent.

Finally, a few international agreements were designed specifically to apply to women, the most comprehensive being the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), written in part to remedy the gaps in the previously mentioned approaches. CEDAW had 174 States Parties as of June 2003. Other treaties range from the post-Second World War Convention on the Political Rights of Women (1953), the Convention on the Nationality of Married Women (1957), to the twenty-first century International Labor Organization Maternity Protection Convention (2000).

Even when a treaty is designed specifically to apply to women, there can be glaring omissions. For example, CEDAW does not explicitly mention violence against women, although various provisions could be interpreted as covering that topic. The 1994 Declaration on the Elimination of Violence against Women tries to fill in the gaps, but like all declarations, is not binding in international law. With respect to violence, CEDAW does not specifically mention customary practices of some countries of the Islamic world such as honor killings. Valuing female chastity and modesty, male members of a family feel justified in killing any female relative, including their own mothers, sisters, or wives. Practices like dating, wearing clothes regarded as revealing, leaving the house without permission, or being seen in the presence of male non-relatives, may invoke lethal force to avenge the insult to the family “honor.” Scholars have analyzed these killings as violation of CEDAW obligations in countries such as Jordan, where the domestic law still treats honor killers lightly (Arnold 2001).

A superficial analysis of the text of a convention for applicability to women is only the first step in determining whether an agreement might be helpful for female concerns, including those of Muslim women. Once a multilateral convention or treaty is finalized, it must “enter into force,” to have any significance. This occurs once a certain number of states designated in the treaty have accepted the agreement (art. 24(1), Vienna Convention). In many instances, a country signifies that it is willing to be bound by “signing,” “ratifying,” “accepting,” “approving,” or “acceding” to it (art. 11). There are some agreements that are not yet in force for lack of signatories or ratifications. For example, the Protocol to the Banjul Charter for the Establishment of the African Human Rights Court was adopted in 1998, but had not yet entered into force as of April 2003, since it only had 6 of the 15 ratifications it needed. Such a court might have jurisdiction over situations where African countries prioritize customary or religious practices that discriminate against women over their obligations under the Banjul Charter on Human and Peoples' Rights.

The most accepted treaty in the world is the Convention on the Rights of the Child (CRC), which has been ratified by every country, except the United States and Somalia. This convention applies irrespective of the child or parent's gender and specifically uses male and female pronouns throughout the agreement (CRC, art. 2).

States do not have to completely accept all aspects of an agreement, which is one reason why the wide variety of states have been able to join so many conventions. They have the opportunity to make exceptions to their ratification of a treaty by issuing a “reservation,” “declaration,” “understanding,” or “clarification.” A reservation, for example, “excludes or modifies the legal effect of certain provisions of the treaty in their application to that State” (art. 2 (d), Vienna Convention). Reservations are generally allowed unless the treaty prohibits them, or only permits certain types, or they are “incompatible with the object and purpose” of the treaty, the latter being very difficult to determine in many instances (art. 19). Unfortunately, the treaty with the most reservations is CEDAW, most of which exempt the states from complying with any provision that undercuts their existing customs or religion (Clark 1991). Since most gender discrimination is based upon patriarchal customs and religious practices, these kinds of reservations gut the treaty. States gain approbation from the international community for joining the treaty, yet in reality have committed themselves to nothing more than they were already doing.

Many of the Muslim states that have ratified CEDAW have made such reservations. For example, Egypt's reservation states that it complies with Article 2, condemning discrimination against women, but only to the extent that it does not conflict with Islamic Sharīʿa law (Brandt and Kaplan 1995–6, Multilateral Treaties 1995). Kuwait ratified CEDAW, but made a reservation justifying the continued failure to permit women to vote. Scholars have vigorously criticized these sorts of reservations as incompatible with the object and purpose of the treaty (Mayer 1995b).

Understandings or declarations occur when a nation states what a certain provision means, usually for domestic political or legal reasons. Courts in that country may invoke the understanding to interpret the treaty. If the government does not intend the understanding to have effect between it and other states, it will not be considered a reservation (Buergenthal and Maier 1990). The end result is that the understanding or declaration may have almost the same text as a reservation. In other words, a Muslim state may make an understanding that ICCPR article 2 does not require men and women to have the same opportunities in violation of Islamic principles, whereas another country would have called the same statement a reservation.

Since it is well understood that reservations can undermine the application of a treaty, there are several choices one state can make if it does not like the reservation of another state party. It can do nothing and just ignore the issue. It can accept that the reserving state is a party to the convention, but ignore their reservation. It can object to the reservation as well, which a number of Western states have done with respect to Islamic countries reservations to CEDAW. For example, Sweden objected to Egypt's reservations concerning CEDAW (Mayer 1995b). Alternatively, it can decide that it will not even acknowledge that the reserving state is a party to the treaty (art. 20, Vienna Convention). An objecting state can even take the matter to an international court like the International Court of Justice (ICJ) for a ruling. Unfortunately, since the ICJ and other international tribunals have no effective police power to implement their decisions, the opinions can be ignored or flouted much as the United States flouted the ICJ's Nicaragua decision holding the mining of the Nicaraguan harbors to be a violation of international law. Thus, the embarrassment of the large number of reservations to CEDAW is unlikely ever to be rectified.

While the international level is the place to begin regarding the implementation of conventions, it is the national level where real change must then take place to affect the lives of women. A major problem that can arise with international agreements is that even if a state properly ratifies an in-force treaty with no reservations, it may never follow national law procedures to implement the treaty, such as revising existing or passing new legislation. Since most treaties are not “self-executing,” a lack of implementing legislation means the treaty is meaningless. For example, article 15(4) of CEDAW says that “States Parties shall accord to men and women the same rights with regard to the movement of persons and freedom to choose their residence and domicile.” Some Muslim countries have customs and laws that give a husband legal control over his wife's or wives' movements, ranging from the most restrictive in which a wife needs permission of the husband even to leave the house to slightly less restrictive policies on holding a job or traveling outside the country. Assuming for the moment that the country made no reservation on this matter, if the national law is not amended to bring it into compliance with CEDAW, then article 15 remains irrelevant.

Even if the proper legislation is passed, the treaty may still have no penetrative ability; the branches of government may make no effort or have limited capacity to change practices required to implement the treaty. Using the last example, suppose the national law is changed and a husband still refuses to let his wife leave the house. Making the large assumption that the wife hears about the new law and manages to leave the house, her efforts to appeal to the local police or a court are likely to be rebuffed, as deeply rooted customs and laws are hard to change in the minds of the enforcers. Of course, the likelihood that the wife would dare even attempt to bring a claim under the new law is mooted by the fact that she, even if illiterate, could properly weigh the consequences. The sequelae range from being beaten (which may be legal), to being thrown out of the house permanently, divorced against her will with no recourse, left without any financial resources by the major or sole breadwinner, rejected by her birth family who might refuse to then support her, and losing any access to her children (who remain the legal property of their father).

Since a country can not be put into a literal prison, few remedies exist for noncompliance. The weak remedies available usually include bringing the matter to the attention of whatever body is created to oversee implementation of the treaty. For example, there is a 23–member CEDAW committee of experts that meets for only a few weeks a year to review reports of state parties, make recommendations, and develop links with other organizations (arts. 18, 21, 22, CEDAW). The committee is several years behind in reviewing reports, and many nations are years behind in submitting their documents, which may be superficial in nature. The committee has little ability other than shame to make recalcitrant governments live up to their obligations.

Universalism versus cultural relativism

A major issue intertwined with the foregoing discussion that arises with respect to implementation of international conventions is the debate between universalism and cultural relativism, namely, whether the convention is to be universal in its application or relative depending on the culture. In other words, even if a country signs and ratifies a convention without reservations and passes implementing legislation and is prepared to enforce the convention, a provision will not mean the same thing in different countries. For example, the ICCPR provision on treating men and women equally may not mean that women will have the same opportunities for access to jobs, education, property, and health care as men in two different countries.

The issue of universalism versus cultural relativism in implementation of international conventions is a major one with respect to the Muslim world and gender issues. Various human rights organizations originating in the West as well as Western governments point to practices in many Islamic countries as violations of human rights conventions. Most of the practices implicate women's rights. With respect to clothing, the veiling of Muslim women is often the most prominent symbol of Islam portrayed as a human rights violation in the West. The practices range from wearing an Afghani burqaʿ to an Iranian chador to a mere headscarf covering the hair. The Islamic practice of polygamy, which permits a Muslim man to have up to four wives who are either Muslim, Christian or Jewish, but a Muslim woman to only have one husband, who must be a Muslim, is often mentioned as well. There have been internationally publicized incidents of Muslim Nigerian women being faced with the Islamic punishment for adultery of being stoned to death for bearing a child out of wedlock, while their partners go free for lack of four male witnesses (Dowden 2002). Under Islamic inheritance laws women only inherit a half share as compared to men of the same degree of relationship. Customary practices that predate Islam ranging from female genital surgeries to dowries, arranged marriages, and honor killings, may be mentioned as well.

The notion is that human rights documents such as the International Bill of Rights consisting of the Universal Declaration of Human Rights (1948), the ICCPR (1967), and the ICESCR (1967), were conceptualized and drafted by Western countries. Some Muslim nations and scholars claim that adhering to these documents without violating Islamic law is impossible, and thus making reservations is justified (Entelis 1997). Some scholars such as An-Naim (1987) claim that it is possible to reconcile Islam and international human rights. Al-Hibri (2000) focuses on the need to omit patriarchal interpretations. Mayer (1995b) has pointed out that Western nations are often hypocritical, criticizing Islamic nations, while their own laws remain sexist. For example, the United States signed CEDAW during the Jimmy Carter administration, but has yet to ratify it. United States feminist efforts to pass a gender equality amendment to the United States Constitution failed decades ago, and have not been revived.

The Islamic world has begun to develop its own human rights instruments. There is a Universal Islamic Declaration of Human Rights (UIDHR), which was developed in 1981 by the International Islamic Council. While declarations are not binding treaties, the UIDHR is clearly an attempt to present an Islamic perspective as opposed to a Western view on human rights issues. Western scholars have found that it constrains Islamic women (Mayer 1995a). For example, article 19 states, “Within the family, men and women are to share in their obligations and responsibilities according to their sex, their natural endowments.” Such a statement can be interpreted as confirming the customary limitations on Muslim women.