Lena Larsen
The Oslo Coalition on Freedom of Religion or Belief,
Norwegian Centre for Human Rights, Faculty of Law, University of Oslo, Norway.
A. Introduction
The interplay of Islam and Shari’ah, freedom of religion or belief (FORB), and equality between men and women is complicated. Specific conflicts between these entities are often turned into an abstract antagonism at the normative level. FORB is often considered to be an impediment to gender equality, while gender equality is in turn considered to be a threat to Islamic values and practice. Many Muslims also hold an antagonistic attitude to international human rights in general, which they consider to be a threat to Islamic identity by the West. At the core of this conflict is the question whether Sharia is an impediment to equality before the law.
This chapter argues that there are no inevitable conflicts between Islam and international human rights, between Shari’ah and non-discrimination, and between Convention on the Elimination of all Discrimination against Women (CEDAW) and FORB.
Muslim states have played an active role in the elaboration of CEDAW. However, the emergence of these states’ Islamic identity policies, expressed in reservations to CEDAW with reference to Shari’ah, contributes to the impression that the conflict between CEDAW and Sharia is inescapable. Women’s issues have become the main symbol of the question of reform in Islam, but new interpretations are being contested by persons and groups with claims that Shari’ah is unchangeable. But Shari’ah is not monolithic. Reform movements have, from the late 1800s, contributed to new perspectives on interpretations of Shari’ah.
The emergence of new interpretations of Islam, focusing on equality for men and women, reveals equality between men and women not only as a non-discrimination, but also as a freedom of religion issue. For States, this implies a challenge: How should they protect every person’s right, with their different truth claims, to freedom of religion or belief and protect women against discrimination? This chapter provides a possible solution to the tension between CEDAW and the right to freedom of religion or belief, based upon the principles of freedom and equality as well as the principle of States’ obligations to eradicate harmful practices.
B. Human rights and CEDAW
Equal rights for men and women are a basic human rights principle as set in the United Nations charter. The international bill of human rights strengthens and extends this principle: Men and women are born free and equal in dignity and rights, and everyone is entitled to equality before the law. However, it soon became evident that it was difficult to guarantee women the enjoyment of the internationally recognized rights on an equal footing with men. Already in 1946, The Commission on the Status of Women (CSW), was established, dedicated to the promotion of gender equality and the empowerment of women. The task of the Commission is to promote women’s rights by documenting “the reality of women’s lives throughout the world, and shaping global standards on gender equality and the empowerment of women”. Between 1946 and 1965 the Commission elaborated several Conventions and recommendations, which were adopted by the United Nations General Assembly (UNGA).
In the 1960s a new consciousness of women’s rights developed, and the conventions and recommendations were considered to fail to deal with discrimination against women in a comprehensive way. When CSW was given the task by the general Assembly in 1965 to prepare a draft declaration that would combine and articulate equal rights of men and women, it should be considered partly as a manifestation of this new consciousness. The Declaration was adopted by the GA in 1967 and was the stepping stone for the elaboration of “a single, comprehensive and internationally binding instrument to eliminate discrimination against women”. The result was The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted by the GA in 1979 by 130 votes to none. 10 Nations abstained from voting.
CEDAW has been ratified by 189 nations but is at the same time the treaty that has attracted the largest number of reservations. Twenty-four of the fifty-eight states of the Organization of Islamic Co-operation have entered reservations. Sixteen of these have cited either Islamic Law or have referred to Sharia for doing so. The five articles frequently reserved to are article 2, (on applying provisions to eliminate all discrimination against women); article 9 (on equal rights of parents with regard to nationality of their children); article 15 (equality before the law and free choice of domicile); article 16 (equality on all matters relating to marriage), and article 29 (on international arbitration in connection with the interpretation or application of the convention). The Committee, considers article 2 and 16 to be core provisions of the Convention and is “particularly concerned at the number and extent of reservations entered to those articles”. It considers that “neither traditional, religious or cultural practice nor incompatible laws and policies can justify violations of the Convention”. Furthermore, it remains convinced that reservations to article 16, for any reason, are incompatible with the Convention and therefore impermissible. The view of the Committee on the reservations clearly indicates that reference to religious arguments are considered to be a hindrance against complying with the Convention.
Islamic related arguments for reservations to CEDAW and the concern and opinion of the Committee epitomize the claim of incompatibility between Islam and international human rights, women’s human rights being a symbol of Muslim states resistance against Western dominion. Little attention however, has been given to the drafting process of the Convention. This has often led to the same impression as with the Universal Declaration on Human Rights, The International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, that Muslim states were either absent, contested the process and project, or played no significant role. This is not the case.
New literature shows that delegates from Muslim states contributed as active participants in the draft process – ‘negotiating, challenging and contributing’. According to Sardar Ali, the delegates of Muslim states were laying claim to certain rights, well aware that some of these were futuristic in nature. The records show that they contributed to the discourse in general, and unanimously pushed for a minimum marriage age and that marriage shall be registered; men and women having equal right to family planning and rural women’s rights in particular. Sardar Ali notes that the summary records reflect a rich discourse generated through cross-fertilization of ideas. She ascribes this to shared experience of women’s issues, which resonates across ideological, religious, political and cultural divisions – leading to the developmental human rights, including education, health and employment. Together the delegates drafted an aspirational and standard setting norms document, “a forward-looking model of human rights “without prejudice to national positions”
Women delegates of Muslim states challenged traditional norms of Islamic law (as i.e. in the case of child marriage and equality in choice of residence) and did not vote against article 16 on equality in all matters related to marriage. When they made reservations during the negotiations in the drafting process, it was, except in a few cases, with reference to national law, not to Sharia as a divine law. But a main concern, as expressed by Mrs. Faridi from Pakistan, was the aim of the CSW to ascertain what was good or bad for women, not for countries. This aspirational stance, may explain that there appears to be a disjuncture between the text and the reservations later on the basis of national and religious interests.
Sardar Ali holds however that there’s a link between Muslim states delegates’ inputs in the drafting of CEDAW and the subsequent reservations by Muslim states. The content and formulation of articles 9, on equal national rights, article 15 on a wife’s domicile on basis of equality with her husband, and article 16 on equal rights entering, during and at the dissolution of marriage were the subjects of the most protracted debates in the various drafting meetings, and here Shari’ah was mentioned. The three articles have also been among the few that were subject to reservation with reference to Shari’ah. But the positions were not uniform. According to Sardar Ali there “was a certain fluidity, ambivalence, and dynamism in the debates and positions adopted by the delegates of the Muslim states, a fluidity that continued to be reflected in the text of the reservations entered by Muslim states at the time of ratification.” Some Muslim states who had made reservations with reference to Shari’ah as a set of immutable laws, also withdraw these reservations, among them is the case of Bangladesh and Libya. It appears that the question of reservations is not so much based upon Sharia as on political and social considerations and Islamic Identity politics.
C. Muslim nations states, Shari’ah and Islamic identity politics
The number of reservations made by Muslim majority states with reference to Sharia, from what the Committee considers being core provisions of the Convention could be ascribed to the trend of religion becoming a significant factor in international relations. While the public discourse of Islam had steadily declined and was displaced by nationalism, anti-colonialism and socialism between the 1920s and the 1970s, political developments in the Muslim world made Islamic arguments into an instrument to advance policy objectives determined by worldly considerations. The defeat of the Arabs in the 1967 Arab-Israeli war and the attempt to burn down the al-Aqsa mosque in Jerusalem in 1969 led to the formation of Organisation of Islamic Conference (OIC) in 1969, which was also a part of efforts to promote Islamic conservatism across borders as a counterbalance to secular and nationalist regimes in Muslim countries. Of utmost importance are also the 1979 Islamic Revolution in Iran, the rising influence of political Islam in the rest of the Muslim world in the 1980s, and the use of Islam to mobilize resistance in the Soviet-Afghan war (1979-89).
A key concept in the discourse of political Islam’s perceived potential to cover all aspects of society’s social, economic and political life is Shari’ah, whether promoted as if designated a blueprint for the Islamic State or in states with less Islamic profile authorities. The concept serves the role of “basic values” constituting Islamic identity, both private and public and defining “us” and “them”. Even more secular oriented governments have to be mindful of their people’s sensitivities and compass them into their calculations and actions, including the realm of foreign policy. At the domestic level Shari’ah is used as argument for Islamization of laws, or refusing proposals of legal reform. Family laws have become the prime example and an identity marker of Shari’ah as a slogan of “us” and “them” and a battle-ground of opposing views on women’s rights.
One example of Islamic Identity politics is the claim that international human rights are essentially a “Western” concept, meanwhile bringing forward conceptions that claim an Islamic origin. This trend of “Islamization” of human rights has been expressed in a number of documents on human rights issued by Islamic organisations, The Cairo Declaration on Human Rights in Islam adopted by the OIC in 1990, being the most well-known among them. The main claim in the Declaration is that Islamic values and traditions are not taken into consideration in the practice of international human rights, hence the reason for and legitimacy of an Islamic human rights declaration. The claim is based upon the notion that human rights always have been recognized in Shari’ah, which, in Heiner Bielefeldt’s words is considered “an absolute foundation for protecting the rights and duties of every human being.” But the Declaration has attracted extensive criticism by human rights experts because Shari’ah is used as the only frame of reference and the guideline for interpretation, and is used to legitimize, among others, discrimination of women. In the absence of an approved international authority with the expertise to interpret Shari’ah, it is also up to each state to assess whether that these standards are met. This is the contrary to the purpose of international human rights: To protect the individual from the arbitrary abuse of the state.
Bielefeldt criticizes the Cairo Declaration because even though its article 1 declares that all human beings are “equal in terms of basic dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, color, language, sex, religious belief, political affiliation, social status, or other considerations”. But this is not, according to his opinion, clearly connected to equal rights. It could open for entitling rights on the basis of complying with expectations of a certain behavior, not due to just be a human being. Expectations of behavior according to traditional gender roles with reference to Shari’ah is particularly relevant for the question of women’s rights. The concept of human dignity is also a basic principle of international human rights, but it differs from the Cairo Declaration in the sense that it is unconditional. It is not something that a person first has to demonstrate before being entitled to a right.
However, OIC itself has become critical of the Declaration, and has provided signals that it will be reviewed and updated. This will take place within the framework of the Independent Permanent Human Rights Commission launched by OIC in 2011. The objective of the Commission is to protect human rights in member states and Muslim minorities worldwide, in line with universal human rights norms and standards – and Islamic principles of justice and equality.
D. Islam and the question of reform
There is a widespread notion that Islam, as the monolithic and unchangeable religion of the collectivity of Muslims, and women’s rights according to international human rights standards mutually exclude each other. Many Muslim scholars and ordinary Muslims, who are resisting reform, oppose the use of the word, according to Tariq Ramadan, because they think it represents a threefold danger to the Islamic tradition. For some “reform” means to changing Islam, perverting it to current times, which is not acceptable. For others “reform” is something foreign, imported from the Christian tradition, causing Islam to lose its substance and soul. The third reason for resistance against the concept is based upon the “timeless” character of Islamic teachings, which are in no need of reform. Those who defend discriminatory family laws claim that their provisions as divinely revealed and unchangeable.
However, the debate over the question of reform and legal change is an old one among Muslim scholars. Throughout history efforts aiming at revival (ihya’), renewal (tajdid) and reform (islah) have been present. Premodern revival had a strong sense of spiritual dimensions of faith and practice, as in the case of imam Ghazali’s (d. 1111) Ihya ‘ulum al-din. In the modern era it refers to the attempt by Islamic thinkers who argue for more influence of Islam in the lives of Muslims who had been subjects to Western influence. The early calls for revival and renewal in the modern era emanated from multiple origins, depending on local contexts in the 18th and 19th century. Different aspects of Islamic teachings were emphasized and developed into new sets of ideas and teachings, hereby defining new trends within Islamic thought and history.
Reform of Islamic tradition to meet the needs of modern society, including technology and institutions emerged in the nineteenth century, has later been labelled “Islamic modernism”. One characteristics of this movement was the adoption of “modern” values that were associated with the modern world, such as rationality, science, constitutionalism and women’s rights. The modernist project consisted in bridging the gap between traditional Muslim culture and modern Western influences, without going against central Islamic dogma, such as the teaching about one God (tawḥīd), and that the Quran is the word of God as revealed to the Prophet Muhammad. Modern movements of revival and renewal are closely associated with, among others, Muhammad Abduh (d. 1905), who is considered to be the main architect of Islamic modernism. Abduh rejected unquestioning and uncritical conformity with legal precedent, traditional behavior, and doctrines (taqlīd) and called for independent reasoning (ijtihād) to seek “new answers to new questions.
The modernist Islamic movement, according to Charles Kurzman, “…was never monolithic, and variation, even deep disagreement, existed on virtually all subjects. […] The modernists’ Islamic faith encompassed both mysticism and abhorrence of mysticism; strategic use of traditional scholarship; return to pristine early Islam and updating of practices in keeping with historical change.” The questions that were raised and approaches of what could be called “first wave of modern reformers” are still with us.
The contemporary Islamic reformist thought represents a new wave that is responding to the new intellectual and political climate that emerged in the second half of the twentieth century. The political systems and developments in Muslim majority countries, economics, medical science, immigration of Muslims to Western countries, international human rights and gender equality are some of the themes that have been and are still on the agenda. Different reformist actors span a wide range of attitudes to reform, from those who limit themselves to proposing new norms to adapt to new circumstances, to those who would also reform the use of concepts and methods. The question of ethics in relation to new norms is also becoming a central concern. Contemporary Islamic reformist thought is many-stranded rather than a single trend and doctrine, and various concepts and methodologies are tried out. One of these is the theory of maqasid, or objectives of Shari’ah, also labelled “the ethical turn of Sharia”.
E. Maqasid al-Shari’ah – a short history
The notion of maqāṣid al-Sharīʿah, or objectives of sharia, has been known since Abu Hamid al-Ghazali (d. 1111), but is first and primarily tied to the Muslim scholar Abu Ishaq Ibrahim al-Shatibi (d. 1388), who is the subject of growing interest among contemporary Islamic scholars, not least as a tool for the purpose of contemporary Muslim reformist thought. Shatibi’s book al-Muwāfaqāt, where he discusses his theory of maqāṣid al-Sharīʿa, has been influential up to the present.
However, the development of the maqasid theory already started, according to Kamali, with Abu Abd ʿAllah al-Tirmidhi al-Hakim (d. 932), who was the first to use the maqāṣid concept. The concept is also referred to in the works of Imam al-Haramayn al-Juwayni (d. 1085), who was probably the first to classify the maqāṣid al-Sharīʿah into the three categories of ḍarūriyyāt (vital necessities), ḥājiyyāt (needs) and taḥsiniyyāt (embellishments), which went on to become generally accepted. Al-Juwayni’s student Abu Hamid al-Ghazali developed the idea of maqāṣid further. His contribution consisted not least in defining the contents of the ḍarūriyyāt category: the vital necessities are dīn (religion), nafs (life), ʿaql (the intellect), nasl (offspring), and māl (property). Later Muslim scholars would expand this list of fundamental values.
Central to the maqāṣid theory is the concept of maṣlaḥah (utility, interest), which, according to Masud, has as legal proof been the most-debated concept in the history of Islamic law. Abu Hamid al-Ghazali defined maṣlaḥah as preservation of the purpose (maqṣid) of the law (al-sharʿ), which he defined as preservation of the five ḍarūriyyāt. He employed a textual approach and further divided maṣlaḥah into three categories: maṣlaḥah that is endorsed by a textual proof, maṣlaḥah that is rejected by a textual proof, and maṣlaḥah for which there is no textual proof. This latter category (maṣlaḥah mursala) is acceptable as long as it is a matter of preserving maṣlaḥah with respect to the five objectives of Sharia. As for maṣlaḥah that falls under the categories of ḥājiyyāt (needs) and taḥsiniyyāt (embellishments), al-Ghazali held that supporting textual proof is required for the derivation of a norm. Abu Ishaq al-Shatibi (d. 1388) employed the inductive method and concluded that maṣlaḥah was the main objective of Sharia. Shatibi’s theory of maqāṣid, according to Masud, does take reason into account. The objective of the Lawgiver is people’s maṣlaḥah, which is an independent principle, decoupled from Islamic legal theory. The commands of Sharia are meant to protect the maqāṣid al-Sharīʿah, which aim to protect people’s interests (maṣāliḥ). According to Masud, Shatibi divides the maqāṣid or maṣāliḥ into the ḍarūrī (necessary), the ḥājī (needed) and the taḥsinī (commendable). These three kinds of maṣāliḥ complement and protect each other. The relationship between them can be likened with three concentric circles. Innermost, we find the ḍarūriyyāt, next the ḥājiyyāt and finally the taḥsīniyyāt.
Masud’s restatement of Shatibi in modern terms has been summarized as follows in the context of family law:
Al-Shatibi places the family in the first circle as a basic natural need. The legal norms in the second circle, e.g. norms regulating marriage, divorce and inheritance, are required to protect the family. They are not in themselves basic needs. The social preferences (third circle), such as that marriage partners be of equal social standing (kafa’a), or the provision of a proper dower (mahr al-mithl), are refinements that help ground legal norms in a local culture. The absence of these social norms and practices, Masud argues, does not violate the legal norms that sustain the institution of the family, i.e. the second circle. Hence, these values may change with time, and new cultural values may replace old ones.
Masud’s interpretation of Shatibi’s theory of objectives of Sharia is considered a source of arguments for gender equality. Gender equality, however, is a modern ideal, and among the “newly created issues”, for which there are no previous ruling. Therefore there is a need for a new ijtihad, interpretive reasoning on the topic in question. The core question is how to interpret the concept of justice, Sharia’s overall objective, according Ibn al-Qayyim (d. 1350).
F. Shari’ah and the challenge of equality before the law
Many Muslims identify with Ibn al-Qayyim’s idea of Shari’ah:
The fundamentals of the Shari’ah are rooted in wisdom and promotion of the welfare of human beings in this life and in the hereafter. Shari’ah embraces Justice, Kindness and the Common Good and Wisdom. Any rule that departs from justice to injustice from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of Shari’ah.
But the understanding of what is “just” is changeable. Ibn al-Qayyim regarded Shari’ah in its abstract form as just but did not see injustice in the pertaining norms when women were not given equal rights. He regarded the wife as her husband’s prisoner and as akin to a slave. His idea of justice hence shows that justice can be understood on two levels: it can be left in the abstract, or it can be interpreted in terms of specific norms. The normative understanding will depend on the common morality of society.
Any interpretation will be based upon time and place. The contest over Muslim family law involves two notions of justice, one pre- modern and one modern stands in opposition to each other: in premodern age the notion of justice was based upon the philosophy of Aristoteles, according to which equal rights for unequal people would be unjust. Instead, people would have rights according to gender and social belonging. In modern time, the understanding of rights, justice and a just law have changed. People are considered to have rights based upon their dignity as human beings, regardless of gender. These two understandings of justice correspond with an old controversy: The relation between transmitted knowledge (naql) and reason (‘aql).
Traditional Islamic Law in this field is based on scholarly interpretations of the Koran 4:34: “Men are the protectors and maintainers (qawwamun) of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means. Therefore, the righteous women are devoutly obedient, and guard in the husband’s absence what Allah orders them to guard…” This verse has been interpreted in the light of the community where the interpreters lived, patriarchal societies and tribal communities in premodern times, and from their perceptions the term qiwama or guardianship was derived. The concept has developed into a principle and a whole value system of legal consequences that exists in itself, based on the notion that God has made men maintainers of women and placed them under men’s authority.
Interpretations of the verse have been a linchpin for deriving norms of gender relations and views on the rights and duties of men and women, in private and in public. The man has responsibility of maintenance in exchange for obedience from his wife and the right to admonish her, to unilateral repudiation (talaq) and the right to marry up to four wives. The woman, in turn, inherits half as much as his brother, must be two witnesses for a male witness, is prevented from having certain positions in society, and is denied equal right with her husband with regard to the nationality of their children.
These norms have been codified into family laws in Muslim majority countries. However, the flexibility of the Islamic legal tradition suffered a setback, due to the introduction of the civil law system in the modern Islamic world. The result of religious norms in the field of marriage and family becoming legalized and politicized was the standardization and restriction of interpretation of women’s rights and roles.
In the case of Muslims living as minorities, gender relations based on traditional fiqh are often considered by to be a part of the Islamic tradition and often acts as an informal norm system.
The Qiwama concept in traditional fiqh was considered to be just in patriarchal, often tribal social systems. It reflected social circumstances that do not necessarily apply anymore. Since the end of the 19th century women’s questions and their quest for rights have challenged the perception of justice. Based upon their experiences Muslim women are challenging traditional interpretations and norms on women’s issues. What if the wife is the breadwinner of the family? Is she still supposed to be obedient? Or should the principle of reciprocity and equality apply? Social reality of Muslim women’s lives on the ground leads to questioning weather traditional gender relations and roles as just.
The modern understanding of justice is considered by many Muslim scholars to agree with the egalitarian message of Islam and is in agreement with international human rights principles. It would serve as lense when approaching the interpretative legacy of qiwama and wilaya in the tafsir literature, and legal postulates in construction of Muslim family laws. By understanding this as a historical and cultural process it would open up to refute some and propose other meanings of the concepts that have been described as “the DNA” of patriarchal society.
Many Muslim women experience that they have to choose one of the two seemingly contradictory options: they can choose gender equality and abandon their religion, or they can keep their religion, thereby sacrificing their conviction of gender equality. The conflict raises the problem of the right of individuals to have a different interpretation of Islam than the dominating understanding of Islam and that of the state, for example an interpretation that supports gender equality. Gender equality has become an issue of freedom of religion or belief.
G. Freedom of religion or belief and the principle of non-discrimination
The former UN Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, in one of his reports recognizes the importance of religion or belief in a person’s life on freedom of religion or belief. He states that for many people, religious convictions, spiritual values and norms that claim a transcendent origin constitute a most important part of their daily lives and possibly the backbone of their personal and communitarian identities. The importance of religion or belief is also well recognized and spelled out within the field of anthropology. The American anthropologist Clifford Geertz (d. 2006) ascribes to the human being an almost biological need of meaning. While animals survive and settle lives on the basis of instincts, human beings relate to culture in the form of symbols. These symbols serve both as model of and model for practice, “as it establishes powerful, pervasive, and long-lasting moods and motivations in men by formulating conceptions of a general order of existence and clothing those conceptions with such an aura of factuality that the moods and motivations seem uniquely realistic”. In this way religion as a symbol system helps to explain how religion contributes to constituting human beings as human beings. Religion is also about belonging, “correct” practice of everyday living, and religion in society – and the reference of its moral and legal order.
The right to freedom of religion or belief is a fundamental right. It has two distinct though interdependent aspects, referred to as internal and external freedoms. Internal freedom is an individual’s absolute freedom to have, maintain, adopt and change a religion or belief. It denotes the individual’s choice, made in the inner, private domain, which the individual may make known to others in private and public. External freedom is an individual’s freedom, either alone or in community with others, in public or private, to manifest his religion or belief in teaching, practice, worship and observance. While internal freedoms are inviolable, external freedoms are often intertwined with other human rights, and could be restricted when three conditions are met: Restrictions must be prescribed by law, must be pursuant to one or more specified, public interest grounds such as public safety, order, morals, or the fundamental rights and freedoms of others, and thirdly must be “necessary” to protect one or more of the mentioned public interests.
According to the human rights approach in general, freedom of religion or belief protects human beings as the only right holders. It protects believers rather than beliefs, but at the same time recognizes that there is interrelatedness between them. This interrelatedness between believer and belief is always tackled from the angle of the human being. It “…presupposes openness for the deep emotional attachment which many believers feel for their belief as well as the profound sense of loyalty that typically accompany it. However, to take religions and beliefs seriously also implies taking pluralism seriously, including sometimes irreconcilable differences in world-views and practices.”
Freedom of religion or belief is a right grounded in freedom and equal dignity, two fundamental principles of human rights. It includes freedom of choice, also to have an interpretation of religion or belief that differs from the dominating interpretation within a religion or belief. Furthermore, it includes the right to equality and non-discrimination. The right to non-discrimination on ground of religion or belief is spelled out in detail in the 1981 Declaration on Freedom of Religion or Belief. The Declaration states that no one shall be subject to discrimination by any state institution, group of persons, or person on ground of religion or beliefs, and that discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations. It shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights. It is the responsibility of the state take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the in all fields of civil, economic, political, social and cultural life. This includes all efforts to enact or rescind legislation where necessary to prohibit any such discrimination on the grounds of religion or other beliefs.
H. Freedom of religion or belief and gender issues
Gender issues constitute one of the most controversial topics in the field of freedom of religion or belief. It has traditionally been a topic considered to belong within the context of CEDAW, and gender equality and freedom of religion or belief has been considered to stand in opposition to each other. It has been construed as a zero-sum game. Any progress concerning gender equality is often claimed to indicate a defeat of freedom of religion or belief, which in turn is considered to be a hindrance for gender equality. The previous UN Special Rapporteur, Heiner Bielefeldt, calls this a misunderstanding and argues for a holistic approach to human rights, in line with the outcome document of the Vienna World Conference on Human Rights from 1993. It states that all human rights are universal, indivisible and interrelated and interdependent. Furthermore he notes that upholding a holistic approach has direct consequences for human rights practice, in particular for those numerous persons who are exposed to combined forms of vulnerability in the intersection of different human rights norms. The two norms should mutually reinforce each other, based upon two principles: freedom of religion or belief should be integrated into gender related anti-discrimination programs and policies promoting freedom of religion or belief should systematically integrate a gender perspective. At the core is the principle of non-discrimination.
The challenge of fulfilling the principle of non-discrimination based upon the mentioned holistic approach is an obligation of States parties. It includes obligation to take appropriate measures to modify the social and cultural patterns of conduct of men and women, based upon the idea of the inferiority or the superiority of either of the sexes. “To fulfill this obligation, State parties must critically address cultural practices that accord unequal roles, positions and opportunities in family life, labor markets public and political life and society at large”. Muslim states’ reservations to CEDAW with reference to Sharia is an example on cultural patterns being interwoven with religious norms and practices. Complications emerge when these States enforces family laws that mostly reflect traditional understandings of gender roles exemplifying inequality between men and women. It represents States’ indirect claim of binding authority in the interpretation of religious sources and norms, which is problematic from the perspective of freedom of religion or belief. It fails to protect the freedom of individuals to have dissenting convictions or beliefs, including egalitarian interpretations of religious sources.
When different interpretations stand in opposition to each other, the challenge for the State is to protect all individuals’ right to freedom of religion or belief. “Competing” interpretations should be measured whether they become subject to legitimate limitations as stated in article 18 (3) in the International Convention of Civil and Political rights. One key parameter for measuring claims of freedom of religion or belief is whether individuals or groups argues for harmful practices. To protect women’s and girls’ human rights States are obliged to enforce prohibitions of harmful practices, such as female genital mutilation, domestic violence and child marriage. This necessarily includes limitations on interpretations that endorse such practices.
I. The way forward
The realization of international human rights is an ongoing process that includes reports by UN Special Rapporteurs in their respective fields. A part of the reports provided by the rapporteurs are recommendations to stakeholders, including States and civil society organizations. In the report on Freedom of religion of belief and equality between men and women from 2014, the Special Rapporteur recommends that States should ratify all core international human rights instruments, and are encouraged to withdraw existing reservations; should identify and close human rights protection gaps in personal status laws; should provide an open framework in which existing and emerging pluralism can unfold freely and without discrimination, including gender sensitive developments within different religious traditions. States and other stakeholders should search for practical synergies between freedom of religion or belief and equality between men and women and encourage positive developments in this regard; should develop effective strategies to eliminate negative stereotypes based upon gender as well as religion or belief; policies designed to empower individuals exposed to gender-related discrimination with attention to the concerned persons themselves; legislative or jurisdictional restrictions on freedom of religion or belief deemed necessary to eradicate harmful practices and to promote gender equality; reinforce educational efforts to promote respect for diversity, including diversity in the areas of gender and freedom of religion or belief. The recommendations are based upon the notion that every person should live in equality, dignity and freedom, and represents a vision of social justice for our time. Freedom of religion or belief and equality between men and women is part of this vision. It is both possible and necessary that Islamic arguments are included to realize the vision.