Women, Islam and International Law

Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women

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

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

Table of contents

Abbreviations
Introduction Theory and Reality of Human Rights

I. Framework, Goals and Structure
II. On Methodology
A. Feminist Legal Methods
B. Applying Feminist Methods to Human Rights Law
C. Whose “Right” and Who is “Right”?
I. Where and What are Women’s Rights for One and for the Other
I. International Law, Human Rights, and the Status of Women
A. Introductory Remarks
B. Human Rights Law and the Status of Women: Defi ning Women’s Needs as Human Rights
1. A Historical Perspective; 2. Where and What are Women’s Human Rights;
3. Human Rights of Women v. Women’s Rights: Feminist Critiques of the Way; 4. Human Rights Law Addresses Women’s Interests
C. Conclusions
II. Women in Islam and Islamic Law
A. Introductory Notes
B. Terminological Clarifi cations
C. Islamic Law: A Search for the Divine Will
1. General Clarifi cations; 2. Islamic Law in its Traditional Form
D. Status of Women under Islamic Law: Between Tradition and Modernity
1. General Differences between Approaches; 2. Right to Marry and Choose a Spouse; 3. Rights and Obligations of Spouses during the Marriage; 4. Dissolution of Marriage; 5. Custody and Guardianship of Children; 6. Polygamy; 7. Conclusions
III. Islamic Law as a Process
IV. Concluding Remarks
II. Reservations to Treaties: Some Theoretical Issues
I. Introduction: Why Reservations?
II. Reservations in International Law in General
A. Concept of Reservations
1. Definition and Historical Remarks; 2.Theories
B. The Vienna Convention Regime
1. Permissibility of Reservations; 2. Reactions of States to Reservations and their Effects; 2. Possibility of Modifi cation of Reservations
C. Purposes, Functions and Mechanisms of the Reservations Regime in International Law in General
III. Reservations to Human Rights Treaties
A. Are Human Rights Treaties Different?
B. Reciprocity and Reservations to Human Rights Treaties
C. Attitude of States and Treaty-Monitoring Bodies in Face of Reservations to Human Rights Treaties in the Light of the Doctrine
1. General Trends in the Practice of Treaty-Monitoring Bodies; 2. Developments in the Practice of States
IV. Regime of Reservations and Dynamism of Human Rights Treaties
III. Practice Developed in the Context of Reservations to the CEDAW Based on Islam
I. Content of Reservations to the CEDAW Based on Islam
A. Articles Affected
1. General Remarks; 2. Article 2; 3. Article 9; 4. Article 15; 5. Article 16; 6. Conclusions
B. Nature of Reservations
1. Algeria; 2. Bahrain; 3. Bangladesh; 4. Brunei; 5. Egypt; 6. Iraq; 7. Jordan; 8. Kuwait; 9. Libya; 10. Malaysia; 11. The Maldives; 12. Mauritania; 13. Morocco; 14. Niger; 15. Oman; 16. Pakistan; 17. Saudi Arabia; 18. Syria; 19. Tunisia; 20. United Arab Emirates
C. Conclusions
II. Reactions of States to Reservations
A. Introductory Remarks
B. Objections
1. Determination of the Nature of Reservations; 2. Effects of Reservations and Objections; 3. Other Types of Statements
C. Other Reactions
1. “Late Objections”; 2. Reactions to Modifications; 3. Views of States Parties to the Convention Submitted at the Request of the Secretary-General
D. Conclusions on General Trends in State Practice
III. Practice of the Committee
A. The Committee’s Comments on Reservations as Part of Examination of States’ Periodic Reports
1. Discussing the Impact of Reservations with States; 2. Determining the Nature of Reservations
B. Other Statements on Reservations
C. The Optional Protocol and the Issue of Reservations
D. Conclusions
IV. From Statement to Process?
IV. Promoting the Dialogue
I. Approaching Conclusions
II. International Law and Municipal Legal Orders
A. Some Theoretical Premises
B. Situation with the Municipal Law of Muslim States
III. Suggestions
A. Summary of the Analysis
B. Proposals
Bibliography
Index

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