To what extent does international law protect the rights of women who are also members of minority groups?
After the Second World War, the protection of the rights of minority groups was an issue central to the vision of those establishing a normative international rights framework in the post-war period. The horrors of the Nazi regime's machinery of extermination had brought into sharp relief the extent to which small groups set apart by cultural, linguistic or religious difference from the majority can be disenfranchised and silenced by the democratic process. Throughout the latter half of the twentieth century, international agreements conferring protection on the rights of the minorities multiplied.
Yet the protection of cultural practices of minorities often impacts disproportionately on women, whose rights may be infringed by the very customs their minority group clings to. This essay will seek to examine how far international law provides effective protection for the women who belong to minority groups. To this end, I should like first to set the scene by considering the legal and political background to the international law protecting both minorities and women, and briefly raising some theoretical concerns with this framework. The essay will then go on to consider the law on several specific issues in depth.
The principles of equality and self-determination of peoples are enshrined in Articles 1(2) and 55 of the UN Charter and principally developed initially during the post-colonial period of post-colonial independence movements. The 1970 declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States provides, inter alia, that
'…all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right…'
Similar rights of self-determination appear in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural rights (ICESCR). Article 27 ICCPR is a key provision with regard to the protection of minority groups, and protects 'the right… to enjoy their own culture, to profess and practise their own religion, or to use their own language.' According to General Comment No. 23 of the ICCPR Committee on Human Rights, adopted in 1994, this article requires states to undertake 'positive measures of protection' and notes that 'positive measures… may be necessary to protect the identity of a minority.'
Finally, in 1992 the General Assembly adopted the Declaration on the Rights of Persons belonging to national or ethnic, religious or linguistic Minorities. This confirms the rights of such groups to diversity, and the general benefit to mankind of perpetuating such variety of culture and experience. This again creates a duty on states to protect and encourage 'the existence and the national or ethnic, cultural, religious and linguistic identity of minorities' (Article 1) and establishes, in Article 2, the right of individuals belonging to such groups to enjoy their own culture and identity, and simultaneously to 'participate effectively' in the life of the nation.
Protection for women also exists, in increasingly powerful and meaningful forms, in international law. The UN Charter states its concern with ' the equal rights of men and women' in the preamble. Article 1(3) goes on to establish the UN's concern with promoting human rights 'for all, without distinction as to race, sex, language, or religion.' In the Declaration on Human Rights which followed, Article 2 states that 'Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex…'
The ICCPR, similarly to the UDHR, seeks to protect rights 'without distinction of any kind' (Article 2) and requires states to 'ensure the equal right of men and women' to these protections (Article 3). Requirements of states to 'ensure the quality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution' (Article 23(4)) and to prohibit discrimination (Article 26) are also included in the Covenant, but there are no requirements for states to be pro-active in tackling issues of gender inequality. Its twin, the ICESCR, includes similar provisions. However, Article 18(3) ICCPR provides that "[t]he right to manifest one's religion or beliefs ... may be subject only to such limitations as are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others." This preserves the priority of human rights over religious concerns.
Formal non-discrimination principles exist in international treaties and by organisations such as the European Union and African and Asian unions. However, none of these instruments include any provision dealing specifically with women, but rather assume women's rights to be covered as a matter of course by a framework of universal human rights. By the 1970s the shortcomings of this approach began to be recognised. Without specific efforts on their behalf, women would continue to experience injustices rooted in cultural and social mechanisms which operate within families and communities, out of the public realm of civil and political rights. In 1979 the UN passed the Convention on the Elimination of Discrimination Against Women (CEDAW). Its scope includes condemnation of and requirements of states to act to end discrimination against women in all its forms; duties on states to act to 'ensure the full development and advancement of women' (Article 3) and to ensure 'de-facto equality' (Article 4). Article 21 of CEDAW empowers the Committee to make recommendations which elaborate on and in some cases extend the provisions of the Convention itself. 25 general recommendations have been made to date.
Key to an understanding of minority rights under CEDAW is Article 5, which requires states to "modify ... social and cultural" practices where they clash with human rights considerations, and Article 2(f), which requires the abolition or modification of "customs and practices" that discriminate against women, a category which includes religion.
However, CEDAW holds the dubious distinction of being the human rights legislation against which states have made the most reservations under Article 19 of the Vienna Convention of the law of treaties: so 'while there is an overall consensus… there are also substantial disagreements on various aspects of women's positions in particular societies and states.' Many of the reservations to CEDAW are to fundamental provisions, such as those relating to marriage, the family and parental rights which conflict with Islamic law, and although the Vienna Convention will not allow reservations which are 'prohibited by the treaty' or 'incompatible with the object and purpose of the treaty', in the interests of getting as many signatories to the Convention as possible reservations are, in the main, tolerated. These debates about the validity or otherwise of the enforcement of individualist human rights at the expense of beliefs and practices seen as vital to the cultures of minority groups go to the heart of the issues that follow.
While there are many areas where the rights of minorities intersect with those of women, I have selected several which will illustrate some of the key inadequacies of international law in dealing with the rights of minorities. First, the rights of women under international refugee law, which will show how national legislative and administrative frameworks fail to implement the recommendations and provisions of international bodies. Secondly, the contentious issue of the wearing of the hijab in public establishments, which will illustrate how unwilling the European Court of Human Rights, in particular, is to enforce the rights of minority women where the constitutional issues are at stake. Finally, I will consider the inability of the international law to adequately cope with the realities of cultural practice in marriage, and the unlikelihood that international rights instruments for women will be translated into substantive rights for such women with any alacrity.
Women who are refugees are, by definition, a minority, and as so often are one whose voices are not heard. International refugee law, as an area of law where national states are often seeking artificial limitations and where administrative law is so closely tied to practice, 'is always in danger of lagging significantly behind progressive developments elsewhere.' In practice refugee law is often arguably gendered in its effect, both because of the way in which it is implemented at a national level and because of the bias inherent in the international law towards the male experience;
'Historically, the refugee definition has been interpreted through a framework of male experiences, which has meant that many claims of women and of homosexuals have gone unrecognised.'
For example, women often find it difficult to be understood as coming within the definition as a refugee under Article 1 of the United Nations Convention Relating to the Status of Refugees, which requires her to have 'a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion'. Many of these grounds are difficult for women to prove, either because the asylum procedures in that country are geared towards a male experience, or because the system is not prepared for her needs as a refugee and an often traumatised individual. For example, attempting to establish persecution due to an individual's political work, can be difficult because immigration officials and case law do not anticipate the low-level political work done by women and the severe retribution they can suffer for crossing social boundaries. Although international law recognises an individual's feminism and linked defiance of local custom as expression of a political view, the same cannot always be said in national immigration and asylum contexts, where asylum can be denied on the basis that they do not seem to have been sufficiently 'active'. Harvey emphasises that;
'…representatives must never underestimate the political dimension in such cases. This is so even if the women involved do not regard themselves as making political statements. Again [Heaven Crawley] is correct to identify the political nature of institutional discrimination: 'If a woman resists gendered oppression, her resistance should be regarded as political activity'.
Similarly, historically it has been difficult for women to argue that they have been persecuted because of their membership of a particular social group, because authorities have considered gender as too large and dissolute a group to come under the treaty definition. The UNHCR Guidelines on Gender-related persecution confirm that
'…sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men.'
The Guidelines also refute suggestions that 'women' cannot be recognised as a particular social group because of its size, dissolute nature, or because not all of its members are at risk. However, the historical difficulty which asylum systems have had in understanding that women as a group are disadvantaged in many, if not most cultures purely because of their sex is illustrative of the larger ignorance of such systems about gender issues.
Another, more controversial issue in recent years has involved the rights of Muslim women to wear the hijab, a head covering as a compulsory part of observance of Islam, in secular countries where there is a rigid constitutional separation between church and state. In a decision of the Constitutional Court of Turkey in 1989, a byelaw allowing the hijab to be worn in higher education institutions was held to be unconstitutional, and was later upheld by the European Court of Human Rights. A judgement dismissing a challenge to a similar ban was handed down in Switzerland in 1999. After many years of debate and legal wrangling, France followed suit when the national legislature passed the 'law on secularity and conspicuous religious symbols in schools' in March 2004.
Although Human Rights Watch has called the law 'an unwarranted infringement on the right to religious practice' , since the European Court of Human Rights has upheld the Turkish restrictions it seems unlikely that a challenge to the legislation would be successful. The principle of laïcité, the separation of Church and State and a commitment to secular community life, is fundamental to the constitution of France. The European Court of Human Rights will not interfere to protect the rights of the minority Muslim women now prevented from observing their religion at school, because to do so would be to countermand this principle. From the point of view of the girls affected, predictions are mixed. Raday suggests that the banning of the hijab in schools will give minors an opportunity to make decisions about the wearing of the veil outside of the patriarchal family home. On the other hand, this may backfire and result in those children from 'traditionalist families' being kept at home. It is clear, however, that the girls themselves have had little voice in this debate, since they belong to patriarchal communities and as such are under the command of male community leaders.
Finally, the issue of marriage is vital one for women belonging to minority groups, and the African experience is a key example of the difficulties inherent in enforcing international law in these contexts. Under Article 16 of CEDAW, 'States parties shall ensure on a basis of equality of men and women ... the same right freely to choose a spouse and to enter into marriage only with their full and free consent.' Forced marriages breach this and several other human rights agreements, including the UDHR. Under CEDAW, the state also has a duty to 'modify or abolish existing customs or practices' which discriminate against women. Although the African Charter on Human and People's Rights does not contain a right to marry, Article 18(3) requires the elimination of discrimination against women. Many African practices clearly do discriminate; marriage is often arranged, perhaps against the will of the woman, and marriage for some African women may mean 'forced prostitution, sexual slavery, early marriage and sale to the deities.' A Protocol to the African Charter on Rights of Women in Africa adopted in 2003 which provides, inter alia, that 'no marriage shall take place without the informed consent of both parties', it has not been ratified by sufficient jurisdictions to enter into force. However, such practices may fall foul of other elements of international law:
'…forced marriage has been found to include the practice of child marriage… It has also been identified as a form of discrimination against the girl-child. … Forced marriage also implicates the right to personal liberty and security and the right to freedom from arbitrary detention. It may also involve breaches of the right to access to justice; the right to equality before the law and equal protection of the law; the right to an effective remedy and the right to freedom from gender-based discrimination.'
The obligations created under international law for states parties to undertake positive acts to protect the human rights of women require them to enable women to fight such marriages when they occur, to investigate and prosecute such occurrences and to work to prevent the practice from happening. But at a national level, efforts to put such measures in place have been patchy. Women trying to escape from these practices are likely to face censure and hostility from their community. They are unlikely to be educated or have a means of survival other than their family. There is no realistic way in which these women can enforce their rights under international law without state help.
Similarly, although polygamous marriages are a common feature of many minority cultures and are recognised by '[m]ost legal systems on the [African] continent', paragraph 14 of the 21st General Recommendation of CEDAW, on Equality in Marriage and Family Relations states that
'polygamous marriages contravene a woman's right to equality with men and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited'.
The Human Rights Committee has made similar statements. Generally, the consensus is that polygamy operates to the detriment of women and should be 'discouraged'. However, such demands appear a huge imposition to a continent where such practices are commonplace. Critics of Westernised international human rights instruments have used the issue as an example of the inability of international law to cope with the realities of daily cultural practice. The effect has been to undermine CEDAW and international women's rights law and to lead to its being dismissed as dangerous Western impositions on African cultural values. In this instance, international human rights law was entirely geared to fit the Western world, and was not appropriate for immediate enforcement in small rural communities.
The 'westernising' effect of individualist human rights, as compared with the collective 'group rights' advocated by some non-Western scholars, has begun to be criticised and to an extent rejected in some contexts as neoimperialism on the part of the dominant developed nations, and non-Western women have begun to advance their own viewpoints. As a recent Interights bulletin focussing on women's rights noted;
'The global women's rights movement now finds itself having to engage with the voices of women who insist on a human rights vision that incorporates their religious, nationalist or cultural concerns and which embodies remedies and strategies that do not necessarily conform with the accepted global approach.'
I have attempted to show here that while human rights approaches represent the most gender-oriented strands of international law and should increasingly inform areas such as refugee law which lag behind in gender terms, the implementation at national level needs serious reconsideration. Ultimately what is needed here is a reassessment of the goals of the international law relating to minorities, and an effort to 'legitimate human rights norms in the eyes of local communities' without which 'international human rights will remain Utopian paper ideals, unacknowledged and unused.' Women in patriarchal minority groups are unlikely ever to have sufficient voice to speak for themselves and articulate their own preferences; it is men's interests which will be represented, and that the international community will hear, and while the increased emphasis on the rights of minority groups is laudable, the rights of minorities and disadvantaged people within those groups should not be forgotten.
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