Document Type : Research Paper

Authors

• Hojatollah Mansouri ¹
• Soheyla Koosha ²
• Mohammadreza Hatami ³
• Hossein Alkajbaf ⁴

¹ Ph.D Student, International Law, Payame Noor University, Tehran, Iran

² Assistant Professor Law Department, Payam Noor University, Tehran, Iran

³ Professor, Political Sciences, Payame Noor Univerity, Tehran, Iran

⁴ Associate Professor, Law Depatrment, Payame Noor University. Tehran. Iran

Abstract

Introduction

Protecting women’s rights has been a perennial concern of human rights advocates over the past two centuries. Their dedicated efforts have resulted in the recognition of gender equality in key human rights documents such as the Charter of the United Nations, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. However, these documents alone have fallen short of achieving the anticipated goals in promoting gender equality. This gap prompted the drafting of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to address gender discrimination in the member states. However, reports from the Committee on the Elimination of Discrimination Against Women reveal that many member states have not fully complied with the provisions of CEDAW. This failure has raised doubts about the effectiveness of CEDAW in safeguarding women’s rights. On one hand, some states have entered reservations to specific provisions of the Convention; on the other hand, there appears to be a lack of binding mechanisms to hold them accountable for violating their obligations. It is thus crucial to re-evaluate the fundamental concepts of gender discrimination and the provisions of CEDAW in order to examine their feasibility in societies with different norms. CEDAW consists of 30 succinct articles aimed at eliminating all forms of discrimination against women in all societies, regardless of cultural, religious, or ethnic differences. However, it does not explicitly address specific religious or cultural norms, presenting only a universal solution that may not align with diverse contextual complexities. Consequently, several member states, including secular and Islamic ones (e.g., India, Pakistan, and Indonesia), encounter challenges in implementing the provisions. The challenges apparently stem from CEDAW’s emphasis on individualism, which overlooks communal concerns and requirements. Predictably, this approach, coupled with affirmative action favoring women, has sparked backlash against the status of women, even in the U.S. and Europe. In this respect, the present study tried to address the following research questions: What approach does CEDAW take towards the norms governing different societies? And what legal model does Islamic Sharia require to be applied in the domestic legal system, particularly within the framework of CEDAW? The research is based on the hypothesis that the effectiveness of CEDAW can be criticized in terms of normative frameworks and legal guarantees for enforcement.

Materials and Methods

As a qualitative inquiry, the present study used a descriptive–analytical method as well as library resources to examine the contemporary approaches of states toward gender equality. To achieve the objective, the study analyzed about 40 primary and secondary documents and sources, including books, journal articles, reports, etc.

Results and Discussion

The study focused on the needs and interests of involved entities, namely the member states, individual members of societies, and particularly women. The examination of the foundational concepts concerning gender equality and the provisions of CEDAW helped gain insight into the overall approach of the document towards cultural and religious norms governing different societies. CEDAW advocates for women’s rights by promoting equality between men and women in society, regardless of their distinctive roles and status within the family and broader community. Consequently, it does not explicitly address equality of rights in terms of equity or in a just or fair manner. Rather, its focus is on placing men and women in the same, equivalent positions. Furthermore, CEDAW does not explicitly refer to norms. Instead, it calls upon the member states to “modify the social and cultural patterns of conduct of men and women.” This approach can be characterized as somewhat abstract and vague, resembling radical individualism or even libertinism. However, many secular and Islamic states possess diverse social and cultural norms, customs, and taboos regarding the individual and social rights of women. Moreover, the teachings of religious leaders and traditional attitudes are heavily influenced by communitarianism. A notable example can be found in the teachings of Imam Ali, who approves or condemns personal behaviors based on their potential impact on society as a whole. Indeed, he strongly advocates for cultural reforms without any prejudice, recognizing the necessity for change when it serves the greater good.
It is worth noting that some countries, such as the Islamic republic of Iran which is not even a member party of CEDAW, have reformed their national laws to eliminate discrimination against women, thus aligning more closely with CEDAW’s requirements. However, there are still concerns regarding the scope and the applicability of these social and legal reforms. Recent social backlash against affirmative action favoring women’s rights, freedom of homosexuality, and same-sex marriage in Western societies highlight the challenges in this regard. International legal documents should not underestimate the significance of social and cultural norms of societies, as radical individualism or libertinism can lead to serious issues such as civil disobedience and increased crime rates. There is thus a need for reforms in the provisions of CEDAW in order to meet the diverse needs and requirements of the global community. 

Conclusion

Having provided a brief overview of fundamental concepts related to gender equality, the present inquiry tested the hypothesis and examined the main shortcomings of CEDAW by delving into their nature and underlying causes. The analysis focused on the points of contention between the provisions of CEDAW and the positive laws in Iran, particularly in light of Islamic teachings. The analysis is crucial because the perspective of Shia leaders (esp. Imam Ali) on gender equality, which is significantly influenced by their communal concerns, has often been overlooked. Concerning the effectiveness of CEDAW, it is essential that interpreters or drafters of any alternative document consider different norms prevailing in the social context of member states, with particular attention to Sharia-based norms. Such an approach enhances the comprehensiveness of the document, enabling it to address different facets of gender discrimination in the member states

Keywords

• Gender Discrimination
• Women’s Rights
• CEDAW
• Natural Rights
• Individualism

Main Subjects

• International Law