Muslims and Global Justice

Chapter 4. State Responsibility Under International Human Rights Law to Change Religious and Customary Laws

Chapter 4 State Responsibility Under International Human Rights Law to Change Religious and Customary Laws States are responsible for bringing their domestic law and practice into conformity with their obligations under international law to protect and promote human rights. This responsibility applies not only to laws enacted by formal legislative organs of the state but also to those attributed to religious and customary sources or sanction, regardless of the manner of their “enactment” or articulation and/or implementation.1 In other words, every state has the responsibility to remove any inconsistency between international human rights law binding on it and religious and customary laws operating within the territory of that state. This responsibility is fully consistent with the principle of state sovereignty in international law, since it does not purport to force any state to assume legal obligations against its will. It simply seeks to ensure that states effectively fulfill legal obligations they have already assumed under international law. These obligations could be based, in general terms, on customary international law and on the Charter of the United Nations in relation to all its member states. But since neither international custom nor the UN Charter is adequately specific,2 an international obligation to respect and protect particular human rights, and the consequent obligation to change domestic laws, can be problematic in the absence of specific treaty provisions. Moreover, there are questions about the circumstances and context of the implementation of that obligation. In view of space limitations, I will focus in this chapter on issues raised by the realistic circumstances of implementation in countries where practices attributed to religious and customary laws are most likely to 122 Chapter 4 violate the international human rights of women. This choice of emphasis is supported by the fact that, to my knowledge, this set of issues has not received sufficient attention in available literature. I will begin by briefly highlighting some questions relating to the sources and nature of the obligation. The principle that states are responsible for bringing domestic laws into conformity with international human rights law could simply be based on the notion that the state is bound to do so by international custom or treaties ; however, it may not be sufficient to rely on a formalistic understanding of this notion, especially in relation to the international human rights of women. The argument that this obligation can be founded on customary international law may be somewhat controversial and strained in relation to the human rights of women. Customary international law, in general, is notoriously vague and difficult to prove.3 Moreover, it would probably be difficult to establish a principle of customary international law prohibiting all forms of discrimination on grounds of gender. The restrictive formulations suggested by the few authors who support the existence of such a principle in customary international law clearly show that its scope and implications would be problematic and controversial.4 The rationale of binding agreements would, of course, apply when the state is party to a relevant treaty. For example, Articles 2(f) and 5(a) of the International Convention for the Elimination of all Forms of Discrimination against Women (the Women’s Convention) require states parties to implement “appropriate measures” to eliminate discrimination against women in customary practices.5 However, this rationale would not be applicable where the state has not ratified relevant treaties or has entered reservations that exclude the obligation to change religious or customary laws. For example, Egypt ratified the Women’s Convention but entered a reservation on, inter alia, Article 16, concerning equality between men and women in all matters relating to marriage and family relations, which are governed in Egypt by Shariʿa law.6 Even where a state is party to an appropriate treaty and has not entered a reservation with regard to a particular human right, it should not be assumed thattheapplicationofthenotionofbindingtreatiestotheobligationtochange religious and customary laws will be a simple or straightforward matter. First, an effort to identify or define the exact extent and nature of the obligations of states-parties to a treaty will probably face problems of interpretation and operation.7 Second, there are serious questions about who is going to raise the issue of the state’s failure to comply with its treaty obligations—where, State Responsibility in Religious and Customary Laws 123 and how. For example, it is probably true that Egypt’s reservations on the Women’s Convention are inadmissible...