CANADA MILITARY NEWS: #1BRrising - NEDA- no more excuses or abuses/IN CANADA OUR GENDER EQUALITY TOPS RELIGION BY LAW.... USA and UN both refuse 2 proclaim women equal men- BUT CANADA DOES- GET USED 2 IT... or don't come 2 Canada or leave... simple as that folks /HEADS UP- CANADA ELECTION THIS YEAR- I sincerely believe in Canada women's rights and equality beats your religious beliefs.... seriously.... and if any political party says differently in Canada- tell voting women now... ONE BILLION RISING- NO MORE EXCUSES

 

Legislation- CANADA- WOMEN EQUAL MEN

Canada was among the first countries to sign CEDAW. The 1982 Canadian Charter of Rights and Freedoms enshrines the principles of gender equality in employment, public life, and education in Part I, section 15. Section 28 of the Charter also reinforces the principle of gender equality (Baines 2005). These principles are also reflected in the Canadian Human Rights Act and the 1998 Multiculturalism Act, which introduced measures to protect and promote the rights of aboriginal women and foreigners.

  

IDLE NO MORE CANADIANS.. <3 <3 

Evryda is Women'sda  #1BRrising


One Billion Rising - 2013 - Curve Lake First Nation

http://www.youtube.com/watch?v=TMjOWsWcml8

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Basic freedom is such a hard row 2 hoe.... especially in hard vicious parts of the world where the monsters wipe their arses on the Geneva Convention whilst 2 many of our troops die because of it. ..imho

 

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Milestones of Human Rights in Canada

The Canadian Human Rights Act - Everyday People Making Canada Better

If someone treats you in an unfair or negative way because of your race, sex or age, they would be guilty of discrimination. But before 1977, there was no federal law to turn to when a person believed they were being discriminated against. 

Then in 1977, Parliament created the Canadian Human Rights Act. It was the first federal human rights law in Canada, and the first federal law against discrimination.

The law also created two separate organizations to apply the Act and ensure its effectiveness:

The Canadian Human Rights Commission receives discrimination complaints and helps people settle them. It also promotes the idea of equality in Canada. 

The Canadian Human Rights Tribunal acts like a court. Sometimes the Commission sends discrimination complaints to the Tribunal, which then hears the evidence about the complaint and makes decisions on whether discrimination has taken place and what should be done about it. 

The purpose of the Canadian Human Rights Act was the same in 1977 as it is today: to promote equal opportunity and give people in Canada a way to challenge discrimination when based on any of 11 different grounds (reasons) listed in the Act, such as race, age and sex. 

The Act protects people who work for or receive services from the federal government, First Nations governments or private companies, like banks and broadcasters, that must follow rules set by the federal government.

Equal Rights for Men and Women in Combat

CAPTION: Since Private Heather R. Erxleben
became the first woman to serve in a combat
role in 1989, other women like Corporal
Venessa Larter (seen here) have gone on to
do the same.
CREDIT: Sergeant Carole Morissette, forces.gc.ca

Canada is one of only a few countries in the world that allow women to serve on the front lines in combat. But it was not always so. While women have served in Canada’s military since 1885, they were prevented from performing combat roles for over one hundred years. 

Four members of the Canadian Forces set out to change this. They believed it was wrong that women were prevented from having roles in combat positions or combat-related jobs, just because they were women.

Isabelle Gauthier, Marie-Claude Gauthier, Georgina Anne Brown and Joseph Houlden, all members of the Canadian Forces, filed a complaint under the Canadian Human Rights Act claiming discrimination based on sex. In1989, following a Canadian Human Rights Tribunal ruling, the Canadian Forces opened all occupations, including combat roles, to women.

In 1989, Private Heather R. Erxleben became Canada's first female Regular Force infantry soldier. Since then, hundreds of Canadian women have served in combat roles, and all women have the opportunity to pursue any position in the Canadian Forces.

Learn more!  

Visit the Canadian Armed Forces website.

Read the Canadian Human Rights Tribunal ruling.

  

Recognizing HIV as a Disability

In Canada, people with a disability have the right to ask their employer to make changes to their workspace or duties so they can perform their job like everybody else. We call this accommodation. Today in Canada, people with HIV or AIDS have the right to be accommodated by their employer the same as anyone else with a medical disability. That wasn’t always the case. Not too long ago, a person could be fired for being HIV positive.

Two landmark cases helped steer Canada towards change.  

Gilles Fontaine was fired from his job as a cook aboard a Canadian Pacific train after managers learned that he was HIV positive. In 1989, the Canadian Human Rights Tribunal ruled that Canadian Pacific had discriminated against Mr. Fontaine because of his illness. 

This ruling was reinforced in 1993 when the Tribunal heard a similar case. Simon Thwaites, a naval officer in the Canadian Forces was forced to leave the military because he was HIV positive. The Tribunal concluded that the Canadian Forces had discriminated against Mr. Thwaites by not accommodating his disability. In other words, the Canadian Forces should have found a way for Mr. Thwaites to make a contribution despite the fact he had HIV. 

These decisions were part of a larger shift towards greater understanding and acceptance of HIV and AIDS in Canada. 

Learn more!

Read the Tribunal’s decision for Gilles Fontaine’s case.

Read the Tribunal’s decision for Simon Thwaites case.

  

Following Religious Practices While Enforcing the Law

CAPTION: Staff Sergeant
Baltej Singh Dhillon, RCMP
CREDIT: Darpan Magazine

Today, when Sikh Canadians join the Royal Canadian Mounted Police they don’t have to choose between wearing the RCMP uniform and following their religious practices. They can do both. But things were once very different.  

When Baltej Singh Dhillon applied to be an RCMP officer in 1988, he was told that the RCMP’s uniform policy did not allow him to wear his turban. For Staff Sergeant Dhillon, this meant that if he wanted to join the force, he would have to compromise his religious beliefs. 

Staff Sergeant Dhillon’s efforts to change the rules sparked a heated debate across Canada. Some felt that Canada’s history and traditions were threatened by the country’s growing cultural diversity.

In 1990, after seeking guidance from the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, Solicitor General Pierre Cadieux ruled that turbans could be worn by uniformed RCMP officers. He said the decision was “not only the correct one in law but also the right decision."

When the ruling was challenged three years later, the Canadian Human Rights Commission was there to help defend the RCMP’s decision to allow turbans. In the end, the 1990 ruling was upheld, and today, officers can choose to wear their Sikh turban while also proudly wearing their RCMP uniform.

Learn more! 

Read the Federal Court’s 1995 decision to uphold the 1990 ruling.

Expecting Mothers Can Expect Equality

For decades, women have contributed to Canada’s workforce while also raising children. But working mothers have not always had the same support as other employees. 

Cynthia Floyd learned that she was pregnant shortly after losing her job at the Canadian Grain Commission in 1989. 

When she began to collect employment insurance, she discovered that because she was pregnant, she was only entitled to half the financial support others received. 

Ms. Floyd filed a complaint under the Canadian Human Rights Act claiming that she was not receiving equal treatment because she was pregnant. In 1993, the Canadian Human Rights Tribunal found that the employment insurance rules discriminated against Ms. Floyd, who was awarded compensation. 

During the course of Ms. Floyd’s case, Parliament amended the Unemployment Insurance Act. One result was to end the discriminatory treatment of pregnant women under the rules at the time. Today, women in Canada are entitled to equal employment insurance regardless of whether they are pregnant. 

Learn more!

Read the Canadian Human Rights Tribunal ruling.

Gay Rights Written into Canadian Law

Everyone in Canada has the right to be treated equally. But there was a time in Canada when there was nothing a person could do if they were discriminated against because of their sexual orientation.

Joshua Birch experienced this first hand. He was serving as a captain in the Canadian Air Force when, in 1989, senior officers learned that he was gay. From that point on, he was denied promotions, postings or further military training.

Mr. Birch believed that his rights were being violated, but the Canadian Human Rights Act offered no protection. So he and his friend Graham Haig asked the courts to look at the Act and see if it should be changed.

Their efforts paid off. 

In 1992, the Ontario Court of Appeal ordered that failure to include sexual orientation in the Canadian Human Rights Actwas discriminatory. The Court recommended that the Act be interpreted as if sexual orientation was one of the grounds of discrimination. 

It was not until 1996 that Parliament added sexual orientation to the Canadian Human Rights Act, making it an eleventh ground of discrimination that is not allowed in Canada.

Learn more!

Visit Canadian Heritage’s website. 

Read more about this case in the Canadian Human Rights Commission’s 1996 Annual Report.

Visit Justice Canada’s Human Rights in Canada: A Historical Perspective

Canada’s Banks Changed for the Better

Banks across Canada make an effort to ensure that their services are accessible to people who are blind or visually impaired. Some banks offer brochures in braille. Others offer talking bank machines for people who cannot see touch screens. But these options were not always available. 

In 1991, two banking customers, Chris and Marie Stark, were frustrated when they could not access important information about their mortgage and other bank services. Since they were both blind, the Starks could not read banking information that was only available in printed brochures.

The Starks filed a complaint under the Canadian Human Rights Act. The complaint was accepted by the Canadian Human Rights Commission. It was resolved in an out-of-court settlement in 1996. The case inspired Canada’s banking system to make important changes. In 1997, Canada became the first country in the world to offer talking ATM machines to better serve people who are blind or partially sighted.

Making Equality Visible

In Canada, everyone has the right to advance their career. It is a matter of choice, hard work and opportunity. But twenty years ago, some people found it hard to get a promotion even though they had all the necessary qualifications and experience.

In the 1990s, a group of federal employees working at Health and Welfare Canada kept being turned down when they applied for management jobs. They believed that the department’s hiring practices treated people of certain races or ethnic origins unfairly. They filed a complaint under theCanadian Human Rights Act, saying that these discriminatory practices were common throughout the department.

In 1997, the Canadian Human Rights Tribunal ruled that Health and Welfare Canada’s hiring and promoting practices were discriminatory. The department was ordered to improve its policies, and increase the number of visible minorities in management positions.

Learn more!

Read about the history of employment equity in Canada’s public service.

If You Do the Same Work, You Should Get the Same Pay

In Canada, everyone is entitled to receive equal pay for work of equal value. While this idea has always been enshrined in the Canadian Human Rights Act, it has not always been a reality for everyone in Canada. 

In the early 1980s, a group of women working for the federal government realized they were being paid less than another group of employees who were doing the same type of work, and who were predominantly men.

In 1984, the female employees filed a complaint under the Canadian Human Rights Act arguing that they had been discriminated against based on sex. The case proceeded through a lengthy legal process that lasted well over a decade. 

In 1999, the case made its way to the Federal Court, where Justice John Evans had the final word. He upheld a previous Canadian Human Rights Tribunal ruling, and ordered that the female employees be financially compensated for years of undervalued work. 

Justice Evans added that the section of the Canadian Human Rights Act about “equal pay for work of equal value” should be applied in the broadest possible way. In other words, all Canadian workers who do equal work should receive equal pay. 

Learn more!

Read more about this case in the Canadian Human Rights Commission’s 1999 Annual Report.

Updating Canadian Television 

Most TV shows in Canada come with the possibility of switching on a stream of printed words that translate sounds into readable text at the bottom of the screen. So-called “closed captioning” provides a way for people who have difficulty hearing to enjoy the television experience. This is a part of everyday life today, but it wasn’t always so.

In the 1990s, Henry Vlug was frustrated because many of the shows broadcast by the CBC were not accessible to the Deaf, deafened and hard of hearing community. Only a small number of CBC programs had closed captioning at the time. 

In 1997, Mr. Vlug filed a complaint under the Canadian Human Rights Act based on disability. Even though he was Deaf, Mr. Vlug believed he had the right to be served by the CBC the same as any Canadian. 

In 2000, the Canadian Human Rights Tribunal ruled that the CBC was discriminating against the Deaf, deafened and hard of hearing by not offering closed captioning service for all its programs. Today, closed captioning is a well known feature on television sets across Canada. 

Learn more!

Read the Canadian Human Rights Tribunal’s ruling.

The Rights of the Working Mother

When a Canadian woman chooses to have a child, she should be confident she will be supported by her employer. But this is not always the reality at every workplace in Canada, as Hayley Cole discovered. 

In 2001, Hayley Cole returned to her job at Bell Canada after maternity leave. She asked that she be able to take regular unpaid breaks so that she could go home and breastfeed her son. Bell Canada accommodated her request for one year, but not beyond that. 

Ms. Cole believed that she was being forced to choose between being a mom and working at Bell Canada. She filed a complaint under the Canadian Human Rights Act, arguing she was being discriminated against because of her sex and family status. 

In 2007, the Canadian Human Rights Tribunal ruled in favour of Ms. Cole and ordered Bell Canada to do a better job of accommodating working mothers. This ruling applies to all employers that are under federal authority.  

Learn more!

Read the Canadian Human Rights Tribunal ruling.

Human Rights for People with Disabilities

A United Nations convention is a legally binding set of principles and commitments that members of the UN, such as Canada, agree to adopt. In2007, Canada was among the first countries to sign the United Nations Convention on the Rights of Persons with Disabilities.

In signing the Convention, Canada agreed to ensure that the dignity and independence of people with disabilities is respected, and that they are not discriminated against.

Drafting a convention can take the UN decades. But because of support from countries like Canada, the UN Convention on the Rights of Disabled Persons was completed in just five years.  

Canada’s commitment to the rights of people with disabilities is also enshrined in the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms. 

Learn more!

Read the United Nations Convention on the Rights of Persons with Disabilities for yourself.

Human Rights for Everyone Means Everyone

Everyone in Canada can turn to the Canadian Human Rights Act to protect themselves against discrimination. But before 2008, people living on First Nations reserves did not have full protection under Canadian human rights law. This was because the Canadian Human Rights Actspecifically excluded anything that had to do with the Indian Act. 

The Indian Act governs daily life on over 600 reserves across Canada where First Nations people live. When the Canadian Human Rights Actwas first created in 1977, it did not apply to theIndian Act. This meant that hundreds of thousands of people living on First Nations reserves were left out. They had nowhere to turn if they were discriminated against by the federal government or by a First Nations government about something controlled by the Indian Act, such as who can live on a reserve or who can vote in a local election.

Then in 2008, Parliament changed the Canadian Human Rights Act to include matters under theIndian Act. Finally, everyone in Canada, including people living on First Nations reserves, had the same access to human rights justice.

Learn more!

Read Still a Matter of Rights – A Special Report of the Canadian Human Rights Commission on the Repeal of Section 67 of the Canadian Human Rights Act (2008).

Check out the Do You Know Your Rights website, created by the Canadian Human Rights Commission.

Voting Should Be Easy for Everyone

Every voter in Canada has a right to access their polling station. But until recently, not every polling station was accessible to people with disabilities. 

James Hughes had to use a wheelchair and walker to get around. When he went to vote in the 2008 elections, a long flight of stairs blocked his way down to the voting booths. He looked for a ramp, but found only a locked door. Determined to vote, and with no other alternative, Mr. Hughes went down the stairs on the seat of his pants. He sent a letter to Elections Canada describing his difficult experience, but nothing was done.

After facing the same challenges at the same polling station during a second election, Mr. Hughes filed a complaint under the Canadian Human Rights Act. He argued that by failing to accommodate people with physical disabilities, Elections Canada was discriminating against them.

In 2010, the case went to the Canadian Human Rights Tribunal. Elections Canada agreed to make changes to its procedures and policies to ensure that everyone in Canada could access local polling stations and cast their vote.

Learn more!

Read the Canadian Human Rights Tribunal’s ruling.

The Rights of First Peoples Should Not Come Last

Today when we use the term “indigenous peoples” we are usually referring to people whose ancestors were the first inhabitants of a land long before it was discovered or occupied by other people. In Canada, we use the word Aboriginal more often than “indigenous” to refer to those who descend from the earliest known inhabitants of Canada.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a document that affirms the rights of indigenous peoples. 

In November 2010, after careful consideration, Canada formally endorsed this Declaration. 

Like all UN declarations, the UNDRIP is a set of principles and commitments that members of the UN are encouraged to support. The UNDRIP focuses on the rights and freedoms of indigenous peoples around the world, including:

·         the right to the full enjoyment of all human rights and fundamental freedoms;

·         the right to be free from any kind of discrimination;

·         the right to self-determination, autonomy or self-government; and 

·         the right to life, physical and mental integrity, liberty and security of the person.

Recently, the Canadian Association of Statutory Human Rights Agencies (CASHRA) called on all provinces and territories in Canada to do their part to apply the principles of the UN Declaration on the Rights of Indigenous Peoples. CASHRA is a Canadian organization that connects all of Canada’s federal, provincial and territorial human rights commissions with each other, and serves as a national voice on human rights issues.

Learn more!

Read the United Nations Declaration on the Rights of Indigenous Peoples for yourself.

Learn more about CASHRA.

http://www.chrc-ccdp.gc.ca/eng/content/milestones-human-rights-canada

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            ONE BILLION RISING-  no more excuses or abuses- In canada women's equality 2 men trumps ur religion beliefs- and this must be taught at all schools, colleges and universities- seriously.... we fought so hard 4 equality of women in Canada... don't destroy all we have worked 4 over 200 years...

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God bless the beloved youth and women of Afghanistan- we love u dearly
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Equality of sexes trumps religious rights http://www.dailyheraldtribune.com/2014/03/27/equality-of-sexes-trumps-religious-rights-2

By QMI Agency

An old debate between secularism and religion was re-ignited this week at the University of Waterloo.

The controversy that initially sparked it concerned a religious student’s request to be exempted from interacting with female classmates at York University.

Prof. David Seljak of the University of Waterloo has again put this issue in the spotlight.

His stance is that Prof. J. Paul Grayson, who denied the student’s request at York, has it all wrong.

Seljak believes secularism has become so intrusive that it violates Charter rights, which guarantee religious freedom to every Canadian.

He asserts religious rights should be valued as much as gender equality.

In his opinion, the male York University student should have been accommodated in his request, perhaps by having his lessons delivered via Skype.

This provision would have had no negative impact on the female students in his class, Seljak argues.

However, the issue obviously goes beyond whether the sentiments of religious students have a negative impact on their classmates.

Surely we should discourage any kind of culture which implies interacting with women is somehow detrimental to the well being of young men, religious or otherwise.

If this is what religious rights entail, perhaps the Charter should not consider religious rights to be as valuable as gender rights.

The identity of the York University student has not been revealed.

Of course, we have not been told his religion.

However, it would be a fair guess that he practices a prominent Middle Eastern religion that is obsessed with sexual taboos, patriarchy and notions of female inferiority.

Perhaps the student does not even know his own faith.

No religion forbids gender mingling when it is absolutely necessary to do so.

Even fundamentalist Muslims, perhaps the most obscurantist religious group, recognize that on occasions men and women must come into social contact.

In the previous case, the York University student claimed his religious beliefs forbade him from meeting with female students.

When Prof. Grayson refused his request, the student agreed to join the group project, while school authorities assured him he did not in fact have to interact with females.

Prof. Grayson refused the student’s request because he feared that acquiescing would set a disturbing precedent.

If a student is accommodated based on his antipathy towards women, what stops other religious students from being accommodated based, say, on their aversion to rival religious groups?

The intersection of religious beliefs with Canada’s secular principles has been tested before and will be again.

Whether it is discrimination against women in mosques, or polygamous unions in Bountiful, British Columbia, this intersection will continue to cause controversy until the Charter is clarified.

It was drawn up in 1982, when the religious environment was relatively simple.

The complexity of 2014 demands clearer insight, not to mention greater judicial oversight.

The Charter does allow governments to restrict religious rights if such action can be “demonstrably justified.” If secularism is trumping religion, as Prof. Seljak claims, it is doing so for the best of reasons.

Religious freedoms are fine, but many disregard the values Canadians have come to cherish.

While members of individual religious faiths have the right to their opinions, liberty and secular gender equality are rights that we as a society have agreed upon collectively.

They are more comprehensive and thus more fundamental than any religious rights.

-Farzana Hassan, QMI Agency

http://www.dailyheraldtribune.com/2014/03/27/equality-of-sexes-trumps-religious-rights-2

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Another case of religious belief trumping gender equality

Hamilton, ON, Canada / AM900 CHML | Hamilton News

Scott Thompson

January 15, 2014 07:00 am

No this is not a repeat of yesterday’s commentary but it is yet another case of religious beliefs trumping gender equality in our country.

This time it is not York University with a black eye but a martial arts class in Halifax.

A 17 year old girl suddenly found her martial arts class being divided up by gender because another student claimed his Islam faith would not let him come in contact with women.

When it came to the customary hand shake at the end of the class he would not shake hands with the females. He would also not bow, which is customary in martial arts, saying he only bows to his god Allah.

A theology prof says you can’t bow to another god but the teacher or students are not gods.

Once again proving this is not based on religion but a prejudice steeped in cultural ideology and left up to interpretation.

The student also handed out a pamphlet to classmates on Islam which authorizes husbands to administer a “light strike” to their wives in cases of “serious moral misconduct.”

“We wouldn’t allow someone using their religion to discriminate against someone’s race, so why would they use it to discriminate against somebody’s gender?” asked the girl.

My question is, why would you take a class that requires handshakes, bows and contact with women if you felt this way?

Is this really about religious accommodation or trying to change Canadian culture and law; ultimately driving us back to the Stone Age?

Religious accommodation should not discriminate against anyone in this country. Period.

I’m Scott Thompson.

Wednesday on The Scott Thompson Show!

Another case of religious belief trumping gender equality, causing outcry.

Have we had enough of political correctness?

http://news.nationalpost.com/2014/01/14/teen-felt-degraded-after-teacher-divided-aikido-classes-by-gender-following-male-students-religious-request/

comment:

Dori on Jan 15, 2014 at 04:54 pm said:

Yes we have too much political correctness! Canadian born citizens are being led like sheep !
These narrow minded stone aged people will be coming out of the woodwork now that they have gotten their way dividing up a martial arts class into genders. This is discrimation of genders. Gender discrimination trumps any religion!THIS IS CANADA !If you cannot live under Canadian rules and laws,don’t come here! We have religious freedom in Canada but that does not mean you have the right to impose your religious beliefs on anyone else. You have the freedom to worship,but not the freedom to change or deny everyone else’s religion. This so called inclusion has gotten out of hand. It seems it is one certain religion that is trying to change our ways in Canada.They think women are second class citizens,and they are not worthy of a handshake. If they don’t like the rules don’t join! Why did Canada sacrfice our soldiers to have people treated equally.? We are letting these people discrimnate against us in Canada . I am mostly upset over the politicians who are bending our rules just to get a vote !
Do you think any one of these people would bend their rules in their native country to accommodate Canadian values.?? I doubt it very much . They would likely never be heard from again.! I am so fed up with people coming here to our wonderful country and bringing their backward ways and discrimnations with them. If they come here for a better life then become inclusive in Canadian values ,do not impose their way on us.
They want all the benefits Canada has to offer but want to change Canada ??? No more ! It is time to be fair to all people and in Canada Men and Women are equal. It took many years to accomplish this. We do not want to lose it because of “POLITICAL Stupidness !!

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CANADA -DEPARTMENT OF JUSTICE

Amidst this international and domestic law commitment to gender equality, this report will outline how the practice of polygyny violates women's right to equality within marriage and the family, amongst other rights, using the sources of international law identified in Article 38 of the Statute of the International Court of Justice (I.C.J.) as a guiding framework:

State practice indicates that a complete legal prohibition of polygyny is the norm in most domestic systems including all of the Americas, Europe, countries of the former Soviet Union, Nepal, Vietnam, China, Turkey, Tunisia, and Côte d'Ivoire, amongst others.[9] In addition, there is a marked trend toward restricting the practice elsewhere, particularly through judicial and/or spousal permission requirements. These restrictions reflect not only the socio-economic problems associated with polygyny, but also a growing recognition of women's right to equality.

The right to gender equality has been central to the evolution of post‑World War II international human rights law.

Research Report

Polygyny and Canada's Obligations under International Human Rights Law

September 2006

http://www.justice.gc.ca/eng/rp-pr/other-autre/poly/chap1.html

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Petitioning Canadian Government, Prime Minister Stephen Harper and 2 others

This petition will be delivered to:

Canadian Government, Prime Minister Stephen Harper

Canadian Government, Peter MacKay

Canadian Government. Candice Bergen

Protect Canadian women rights from gender based religious persecution, and stop the erosion of the most important and fundamental RIGHT that we enjoy in a free and democratic society.

HYPERLINK "https://www.change.org/u/31882040"

Michele Walsh

Upper Tantallon, NS

Our daughters were discriminated against in a martial arts class (Aikido) and the Human Rights Board of Nova Scotia allowed this discrimination because the Man claimed his offensive and sexist beliefs were based on "his interpretation of a religion".  His interpretation of his religion can be found in a very offensive booklet that he handed out in this same Martial Arts class, titled "Islam From Darkness to Light", by Suhail Kapoor, published in 2008 by Al-Amal Electronic Printers in Saudi Arabia.  This booklet is very offensive and explicitly promotes discrimination and violence against women, homosexuals, western society, and much more.

Our story made the news in January 2014, and SUN News has one particularly well done discussion on the issues in the video linked to below.

http://www.sunnewsnetwork.ca/video/featured/prime-time/867432237001/over-accomodation/3059852637001

As discussed in the SUN News video, our youngest daughter attended this CO-ED martial arts class (Dojo) for 9 years when the instructor/owner told the class that women would no longer be treated equal in his Dojo. The instructor informed the class that this new, self proclaimed muslim student refuses to interact with women because of his "religious" beliefs, and so the class will have to be separated.

The message in this booklet made it VERY clear that the reason he requested that women be segregated in the Dojo was to promote discrimination and the oppression of women.  We contacted Tarak Fatah of the Muslim Canadian Congress and he confirmed this mans request has nothing to do with islamic religious beliefs.  The student also refused to bow and show respect for the Japanese culture in the same fashion as ALL of the other students, but that is another story.  My daughters, my husband and I were very upset and shocked at this segregation. Our initial feelings related to how people of colour felt in the 50's when they were forced to the back of the bus.  Even though they were told to stop complaining because they still got to ride the bus, they were clearly discriminated against.

We started to investigate how it is possible in Canada that an individual can be allowed to openly discriminate against women (who are born with their gender) because of religion (which is a choice).  We found out religious based discrimination against gender, sexual orientation, colour and (of all things) religion is a growing problem in the civilized world.

We contacted the Halifax Municipality, our government officials and the Human Rights Board and were told that this individual has the "right" to discriminate against women based on "his interpretation of his religious beliefs" including the booklet.  All parties, including the Human Rights board said the degrading and disgusting values expresses in this booklet are not relevant.  We disagree. Human Rights explicitly refused to investigate the complaint and actually told us to stop calling them.

After this muslim man gave a copy of this very offensive booklet to our 15 year old daughter, both of our daughters quit this class, refusing to be humiliated and discriminated against in a publicly funded Martial Arts class.

We have received amazing support from so very many people who agree that segregation, discrimination and/or the oppression of women based on "religious" beliefs MUST NOT BE TOLERATED in Canada.  Thankyou.

We have raised this petition and are asking for your support to add your signature and share this with your friends and family.  We intend to use your signatures to motivate our politicians to take action to protect this fundamental right, and defend Canadian Women from this form of discrimination. We hope your signatures will help enforce our Charter Rights for equal treatment of women (who are born women) and NOT ALLOW this to be trumped by religion (a persons choice).  We hope to change our Human Rights Board to focus on protecting Canadian women from gender based persecution, and stop the erosion of the most important and fundamental RIGHT that we enjoy in a free and democratic society.

https://www.change.org/p/canadian-government-prime-minister-stephen-harper-protect-canadian-women-rights-from-gender-based-religious-persecution-and-stop-the-erosion-of-the-most-important-and-fundamental-right-that-we-enjoy-in-a-free-and-democratic-society?action_object_map=%7B%22295661297251283%22%3A223646201152026%7D&action_ref_map=%7B%22295661297251283%22%3A%22__vgpLpfDDSi%22%7D&action_type_map=%7B%22295661297251283%22%3A%22change-org%3Arecruit%22%7D&fb_action_ids=295661297251283&fb_action_types=change-org%3Arecruit&fb_ref=__vgpLpfDDSi&fb_source=other_multiline

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LIAR, LIAR PANTS ON FIRE

1945 The Charter of the United Nations recognizes gender equality as a fundamental human right.

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GENDER EQUALITY AND RELIGIOUS FREEDOM: TOWARD A FRAMEWORK FOR CONFLICT RESOLUTION

DONNA J. SULLIVAN*

Many gender-specific human rights violations are grounded in cultural and religious practices. Women's rights activists in a number of national settings have stressed the need to transform religious law and practice, not only as a means of ending gender-based restrictions on specific human rights, but also as an essential step toward dismantling systemic gender inequality.1 The most comprehensive challenges mounted by states to the international norms guaranteeing women's rights, and their application, have been couched as defenses of religious liberty. States that implement religious law, and believers themselves, have contended that many practices that violate women's human rights are manifestations of the freedom of religion or belief, and as such are entitled to protection under international law. Some international human rights advocates have cited [End of Page 795] these claims to explain their reluctance to examine the status of women under religious law and the impact of religious and customary practices on women's human rights.

In the absence of international consensus as to the standing of a particular right within a normative hierarchy, as is the case with a number of gender-specific rights, attempts to resolve conflicts between competing human rights values will present serious philosophical, legal, and political difficulties. Conflicts between women's human rights and religious rights set tenets of equality against values of liberty. International norms guaranteeing women's equality and delineating the scope of the freedom of religion do, however, offer a framework for resolving these conflicts. Guidelines for the process of conflict resolution can be developed by linking this framework to an analysis of how gender is constructed within specific historical contexts and how religion functions within those contexts. The necessary judgments are not inherently more difficult than those which governments must reach in restricting social and cultural practices for such purposes as promoting racial equality, or in regulating family life to protect minors.

This article will propose a framework for resolving conflicts between women's human rights and the freedom of religion as manifested in religious law and practice. Part I will outline the normative parameters within which such conflicts might be addressed, focusing on the scope of gender equality and of the freedom of religion or belief in international law, as well as the social and political dimensions of both gender and religion in society. Part II suggests an approach to conflict resolution. In Part III, I will illustrate the far-reaching impact of gender discrimination in religious law with a focus on personal status law, a principal arena of conflict between religious rights and women's human rights. Part IV will explore several questions concerning the role of the state in effecting reform of religious law, including the role of secular courts.

I. THE NORMATIVE FRAMEWORK

A. Gender as a Basis for Differentiation

The general prohibition of gender discrimination, and the companion principle of gender equality, are grounded in [End of Page 796] the United Nations Charter itself.2 The prohibition of gender discrimination is reiterated in the Universal Declaration of Human Rights (Universal Declaration)3 and in the International Covenants on Human Rights,4 and is elaborated in the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention).5 The major regional human rights conventions proscribe gender discrimination with regard to the rights that they set forth.6 A wide range of specialized instruments adopted by the United [End of Page 797] Nations (U.N.), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the International Labour Organization (ILO) address particular aspects of gender discrimination in detail, including discrimination in political participation, minimum age for marriage, nationality of married women, education, and employment.7 The prohibition of systematic gender discrimination as a matter of state policy is a strong candidate for inclusion among the norms of customary international law.8 [End of Page 798]

The Women's Convention bars specific forms of discrimination in the fields of political participation, employment, health care, education, legal capacity, and family life. The objectives of the Convention go beyond eradicating the forms of discrimination specified to include the comprehensive aims of ensuring the full development and advancement of women, and eliminating the discrimination ingrained in social and cultural life. The U.N. Committee on the Elimination of Discrimination Against Women (CEDAW) has stated that Convention articles 2 and 3 "establish a comprehensive obligation to eliminate discrimination in all its forms in addition to the specific obligations under articles 5-16." 9 The prohibition of gender discrimination set forth in the Convention explicitly extends beyond state action to non-governmental conduct.10 The Convention also obligates states parties [End of Page 799] adopt legislative and other measures to modify or abolish customs and practices that constitute discrimination,11 and to take "appropriate measures" to modify social and cultural patterns of conduct based on stereotyped roles for men and women.12 It requires states parties to ensure the equality of men and women in all matters relating to marriage and family relations, including rights and responsibilities during marriage and at its dissolution.13 Finally, article 4(1) recognizes the need for "special temporary measures" (affirmative action measures) to accelerate the achievement of women's de facto equality. The object of the basic guarantee of gender equality articulated in the Women's Convention is not to ensure that women receive treatment identical to that of men, nor that laws and practices will impact women and men in the same way. Rather, the aim is to ensure that gender does not impede women's ability to exercise rights protected by international human rights law, and to dismantle the political, economic and social structures that perpetuate their subordination.

Authoritative interpretations of the general principle of non-discrimination in international and regional conventions have established that not all differentiation on one of the proscribed bases amounts to discrimination.14 The classic statement of the meaning of discrimination in general international law appears in the dissenting opinion of Judge Tanaka in the South West Africa Cases.15 Judge Tanaka characterized equality as a relative concept that permits different [End of Page 800] treatment based on an objective justification ("concrete individual circumstances"), as long as the difference in treatment is proportionate to the justification and meets the criteria of justice or reasonableness.16 The European Court of Human Rights has held that a distinction on one of the bases proscribed by article 14 of the European Convention17 violates the prohibition of discrimination only if it has no "objective and reasonable justification" and the means employed are disproportionate to the aim sought to be achieved.18 Applying this standard to gender discrimination, the Court has stated that

the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.19

Drawing on jurisprudence under the European Convention, [End of Page 801] the U.N. Human Rights Committee has expressed the view that the enjoyment of rights and freedoms on an equal footing does not require identical treatment in every instance. Distinctions that are based on reasonable and objective criteria undertaken for a purpose which is legitimate under the Political Covenant do not constitute discrimination.20 In decisions under the Optional Protocol, the Committee has found gender-based classifications to be discriminatory in the areas, inter alia, of immigration and naturalization law,21 the right to represent matrimonial property before the courts,22 and the right to unemployment benefits.23

Notwithstanding the apparent significance attached to normative declarations of the principle of gender equality, international tribunals have interpreted the principle of gender equality rather narrowly.24 Assessments of whether a [End of Page 802] religious law or practice constitutes discrimination as defined in international law must take account of the manner in which gender itself is constructed and the role of religious law and tradition in defining gender roles. Gender distinctions in religious law rest on the nature of the gender roles that have been shaped by the religious tradition itself; those roles cannot therefore be asserted as "objective" and "reasonable" bases for the distinctions made in the law.

Religious laws may on their face violate international guarantees of gender equality with regard to particular rights. Even in cases permitting a straightforward determination that a religious law is irreconcilable with the norms barring gender discrimination, de facto rights cannot be secured unless the interlocking relationships among gender, class, race, ethnicity, national identity, and the structures of state power are taken into account. Religious laws may impose uniform differentiation on the basis of gender at the normative level, but the material and ideological effects of these normative regimes on women's lives are not determined solely by gender.

Women's ability to exercise their rights under international (and national) law is shaped not only by gender, but also by such factors as: class; race; ethnicity; the role of the state in constructing gender ideologies and relations of power; and bilateral and multilateral economic and political relations. Gender identity is formed by the confluence of these different elements and women's material condition is forged by their effects.25 Neither ideologies of gender, (that [End of Page 803] is, how concepts of womanhood are formulated within societies,) nor power relations based on gender differentiation function uniformly across historical, national, racial, ethnic or economic boundaries.26 Gender identity as a basis for differentiation under religious law therefore does not function uniformly or autonomously across those boundaries.

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In many situations, de facto equality cannot be achieved without eliminating de jure restrictions in religious law. Even in such situations, however, religious law does not operate in isolation from other determinants of women's status.

B. The Scope of the Freedom of Religion

Four key points concerning the scope of the freedom of religion or belief are central to conflicts involving women's human rights.27 First, international law protects the right to have a religion or belief of one's choice and to manifest it in worship, observance, practice or teaching. The right to manifest religion or belief encompasses the right to observe and apply religious law, including the right to establish and maintain religious tribunals. In a number of belief systems, the observance of religious law is integral to religious practice.28 The application of religious law, by formal tribunals or religious leaders, in communal or individual life, and in public or private life, constitutes the observance and practice of religion.29

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Second, international human rights norms do not demand the separation of church and state. Norms prohibiting discrimination on the basis of religion or belief are not premised on the institutional separation of religious authority and structures of governance.30

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Third, although states may implement religious law in domestic law, they may not invoke religious law embodied in national legal systems to excuse breaches of their international human rights obligations. This principle is reflected in government objections to Libya's reservation to the Women's Convention. Libya's accession to the Convention is subject to the "general reservation that such accession cannot conflict with the laws on personal status derived from the Islamic Shariah."31 The Governments of Finland, the Federal Republic of Germany, Mexico, the Netherlands, Norway and Sweden objected to this reservation as incompatible with the goal and purpose of the Convention. The objections by Denmark and Norway reject the idea that religious law warrants an exception to the well-established principle that a state may not invoke the provisions of its internal law as justification for the failure to perform a treaty.32

Fourth, international and regional norms guaranteeing the freedom of religion or belief permit the state to restrict manifestations of the freedom of religion in order to protect the rights of others. The limitations clauses in the relevant [End of Page 807] provisions permit restrictions that are prescribed by law and are necessary for the purpose of protecting the rights of others or public health, orders or morals.33 The state must show that a restriction on the manifestation of religion or belief is necessary. Only those limitations that are undertaken to achieve a permissible aim and are proportionate to [End of Page 808] that aim may be viewed as necessary.34

The requirement that limitations be prescribed by law is intended to ensure that restrictions are not imposed arbitrarily.35 Restrictions embodied in common law, as well as legislative [End of Page 809] acts, may be considered to be prescribed by law if they are compatible with the rule of law, are not arbitrary or discriminatory in scope, are sufficiently precise, and are accessible to those whose practices will be affected.36 The requirement that limitations be prescribed by law, which rests on the principle of legality,37 establishes a constraint on the exercise of power by the state.

International law thus permits states to implement religious law in national law and guarantees individuals and communities the right to observe religious law. The freedom of religion or belief may not be asserted, however, to shield religious law affecting women's status from international scrutiny. Moreover, restrictions may be imposed on religious law and practice if they are necessary to protect women's human rights and fundamental freedoms and are prescribed by law.

C. The Impact of Religious Law on Human Rights

Religious law and interpretations of that law may both define rights and, pursuant to independent legal aims (such as punishment for crimes), infringe on rights protected by international law. The law itself, interpretations of the law, and social custom derived from, or justified by reference to the law may all clash with human rights. The extent to which religious law may be applied without restrictions based on other human rights will vary with the substantive content of the law, and with the scope of its application ratione materiae and ratione personae.

In practice, restrictions on the freedom of religion for [End of Page 810] the purpose of protecting the human rights of others are readily conceded to be justified where the moral and political authority accorded to a particular human right, or set of rights, is generally acknowledged. International consensus thus demands the abolition of slavery and apartheid, notwithstanding the historical approbation of these practices by religious traditions. Similarly, the international community does not question the limitations placed by the Government of India on the practice of untouchability.38 The necessity for constraints on religious practice, coupled with state intervention in the life of the family, is generally accepted in cases involving parental refusal of a child's medical treatment for religious reasons. Reluctance to examine the necessity for restrictions based on women's human rights reflects, in part, male domination of policy and law-making processes, and inadequate international scrutiny of the breadth and depth of the constraints imposed by religious law on women's equality.

In order to assess the significance of a religious law or practice within a particular belief system, and its effects on women's equality, the religious law or practice must be viewed in the context of prevailing political, social and economic structures. Race, ethnicity, class, the relationship between state institutions and religious authority, and gender itself all mediate the effects of religion on other human rights. Bilateral and multilateral aid policies further shape those effects. Religion functions, often simultaneously, on [End of Page 811] different levels: as faith, as a vehicle for social custom, as a mobilizing force in national and international political arenas, and as a medium of individual and collective identity. Religion may be used by political forces, including those in power, as a legitimating ideology, to reinforce existing political structures or to challenge them.39 In some countries undergoing processes of social and economic change, or of state-building, women and family life have become the repositories of cultural identity as defined by religious ideologies that are themselves shaped by the political projects of the state.40 Religious revivalism linked to efforts by the state to consolidate political power in several national contexts has thus witnessed new codifications of religious law affecting women's status.41 The effects of religious law on women's de facto and de jure rights may also vary depending on whether that law constitutes the dominant legal tradition or one strand within a pluralist legal system.42

It cannot be assumed that social custom or actual legal practice conforms to the strictures of religious law. Custom and practice within religious communities often diverge significantly [End of Page 812] from legal doctrine and should be recognized as manifestations of the freedom of religion or belief, entitled to protection on an equal footing with religious law. The extent to which religious law constitutes an accurate expression of social behavior, or of actual legal practice, varies with the effects of class structures, ethnicity, race, and kinship systems, and with the nature of the relationship between the state and religion.43 In states where religious law remains uncodified, regional and local custom may affect interpretations of the law as much as doctrine embodied in religious texts.44

The extent to which a particular interpretation of religious law is considered to be authoritative or aberrant, or a particular practice is deemed to have a legitimate foundation in religious law, does not determine whether international guarantees of religious freedom are applicable. Those guarantees recognize all such interpretations (with the exception of spurious or fraudulent claims) as manifestations of religion. The question of authenticity does, of course, have both strategic and substantive importance for those seeking to reform religious law or practice or to promote alternative interpretations.

Religious law is not static: it is modified over time by custom and practice, even within religious traditions that insist on the immutability of the law as defined in religious texts held to be divinely inspired. A number of states whose national law incorporates religious law have instituted farreaching [End of Page 813] changes in the content of that law, sometimes in advance of social consensus.45 Moreover, even classical jurisprudence within particular religious traditions is not monolithic; divergent interpretations of religious texts have emerged among different sects and schools of jurisprudence.

In Parts II-IV of this article I discuss conflicts between gender equality and religious freedom within the framework of the international norms, and the sociopolitical constructions of both gender and religion discussed above. In Part II, I address the scope of potential normative conflicts, including gender-specific violations of peremptory norms, and suggest a balancing approach as a means of resolving conflicts that do not involve peremptory norms. I then illustrate the application of this approach to the practice of purdah (gender seclusion and veiling), and to Pakistani law on adultery and rape. The need to develop legal and policy approaches for resolving such conflicts is dictated by the substantial impact religious law and practice may have on women's full enjoyment and exercise of human rights. Part III outlines the impact of personal status law on women's equality, with reference to evidentiary laws, laws of inheritence and succession, and laws governing rights and responsibilities during marriage and at its dissolution. Part IV examines policy questions that arise in connection with state reform of religious law, including judical reform in a secular state (India) and legislative reform in a religious state (Tunisia).

II. APPROACHES TO CONFLICT RESOLUTION

A. The Scope of Normative Conflict

The potential for conflict between provisions barring gender discrimination and those safeguarding the freedom of religion is evident on the face of a number of those provisions. This potential is especially apparent in the provisions of the Women's Convention that address social and cultural practices and equality in marriage and family matters.46 For example, article 5 of the Women's Convention requires [End of Page 814] states parties to take appropriate measures to modify social and cultural patterns and practices based on stereotyped roles for men and women. Article 10(c) calls for the elimination of "any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation... and by the revision of textbooks and school programmes."47 If, however, stereotyped gender roles are a feature of the belief system in which parents wish their children to be educated, parents might argue that teaching intended to modify such roles violates article 18(4) of the Political Covenant and article 5(2) of the Declaration on Religious Intolerance.48

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Although the Women's Convention, the Political Covenant, and the Declaration on Religious Intolerance all include savings clauses intended to regulate normative conflicts, those clauses do not determine the outcome of many such conflicts.49 Moreover, the limitations clauses recognizing the human rights of others as bases for restrictions on the freedom to manifest religion offer neither guidance concerning which rights should be given preference over others nor principles that should govern the resolution of conflicts.50 Article 18(3) of the Political Covenant and article [End of Page 816] 1(3) of the Declaration on Religious Intolerance refer to the "fundamental rights and freedoms" of others; other limitations clauses speak of the "rights and freedoms" of others.51 It has been suggested that the language of article 18(3) narrows the range of rights that can serve as legitimate bases for restrictions to include only those rights considered "fundamental."52 The catalog of rights that are "fundamental" is, however, itself subject to differing interpretations. The absence of any general consensus on a normative hierarchy of human rights, except concerning a small number of peremptory norms (jus cogens), suggests that there is no definable legal distinction between those human rights that are "fundamental" and those that are not.53

Certain rights central to the protection of human dignity, notably the peremptory norms prohibiting extra legal killings, genocide, slavery, torture and systematic racial discrimination, clearly must prevail in all situations of conflict with the right to manifest religion or belief.54 Special Rapporteurs appointed by the U.N. human rights bodies and publicists have referred to a set of core rights that must prevail over religious rights in all circumstances, without explicit reference to the doctrine of jus cogens. U.N. Special Rapporteur Krishnaswami observed that " where traditional religious practices come into conflict with the basic rights of the individual, it is the former that have to give way."55 Professor An-Na'im has noted that although definitions of international [End of Page 817] human rights and their implementation are now being modified by claims of cultural relativity, such claims, "including allegiance to a religious legal system such as Shari'a, are limited by minimum standards of universal human rights. For example, slavery and torture cannot be justified with reference to any set of prevailing social norms or traditional cultural standards."56 In response to the argument that certain forms of punishment are based on religious prescriptions and are therefore not barred by the prohibition of torture, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has stated that:

[t]he fact that highly authoritative religious books recognize or even legalize certain institutions and instruments does not necessarily mean that those institutions and instruments are valid for all places and all times. Slavery may be taken as an example: although slavery was accepted by virtually all traditional religions, it is now generally recognized that it is not compatible with the inherent dignity of [the human being]; consequently it is outlawed and seen as one of the most serious violations of human rights. In a similar way, an opinio juris has developed to the effect that the infliction of severe physical or mental pain is irreconcilable with the required respect [End of Page 818] for... physical and mental integrity, even in cases where sanctions in themselves are fully appropriate and even called for.57

Gender specific violations of these peremptory norms clearly fall within the category of practices subject to absolute prohibition. For example, sati, the practice of burning a Hindu widow to death on her husband's funeral pyre, demands blanket prohibition as a violation of the right to life.58 In 1987, a young widow named Roop Kanwar was burned to death on her husband's funeral pyre in the Indian state of Rajasthan. The dead woman's in-laws defended the sati as a willing act of piety, and ongoing public ceremonies were organized in celebration of her death. Members of the upper caste clan to which the young woman belonged reportedly argued that any attempts by the government to prevent sati or sati glorification would infringe their freedom of religion.59 Some women's rights advocates who protested Kanwar's death and the glorification campaign similarly [End of Page 819] characterized sati as an expression of indigenous Hindu tradition. Others emphasized, however, that Kanwar's sati and the subsequent celebrations were an aspect of women's economic and social subordination and a vehicle for efforts by regional leaders to build political support, rather than a manifestation of religiosity.60 An understanding of the political context, and of the status of women within specific caste, class, kinship and regional settings, is essential to the success of efforts to combat sati and its glorification.61 However, international law requires the state to prohibit sati even if it were conceded to be a purely religious practice.

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B. A Framework for Resolving Conflicts

Many conflicts between women's human rights and religious freedom involve norms that have not as yet been accorded overriding significance by the international community. As the example of slavery demonstrates, international consensus as to the paramount significance of the prohibition of systematic gender discrimination may be expected to crystalize as activists increasing focus the attention of the international community on the gravity and pervasiveness of gender inequality.62 Although consensus may eventually be achieved as to the peremptory status of the prohibition of systematic gender discrimination, conflicts implicating rights that have not been assigned an agreed-upon rank in a normative hierarchy will continue to occur. In such situations of conflict, a balancing approach that takes into account particularized facts concerning the impact of the rights involved on one another, and on the underlying principles of gender equality and religious freedom, can provide a framework for conflict resolution 63

One of the primary factors to be considered is the relationship between the specific equality right at issue and the [End of Page 821] overarching goal of gender equality.64 A second factor, conversely, is the importance of the religious law or practice to the right of religious freedom upon which it is premised. Assessments of the significance of a religious practice should proceed from the significance accorded that practice by the religion or belief itself.65 A third factor to be analyzed is the degree to which each practice infringes the other or the underlying rights and interests. In other words, does the conflict [End of Page 821] result in only a slight degree of interference, or is either of the practices totally barred and the exercise of the underlying rights extensively restricted or foreclosed? A fourth factor to be considered is whether other human rights are implicated. For example, if the religion in question is one practiced by a minority group, the impact of the proposed restrictions on the rights of minorities under article 27 of the Political Covenant must be taken into account.66 Fifth, if religious law imposes a series of limitations on women's rights, their cumulative effect on women's status should be weighed, as should the effect of multiple restrictions of religious practice on the religion concerned. Finally, where the state has determined that restriction of a religious law or practice is necessary for the purpose of ensuring women's rights under the Women's Convention or general guarantees of gender equality, the proportionality of the restriction must be assessed.67

Attempts to resolve competing claims of gender equality and religious freedom through such a balancing process must take into account the fact that neither gender nor religion operates in isolation from other factors.68 In particular, the impact of religious law on women's de facto rights may be shaped by the exercise of state power to define and enforce religious orthodoxy, class distinctions among women within the same religious community, and the disparate impact of economic change and reform initiatives on urban and rural women.69

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C. Illustrating the Challenge Posed by Conflicts

Consider the example of purdah, the veiling and seclusion of women in some Muslim societies. In response to accounts characterizing purdah as a mechanism of sexual control operating uniformly across Islamic societies, Muslim feminists have pointed out that the socioeconomic and political significance of purdah has varied in different historical, political and class contexts.

The extent to which purdah impairs women's equality must be assessed in those contexts in order to determine how claims of religious freedom are to be weighed against international guarantees of gender equality, and for states parties to the Women's Convention, against the obligation to eliminate customs that constitute discrimination or are based on stereotyped roles for men and women. Whether the Qur'an (as distinguished from measures said by the state to give effect to Shari'a) actually mandates or sanctions the veiling and seclusion of women is of little significance to this process.70

Although the question of whether the Qur'an enjoins purdah is of considerable strategic and substantive import for efforts to promote reformist or alternative interpretations of Shari'a, the conflict between religious freedom and gender equality cannot be avoided by defining purdah as an inauthentic religious practice. Customary practices such as purdah, through which social behavior is invested with religious meaning, are protected manifestations of the freedom of religion or belief.71

In certain contexts, the veiling and seclusion of women may both reflect and reinforce constraints on their participation [End of Page 824] in public life. By segregating private life from the public realm and inhibiting women's participation in the latter,72 purdah may sustain gender inequalities in the distribution of political power and the division of labor. In Pakistan, for example, the Islamization process launched by General Zia-ul-Haq as a means of consolidating his political power included a series of directives requiring all women governmental employees and women students at state educational institutions to wear a chador. Women activists objected to these directives on the ground that they created an environment that would hamper women's participation in government service.73 To the extent that purdah operates to exclude women from the economic marketplace and political participation, it violates the general principle of gender equality, as well as obligations under the Women's Convention to ensure the advancement of women and to modify social and cultural practices based on stereotyped roles for men and women.74

The extent to which purdah curtails women's economic [End of Page 825] and social rights may be conditioned as much by class structures and regional custom as by the role of the state in promoting or enforcing purdah or the influence of religious institutions. For example, while veiling has been associated historically with urban upper class women in Egypt, rural working class women have not worn the veil and do not practice seclusion.75 In Pakistan, the seclusion of women has reportedly become a symbol of social status, since it has been historically associated with the upper classes, for whom the paid labor of women was not an economic necessity. While strict seclusion within the home may not be economically feasible for lower middle class women, the veil can be adopted as a marker that distinguishes them from working class women without foreclosing their participation in the labor market.76

Similar variation can be traced in the political implications of purdah. The frequently cited example of middle class Iranian women donning the veil during the 1979 revolution, [End of Page 826] as a symbol of solidarity with working class women and opposition to the government of Shah Reza Pahlavi, illustrates the need to assess the political significance of the veil in historical context.77 Veiling may be invested with overt political symbolism in nationalist movements or efforts by the state to consolidate national identity.

The political symbolism of the veil as a marker of women's role in society and of national identity is apparent in attempts to abolish veiling, as well as to promote or enforce it.78 The political significance of the veil during the Iranian revolution was shaped by the history of the coercive measures against veiling that were taken by Shah Reza Khan in the 1930s as part of his "modernization" campaign of capitalist development and Westernization. The chador was outlawed, and police were directed to enforce the ban by removing veils from women wearing them in public.79

Some Muslim activists have cautioned, however, that the significance of the veil as a means of reinforcing inequalities in women's social, economic and political status should not [End of Page 827] be obscured by efforts to promote or depict the veil as a symbol of resistance to Western influence.80 The post-revolutionary Iranian government introduced coercive measures to enforce the requirement that women's bodies be completely covered (hejab), including the criminal penalties of flogging or imprisonment for failure to comply with hejab.81 These measures violate the prohibition of cruel, inhuman and degrading treatment,82 and, by imposing systematic restrictions on women's ability to participate in social and political life, infringe international guarantees of gender equality.

The measures which states should take to remedy the negative effects purdah may have on gender equality will depend in part on the role of the state itself in compelling the practice, promoting it, or tolerating its imposition by nonstate actors. States should refrain from acts intended to coerce women physically or economically to observe purdah, and should take steps to prevent and punish, or to provide a remedy for, such coercive acts by non-governmental groups or individuals.83 International guarantees of gender equality, privacy and physical integrity forbid the state to impose criminal penalties or extralegal corporal punishment for the [End of Page 828] failure to wear the veil, or to mandate that women in government service or public office veil themselves. Where religious leaders promote purdah or where political authorities wish to reject demands that veiling be mandated, educational measures designed to promote acceptance of women's equality in social, economic and political life may represent the best means of addressing the effects of purdah on gender equality without unduly infringing religious rights. Measures prohibiting veiling would constitute a disproportionate restriction on the right of Muslim women themselves to engage in customary practices imbued with religious significance.84

Gender-specific violations may be embedded in religious law that also breaches other human rights norms. This broader context must be considered in assessing the need to restrict application of that law.85 The relevance of general human rights conditions is illustrated by the Pakistan Hudood Ordinances of 1979, introduced by the military government of General Zia-ul-Haq as a part of an Islamization campaign undertaken to consolidate political power.86 The Hudood Ordinances established punishments and evidentiary rules for the crimes of rape, adultery and fornication, armed robbery, the use of alcohol and narcotics, and false accusations of adultery. The Offence of Zina (Enforcement of Hudood) Ordinance of 1979, which defines the crimes of extramarital sexual intercourse (zina) and rape (zina bil jabr), has had the effect of making a woman who alleges that she has been raped liable to prosecution for zina unless she establishes [End of Page 829] conclusively that she did not consent, or the rapist confesses.87

The Ordinance prescribes the mandatory hudood penalties of stoning to death for married persons and 100 lashes for unmarried persons found guilty of zina or rape.88 Only the testimony of four Muslim male adult eyewitnesses to the act of penetration, or a valid confession, will support the imposition of hudood punishments for zina or rape. The testimony of women is completely excluded as a basis for hudood penalties.89

In the absence of eyewitness testimony by four Muslim adult males, hudood penalties are precluded in cases of zina or rape; only the lesser penalties of tazir may be imposed (flogging, imprisonment and/or a fine). Rape subject to tazir punishments may be proved on the basis of the victim's testimony if there is corroborating evidence, which may include medical evidence,90 or if the court finds that her testimony "inspires confidence."91

The element of the Hudood Ordinances that has had the most adverse impact on women has been tazir punishment [End of Page 830] for zina.92 Trial courts have convicted women of adultery on the basis of pregnancy, treating it either as circumstantial evidence or as an implied confession of zina.93 In one such case, a young blind girl named Safia Bibi charged that her employer raped her. The accused was acquitted of rape, but she was convicted of zina on the basis of her pregnancy and sentenced to three years imprisonment, fifteen lashes, and a fine. Her conviction and sentence sparked national and international protest, and the Federal Shariat Court subsequently acquitted her.94 Women who are raped and choose to bring charges reportedly continue to risk prosecution for zina if they cannot conclusively establish the absence of consent. This risk remains if they do not report the rape and later learn that they are pregnant. In addition, trial courts have converted a number of rape convictions to sentences for zina, based on the court's finding that the woman may have consented.95

The exclusion of women's testimony as a basis for hudood punishments violates the principle of equality before the law. However, the mere elimination of this evidentiary rule would leave intact elements of the Hudood Ordinances that violate other human rights, such as the penalties of lapidation (for zina or rape) and amputation (for theft), which violate the prohibition of cruel, inhuman and degrading treatment. Furthermore, the abrogation of hudood penalties alone would not remedy the negative effects of the Hudood Ordinances on women, especially women of the poor classes, who have been most extensively affected by the Ordinances. Tazir punishment for zina has been the most widely and arbitrarily [End of Page 831] applied element of the Hudood Ordinances.96 The difficulty of establishing conclusively the absence of consent and the risk of prosecution for zina reportedly deter women from seeking redress when they are raped; the effect is to confer institutional sanction on rape. In light of these multiple human rights violations, a number of Pakistani human rights and women's rights advocates have urged repeal of the Hudood Ordinances.97

As the examples of purdah and of Pakistani law on zina and rape illustrate, many conflicts between gender equality and religious freedom cannot be analyzed or resolved without considering the effects of class, regional custom, economic change, the nature of the other human rights implicated, and the role of the state in promoting or compelling adherence to both gender roles and religious ideologies. Where a restriction of religious law or practice is necessary to ensure women's de facto rights (a determination that must include consideration of its proportionality), its likely effectiveness will continue to reflect the interplay of these factors.

D. Distinguishing Conflicts from the Repudiation of International Norms

Normative conflicts between gender equality and the right to observe religious law should not be confused with the claim advanced by some states that religious law must prevail over international human rights law.98 For example, [End of Page 832] representatives of the Islamic Republic of Iran have maintained that Islamic law governing marriage rights and the death penalty prevails over international norms.99 The representative of Iran has stated before the Committee of Experts of the International Labour Conference that "all provisions of Conventions, Recommendations, and other decisions of the ILO or other international bodies that are not, in the opinion of the Islamic Republic of Iran, in conformity with Islamic principles are null and void."100 Such claims [End of Page 833] contravene the well-established principle that states may not invoke the substantive provisions or procedures of municipal law to justify the failure to comply with their international obligations. This principle applies to religious law implemented in domestic law, just as it governs secular municipal law.101 It should be noted that other states whose municipal law is in some measure derived from Islamic law have not maintained that the latter would prevail over international human rights norms in all cases of conflict.102

III. WOMEN'S RIGHTS AND PERSONAL STATUS LAW

In many countries in the Middle East, Africa, and South Asia, religious or secular courts apply religious law in matters [End of Page 834] of personal status, including marriage, divorce, child custody, maintenance, inheritance, succession, legal capacity, and the ownership and control of property. This section will examine the systemic effects that gender discrimination in personal status law may have on women's equality, given the substantive breadth of that law, as well as its impact on women's ability to exercise specific rights. These systemic effects are apparent in the general reservations grounded in personal status laws that have been entered by several states parties to the Women's Convention. These reservations purport to limit the parties' basic obligation to take measures to eliminate discrimination.103

Personal status laws have been the most entrenched elements [End of Page 835] of religious law in various national contexts. Many states have retained religious law in personal status matters, while replacing religious law governing other fields, including criminal and commercial law, with secular codes. A number of states apply religious law in all matters of personal status, while others have enacted legislation partially preempting religious law. Colonial regimes generally did not attempt to abrogate personal status law nor to introduce reforms aimed at promoting gender equality, as their interests lay in maintaining economic and social stability. The codifications of personal status law undertaken by colonial states often shaped the substantive content of the law in a manner that furthered colonial interests, reflected the gender ideologies of the colonial state itself, and formalized gender discrimination in religious practice.104

Although this discussion focuses on personal status law that explicitly incorporates religious law, religious doctrine that is not given formal recognition as a source of law may nonetheless have a pervasive influence on women's rights in the areas of family law and privacy rights. As the example of Irish law on divorce and abortion illustrates, nominally securlar law may embody religious doctrine in the guise of majoritarian social policy. The Irish constitutional provisions prohibiting divorce105 and virtually banning abortion106 rest on Roman Catholic doctrine actively promoted [End of Page 837] by religious authorities as the sole legitimate basis for public policy in these matters.

Personal status law may regulate procedural as well as substantive rights and so condition women's ability to obtain redress for violations of the latter, as illustrated by the example of evidentiary rules that assign lesser weight to women's testimony or completely bar their testimony. Under Jewish law (Halakhah), a woman cannot testify where the witness' function is to give legal effect to the act concerned ("attesting" or "constitutive" witnesses), as is the case in marriage ceremonies and in the delivery of bills of divorce.107 Classical formulations of Halakhah also excluded women, as well as minors, Gentiles, the blind, the intoxicated and the mentally deficient, from the category of those eligible to testify in civil matters.108 In Israel, rabbinical courts have exclusive jurisdiction over marriage, divorce and ancillary matters among Jews,109 and concurrent jurisdiction, with the consent [End of Page 838] of the parties, in other matters of personal status, including property disputes between spouses.110 The rule prohibiting women as attesting witnesses is followed by both secular and rabbinical courts,111 and the bar on women's testimony in civil matters may be followed by rabbinical courts.112 Such procedural restrictions abridge the right to equality before the law and circumscribe women's ability to exercise other rights.

Religious laws governing personal status do not merely affect women's standing within their religious communities; they also directly and indirectly condition their ability to exercise civil, political, economic, social and cultural rights guaranteed by international and national law in both public and private life.113 Laws of inheritance and succession as applied in several religious traditions, for example, incorporate elements that discriminate on the basis of gender. These laws are intended to regulate access to, and control over, economic resources, and so condition women's socioeconomic status in public and private life.

Disabilities in inheritance and succession may have an especially deep impact on women in societies where land is [End of Page 839] the principal economic resource.114 For example, under Mitakshara Hindu law as codified in the Indian Hindu Succession Act of 1956, a brother and sister receive unequal shares in joint family property (coparcenary property). Upon the death of their father, the son takes his own share of the joint property plus a share of his father's share, while the daughter receives only a share of her father's share.115 Under the Parsi law of succession as codified in the Indian Succession Act of 1925, when a Parsi man dies intestate, his male heirs receive twice the share of females who are in the same degree of relationship to the deceased.116 Studies suggest that in India access to even marginal landholdings can significantly reduce the risk of absolute poverty.117 The level of poverty among women has been linked to their degree of direct access to land and other economic resources, as well as to their indirect access to those resources through male family members. As a result of gender inequalities in the distribution of resources within households, women lacking independent land rights may be economically vulnerable even within parental or marital households that have adequate resources.118 The devolution of Mitakshara coparcenary property and of property subject to Parsi law may thus entail serious consequences for both women's material condition and [End of Page 840] their social relations within the family and in society.119 Of course, the impact of such laws on women's de facto access to and control over land is also governed by regional custom, development policies, and class structures.120

Inheritance laws that discriminate on the basis of gender contravene the U.N. Charter-based principle of gender equality, as the U.N. Economic and Social Council pointed out in a 1962 resolution calling on states to ensure that men and women in the same degree of relationship to a deceased are entitled to equal shares in the estate, and to equal rank in the order of succession.121

Discriminatory inheritance laws also breach the guarantees of equality and equal protection stated in the Political Covenant. In their review of reports submitted by states parties to the Political Covenant, members of the Human Rights Committee have questioned whether inheritance laws and practices that award women lesser shares are compatible with articles 2, 3, 23 and 26 of the Covenant.122 Such laws are inconsistent with obligations [End of Page 841] under the Women's Convention to ensure the full development and advancement of women, to accord women equality before the law and legal capacity identical to that of men, and to eliminate discrimination ingrained in social and cultural life. Under articles 2, 5 and 15 of the Women's Convention, states parties are obligated to repeal or reform domestic laws that codify religious measures such as these inheritance provisions, and to take steps to abolish discriminatory customary practices.123

Discriminatory laws regulating marriage and divorce may be similarly incompatible with women's equality in private and public life. The equal rights of men and women to enter marriage, during marriage and at its dissolution are affirmed in the Universal Declaration (article 16), the Political Covenant (article 23(4)),124 the Women's Convention (article [End of Page 842] 16) and the Declaration on the Elimination of Discrimination Against Women (article 6(2)). Religious laws regulating marriage, divorce, and family relations during marriage have been the basis for repeated government objections to norms prohibiting gender discrimination and governing family life.125 Article 16 of the Women's Convention, concerning the equality of men and women in all matters relating to marriage and family life, is subject to more reservations than any other substantive article of the Convention.126 The organizing principles that underlie religious law regulating gender relations within the family, and not merely specific practices mandated or condoned by that law are implicated in several of these reservations. For example, Egypt entered a reservation stating that its adherence to article 16:

must be without prejudice to the Islamic Shariah's provisions whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them. This is out of respect for the sacrosanct nature of the firm religious beliefs which govern marital relations in Egypt and which may not be called into question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementarity which guarantees true equality between the spouses.127

[End of Page 843]

In discussions of this reservation, members of CEDAW queried whether "complementarity" and equivalency of rights between men and women under Islamic law were being equated with the concept of equality.128 The representative of Egypt stated that article 16 "was fully compatible with Islamic law concerning the right to enter into marriage and at its dissolution, but with regard to rights and responsibilities during marriage and at its dissolution, a certain difference existed between the Convention and Islamic law."129 [End of Page 844] This allocation of rights and responsibilities within the gender roles constructed by religious tradition is rooted not in objective bases for differentiation between the authority and functions assigned respectively to men and women in the family, but in the gender ideologies of the religious tradition itself. Although the principle of gender equality does not require identical treatment, the rights and responsibilities of women within the family cannot be said to be "equivalent" or "complementary" to those of men when greater socioeconomic and political power adheres to the latter. Moreover, the perpetuation of stereotyped definitions of gender roles is inconsistent with article 5 of the Convention.

A number of states have no secular law of marriage or divorce; the pertinent religious law has been codified in some states, and remains uncodified in others. The Women's Convention requires states parties to ensure that religious courts with jurisdiction over civil matters and secular courts applying religious law comply with article 15 of the Women's Convention. This article guarantees equality before the law and legal capacity identical to that of men in civil matters.130 It does not, however, address women's status before religious tribunals adjudicating civil matters where women have access to secular courts with concurrent jurisdiction over those matters.131 The refusal to grant a religious divorce to a woman for reasons involving gender discrimination, for example, would not violate article 15 unless the refusal impaired her ability to obtain a secular divorce.132 [End of Page 845]

The state's failure to take measures to modify or abolish such discriminatory practices would, however, contravene articles 2(f) and 5(1) of the Women's Convention, which address customary practices and social and cultural patterns of conduct.133

Moreover, secular remedies may be of little consequence for women's de facto equality when the effects of religious law and practice permeate social life, as illustrated by the example of a Jewish woman whose husband withholds the bill of divorce (the get) required by Jewish law. Under Jewish law, a divorce cannot be effected until the husband presents his wife with a get before a rabbinical court.134 An observant Jewish woman who has not obtained a get cannot remarry, because the second relationship would be adulterous and any children born of the remarriage would be considered illegitimate.135 These formidable disabilities undercut the benefits of civil divorce for women who wish to remain within the religious community. In an effort to ameliorate these disabilities, rabbinical courts have devised measures to compel recalcitrant husbands to deliver the get.136 Secular courts in several countries have applied a variety of direct and indirect civil remedies for the same purpose, including injunctions or awards of large maintenance payments to wives in civil divorce actions.137

[End of Page 846]

The European Commission of Human Rights has rejected the argument that civil sanctions designed to compel a husband to deliver a get constitute an impermissible restraint on the freedom of religion.138 The Commission found that the refusal to deliver a get is not a manifestation of the freedom of religion and thus did not reach the issue of whether the use of civil remedies to redress gender inequalities in religious law would constitute an impermissible limitation on religious freedom. The Commission relied on the facts that the applicant had not alleged that delivering a get would compel him to act against his conscience and that Jewish religious authorities confirmed that Jewish law did not sanction the withholding of the get.139 Of course, whether or not an act is religiously mandated is not dispositive of whether it is imbued with religious significance and therefore entitled to recognition as a manifestation of religion.140 Measures designed to compel a recalcitrant husband to deliver a get clearly contemplate the performance of an act that has religious significance within Halakhah, and the right not to perform that act is an aspect of religious freedom. That this right may be subject to limitation for the purpose of protecting women's rights does not deprive it of its religious character. 141

The availability of secular remedies does not eliminate the need to modify religious law or practice that impairs the rights of women who remain within the religious community. Should women wish to construct lives independent of their religious communities, socioeconomic and cultural constraints often effectively deprive them of that option. Some states have attempted to redress the situation of observant [End of Page 847] Jewish women whose husbands will not grant them a religious divorce by creating civil remedies. For example, some state legislatures in the United States have made the acquisition of religious divorce a precondition for awarding a civil divorce.142 These statutes and the decisions of secular courts compelling the delivery of gets have been decried by some observers as the secular resolution of a religious inequity that properly demands a religious remedy.143

IV. REFORM AND THE ROLE OF THE STATE

Legal reforms such as the get legislation fall under the rubric of "appropriate measures" to eliminate discrimination in customary practices, required by articles 2(f) and 5(a) of the Women's Convention.144 Specific judicial and legislative reforms must be assessed in order to determine whether they meet the requirements of article 1(3) of the Declaration (and article 18(3) of the Political Covenant) as limitations based on the rights and freedoms of others. This section explores broader policy questions about the impact of such reforms, including the religious implications of secular approaches to reform and factors affecting the efficacy of legal reform.

The state might assert the authority to interpret religious law, either in order to determine whether there is a conflict between it and international law, or to find a basis within religious law itself for resolving an apparent conflict.145 The interpretation of religious law by secular courts or legislators for purposes of reform raises several questions. Does such interpretation violate the freedom to manifest [End of Page 848] religion by expounding a definition of religious doctrine that will be enforced by the regulatory power of the state?146 What will be the effects of the interpretation of religious law by secular authorities on the content of doctrine as embodied in religious observance? How can the state enhance the efficacy of its initiatives to advance women's de facto equality, or to reform religious law when religious leaders and jurists oppose those efforts?

The difficult policy implications of these questions are illustrated by the controversy surrounding the decision of India's Supreme Court in the 1985 Shah Bano case. In Mohd. Ahmed Khan v. Shah Bano Begum,147 the Supreme Court held that a Muslim man was liable under the secular Code of Criminal Procedure for maintenance payments to his indigent divorced wife, although he had already paid the maintenance required under the generally accepted interpretation of Islamic personal status law.148 The Court's decision was grounded in the principle of gender equality, and in the Constitutional mandate to effect reform of social inequities within religious traditions.

The Court stated at the outset that this criminal statute, which has the secular purpose of preventing destitution, overrode personal status law in the event of a conflict between the two.149 Nevertheless, the Court went on to interpret Islamic personal status law, reaching the conclusion that there was no conflict between the secular criminal law and Shari'a.150 The Court's interpretation of Islamic requirements [End of Page 849] concerning maintenance was highly controversial with regard to both methodology and result.

The Supreme Court purported to interpret a verse of the Qur'an itself, without the benefit of commentaries by Islamic jurists. 151 Muslim religious leaders claim exclusively the right to interpret the Qur'an. Moreover, the Court's conclusion regarding the meaning of this Quaranic verse went against the weight of accepted Islamic jurisprudence.152

Even more controversial than the Supreme Court's efforts to interpret the Qur'an was its obiter dictum stressing the need to adopt a uniform civil code to replace the personal status laws applicable to the various religious communities in India. The Court dismissed the argument that the reform of Islamic personal status law must be accomplished from within the Muslim community. It stated that no religious community in India was likely to take the lead in such reforms, and that it is the state's duty to secure the uniform civil code contemplated by the Indian Constitution.153 In an interview following the decision, the Chief Justice of the [End of Page 850] Supreme Court stated that the "thesis of the Court was that women are generally treated with discrimination under personal laws, be it Hindu personal law or Muslim personal law."154

The Shah Bano decision ignited widespread protest by Muslim leaders, who viewed the Court's interpretation of the Qur'an as a usurpation of religious authority and a threat to the integrity of Muslim communal identity. The Court's call for a uniform civil code was echoed by anti-Muslim Hindu revivalists who sought the abolition of Muslim personal status law, intensifying the force of the decision as a lightening rod for political cohesion among Muslims. Following losses in the next election, the Government succumbed to political pressure, and adopted the Muslim Women (Protection of Rights on Divorce) Act of 1986.155 This Act makes a divorced woman's relatives and the Muslim religious endowments responsible for her ongoing maintenance if she is indigent.

As one observer noted, the Act effectively allows husbands to divorce their indigent wives with impunity, leaving society to pick up the tab.156 The controversy surrounding the Court's decision must be seen in the context of the escalating violence between the Hindu and Muslim communities in India, and the climate of fear created by anti-Muslim propaganda by Hindu revivalists.157 Particularly in such circumstances, efforts by a secular [End of Page 851] judiciary to reform religious law should avoid direct interpretation of religious texts without supporting religious authority. The Supreme Court's call for a uniform civil code, obiter dictum in any event, should have been explicitly related to gender discrimination in the personal status law of other religious communities, as well as the Muslim community.

Some human rights activists and scholars have emphasized that international norms are more likely to be implemented if they are shown to be a legitimate development of existing religious and cultural tradition.158 This approach may require the reinterpretation of religious norms in order to bring them into line with the present formulation of international standards. Jurists may be able to implement change in religious law by drawing on existing bases for reform among variant schools of jurisprudence.159 Among the most noted examples of a state undertaking such reformist reinterpretation of religious law is Tunisia. Based on religious arguments, the Tunisian Personal Status Code of 1956 outlawed polygamy and unilateral extrajudicial divorce (talaq). [End of Page 852] The Government has described the prohibition of polygamy under the Code as "evidence of the equality of men and women" in Tunisia and characterized polygamy as "the most flagrant and most unjust manifestation of inequality between the spouses."160 The Code did not modify the Islamic provisions regarding succession, however. In response to the observation by a member of the Human Rights Committee that the laws of succession conflicted with articles 3, 23, and 26 of the Covenant,161 the representative of Tunisia stated that those laws concerned "an area in which it was impossible to force the pace and overturn principles 14 centuries old,"162 and that the laws of succession would preclude the application of international norms governing the principle of equal inheritance.163

Studies suggest that when the Tunisian Government withdrew from its program of reform in the 1970s, and curtailed official efforts to promote cultural change in the traditional status of women, popular support for change in the status of women declined across all classes, but especially among poorly educated and rural men.164 The Government observed that efforts by the state to transform religious law can have a singular impact on women's status in society:

[i]t might even be asserted that the content of Tunisian positive law corresponds to the level of emancipation effectively attained by the Tunisian woman [End of Page 853] of today. We should not forget the link of cause and effect which exists between law and the society which produces it or, in other words, the circumstances and social and economic peculiarities of a community.165

Law reform in advance of broad political and social consensus can generate social change. The example of Tunisia suggests, however, that the success of law reform is tied to economic and social initiatives to transform normative change into praxis. Law reform to protect the human rights of women must be accompanied by educational measures to foster social change, and economic and political initiatives to advance women's status if it is to have a significant impact on women's de facto rights.

V. CONCLUSION

The potential for conflict between women's rights and [End of Page 854] the right to practice religion or belief arises in all major religious traditions. The impact of religious law and practice on women's human rights must be assessed in specific historical contexts, taking into account the interlocking effects of gender, religion, race, ethnicity, class, the role of the state in constructing and promoting ideologies of gender and of religion, and international political and economic relations. International and regional human rights norms offer a framework for resolving conflicts between equality rights and religious law and practice as manifestations of religious freedom. These norms permit limitations on the freedom of religion or belief that are necessary to ensure that gender inequalities do not impair women's de jure and de facto rights.

Factors to be weighed in determining whether such restrictions are necessary include: the relationship between the specific equality right and the broad aim of gender equality; the significance of the religious law or practice to the religious tradition; the effects on other human rights implicated; the degree to which the conflicting rights interfere with each other; the cumulative effects of multiple restrictions on either equality rights or religious practices; and the proportionality of the restriction. The process of balancing the competing interests involved must take into account the fact that neither gender nor religion operates in isolation from class, ethnicity, or the other factors mentioned above. To the extent that gender distinctions in religious law are rooted in the gender roles constructed by religious traditions themselves, those roles do not constitute objective and reasonable justifications for the distinctions.

This article has focused principally on the systemic effects that personal status law, as applied by religious or secular courts and reflected in custom, may have on women's ability to exercise internationally guaranteed rights, in light of the broad substantive scope of that law. The success of attempts by the state to reform personal status and other religious law for the purpose of securing women's human rights, and the impact of those efforts on religious practice and communal identity are likely to be closely related to the nature of the economic and educational initiatives taken in conjunction with law reform, and to the broader processes of political change. Secular courts applying the religious law of minority communities should exercise particular care to base [End of Page 855] restrictions of that law on international (or national) guarantees of gender equality binding the society as a whole, rather than majoritarian religious beliefs or public policy.

The question of the extent to which women are able to exercise their right to freedom of religion or belief within religious communities, although beyond the scope of this article, is linked to possibilities for reinterpretation of religious law to eliminate gender inequalities. While women have been historically excluded from the formal processes of articulating and interpreting religious law, they are active participants in the formation of religious practice. Women have interests in the rights of religious collectivities, as well as interests in the elimination of gender inequalities. Conflicts involving the principles of gender equality and religious freedom should not be viewed as clashes between individual and collective rights, but as conflicts between sets of rights that each have individual and group dimensions.

************************************************

* Member, California Bar; J.D., 1985, New York University. I am especially grateful to Jane Connors and Seble Dawit for invaluable comments on this article and other contributions. I also wish to thank Hina Jilani and Elizabeth Evatt for generously sharing insights and information. An earlier version of part of this article was presented at the 1991 Annual Meeting of the American Society of International Law. I am grateful to Joan Altman, Diane Orentlicher, Rosalind Petchesky and Nahid Toubia for their thoughtful comments on that presentation.

1 See, e.g., Madhu Kishwar & Ruth Vanita, Inheritance Rights for Women: A Response to Some Commonly Expressed Fears, 57 MANUSHI 2 (1990); Nawal El Saadawi, The Political Challenges Facing Arab Women at the End of the 20th Century, in WOMEN OF THE ARAB WORLD: THE COMING CHALLENGE 10-11 (Nahid Toubia ed. & Nahed El Gamal trans., 1988); KHAWAR MUMTAZ & FARIDA SHAHEED, WOMEN OF PAKISTAN: TWO STEPS FORWARD, ONE STEP BACK? (1987); Rashida Patel, Pakistan: Muslim Women and the Law, in EMPOWERMENT AND THE LAW: STRATEGIES OF THIRD WORLD WOMEN 110 (Margaret Schuler ed., 1986) [hereinafter EMPOWERMENT AND THE LAW]; Mothokoa P. Mamashela, Lesotho: Women, Marriage and the Law, in EMPOWERMENT AND THE LAW, supra, at 126; Amarjit Kaur, Malaysia: Educating About Rights, in EMPOWERMENT AND THE LAW, supra, at 204; Mere Pulea, Vanuatu: Development of a New Family Law, in EMPOWERMENT AND THE LAW, supra, at 310.

2 U.N.CHARTER arts. 1(3), 13(1)(b), 55(c), 76(c). The Charter speaks of discrimination on the basis of "sex," as do the other international and regional norms mentioned. I use the term "gender" rather than "sex" to emphasize the objectives underlying the principle of non-discrimination. Sex refers to the biological categories of female and male, designated on the basis of anatomical characteristics and/or on chromosomal pairings. Gender, the significance attached within society to sex identity, is a cultural construct. The underlying aim of the principle of gender equality is the eradication of the disabilities that are imposed on women based on cultural definitions of their role in society, and not merely discrimination based on their reproductive capacity or other biological traits.

3 G.A.Res. 217, U.N.Doc. A/810, at 71, arts. 2, 16(1) (1948) [hereinafter Universal Declaration].

4 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, arts. 2(2), 3, 993 U.N.T.S. 3, 5, 5 [hereinafter Economic and Social Covenant]; International Covenant on Civil and Political Rights, Dec. 19, 1966, arts. 2(1), 3, 23(4), 26, 999 U.N.T.S. 171, 173, 174, 179, 179 [hereinafter Political Covenant].

5 G.A.Res. 34/180, U.S. GAOR, 34th Sess., Supp. No. 46, at 193, U.N.DOC. A/34/46 (1979) [hereinafter Women's Convention]. As of December 31, 1991, 110 states had become parties to the Convention. MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL: STATUS AS AT 31 DECEMBER 1991, at 169- 70, U.N.Doc. ST/LEG/SER.E/10, U.N. Sales No. E.92.V.4 (1992) [hereinafter MULTILATERAL TREATIES]. One hundred eleven had ratified the Convention as of January 15, 1992. U.N. Press Release, WOM/622, Jan. 17, 1992, at 1.

6 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 14, 213 U.N.T.S. 221, 232 [hereinafter European Convention]; American Convention on Human Rights, Sept. 23, 1987, art. 1(1), O.E.A./Ser.L.V/II.71 DOC. 6, rev. 1, reprinted in ORGANIZATION OF AMERICAN STATES, BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM 25 (1988) [hereinafter American Convention]; African Charter on Human and Peoples' Rights, June 26, 1981, art. 2, O.A.U. DOC. CAB/LEG/67/3/Rev. 5, 21 I.L.M. 59 [hereinafter African Charter]. See also American Convention, supra, art. 17(4) (requiring states parties to take "appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution"); African Charter, supra, art. 18(3) (requiring states parties to "ensure the elimination of every discrimination against women").

7 See Convention on the Political Rights of Women, Mar. 31, 1953, 27 U.S.T.1909, 193 U.N.T.S. 135; Convention on the Nationality of Married Women, Feb. 20, 1957, 309 U.N.T.S. 65; Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Dec. 10, 1962, 521 U.N.T.S. 231; UNESCO Convention Against Discrimination in Education, Dec. 15, 1960, 429 U.N.T.S. 93; Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, I.L.O. Convention No. 100, June 29, 1951, 165 U.N.T.S. 303; Convention Concerning Discrimination in Respect of Employment and Occupation, I.L.O. Convention No. 111, June 25, 1958, 362 U.N.T.S. 31; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Mar. 21, 1950, 96 U.N.T.S. 271.

8 The basic prohibition against gender discrimination is established in the U.N. Charter as a solemn obligation of member states, on the same plane as the prohibition against racial discrimination. See U.N. CHARTER, arts. 1(3), 13(1)(b), 55(c), 76(c). Support for the customary character of the prohibition of gender discrimination may be found, inter alia, in the repeated assertion of this principle in international and regional human rights instruments and in national constitutions, legislation and judicial decisions, in the statements of governmental representatives in the U.N. and the various intergovernmental organizations, and in the resolutions adopted by those organizations. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 cmt. 1 (1987) [hereinafter RESTATEMENT] (suggesting that systematic gender discrimination as a matter of state policy may already have matured into a principle of customary international law). See generally Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 106-07 (June 27) (regarding sources of evidence of opinio juris); RESTATEMENT, supra, § 701 (listing practices accepted as building customary law); THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 100 (1989) (regarding sources of evidence of state practice). In assessing the significance of inconsistent state practice with regard to the customary character of human rights norms, it is appropriate to consider the moral significance vested in those rights by the international community. See Oscar Schachter, The Nature and Process of Legal Development in International Society, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW 745, 792 (R.St.J. Macdonald & Douglas Johnston eds., 1986). See also Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 111-13 (June 27) (regarding the significance of inconsistent state practice in determining the existence of customary rules).

Professor Bayefsky suggests that classifications based on gender, like those based on race, are subject to a standard of strict scrutiny under international and regional human rights law. Anne F. Bayefsky, The Principle of Equality or Non-Discrimination in International Law, 11 HUM.RTS.L.J. 1, 20-23 (1990). See also Myres S. McDougal et al., Human Rights for Women and World Public Order, 69 AM.J.INT'L L. 497, 509-31 (1975) (regarding the reiteration of the prohibition of gender discrimination at the international and national levels).

9 Adoption of the Report, General Recommendation No. 19: Violence Against Women, U.N. CEDAW, 11th Sess., Agenda Item 7, at 3, U.N.DOC. CEDAW/C/1992/L.1/Add.15 (1992) [hereinafter CEDAW Recommendation No. 19]. CEDAW was established to monitor progress made in implementing the Convention and is empowered under article 21(1) to make suggestions and "general recommendations" based on the examination of reports and information submitted by states parties.

10 See Women's Convention, supra note 5, arts. 1, 2(b), 2(c), 2(e) 2(f), 3, 5(a), 15(3), 16. In its general recommendation No. 19 on violence against women, CEDAW emphasized that the prohibition of discrimination under the Convention "is not restricted to actions by or on behalf of Governments (see articles 2.e, 2.f and 5)." CEDAW Recommendation No. 19, supra note 9, at 3. For discussion of the reach of article 1, and the scope of the state's duty under articles 2 and 5 to eliminate discrimination in private life, see THEODOR MERON, HUMAN RIGHTS LAW-MAKING IN THE UNITED NATIONS 59-67 (1986). The definition of discrimination established in article 1 applies to unintentional discrimination (disparate impact) as well as intentional discrimination (disparate treatment).

For analysis of the scope of state responsibility for non-governmental interferences with human rights, see MERON, supra note 8, at 162-71; M. Forde, Non-Governmental Interferences with Human Rights, 56 BRIT.Y.B.INT'L L. 253, 260-71 (1985).

11 Women's Convention, supra note 5, art. 2(f).

12 Article 5(a) requires states parties to take appropriate measures:

[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Id. art. 5(a).

13 Id. art. 16.

14 For discussion of the concept of equality in international law generally, see WARWICK McKEAN, EQUALITY AND DISCRIMINATION UNDER INTERNATIONAL LAW (1983).

15 South West Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 I.C.J. 6, 313-16 (July 18) (Tanaka, J., dissenting).

16 Id. at 313.

17 Article 14 bars discrimination on the basis of "any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status" with regard to rights protected by the Convention. European Convention, supra note 6.

18 Belgian Linguistics Case, 6 Eur.Ct.H.R. (ser. A) at 34 (1968). The Court, "following the principles which may be extracted from the legal practice of a large number of democratic States," held that:

the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.

Id. See also Marcx v. Belgium, 31 Eur.Ct.H.R. (ser. A) at 16, 18 (1979).

19 Abdulaziz v. United Kingdom, 94 Eur.Ct.H.R. (ser. A) at 38 (1985). The Court held that U.K. immigration law discriminated on the basis of gender with regard to rights under article 8 of the European Convention. In so holding, the Court noted that although contracting states enjoy a margin of appreciation in assessing whether differential treatment is warranted, the scope of the margin of appreciation will vary with the subject matter and its background. Id. at 37-38. The Court thus identified gender as a basis of differentiation that will elicit particularly close scrutiny.

20 U.N.GAOR Hum.Rts.Comm., 45th Sess., Supp. No. 40, at 173, 175, U.N.Doc. A/45/40 (1990). The Committee also stated that:

the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions.

Id. at 175.

21 Communication No. 35/1978, Aumeeruddy-Cziffra v. Mauritius, in HUMAN RIGHTS COMMITTEE, SELECTED DECISIONS UNDER THE OPTIONAL PROTOCOL, SECOND TO SIXTEENTH SESSIONS at 71, U.N.Doc. CCPR/C/OP/1, U.N.Sales No. E.84.XIV.2 (1985) [hereinafter 1 SELECTED DECISIONS].

22 Communication No. 202/1986, Ato del Avellanal v. Peru, U.N.GAOR, 44th Sess., Supp. No. 40, at 196, U.N.Doc. A/44/40 (1989).

23 Communication No. 182/1984, Zwaan-de Vries v. The Netherlands, in HUMAN RIGHTS COMMITTEE, SELECTED DECISIONS UNDER THE OPTIONAL PROTOCOL, SEVENTEENTH TO THIRTY-SECOND SESSIONS at 213-14, U.N.Doc. CCPR/C/OP/2, U.N.Sales No. E.89.XIV.1 (1990) [hereinafter 2 SELECTED DECISIONS]; Communication No. 172/1984, Broeks v. The Netherlands, in 2 SELECTED DECISIONS, supra, at 196, 200-01.

24 For an overview of decisions by international, regional and national tribunals applying human rights standards to gender-specific claims, see Rebecca Cook, International Human Rights Law Concerning Women, 23 VAND.J.TRANSNAT'L L. 779 (1990). See also Bayefsky, supra note 8, at 20-22.

25 For discussion of the interlocking effects of gender, race, class, national identity, the role of the state, and national and international economic policies, see generally PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); THIRD WORLD WOMEN AND THE POLITICS OF FEMINISM (Chandra Mohanty et al. eds., 1991) [hereinafter THIRD WORLD WOMEN]; Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN.L.REV. 581 (1990); bell hooks, Feminism: A Transformational Politic, in TALKING BACK: THINKING FEMINIST, THINKING BLACK 19 (1989); Mari Matsuda, When the First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 WOMEN'S RTS.L.REP. 7 (1989); ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT (1988); Audre Lorde, Age, Race, Class and Sex: Women Redefining Difference, in SISTER OUTSIDER 114 (1984); GLORIA JOSEPH & JILL LEWIS, COMMON DIFFERENCES: CONFLICTS IN BLACK AND WHITE FEMINIST PERSPECTIVES (1981).

Barbara Smith has pointed out that the effect of multiple oppression is "not merely arithmetic." Barbara Smith, Notes for Yet Another Paper on Black Feminism, or Will the Real Enemy Please Stand Up?, 5 CONDITIONS 123, 123 (1979). Consider the example of gender inequalities in religious law concerning the dissolution of marriage. The impact of such laws on the de facto rights of poor rural women cannot be assessed by assuming that class merely intensifies the negative consequences of gender; the experience of poor rural women is qualitatively, not merely quantitatively, different from that of urban middle class women.

26 Simone de Beauvoir's observation that "[o]ne is not born, but rather becomes, a woman" points to the distinction between sex and gender. SIMONE DE BEAUVOIR, THE SECOND SEX 267 (H.M. Parshley ed. & trans., Vintage Books 1989) (1949). For discussion of de Beauvoir's theory of gender difference, see Judith Butler, Sex and Gender in Simone de Beauvoir's Second Sex, 72 YALE FRENCH STUD., SIMONE DE BEAUVOIR: WITNESS TO A CENTURY 35 (Helene V. Wenzel ed., 1986). For analysis of the extent to which her theory takes account of race and class, see SPELMAN, supra note 25, at 57-79. See also Michele Barrett, Ideology and the Cultural Production of Gender, in FEMINIST CRITICISM AND SOCIAL CHANGE: SEX, CLASS AND RACE IN LITERATURE AND CULTURE 65 (Judith Newton & Deborah Rosenfelt eds., 1985) (maintaining that the construction of gender ideologies should be understood as a part of material conditions in specific historical settings, and not as autonomous discourses). For discussion of the gendered nature of the structures of international law-making and the content of rules of international law, see Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM.J.INT'L L. 613 (1991).

It should be noted that race, like gender, is a political and social construct, not a biological construct. See generally WILLIAMS, supra note 25; STEPHEN J. GOULD; THE MISMEASURE OF MAN (1981); M.F. ASHLEY MONTAGU, MAN'S MOST DANGEROUS MYTH: THE FALLACY OF RACE (1974). Mohanty notes that the interpretation and classification of racial differences was a precondition for post-fifteenth century European colonialism: "[f]or racism to be fully operational, 'race' had to function as a naturalized concept, devoid of all social, economic, and political determinations. Race had to be formulated in terms of innate characteristics, skin color, and physical attributes, and/or in terms of climatic or environmental variables." Chandra Mohanty, Introduction to THIRD WORLD WOMEN, supra note 25, at 42 n. 12. See, e.g., ROBERT WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990) (describing the evolution of Western legal discourses supporting the exercise of colonial power over the indigenous peoples of the Americas through the conceptualization of tribal peoples as "heathens" and "savages").

27 On the status as customary law of the prohibition of systematic religious discrimination as a matter of state policy, see RESTATEMENT, supra note 8, § 702 cmt. j.

28 This is true, for example, of Islam and Judaism.

29 See MERON, supra note 8, at 155-56. Seealso FRANCESCO CAPOTORTI, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES 70-71, U.N.Doc. E/CN.4/Sub.2/384/Rev. 1, U.N.Sales No. E.78.XIV.1 (1979).

The Universal Declaration, the Political Covenant and the Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief (Declaration on Religious Intolerance) all guarantee the freedom, either individually or "in community with others" and "in public or private," to manifest religion in worship, observance, practice or teaching. Universal Declaration, supra note 3, art. 18; Political Covenant, supra note 4, art. 18(1), 999 U.N.T.S. at 178; Declaration on Religious Intolerance, G.A.Res. 36/55, U.N.GAOR, 36th Sess., Supp. No. 51, at 171, U.N.Doc. A/36/51 (1981). See also European Convention, supra note 6, art. 9(1); American Convention, supra note 6, art. 12(1); African Charter, supra note 6, art. 8.

SeeU.N.GAOR, 36th Sess., 29th mtg., at 6, ¶ 16, U.N.Doc. A/C.3/36/SR.29 (1981) (statement by the representative of Iran, asserting that article 18 of the Political Covenant would permit Muslims to practice Islamic law, including criminal law); Summary Record of the Consideration of the Initial Report of the Sudan, Continued, U.N.Hum.Rts.Comm., 42d Sess., 1067th mtg. ¶¶ 2, 13, U.N.Doc. CCPR/C/SR. 1067 (1991) (statement by the representative of the Sudan before the Human Rights Committee, describing the implementation of Islamic law in the Sudanese Penal Code as an aspect of Muslims' right of "free choice" of laws in accordance with their religion). Professor An-Na'im characterizes the right of Muslims to apply Islamic law "to every aspect of their public and private lives" as the exercise of the right to self-determination under the U.N. Charter and other international instruments. ABDULLAHI A. AN-NA'IM, TOWARD AN ISLAMIC REFORMATION 1, 9 (1990); Abdullahi A. An-Na'im, Islamic Law, International Relations, and Human Rights, 20 CORNELL INT'L L.J. 317, 318- 19 (1987).

30 In the consideration of the initial report of Morocco under the Political Covenant, a member of the Human Rights Committee inquired as to the meaning of the constitutional provision stating that "Islam is the religion of the State" and whether other religions were merely tolerated or placed on an equal footing by law. He noted that the Committee had considered reports from other countries in which Protestantism is the state religion and had reached the conclusion that "such a situation was compatible with the Covenant to the extent that there was no discrimination against persons practising other religions." Summary Records of the 328th Meeting (1981-82), [1989] 1 Y.B.HUM.RTS. COMMITTEE 241, U.N.Doc. CCPR/3.

In discussions of the draft Convention on the Elimination of All Forms of Religious Intolerance, representatives to the U.N. Commission on Human Rights agreed on the need to exempt certain juridical relationships between the State and religious institutions from the definition of discrimination, noting that without such a provision, "it would be difficult for a number of States to become parties to the Convention." U.N.ESCOR, 39th Sess., Supp. No. 8, at 35, U.N.Doc. E/4024 (1965). However, during drafting debates on the Declaration on Religious Intolerance, some states with an established religion acknowledged the potential conflict between the principle of non-discrimination and the recognition of a state religion. See, e.g., UNITED NATIONS, GENERAL ASSEMBLY, DRAFT DECLARATION ON THE ELIMINATION OF ALL FORMS OF RELIGIOUS INTOLERANCE: REPORT OF THE SECRETARY-GENERAL 17, U.N.Doc. A/9134 (1973) (statement by the Government of Finland); id. at 31 (statement by the Government of Sweden).

The U.N. Special Rapporteur appointed in 1956 by the Sub-Commission on Prevention of Discrimination and Protection of Minorities to examine religious discrimination concluded in his influential study that it cannot be inferred "from the mere fact of a State recognizing a single religion that other religions or their followers are necessarily treated in a discriminatory manner." ARCOT KRISHNASWAMI, STUDY OF DISCRIMINATION IN THE MATTER OF RELIGIOUS RIGHTS AND PRACTICES at 47, U.N.Doc. E/CN.4/Sub.2/200/Rev.1, U.N. Sales No. E.60.XIV.2 (1960).

31 MULTILATERAL TREATIES, supra note 5, at 173.

32 The Government of Denmark also filed an objection to the Libyan reservation, stating that the reservation "is subject to the general principle of treaty interpretation according to which a party may not invoke the provisions of its internal law as justification for the failure to perform a treaty." Id. at 178. This objection does not state that the Libyan reservation is incompatible with the object and purpose of the Convention. Norway objected to the Libyan reservation on the grounds that:

A reservation by which a State party limits its responsibilities under the Convention by invoking religious law (Shariah), which is subject to interpretation, modification, and selective application in different States adhering to Islamic principles, may create doubts about the commitments of the reserving State to the object and purpose of the Convention. It may also undermine the basis of international treaty law. All States have a common interest in securing that all parties respect the treaties to which they have chosen to become parties.

Id. at 180. Sweden's objection provides that "[a] reservation by which a State party limits its responsibilities under the Convention by invoking general principles of national law may cast doubts on the commitments of the reserving State to the object and purpose of the Convention...." Elimination of All Forms of Discrimination Against Women: Report of the Secretary-General, U.N. General Assembly, 45th Sess. at 10, U.N.Doc. A/45/426 (1990) (emphasis added).

33 Article 18(3) of the Political Covenant, provides: "[f]reedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." Political Covenant, supra note 4, 999 U.N.T.S. at 178. For analysis of the limitations clauses of the Political Covenant, see generally UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL, COMMISSION ON HUMAN RIGHTS, STATUS OF THE COVENANTS ON HUMAN RIGHTS, SIRACUSA PRINCIPLES 1-38, U.N.Doc. E/CN.4/1985/4, Annex at 3-6 (1985) [hereinafter SIRACUSA PRINCIPLES]; Alexandre C. Kiss, Permissible Limitations on Rights, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 290 (Louis Henkin ed., 1981) [hereinafter THE INTERNATIONAL BILL OF RIGHTS]. Article 1(3) of the Declaration on Religious Intolerance duplicates article 18(3) of the Political Covenant. Declaration on Religious Intolerance, supra note 29, at 171.

The limitations clause of the Universal Declaration, article 29(2), states:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Universal Declaration, supra note 3, at 77.

Article 9(2) of the European Convention permits only those restrictions that are "prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." European Convention, supra note 6, 213 U.N.T.S. at 230. See generally Jochen A. Frowein, Freedom of Religion in the Practice of the European Commission and Court of Human Rights, 46 ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 249 (1986).

Article 12(3) of the American Convention stipulates that: "[f]reedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others." American Convention, supra note 6, at 31. In contrast, article 8 of the African Charter provides: "[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms." African Charter, supra note 6, 21 I.L.M. at 60.

34 In judgments relating to articles 8 and 10 of the European Convention, the European Court of Human Rights has emphasized that the concept of necessity implies that an interference by public authorities with a protected right corresponds to a pressing social need and is proportionate to the legitimate aim pursued. Sunday Times v. United Kingdom (No. 2), 217 Eur.Ct.H.R. (ser. A) at 25 (1991); Eriksson v. Sweden, 156 Eur.Ct.H.R. (ser. A) at 26 (1989); Olsson v. Sweden, 130 Eur.Ct.H.R. (ser. A) at 31 (1988); Sunday Times v. United Kingdom, 30 Eur.Ct.H.R. (ser. A) at 35-36 (1979). Accord SIRACUSA PRINCIPLES, supra note 33, principle 10, at 3. The Court has repeatedly held that the state is to be given a "margin of appreciation" in determining whether an interference is "necessary in a democratic society," but has insisted that this margin of appreciation is not unlimited and goes hand in hand with supervision by the Court. See, e.g., Handyside v. United Kingdom, 24 Eur.Ct.H.R. (ser. A) at 22-23 (1976); Dudgeon v. United Kingdom, 45 Eur.Ct.H.R. (ser. A) at 21 (1981).

In assessing restrictions on the freedom of association, the Inter-American Court has similarly interpreted the requirement of necessity to demand that restrictions be

justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right [guaranteed]. Implicit in this standard, furthermore, is the notion that ... the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it.

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am.C.H.R. 1934, OEA/ser. L./ V.111.12, doc. 13 (1985) (citation omitted).

See U.N. ECOSOC Comm'n on Hum. Rts., 319th mtg. at 8, U.N.Doc. E/CN.4/SR.319 (1952) (statement by the representative of Lebanon, noting that the freedom to manifest religion is subject only to "essential" limitations).

35 The European Court of Human Rights has interpreted the phrase "in accordance with the law" in the limitations clause of article 8 of the European Convention as follows:

(a) A norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen--if need be, with appropriate advice--to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail; ...

(b) The phrase "in accordance with the law" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law; it thus implies that there must be a measure of protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded....

Olsson v. Sweden, 130 Eur.Ct.H.R. (ser. A) at 30 (1988) (citations omitted).

36 See SIRACUSA PRINCIPLES, supra note 33, principles 15-18, at 4.

The European Court of Human Rights has interpreted the phrase "prescribed by law" in article 10(2) of the European Convention to include common law as well as statutory provisions, if it satisfies the requirements of accessibility and specificity. Sunday Times v. United Kingdom, 30 Eur.Ct.H.R. (ser. A) at 30 (1979).

37 See Advisory Opinion No. 65, Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, 1935 P.C.I.J. (ser. A/B) No. 65, at 56 (Dec. 4) (describing the principle of legality).

38 Untouchability was abolished by the 1949 Constitution and the enforcement of any disability arising out of untouchability was declared a punishable offense. See INDIA CONST. (of 1949) pt. III, art. 17; The Untouchability (Offences) Act, INDIA CODE Act XXII of 1955. The Constitution also authorizes the State to regulate religious practice by "the throwing open of Hindu religious institutions of a public character to all castes and sections of Hindus," and stipulates that the freedom of religion is subject to the State's authority to make laws "providing for social welfare and reform." INDIA CONST. pt. III, art. 25(2)(b). These, and the non-discrimination provisions, id. arts. 14-16, were intended to disassociate the structures of governance from the Hindu sacral order of caste and to ameliorate the socioeconomic and political disabilities historically associated with low rank in that order. See MARC GALANTER, LAW AND SOCIETY IN MODERN INDIA 141-81 (1989); Rajeev Dhavan, Religious Freedom in India, 35 AM.J.COMP.L. 209, 250-53 (1987); MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984).

39 Farida Shaheed, Women, Religion and Social Change in Pakistan: A Proposed Framework for Research--Draft, in WOMEN LIVING UNDER MUSLIM LAWS, DOSSIER 5/6, Dec. 1988--May 1989, at 41, 41-42 [hereinafter WOMEN LIVING UNDER MUSLIM LAWS]. Deniz Kandiyoti notes:

Islam may be involved and evoked at all sorts of levels--in the cultural practices of kin-based communities, in state ideologies incorporating coherent legislative practices, in a more privatized religious conviction, in organized and militant social movements, as a nod in the direction of Muslim aid donors or internal political allies, or as a more diffuse discourse on national and cultural authenticity. The meaning and daily reality of Islam can be so diverse as to justify the question, which Islam? Simply positing or refuting the inherently patriarchal nature of Islam can no longer serve any useful or analytical political goal.

Deniz Kandiyoti, Women and Islam: What are the Missing Terms?, in WOMEN LIVING UNDER MUSLIM LAWS, supra, at 5, 8.

40 See generally Deniz Kandiyoti, Introduction to WOMEN, ISLAM AND THE STATE 1 (Deniz Kandiyoti ed., 1991); KUMARI JAYAWARDENA, FEMINISM AND NATIONALISM IN THE THIRD WORLD (1986).

41 For example, in the wake of the 1979 Iranian revolution, the Khomeini Government reinstated polygamy and lowered the minimum age of marriage for girls to nine years. See Nayereh Tohidi, Gender and Islamic Fundamentalism: Feminist Politics in Iran, in THIRD WORLD WOMEN, supra note 25, at 251, 253.

42 See infra text accompanying notes 157-58.

43 For example, analysis of the extent to which Islamic law is an accurate reflection of legal and social practice depends in part upon what is meant by "Islam." M.B. HOOKER, ISLAMIC LAW IN SOUTH-EAST ASIA 34-35 (1984). In some states that have declared Islam to be the state religion, customary law at variance with Islamic law continues to be observed. See, e.g., Maznah Mohamad, Islam, the Secular State and Muslim Women in Malaysia, in WOMEN LIVING UNDER MUSLIM LAWS supra note 39, at 13, 16-18 (customary laws that conflict with Islamic personal status laws continue to be observed by Muslim Malays). See also Elizabeth H. White, Legal Reform as an Indicator of Women's Status in Muslim Nations, in WOMEN IN THE MUSLIM WORLD 52, 57 (Lois Beck & Nikki Keddie eds., 1978) (noting that many illiterate women in Muslim countries are unaware of their rights to divorce and social pressure deters the exercise of those rights).

44 For a summary of the extent to which Islamic Arab states have codified Islamic personal status law, see JAMAL J. NASIR, THE ISLAMIC LAW OF PERSONAL STATUS 31-37 (2d ed. 1990).

45 See infra notes 145-57 and accompanying text.

46 See Jack Greenberg, Race, Sex and Religious Discrimination in International Law, in HUMAN RIGHTS IN INTERNATIONAL LAW: LEGAL AND POLICY ISSUES 307, 327-30 (Theodor Meron ed., 1985).

47 Women's Convention, supra note 5, at 195.

48 Article 18(4) of the Political Covenant requires states parties to respect the liberty of parents "to ensure the religious and moral education of their children in conformity with their own convictions." Political Covenant, supra note 4, 999 U.N.T.S. at 178. The Human Rights Committee has found that article 18(4) permits public school instruction in the history of religions and ethics if it is given "in a neutral and objective way and respects the convictions of parents and guardians who do not believe in any religion." Communication No. 40/1978, Hartikainen v. Finland, in 1 SELECTED DECISIONS, supra note 21, at 74-76. Article 5(2) of the Declaration on Religious Intolerance provides that children have a right to education in religious matters in accordance with the wishes of their parents and may not be compelled to receive teaching on religion or belief against parental wishes. Declaration on Religious Intolerance, supra note 29, at 172. The freedom to teach a religion or belief stated in article 6(e) of the Declaration may similarly conflict with obligations under the Women's Convention if religious doctrine incorporates ideas based on stereotyped gender roles or bars women from attending religious training academies. Id. See, e.g., Report of the Committee on the Elimination of Discrimination Against Women, U.N. GAOR, 42d Sess., Supp. No. 38, ¶ 89, at 113, U.N.Doc. A/42/38 (1987) (statement by the representative of Greece before CEDAW, explaining that no girls were admitted to religious schools because the graduates had to become priests).

Protocol I to the European Convention requires the state to respect the right of parents to ensure their children's education and teaching in conformity with their own religious and philosophical convictions. Protocol No. I to the Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, art. 2, Europ. T.S. No. 9, at 40. The European Court of Human Rights has held that compulsory sex education in public schools does not violate article 2 if the information is conveyed in an objective, critical and pluralistic manner and does not pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. Kjeldsen v. Denmark, 23 Eur.Ct.H.R. (ser.A) at 24-30 (1976).

49 Article 23, the savings clause of the Women's Convention, provides: "[n]othing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a State Party; or (b) In any other international convention, treaty or agreement in force for that State." Women's Convention, supra note 5, at 197 (emphasis added). This provision does not clarify the relationship between the Convention and provisions less conducive to the achievement of equality, nor norms contained in the Declaration on Religious Intolerance, which is not an international treaty or convention. MERON, supra note 10, at 77-78, 153-54. The savings clause of the Political Covenant stipulates that the provisions of the Covenant may not be interpreted as impairing the provisions of the U.N. Charter or of the constitutions of the specialized agencies. Political Covenant, supra note 4, art. 46, 999 U.N.T.S. at 184-55. The savings clause of the Declaration on Religious Intolerance addresses only those conflicts that involve rights defined in the Universal Declaration and the International Covenants on Human Rights. Declaration on Religious Intolerance, supra note 29, art. 8, at 172.

50 Article 5(1) of the Political Covenant, however, stipulates that: [n]othing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. Political Covenant, supra note 4, 999 U.N.T.S. at 174. This principle applies to the acts of non-governmental actors as well as states parties. As Professor Buergenthal observes, this provision:

prevents individuals from relying on the rights guaranteed in the Covenant for the purpose of promoting activities aimed at the destruction of the rights it proclaims. [It] does not, however, authorize the state to deprive these same individuals of their rights when they engage in other activities; and even when they engage in activities aimed at the destruction of the rights guaranteed in the Covenant, they do not lose all rights, but only those that directly promote the destructive activities.

Thomas Buergenthal, To Respect and Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS, supra note 33, at 72, 88-89.

51 See Universal Declaration, supra note 3, art. 29(2); European Convention, supra note 6, art. 9(2), 213 U.N.T.S. at 230; see also American Convention, supra note 6, art. 12(3) (using "rights or freedoms").

52 See, e.g., Karl Josef Partsch, Freedom of Conscience and Expression, and Political Freedoms, in THE INTERNATIONAL BILL OF RIGHTS, supra note 33, at 209, 212.

53 See MERON, supra note 10, at 177-82; see also Theodor Meron, On a Hierarchy of International Human Rights, 80 AM.J.INT'L.L. 1 (1986).

54 These norms are generally agreed to have attained the status of customary law, and of peremptory rules of international law from which no derogation is permitted (jus cogens). See RESTATEMENT, supra note 8, § 702 reporter's note 11; MERON, supra note 8, at 23, 94-98; ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 149, 179 (1986); IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513, 528 (4th ed. 1990).

55 KRISHNASWAMI, supra note 30, at 19. The Special Rapporteur stated that although it is difficult to determine in abstracto which restrictions on the freedom of religion are legitimate, certain manifestations are: so obviously contrary to morality, public order, or the general welfare that public authorities are always entitled to limit them, or even to prohibit them altogether. Into this category fall such practices as the sacrifice of human beings, self-immolation, mutilation of the self or others, and reduction into slavery or prostitution, if carried out in the service of, or under the pretext of promoting, a religion or belief. In these cases limitations or even prohibitions are not discriminatory since they are founded upon the superior interest of society, or even of the international community. Id. at 29 (emphasis added).

56 An-Na'im, supra note 29, at 332 (emphasis added). Cf. Abdullahi An-Na'im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 HUM.RTS.Q. 1, 10-14 (1987) (arguing that cultural relativism cannot be extended to encompass the discrimination against non-Muslims and the restrictions on their freedom of conscience that are sanctioned by Shari'a).

57 Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report by the Special Rapporteur, P. Kooijmans, U.N. Comm'n on Human Rights, 44th Sess., Agenda Item 10(a), at 14, U.N.Doc. E/CN.4/1988/17 (1988).

58 In Saifuddin Saheb v. State of Bombay, Justice Sinha of the Supreme Court of India noted that actions pursuant to beliefs may be restricted in the interest

of the community at large, as may be determined by common consent [i.e.], by a competent legislature. It was on such humanitarian grounds, and for the purpose of social reform, that so-called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a god to function as a devadasi ... were stopped by legislation.

1962 A.I.R. 853, 863 (S.C.) (emphasis added).

59 The Commission of Sati (Prevention) Act (1987), passed by the Parliament in the wake of public protests following Kanwar's death, prohibits participation in acts of sati and its glorification. See UNITED NATIONS, HUMAN RIGHTS COMMITTEE, CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT, SECOND PERIODIC REPORT OF STATE PARTIES DUE IN 1985, INDIA 26, U.N.Doc. CCPR/C/37/Add.13 (1989); Amrita Chhachhi, Forced Identities: The State, Communalism, Fundamentalism and Women in India, in WOMEN, ISLAM AND THE STATE, supra note 40, at 144, 146-47, 162-63; Madhu Kishwar & Ruth Vanita, The Burning of Roop Kanwar, reprinted in 3 READINGS ON WOMEN'S STUDIES: UNDERSTANDING VIOLENCE 42 (Veena Poonacha ed., 1990) [hereinafter UNDERSTANDING VIOLENCE]; Widow Burning, BANHI, Dec. 1987, at 4.

60 Although some reformist accounts portrayed the pro-sati campaign as the reassertion of an indigenous tradition among poorly educated rural masses, two leading Indian activists reported that the pro-sati campaign in Rajasthan was led by an urban-based regional elite. They charged that Kanwar's sati in the village of Deorala and the cult of sati were being used by regional politicians to gain electoral support and by leaders of "Hindu revivalist organizations" as a symbol of Hindu unity. They noted that most of the slogans shouted in gatherings around the sati pavilion in Deorala were modelled on electoral slogans unrelated to religious chants, and that the worship ceremonies did not reflect local tradition. Kishwar & Vanita, supra note 59, at 43-45. Another Commentator suggested that

[r]egional customs rather than specific sanctions of the scriptures of Hinduism appear to have a more important bearing on the practice of sati. But it is the absolute dependence of wife on husband and her self denial, which the Hindu tradition celebrates in its epics and legends and in its ethical order, that provides the larger context as well as ideological justification for sati.

Prahlad Singh Shekhawat, The Culture of Sati in Rajasthan, in UNDERSTANDING VIOLENCE, supra note 59, at 49. See also Lata Mani, Contentious Traditions: The Debate on Sati in Colonial India, in RECASTING WOMEN: ESSAYS IN COLONIAL HISTORY 88 (Kumkum Sangari & Sudesh Vaid eds., 1989) [hereinafter RECASTING WOMEN] (examining colonial discourse on sati as a means of justifying "civilizing" colonial intervention, and detailing the overreliance on scriptural texts and relatively minor consideration of the brutality of sati that characterized that discourse); JAYAWARDENA, supra note 40, at 79-83 (discussing the 19th century Indian reform movement against sati and other practices).

61 For recommendations concerning state action and non-governmental strategies for combatting sati, see Kishwar & Vanita, supra note 59, at 48. The authors reported that police in Deorala made no attempt to enforce the ordinance banning sati glorification, and called for investigation of the failure by local police to intervene to prevent Kanwar's death. Id. at 46.

62 See supra text accompanying note 57.

63 The Draft Principles on Freedom and Non-Discrimination in the Matter of Religious Rights and Practices (Draft Principles), adopted by the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1960, included a provision establishing a balancing approach to conflicts that involve the competing interests of different religious groups. The Draft Principles stipulated that in such cases "public authorities shall endeavor to find a solution reconciling these demands in a manner such as to ensure the greatest measure of freedom to society as a whole." Pt. IV(1), U.N.Doc. E/CN.4/800, E/CN.4/Sub.2/206, Annex (1960). This provision did not suggest that any particular aspect of the freedom of religion or belief should take precedence over others, but, in directing the state to protect the interests of "society as a whole," gave preference to majority beliefs in general. This emphasis on majoritarian interests met with opposition during drafting discussions in the Sub-Commission. See Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, 12th Sess., 299th mtg. at 9, U.N.Doc. E/CN.4/Sub.2/SR.299 (1960); Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, 12th Sess., 301st mtg. at 7, U.N.Doc. E/CN.4/Sub.2/SR.301 (1960); Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, 12th Sess., 302d mtg. at 4, U.N.Doc. E/CN.4/Sub.2/SR.302 (1960).

64 For example, a bar on women's accession to the throne in constitutional monarchies, although clearly a violation of article 7 of the Women's Convention, has a less widespread impact on women's equality than restrictions on their right to vote in "free and fair" elections. A close relationship between a specific equality right and the broad goal of gender equality points to the existence of "pressing social need" supporting the conclusion that a restriction is necessary. The broad goal of gender equality is here defined as ensuring women's full enjoyment and exercise of the civil, political, economic, cultural and social rights protected by international law.

65 With regard to conflicts arising under the various limitation clauses in the Political Covenant, Professor Henkin suggests that "usually conflict will be between a principal right and some peripheral application of another, and it may be possible to derive from the Covenant some evidence as to the choice permitted to the state." Louis Henkin, Introduction to THE INTERNATIONAL BILL OF RIGHTS, supra note 33, at 1, 30. It might be argued, however, that the right to determine whether a particular practice is a central or peripheral aspect of the freedom to manifest religion or belief is an essential element of the latter freedom itself. Thus, for example, in a case upholding the right of religious organizations to condition employment on adherence to certain religious tenets, the United States Supreme Court eschewed inquiry into whether a particular activity carried out by a religious organization is religious in nature. Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). In Amos, the Court refused to examine whether particular jobs offered by a religious organization constituted religious activities and so qualified for exemption from legislation barring discrimination in employment practices. Justice Brennan, concurring, explained that "[d]etermining that certain activities are in furtherance of an organization's religious mission, and that only those committed to that mission should conduct them is ... a means by which a religious community defines itself." Id. at 342. Cf. Comm'r H.R.E. v. Lakshmindra, 1954 A.I.R. 282 (S.C.) (holding that the "essential" aspects of a religion are entitled to constitutional protection and that what constitutes the "essential" part of a religion is to be determined by reference to the doctrines of the religion in question); Shri Govindlalji v. State of Rajasthan, 1963 A.I.R. 1638 (S.C.) (in determining whether a given religious practice is an integral part of a religion, the test is whether it is regarded as such by the community following that religion). Accord E.R.J. Swami v. State of Tamil Nadu, 1972 A.I.R. 1586 (S.C.).

66 Article 27 protects the right of ethnic, religious or linguistic minorities to "enjoy their own culture, to profess and practice their own religion, or to use their own language." Political Covenant, supra note 4, 999 U.N.T.S. at 179. See Communication No. 24/1977, Lovelace v. Canada, in 1 SELECTED DECISIONS, supra note 21, at 83.

67 Proportionality is an aspect of the criterion of necessity. See supra note 34.

68 See supra text accompanying note 25.

69 Professor An-Na'im suggests that in Muslim countries in general "secular movements towards equality and emancipation tend to be largely confined to the urban centers." Abdullahi An-Na'im, The Rights of Women and International Law in the Muslim Context, 9 WHITTIER L.REV. 491, 498 (1987) (citations omitted). Cf. Shaheed, supra note 39, at 43 (pointing out that in Pakistan, the greatest level of social change has occurred in urban areas, where the "fundamentalist" religious movement also has its strongest base of support).

70 Limiting the freedom of religion to practices mandated by religious doctrine would eviscerate the right of the individual to observe and practice the religion or belief of his or her choice. Professor An-Na'im states that veiling and seclusion of women have the clear sanction of the Qur'an. An-Na'im, supra note 29, at 329 n. 66. But see Asghar Ali Engineer, Women Under the Authority of Islam, in THE AUTHORITY OF THE RELIGIONS AND THE STATUS OF WOMEN 22, 31-32 (Jyotsna Chatterji ed., 1989) (asserting that the Quranic verses cited to support compulsory veiling of the face require only modesty); JOHN L. ESPOSITO, ISLAM: THE STRAIGHT PATH 100-01, 187 (1988) (arguing that the veiling and seclusion of women is borrowed from non-Islamic sources and is not clearly mandated by the Qur'an).

71 Other examples of religious observance and practice interwoven into the social fabric include the observance of dietary regulations and the use of languages traditionally spoken by religious groups.

72 Definition of the "public" realm within national society may vary among different regions within a country, among different classes, and between urban and rural environments. For example, Mumtaz and Shaheed note that in rural areas of Pakistan, cattle and vegetable markets are closed to all classes of women and the bazaars in larger villages are closed to all women except those of the poorest classes. Fields are not regarded as public space except for women of the most wealthy landowning classes; this distinction reflects the need for women's agricultural labor. In urban centers, lower middle class women encounter the most severe restrictions on their freedom of movement. Women belonging to the Baluch and Pathan ethnic groups face particularly extensive restrictions, both within their traditional regional settings and beyond. MUMTAZ & SHAHEED, supra note 1, at 31.

The parameters of public and private life are thus drawn differently in various national, regional or class contexts. The shared feature of the public/private distinction in different social contexts is the attribution of lesser value to the activities of women within the private realm. Women's activities are defined as private and the activities of men within the public realm are accorded greater significance. See Charlesworth et al., supra note 26, at 626.

73 MUMTAZ & SHAHEED, supra note 1, at 77-81.

74 Professor An-Na'im observes that gender segregation and veiling: tend to diminish the practical value of Muslim women's theoretical entitlement to certain rights and limit their abilities to realize economic independence and educational and other public achievements. Although women are not prohibited by Shari'a from expressing their opinions in public affairs, and may vote on those competing for public office, the above noted restrictions tend to inhibit their ability to exercise these rights in practice. An-Na'im, supra note 69, at 495-96 & n. 19. See also Abdullahi An-Na'im, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives, 3 HARV.HUM.RTS.J. 13, 38 (1990).

75 NAWAL EL SAADAWI, THE HIDDEN FACE OF EVE 175-76 (Sherif Hetata ed. & trans., 1980); Irene Gendzier, Forward to id. at x-xi. Moreover, seclusion may not foreclose the exercise by upper class women of economic privilege. See, e.g., Afaf Lutfi Al-Sayyid Marsot, The Revolutionary Gentlewomen in Egypt, in WOMEN IN THE MUSLIM WORLD, supra note 43, at 261-76. See also SHAHIDA LATEEF, MUSLIM WOMEN IN INDIA, POLITICAL AND PRIVATE REALITIES: 1890s-1980s 134 (1990) (noting that in India, "[t]he ability of a family to keep its women in purdah is directly related to its socio-economic status, i.e., where the family is not dependent on the woman's earning capacity").

76 MUMTAZ & SHAHEED, supra note 1, at 29-30. Shaheed notes that "fundamentalist" women in Pakistan have in recent years promoted strict gender segregation rather than gender seclusion. They have called for segregated workplaces that will allow women to work in "Islamic" conditions, rather than women's seclusion in the home. Shaheed, supra note 39, at 42. Afsaneh Najmabadi notes that in Iran, the exigencies of the war with Iraq required the absorption of more women into the workforce and war support activities. This process met with more stringent enforcement, rather than relaxation of, veiling requirements and the moral codes of public behavior for women. Afsaneh Najmabadi, The Hazards of Modernity and Morality: Women, State and Ideology in Contemporary Iran, in WOMEN, ISLAM AND THE STATE, supra note 40, at 48, 69-70.

77 See Tohidi, supra note 41, at 251-52.

78 The Turkish nationalist movement led by Mustafa Kemal Ataturk pursued an aggressive policy of secularization influenced by Western cultural values. This policy included efforts to alter the traditional role of women in Turkish society through the abolition of Islamic personal status law and the expansion of educational opportunities for bourgeois women. The reform of dress codes for women was a visible symbol of this Europeanizing policy. Ataturk urged Turkish women to relinquish the veil and adopt Western dress, but did not impose legal restrictions on veiling. Rural women remained largely unaffected by the campaign against veiling, but many bourgeois women adopted Western dress. JAYAWARDENA, supra note 40, at 38-40. See also Deniz Kandiyoti, End of Empire: Islam, Nationalism and Women in Turkey, in WOMEN, ISLAM AND THE STATE, supra note 40, at 22, 37-42 (for discussion of Kemalist policy regarding women).

79 JAYAWARDENA, supra note 40, at 68-70. Jayawardena notes that the legislation prohibiting the veil and other aspects of the Shah's program for the emancipation of women affected only bourgeois urban women. Id. Legal reform under Shah Reza Pahlavi similarly failed to touch the lives of the majority of Iranian women and industrialization did not improve their status or condition. Efforts to redefine the traditional role of Iranian women along Western lines were associated with the Shah's brutally repressive regime and his Western allies, an association that encouraged the acceptance of a "fundamentalist" gender ideology under the Khomeini regime. Tohidi, supra note 41, at 255-58. See also Najmabadi, supra note 76, at 60-63 (discussing the Shah's control over the timing and content of reforms for women).

80 Tohidi warns against viewing "the Islamic fundamentalist revival in the Middle East as an ostensibly 'antiimperialist,' radical, and militant trend." Tohidi, supra note 41, at 259. See ANGELA Y. DAVIS, WOMEN, CULTURE AND POLITICS 140-44 (1989) (reporting Egyptian feminist Nawal el Saadawi's criticism of attempts to justify the increasing popularity of the veil by depicting it as a symbol of resistance to Western influences).

81 Tohidi, supra note 41, at 252-53 & n. 1. Some women reportedly have been flogged in the streets without any legal proceedings. AMNESTY INTERNATIONAL, WOMEN IN THE FRONT LINE: HUMAN RIGHTS VIOLATIONS AGAINST WOMEN 34 (1991).

82 For discussion of international norms and jurisprudence supporting the conclusion that corporeal punishment, including flogging, violates the prohibition of cruel, inhuman and degrading treatment, and in its more injurious forms amounts to torture, see NIGEL S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 242-55 (1987). See also Summary Record of the Consideration of the Initial Report of the Sudan, Hum.Rts.Comm., 42d Sess., 1065th mtg. ¶ 25, U.N.Doc. CCPR/C/SR.1065 (1991) (statement by a member of the Human Rights Committee, emphasizing that flogging was "commonly regarded by impartial bodies, nongovernmental organizations and United Nations organs as inhuman and degrading").

83 For example, in several countries, women reportedly have been physically attacked by private groups or persons for appearing unveiled in public.

84 See DAVIS, supra note 80, at 140-44 (recounting conversations with young Egyptian women about their attitudes toward veiling); MUMTAZ & SHAHEED, supra note 1, at 30 (noting that rural and working class women's attitudes toward purdah are shaped by the class connotations of purdah and by the fact that seclusion reduces the demands on their physical labor); LATEEF, supra note 75, at 134 (stating that for women "forced to work, purdah can be both liberating and a status symbol" and concluding on the basis of a cross-class survey of Muslim women in ten urban centers in India in 1973-74 that women did not regard purdah as religiously binding and did not feel compelled by their husbands or families to observe purdah).

85 See supra text accompanying note 66.

86 ASMA JAHANGIR & HINA JILANI, THE HUDOOD ORDINANCES: A DIVINE SANCTION? 17-25 (1990). The Ordinances introduced penalties and evidentiary rules recognized in Islamic jurisprudence.

87 Id. at 87-89.

88 The penalties of flogging and lapidation for zina are specified in the Qur'an and the Sunna (the traditions of the Prophet Muhammad), the central sources of Islamic law. The hudood penalties for zina thus rest upon what are believed to be divinely inspired texts. Muhammad Salim alAwwa, The Basis of Islamic Penal Legislation, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM 127, 128-29 (M. Cherif Bassiouni ed., 1982); Aly Aly Mansour, Hudud Crimes, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra, at 195, 199. See also AN-NA'IM, supra note 29, at 108-09 (stating that the Qur'an specifies flogging as the punishment for zina and the penalty of lapidation is based on the Sunna).

89 JAHANGIR & JILANI, supra note 86, at 49. The Federal Shariat Court has upheld the exclusion of women's testimony as a basis for hudood penalties. Rashida Patel v. Pakistan, 1989 P.L.D. 95. All major schools of Islamic jurisprudence reject the testimony of women as a basis for imposition of hudood penalties for zina. Ma'amoun Salama, General Principles of Criminal Evidence in Islamic Jurisprudence, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra note 88, at 109, 118.

90 However, as Dorab Patel, former Senior Judge of the Supreme Court of Pakistan, notes, "with the stigma attached to rape, very few women have themselves ... examined promptly by a doctor, and for the same reasons they delay filing a criminal complaint. Therefore most prosecutions for rape are dismissed...." Dorab Patel, Forward to JAHANGIR & JILANI, supra note 86, at 13. See also, JAHANGIR & JILANI, supra note 86, at 30-31.

91 Nasreen v. Fayyaz Khan, 1991 P.L.D. 412, 418 (S.C.).

92 JAHANGIR & JILANI, supra note 86, at 32.

93 See id. at 14, 55-57. This interpretation is inconsistent with Hanafi jurisprudence, the predominant school in Pakistan, but other schools of Islamic jurisprudence accept the pregnancy of an unmarried woman as the basis for an evidentiary presumption that she has committed zina. Salama, supra note 89, at 121.

94 Safra Bibi v. State, 1985 P.L.D. 120 (F.S.C.). See JAHANGIR & JILANI, supra note 86, at 88; MUMTAZ & SHAHEED, supra note 1, at 103-05. For discussion of the protests by Pakistani women's organizations following Safia Bibi's conviction, see id.

95 Appeals from rape convictions have also resulted in conversion of the conviction and sentence to zina. JAHANGIR & JILANI, supra note 86, at 90- 92. For discussion of cases illustrating judicial attitudes toward women in cases of rape and of zina, see id. at 93-118.

96 See id. at 68-70, 72-73 (reporting statistics on tazir convictions by trial courts, and noting that 70% of appeals to the Federal Shariat Court are of convictions for zina or rape).

See also Ayesha Jalal, The Convenience of Subservience: Women and the State of Pakistan, in WOMEN, ISLAM AND THE STATE, supra note 40, at 77, 102 (noting that "[w]hile the Hudood Ordinance is in principle a threat to all Pakistani women, those belonging to middle and upper class families are less likely to suffer its consequences, except of course indirectly").

97 JAHANGIR & JILANI, supra note 86, at 165-70.

98 Following the 1979 revolution, representatives of the Islamic Republic of Iran repeatedly voiced this claim. See, e.g., U.N. GAOR 3d Comm., 36th Sess., 29th mtg. at 4-5, U.N.Doc. A/C.3/36/SR.29 (1981) (statement by the Ambassador of the Islamic Republic of Iran). The representative of Iran stated before the Human Rights Committee that, "although many of the articles of the [Political] Covenant corresponded to the teachings of Islam, in the case of differences between the two sets of laws, the tenets of Islam would prevail." U.N. GAOR Hum.Rts.Comm., 37th Sess., Supp. No. 40, ¶ 300, U.N.Doc. A/37/40 (1982). During the review of the initial report of the Sudan under the Political Covenant, the Government representative similarly asserted the primacy of Islamic law. In response to the Committee's discussion of conflicts between the Covenant and certain provisions of the Sudanese Penal Code, he stated that "[i]t was true that certain Islamic laws did not comply with the provisions of the Covenant. In that case, the Covenant should be adapted to the Islamization movement, which was recent, and the wording of the Covenant's provisions, which dated from a bygone era, should be amended." Summary Record of the Consideration of the Initial Report of the Sudan, supra note 29, ¶ 74.

99 See, e.g., U.N. GAOR 3d Comm., 37th Sess., 56th mtg. at 16, U.N.Doc. A/C.3/37/SR.56 (1982); U.N. GAOR 3d Comm., 36th Sess., 29th mtg. at 6, U.N.Doc. A/C.3/36/SR.29 (1981); U.N. GAOR 3d Comm., 37th Sess., 67th mtg. at 10, U.N.Doc. A/C.3/37/SR.67 (1982).

The Government of the Islamic Republic of Iran has stated that Islamic law is founded on the very original concept that divinity reigns supreme and divine law is pre-eminent to human law. The [Universal] Declaration is genuinely secular in its theme and essence and, as such, differs from Islamic law in its origin. There may be similarities or even perfect compatibility on some provisions, in particular those that meet the condition of jus cogens, but the original perceptions remain widely apart.

U.N. ECOSOC Comm'n on Hum.Rts., 44th Sess. Agenda Item 12, U.N.Doc. E/CN.4/1988/12 (1988); Subcomm'n on Prevention of Discrimination and Protection of Minorities, 39th Sess., Agenda Item 6, at 7, U.N.Doc. E/CN.4/Sub.2/1987/35 (1988). Cf. Summary Record of the Consideration of the Initial Report of the Sudan, supra note 29, ¶¶ 13-14 (statement of the representative of the Sudan before the Human Rights Committee, emphasizing that "[f]or Muslims, ... all problems must be resolved in accordance with Islamic religious law" and that penalties imposed in accordance with Islamic law could not be considered cruel or degrading, which would amount to "applying human criteria, whereas the punishments were imposed by God and emanated from His will as expressed in the Koran").

100 Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 71st Sess., Report III, Pt. 4A at 290 (1985) [hereinafter 1985 Report]. See Theodor Meron, Iran's Challenge to the International Law of Human Rights, 13 HUM.RTS.INTERNET REP. 8 (1989). Cf. Summary Record of the Consideration of the Initial Report of the Sudan, supra note 29, ¶¶ 25, 30, 36-37, 39, 46 (statements by members of the Human Rights Committee during the review of the initial report of the Sudan under the Political Covenant stressing that the Government could not assert Islamic law as justification for failure to comply with obligations under the Covenant, since it had not entered reservations to the relevant articles).

101 The Committee of Experts of the International Labour Conference expressed deep concern over the above mentioned statement by the representative of Iran, pointing out that "the requirements of a Convention remain constant and uniform for all countries having ratified it, irrespective of the political, social or economic system and subject only to exceptions expressly authorised by the Convention." 1985 Report, supra note 100, at 290.

102 For example, members of the Human Rights Committee reviewing the second periodic report of Tunisia under the Political Covenant requested information concerning the relationship between Shari'a and Tunisian law and asked whether any laws had ever been disregarded on the ground that they were incompatible with the Covenant. Report of the Human Rights Committee, U.N. GAOR, 42d Sess., Supp. No. 40, at 25, U.N.Doc. A/42/40 (1987). The representative of Tunisia replied that Islam was a way of life "as well as a religion and closely paralleled the reasoning and ethics underlying modern law.... While historically the shariah had been a source of law and social progress, it could not supplant positive law and could not be applied as a measure having the force of law." Id. at 26. He further stated that "[t]he problem of a law being contrary to a provision of the Covenant had not arisen, but in such a case a judge would be bound to respect the superior status of the Covenant, which was tacitly, if not formally, acknowledged." Id. at 27. The representative drew attention to ongoing efforts to liberalize the Tunisian Code of Personal Status, citing the example of a provision granting de jure guardianship of children to their mother immediately upon the death of the father. Id. at 26. But see infra notes 160-63 and accompanying text.

103 Bangladesh filed a general reservation stating that it "does not consider as binding upon itself the provisions of articles 2, 13(a) and 16.1(c) and (f) as they conflict with Sharia law based on Holy Quran and Sunna." MULTILATERAL TREATIES, supra note 5, at 170. Egypt's general reservation to article 2 stipulates that it is "willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Shariah." Id. at 171. The representative of Egypt stated before CEDAW that the reservations entered by his country would not affect the application of article 2, as the Egyptian Constitution guaranteed equality irrespective of sex or religion. Report of the Committee on the Elimination of Discrimination Against Women, U.N. GAOR, 45th Sess., Supp. No. 38, at 71, U.N.Doc. A/45/38 (1990) [hereinafter 1990 CEDAW Report See also supra note 31 and accompanying text (discussing Libyan reservation).

Malawi entered an analogous reservation stating that "[o]wing to the deep-rooted nature of some traditional customs and practices of Malawians, the Government of the Republic of Malawi shall not, for the time being, consider itself bound by such of the provisions of the Convention as require immediate eradication of such traditional customs and practices." MULITLATERAL TREATIES, supra note 5, at 183. The Government withdrew this reservation in 1990, stating that "[a]s a result of constant review of relevant laws and regulations ... the Government has been able to resolve those factors which had necessitated its reservations." Declarations, Reservations, Objections and Notifications of Withdrawal of Reservations Relating to the Convention on the Elimination of All Forms of Discrimination Against Women: Note by the Secretary-General, mtg. of states parties to the convention at 16, U.N.Doc. CEDAW/SP/1992/2 (1992).

For discussion of the compatibility of the reservations to article 2 with the object and purpose of the Convention, see Rebecca Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA.J.INT'L L. 643, 687-92 (1990). For analysis of the application of the reservations regime of the Vienna Convention on the Law of Treaties to the Women's Convention, and the substance and legal effect of objections to reservations made to the latter, see Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 AM.J.INT'L L. 281 (1991).

It should be noted that Shari'a introduced significant protections for the rights of women that represented advances over pre-Islamic local custom. See An-Na'im, supra note 69, at 494-95; REUBEN LEVY, THE SOCIAL STRUCTURE OF ISLAM 91-134 (1962); Noel Coulson & Doreen Hinchcliffe, Women and Law Reform in Contemporary Islam, in WOMEN IN THE MUSLIM WORLD, supra note 43, at 37.

104 See, e.g., Chhachhi, supra note 59, at 158-62; Kumkum Sangari & Sudesh Vaid, Recasting Women: An Introduction, in RECASTING WOMEN, supra note 60, at 1, 6-7; Prem Chowdhry, Customs in a Peasant Economy: Women in Colonial Haryana, in RECASTING WOMEN, supra note 60, at 302, 316-20; Savitri Goonesekera, Status of Women in the Family Law of Sri Lanka, in WOMEN AT THE CROSSROADS: A SRI LANKAN PERSPECTIVE 153, 154-55, 157, 163, 166-67 (Sirima Kiribamune & Vidymali Samarasinghe eds., 1990).

105 Article 41.3.2 of the Constitution prohibits divorce. In a 1986 referendum, Irish voters rejected a constitutional amendment permitting divorce. The Catholic Church was credited with responsibility for the large margin by which voters defeated the referendum. See Kathleen M. Dillon, Note, Divorce and Remarriage as Human Rights: The Irish Constitution and the European Convention on Human Rights at Odds in Johnston v. Ireland, 22 CORNELL INT'L L.J. 63, 72-73 (1989). In Johnston v. Ireland, 112 Eur.Ct.H.R. (ser. A) at 24 (1986), the European Court of Human Rights held that the constitutional prohibition of divorce did not violate article 12 of the European Convention (which guarantees the right to marry and to found a family but omits any reference to the dissolution of marriage). One effect of the ban on divorce is to make it more difficult for women who are battered by their husbands to escape the violence. See, e.g., U.N. CEDAW, 8th Sess., 135th mtg. ¶ 90, U.N.Doc. CEDAW/C/SR. 135 (1989) [hereinafter 135th CEDAW Meeting] (query by the chairperson of CEDAW during review of the initial report of Ireland under the Women's Convention as to whether any progress had been made toward offering judicial separation and divorce for women who had suffered violence or rape during marriage). See also Airey v. Ireland, 32 Eur.Ct.H.R. (ser. A) at 17 (1979) (holding that the state had failed to secure the effective rights of access to the courts and respect for private or family life, by failing to make legal assistance available to a woman whose husband had subjected her to physical violence and who wished to obtain a legal separation, but could not afford the costs of representation).

106 Article 40.3.3, an amendment to the Irish Constitution approved in a 1983 referendum, provides that the "State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right." Irish criminal law and common law make it an offense to procure or to attempt to procure an abortion or to perform or assist in an abortion. The effects of Irish abortion law on women's human rights were highlighted in the widely publicized case of a 14-year-old girl who became pregnant after she was raped in December 1991. Her family informed police that they were taking her to England to have an abortion, where the procedure is legal. The Attorney General of Ireland intervened and obtained a temporary injunction forbidding her to travel to England for the abortion. The Irish High Court subsequently issued a permanent injunction barring the girl from leaving Ireland. See William E. Schmidt, Girl, 14, Raped and Pregnant, Is Caught in Web of Irish Law, N.Y. TIMES, Feb. 18, 1992, at A1. On appeal, following widespread public debate over the case in Ireland and Europe, the Irish Supreme Court lifted the injunction. James F. Clarity, Irish Court Says Girl Can Leave to Obtain Abortion in Britain, N.Y. TIMES, Feb. 27, 1992, at A1. In a statement explaining the ruling, the Chief Justice of the Supreme Court noted that the girl had repeatedly expressed suicidal feelings, and stated that article 40.3.3 permits abortion if "it is established as a matter of probability that there is a real and substantial risk to the life--as distinct from the health--of the mother, which can only be avoided by the termination of the pregnancy...." James F. Clarity, Irish High Court Explains Decision, N.Y. TIMES, Mar. 6, 1992, at A1, A8. During CEDAW's review of the initial report of Ireland under the Women's Convention, the Government representative stated that:

[n]o incidences were reported of clandestine abortion in Ireland, probably because Irish women could take advantage of legal and safe abortion in the United Kingdom. Regarding the demand for abortion, the number of women receiving abortions in the United Kingdom in 1987 and giving addresses in the Republic of Ireland was 3,700. The figure was probably low since some Irish women would use an address in the United Kingdom when registering with an abortion clinic.

Summary Record of the Consideration of the Initial Report of Ireland, U.N. CEDAW at 9, U.N.Doc. CEDAW/C/SR.140 (1989) (emphasis added). See also Open Door Counselling Ltd. v. Ireland, App. Nos. 14234/88 & 14235/88, Report of the European Commission of Human Rights, Mar. 7, 1991 (concluding that an injunction of the Irish Supreme Court prohibiting the disemination to pregnant women of information about abortion services in the United Kingdom constituted an impermissible restriction of applicants' rights under article 10 of the European Convention).

107 EMANUEL QUINT, 1 A RESTATEMENT OF RABBINIC CIVIL LAW 277 (1990); Menashe Shava, The Nature and Scope of Jewish Law in Israel as Applied in the Civil Courts as Compared with its Application in the Rabbinical Courts, 5 JEWISH L.ANN. 3, 9 (1985).

108 QUINT, supra note 107, at 254-56. Exceptions to this general prohibition were developed in the Ashkenazic tradition, permitting women to testify in cases involving matters where only women were likely to be present as witnesses, or in spontaneous events where eligible witnesses could not be prepared in advance. For discussion of authoritative commentaries and responsa supporting the admissibility of women's testimony in such cases, see id. at 278-94.

109 Under the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, No. 64 of 1953, 7 LAW OF THE STATE OF ISRAEL [L.S.I.] 139, the exclusive jurisdiction of the Beth Din extends to matters ancillary to marriage and divorce, including child custody and maintenance after divorce. Id. ¶ 4.

110 See Ariel Rosen-Zvi, Forum Shopping Between Religious and Secular Courts (and its Impact on the Legal System), 9 TEL AVIV UNIV.STUD.L. 347, 348, 355-57 (1989); Asher Maoz, Enforcement of Rabbinical Court Judgments in Israel, 13-14 DINE ISRAEL 7, 9-10 (1986-88); Hedva Porat-Martin, Representation and its Role in Concurrent Jurisdiction (In the Rabbinical and District Courts of Israel), 10-11 DINE ISRAEL 7, 8 & n. 3 (1981-83).

111 See Haim H. Cohn, Jewish Law in Israel, 1980 JEWISH L.ANN., 124, 134 nn. 33-34 (Supp. II 1980).

112 See generally Phillipa Strum, Women and the Politics of Religion in Israel, 11 HUM.RTS.Q. 483, 492 (1989).

113 For example, Professor An-Na'im suggests that there is a "fundamental tension" between women's civil and political rights as defined by the secularized constitutions and legislation adopted in some Muslim states, and women's rights as defined by Islamic personal status law. An-Na'im, supra note 69, at 499. On Islamic family and personal status law, see generally NASIR, supra note 44; KEITH HODKINSON, MUSLIM FAMILY LAW: A SOURCEBOOK (1984). On the status of women in Islamic family law, see generally JAMAL J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW AND UNDER MODERN ARAB ISLAMIC LEGISLATION (1990); JOHN L. ESPOSITO, WOMEN IN MUSLIM FAMILY LAW (1982).

114 See, e.g., U.N. GAOR CEDAW, 42d Sess., Supp. No. 38, at 69, 73, 75, U.N.Doc. A/42/38 (1987) (regarding the effect of Islamic personal status law in matters such as land tenure and inheritance, and the importance of control over land, as the basic resource, in rural Bangladesh).

115 Hindu Succession Act No. 30 of 1956, 6 INDIA CODE, pt. 9, § 6 (1958). See TAHIR MAHMOOD, STUDIES IN HINDU LAW 354, 356 (1981). Most immovable property in India is ancestral property. Coparcenary property is administered by the father or, in his absence, the next seniormost male member of the family. As manager (karta), he is expected to administer the coparcenary estate in the interest of all members of the joint family. See SWAMINATHA VENKATARAMAN, HINDU LAW: PRINCIPLES AND PRECEDENTS 239-40 (8th ed. 1987).

116 Indian Succession Act No. 39 of 1925, 8 INDIA CODE, pt. 3, § 51(1) (1959).

117 Land access provides not only direct production resources, but also indirect benefits, such as enhanced access to credit from institutions or private moneylenders and reduced risk of unemployment. Bina Agarwal, Who Sow? Who Reaps? Women and Land Rights in India, 15 J. PEASANT STUD. 531, 533 (1988).

118 Id. at 533-34.

119 Kishwar & Vanita, supra note 1, at 11, 13.

120 See Agarwal, supra note 117, at 542-70.

121 The Economic and Social Council recommended that member states:

take all possible measures to ensure equality of inheritance rights of men and women by providing that men and women, in the same degree of relationship to the deceased, shall be entitled to equal shares in the estate and shall have equal rank in the order of succession, and by providing further that the inheritance rights and the capacity of women to make a will, to accept or refuse an inheritance and to be administrators or executors of estates shall not be affected by marriage and that the interest of the widow in the estate shall be equal to that of the widower.

E.S.C.Res. 884(b), U.N.ESCOR, 34th Sess., Supp. No. 1, at 19, U.N.Doc. E/3671 (1962). ECOSOC invoked the principle of equality of rights for men and women proclaimed in the U.N. Charter.

122 See, e.g., U.N.Hum.Rts.Comm., 39th Sess., 991st mtg. ¶ 16, U.N.Doc. CCPR/C/SR.991 (1990) (questioning how magistrates applied Tunisian legislation awarding two-thirds of an inheritance to the son, in conflict with articles 3, 23 and 26 of the Covenant); U.N.Hum.Rts.Comm., 30th Sess., 730th mtg. ¶ 70, U.N.Doc. CCPR/C/SR.730 (1987) (statement by a member of the Committee characterizing art. 91 of Iraq's Personal Status Act, concerning the inheritance rights of daughters, as discrimination on the basis of sex); U.N.Hum.Rts.Comm., 328th mtg. ¶ 45, U.N.Doc. CCPR/C/SR.328 (1981) (questioning how the claim that the equal rights of women were fully reflected in the Moroccan Constitution could be reconciled with inheritance provisions in Moroccan law applicable to unmarried women). See also U.N.GAOR, 44th Sess., Supp. No. 40, at 103, U.N.Doc. A/44/40 (1989) (questioning whether there was resistance from the population of Cameroon, particularly among Muslims, to the equality of men and women in matters of succession).

The guarantee of equal protection in article 26 is not limited to the rights stated in the Covenant, but establishes a general prohibition of discrimination with regard to rights stated in national law. See general comment 18(37) on non-discrimination adopted by the Human Rights Committee, U.N.GAOR, 45th Sess., Supp No. 40, at 173, 175, U.N.Doc. A/45/40 (1990). See also Communication No. 182/1984, Zwaan-de Vries v. The Netherlands, in 2 SELECTED DECISIONS, supra note 23, at 209, 213; Communication No. 180/1984, Danning v. The Netherlands, in 2 SELECTED DECISIONS, supra note 23, at 205, 208-09; Communication No. 172/1984, Broeks v. The Netherlands, in 2 SELECTED DECISIONS, supra note 23, at 196, 200-01.

123 Discriminatory inheritance laws also appear to conflict with article 6(a) of the Declaration on the Elimination of Discrimination Against Women (Women's Declaration), which calls for measures to ensure equal rights for women under civil law, including equal rights to acquire, administer and inherit property. This guarantee is circumscribed, however, by the stipulation that such measures must be "[w]ithout prejudice to the safeguarding of the unity and the harmony of the family." G.A.Res. 2263, U.N.GAOR, 22d Sess., Supp. No. 16, at 36, U.N.Doc. A/6716 (1967) [hereinafter Women's Declaration].

124 In its general comment on article 23 of the Political Covenant, the Human Rights Committee stated that "[d]uring marriage, the spouses should have equal rights and responsibilities in the family. This equality extends to all matters arising from their relationship, such as choice of residence, running of the household, education of the children and administration of assets." U.N.GAOR, 45th Sess., Supp. No. 40, at 177, U.N.Doc. A/45/40 (1990). This equality of rights and responsibilities "continues to be applicable to arrangements regarding legal separation or dissolution of the marriage. Thus, any discriminatory treatment in regard to the grounds and procedures for separation or divorce, child custody, maintenance or alimony, visiting rights or the loss or recovery of parental authority must be prohibited...." Id.

125 See, e.g., U.N.GAOR 3d Comm., 3d Sess., 124th mtg. at 363-65, U.N.Doc. A/C.3/SR.124 (1948); U.N.GAOR 3d Comm., 3d Sess., 125th mtg. at 367- 70, U.N.Doc. A/C.3/SR.125 (1948) (statements by the delegate of Saudi Arabia opposing international guarantees of women's rights in the areas of marriage and inheritance); U.N.GAOR 3d Comm., 37th Sess., 56th mtg. at 16, U.N.Doc. A/C.3/37/SR.56 (1981) (statement by Iranian delegate characterizing provisions in the Universal Declaration and the Covenants regarding matters such as marriage as violations of the freedom to practice one's religion or belief); U.N.Hum.Rts.Comm., 9th Sess., 203d mtg. at 7-8, U.N.Doc. CCPR/C/SR.203 (1980) (statement by Iraqi representative before the Human Rights Committee asserting that personal status laws must be in conformity with Shari'a).

126 See MULTILATERAL TREATIES, supra note 5, at 170-78.

127 MULTILATERAL TREATIES, supra note 5, at 171. During the review of the initial report of Egypt under the Political Covenant, a member of the Human Rights Committee questioned why Egypt had felt it necessary to enter this reservation to article 16, when it had not entered such a reservation to article 23 of the Covenant, "which was equally concerned with equality of women in all matters relating to marriage and family relations." U.N.GAOR, 39th Sess., Supp. No. 40, at 56, U.N.Doc. A/39/40 (1984).

See also the reservation filed by Iraq, stating that its reservation to article 16 "shall be without prejudice to the provisions of the Islamic Shariah according women rights equivalent to the rights of their spouses so as to ensure a just balance between them." MULTILATERAL TREATIES, supra note 5, at 172. The Government of Sweden objected to the reservations entered by the Government of Iraq to articles 2(f), (g), 9(l) and 16, on the grounds that if these reservations were to apply, "they would inevitably have the effect of discriminating against women, which is contrary to everything the Convention stands for." Id. at 180. Sweden cited the principle of gender equality set forth in the U.N.Charter, the Universal Declaration, and the International Covenants on Human Rights, and stated that "[i]t is in the common interest of States that treaties to which they have chosen to become parties are also respected, as to object and purpose, by other parties." Id. For discussion of these and other reservations to article 16, and of the relationship of article 16 to the object and purpose of the Convention, see Cook, supra note 103, at 702-06.

128 Report of the Committee on the Elimination of Discrimination Against Women, U.N.GAOR, 39th Sess., 2 Supp. No. 45, at 26, U.N.Doc. A/39/45 (1984).

129 Id. at 29. In its third periodic report under the Political Covenant, the Government of Tunisia addressed the relationship between a similar model of gender relations within the family and the principle of gender equality. The Government conceded that some provisions of the Code of Personal Status of 1956 "reveal certain inequalities, though these are inherent in the functions of the husband and the wife within the household rather than indicative of a retrograde attitude." Third Periodic Report: Tunisia at 12, U.N.Doc. CCPR/C/52/Add.5 (1989). Article 23 of the Code, described by the Government as a "veritable family charter," provides that

The husband shall treat his wife with benevolence, and live on good terms with her. He shall take care not to inflict any injury on her.

He shall defray the expenses of the household and provide for the needs of his wife and children to the extent of his ability and according to his wife's circumstances. The wife shall contribute to the expenses of the household if she possesses any property.

The wife shall respect her husband's prerogatives as head of the family and, to this extent, shall owe obedience to him.

According to the Government, this provision "has thus measured out the mutual rights and duties of the two spouses and some people see therein a relic of the inferior status of women. [However], the legislature has chosen a perfectly accurate terminology: prerogatives are attached to a function rather than to a privileged spouse." Id.

130 See MERON, supra note 10, at 156-57.

131 Id. at 79. Article 6 of the Declaration on the Elimination of Discrimination Against Women calls for measures to ensure for women equal rights with men under civil law, including equality in legal capacity. Women's Declaration, supra note 123, at 36.

132 MERON, supra note 10, at 157.

133 Id.

134 Maimonides, Sefer Nashim, Hilkot Gerushin 1:1, in MISHNEH TORAH (Issac Klein trans., O. Yosef & S. Frankel pubs., 1977). See generally RACHEL BIALE, WOMEN AND JEWISH LAW: AN EXPLORATION OF WOMEN'S ISSUES IN HALAKHIC SOURCES 70-101 (1984); IRWIN H. HAUT, DIVORCE IN JEWISH LAW AND LIFE 17-21 (1983). Although only the husband can grant a divorce, a wife cannot be divorced without her consent. MOSHEH CHIGIER, HUSBAND AND WIFE IN ISRAELI LAW 183 (1985).

135 Maimonides, supra note 134, Sefer Kedusha, Hilkot Issurai Biah 15:1; CHIGIER, supra note 134, at 256-57; BIALE, supra note 134, at 101-13. See also Strum, supra note 112, at 492-94 (discussing the plight of women in Israel whose husbands refuse to grant the get).

136 Although rabbinical courts in Israel can compel delivery or acceptance of a get by the use of fines or imprisonment, they have been reluctant to apply these sanctions. From 1953 to 1977, rabbinical courts in Israel issued a total of 12 compulsion orders. CHIGIER, supra note 134, at 271. Seealso HAUT, supra note 134, at 86-87.

137 See, e.g., Victor New, Non-Financial Pressures on a Husband to Grant a "Get", 6 JEWISH L.ANN. 210 (1987) (discussing approaches taken by British and Australian courts); HAUT, supra note 134, at 67-84 (discussing approaches taken by U.S. courts).

138 D. v. France, App. No. 10180/82, 35 Eur.Comm'n H.R.Dec. & Rep. 199, 202 (1984). The applicant had refused to deliver a get after being awarded a civil divorce and had been ordered to pay damages in a civil suit brought by his ex-wife.

139 Id.

140 See supra notes 70-71 and accompanying text.

141 Under Jewish law, divorce is legally effected by the parties through the delivery and acceptance of the get, and not by an act of the court. SeeCHIGIER, supra note 134, at 182; HAUT, supra note 134, at 17; Bernard Berkovits, Get and Talaq in English Law, in ISLAMIC FAMILY LAW 119, 124-25, 137 (Chibli Mallat & Jane Connors eds., 1991).

142 See, e.g., N.Y.DOM.REL.LAW § 253 (Consol.1991); see also BIALE, supra note 134, at 100, 111-12; Bernard J. Meislin, Pursuit of the Wife's Right to a "Get" in United States and Canadian Courts, 4 JEWISH L.ANN. 250 (1981).

143 See, e.g., Martin Edelman, Varia Americana: Entangling Alliances, The Agunah Problem in Light of Avitzur v. Avitzur, 8 JEWISH L.ANN. 193, 193-94 (1989).

144 Articles 2 and 3 of the Declaration on the Elimination of Discrimination against Women similarly call for "all appropriate measures" to abolish discriminatory customs. Women's Declaration, supra note 123.

145 Where religious law remains uncodified or disagreement exists among authoritative religious leaders and jurists concerning interpretation of the law, secular authorities will have to determine the content of the law.

146 Of course, the state might choose to restrict the application of religious law without attempting to locate a foundation in the religious law itself for a reformist interpretation.

147 [1985] 3 S.C.R. 844.

148 The Indian Code of Criminal Procedure requires a husband to pay up to 500 rupees (approximately the equivalent of thirty-three U.S. dollars) as maintenance to his ex-wife if she is indigent. Id. at 850.

149 Id. at 856-57.

150 Two points of Islamic law were at issue. The first was whether deferred dower (mehr) constitutes a sum payable on divorce under Muslim personal law. If this were the case, a husband who had paid deferred dower would be released from any further financial obligation under the Criminal Procedure Code. The Court concluded that the payment of deferred dower is not occasioned by the fact of divorce, although it is payable upon the dissolution of marriage.

Id. at 863. In concluding that mehr is not given in consideration of marriage, but is conferred as a mark of respect, the Court relied on commentaries on Muslim law. Id. This conclusion is consistent with accepted Islamic jurisprudence. See, e.g., NASIR, supra note 113, at 43 (dower is not brideprice and is not given in consideration of marriage). The second point of law concerned whether Shari'a limits a wife's right to maintenance in all circumstances to the period of iddat, the three month period following divorce during which a woman may not remarry. Shah Bano, [1985] 3 S.C.R. at 857-59.

151 Shah Bano, [1985] 3 S.C.R. at 859-62. On the sources of Islamic law generally relied upon by Indian courts, see Werner F. Menski, The Reform of Islamic Family Law and A Uniform Civil Code for India, in ISLAMIC FAMILY LAW, supra note 141, at 253, 266-67.

152 The Court interpreted Aiyats 241 and 242 of the Qur'an to mean that if a divorced woman is able to maintain herself, her ex-husband's liability for maintenance ends with the period of iddat, but if she is indigent, he must provide the maintenance required by the Code of Criminal Procedure. Shah Bano, [1985] 3 S.C.R. at 862. Although Aiyat 241 provides a textual basis for requiring men to pay reasonable maintenance to their divorced wives beyond the period of iddat, the All India Muslim Personal Law Board maintained that this verse is addressed only to particularly pious Muslims.

Id. at 860.

153 Id. at 867. Article 44 of the Constitution provides that the "State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Id. at 866. See Menski, supra note 151, at 289-93 (contending that the goal of a uniform civil code is inappropriate to India's pluralist society and politically unattainable). See also INDIA CONST. pt. III, art. 25(2)(b) (stating that the freedom of religion is subject to the State's authority to make laws for "social welfare and reform").

154 The Supreme Court Interpreted Muslim Personal Law, It Didn't Interfere In It: Ajoy Bose Interviews Y.V. Chandrachud, SUNDAY OBSERVER, Dec. 8, 1985, reprinted in THE SHAH BANO CONTROVERSY 80, 81 (Asghar Ali Engineer ed., 1987).

155 See Asghar Ali Engineer, Introduction to THE SHAH BANO CONTROVERSY, supra note 154, at 1, 12-13 [hereinafter Engineer, Introduction See generally Asghar Ali Engineer, Forces Behind the Agitation, in THE SHAH BANO CONTROVERSY, supra note 154, at 35; Lateef, supra note 75, at 192-201; Tahir Mahmood, Islamic Family Law: Latest Developments in India, in ISLAMIC FAMILY LAW, supra note 141, at 295, 297-99.

156 Dhavan, supra note 38, at 248. See also Mahmood, supra note 155, at 300-11 (analyzing the compatibility of the Act with Shari'a and judicial decisions interpreting the Act).

157 See Engineer, Introduction, supra note 155, at 12. Religious minorities are frequently vulnerable to various forms of political, economic and social oppression, including violence, by dominant social groups and the state itself. The potential impact of reforms of their religious law on their religious practice and communal identities should be assessed in the context of this vulnerability. For discussion of the recognition of religious and ethnic minority customs by English courts, see SEBASTIAN POULTER, ENGLISH LAW AND ETHNIC MINORITY CUSTOMS (1986).

158 An-Na'im, supra note 56, at 3-4 (observing that the implementation of international human rights norms will improve if those norms are shown to be a legitimate evolution of the cultural tradition of the particular community. This approach may require the "innovative reinterpretation" of traditional norms in order to bring them into line with the present formulation of international standards). See generally AN-NA'IM, supra note 29. For discussion of a legal methodology for reform of Islamic family law, including the use of Quranic values to argue for gender equality in divorce rights, see ESPOSITO, supra note 113, at 102-10 (1982).

159 For example, in Kurshid Bibi v. Mohd Amin, 1967 P.L.D. 97 (S.C.), the Court held that a woman is entitled to judicial dissolution of marriage (khula), despite the husband's refusal to consent, if the court is satisfied that the spouses cannot live together in harmony and conformity with their conjugal obligations. In reaching its result, the Court drew on the jurisprudence of other Sunni sects to set aside the prevailing view among Hanafi jurists that khula cannot be granted without the husband's consent. The Hanafi sect is the dominant school in Pakistan and the sect to which the parties belonged. See AN-NA'IM, supra note 29, at 45-46 (regarding talfiq, the "patching" of parts of doctrine from different schools of jurisprudence as a reform methodology, and law reform through judicial decisions).

160 Third Periodic Report: Tunisia, supra note 129, at 10. The Government also noted that the Code introduced judicial process to divorce procedures, and established the mutual right of men and women to seek dissolution of marriage on specified grounds, modifying preexisting law which made divorce "a matter entirely for the husband, who had only to express his will." Id. at 11.

161 Summary Record of the Consideration of the Report of Tunisia, U.N. Hum. Rts. Comm., 39th Sess., 991st mtg. ¶ 16, U.N.Doc. CCPR/C/SR.991, (1990).

162 Id. ¶ 18.

163 U.N.Hum.Rts.Comm., 990th mtg. ¶ 49, U.N. Doc. CCPR/C/SR.990 (1990). The Government had earlier suggested that a possible "explanation if not justification" of gender discrimination in laws of succession lies in the obligation Islamic law imposes on the husband to maintain his wife. Second Periodic Reports of States Parties: Tunisia, Hum.Rts.Comm. at 10, U.N. Doc. CCPR/C/28/Add.5/Rev.1 (1986) [hereinafter Second Periodic Report: Tunisia].

164 Mark A. Tessler et al. Women's Emancipation in Tunisia, in WOMEN IN THE MUSLIM WORLD, supra note 43, at 141, 148-49.

165 Second Periodic Report: Tunisia, supra note 163, at 10-11. The Government stated that when the Code of Personal Status was promulgated in 1956

[b]y a narrow interpretation of the Koran, primarily intended to preserve traditional privileges women were kept in a position of dependence on men.... [T]he question of female emancipation was a taboo subject. It could not be mentioned without arousing indignation and provoking anger. Nevertheless, ... the Government applied itself to carrying out the major and urgent task of abolishing the most intolerable aspects of the discrimination against women and establishing equality between men and women. The legislature preferred to be in the vanguard and to make the law not an appendage to social change but one of its instigators.

Id. at 7.

In 1987, the Committee of Experts of the International Labour Conference noted information supplied by the Government of Tunisia that

a new reading of Islamic law emphasising the idea of progress has made it possible to overcome a number of obstacles to the adoption of legislative measures concerning the promotion of women's rights and that progress has been achieved with regard to the participation of women in the national labour force.

Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 73d Sess., Report III, Pt. 4A, at 376 (1987). The Committee observed that the statistics provided by the Government confirmed this information. Id. See generally Tessler et al., supra note 164.

End of Document

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ARTICLE

Gender, Culture, Religion - Tackling Some Difficult Questions

http://www.chumirethicsfoundation.ca/files/pdf/chumir-gender-culture-religion-web2012.pdf

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Rights and Freedoms in Canada

http://www.justice.gc.ca/eng/csj-sjc/just/06.html

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CELEBRATING 100 YEARS OF ADVANCEMENTS

HUMAN RIGHTS AND WOMEN IN CANADA 1911 – 2011

http://www.statusofwomen.nt.ca/pdf/Conference/presentations/Therese%20-%20Chronology%20of%20Human%20Rights%20for%20Women%201911.pdf

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THE DAMM TRUTH .... in the year 2015 - these 3 leaders- Liberal's  Justin Bieber ; NDP Thomas the 4gotten teddybear and Tory PM Harper - I'aint a gonna change  ...are still hating on each other with bullsheet and beans whilst Canada's 36 million and millions of golden voters look at all 3 parties in shame and 4F**K'S SAKE GET OFFUR ARSES AND GET WORK DONE

.... SERIOUSLY ON THE GLOBAL SCENE... have u ever seen so many Nations with so many losers heading all political parties... especially the UN... in the year 2015... Sweet Jesus, Mother Mary and Joseph....

John Ivison: Harper and Trudeau almost make you wish both would lose the 2015 election

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BLOGGED-WORDPRESS

CANADA RCMP PARTNER WITH SHANIA- 2 raise awareness about family violence- IDLE NO MORE – One Billion Rising- No more abuses or excuses- Shania lived it and survived 2 talk about it- especially as one of us throwaway kids- u know trashy throwaways of poverty /BLOGSPOT

DECEMBER 13,2014- JUST IN  – CANADA RCMP partners with SHANIA – 2 raise awareness about family violence -IDLE NO MORE-  ONE BILLION RISING- no more abuses or excuses

 

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RIP Jeff Buckley- Leonard Cohen chose wisely

Jeff Buckley - Hallelujah (Official Video)

https://www.youtube.com/watch?v=y8AWFf7EAc4

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Sometimes in Recovery – u just have 2 move on

"I'm Moving On"

I've dealt with my ghosts and I've faced all my demons

Finally content with a past I regret

I've found you find strength in your moments of weakness

For once I'm at peace with myself

I've been burdened with blame, trapped in the past for too long

I'm movin' on

I've lived in this place and I know all the faces

Each one is different but they're always the same

They mean me no harm but it's time that I face it

They'll never allow me to change

But I never dreamed home would end up where I don't belong

I'm movin' on

I'm movin' on

At last I can see life has been patiently waiting for me

And I know there's no guarantees, but I'm not alone

There comes a time in everyone's life

When all you can see are the years passing by

And I have made up my mind that those days are gone

I sold what I could and packed what I couldn't

Stopped to fill up on my way out of town

I've loved like I should but lived like I shouldn't

I had to lose everything to find out

Maybe forgiveness will find me somewhere down this road

I'm movin' on

I'm movin' on

I'm movin' on

I'm Moving On- Rascal Flatts

https://www.youtube.com/watch?v=fz1N8W8phec

--

IN BRIEF: NEWS FROM AROUND THE WORLD

ROME- POPE FRANCIS-  Church urges bishop accountability on abuse

Pope Francis’ point man on cleric­al sex abuse says the failure of the church to punish bishops who covered up for pedophiles has seriously hurt its credibility and that the church must now lead the way by “humbly making the com­mitment to accountability, trans­parency and zero tolerance."

Cardinal Sean O’Malley said canon lawyers and theologians are reviewing proposals for the pope on holding bishops accountable. The proposals were developed by Francis’ commission of experts, which he chairs and includes two abuse survivors.

O’Malley spoke Monday at the Pontifical Gregorian University, which is leading the church’s efforts to educate a new genera­tion of priests about preventing abuse and helping survivors. O’Malley said the older genera­tion must also know the import­ance of accountability “and the consequences of not having ac­countability."

CANADA POLITICS- VOICE OF THE PEOPLE

It’s time for the NDLP

It seems Stephen Harper is not willing to go gently into the night, nor will he be on his knees when he calls the election in 2015. We will soon have to decide whom to vote for. Perhaps millions of Canadians will be wasting their votes one way or another.

What is almost certain is that Harper would be toast in 2015 if the Liberals and the NDP decided to merge. Here is the sad legacy of a prime minister that has to go: Harper is solely responsible for abolishing home mail delivery. He described us Maritimers as hobbled by a “culture of defeat.” He created a Conservative plan for income-splitting for people with incomes of more than $100,000. He treated our veterans very shabbily. He abolished the long form census. He failed and refused to reduce carbon emissions. He clearly favours oil corporations in Western Canada. He continuously refuses to meet with Canada’s premiers as a group.

Liberal Leader Justin Trudeau lacks maturity and experience to become prime minister. He delivers speeches almost entirely devoid of content. He is riding on the coattails of his father.

Here is my pitch for a Liberal-NDP alliance and merger, and it may sound like an unseemly marriage and too late in the game for the 2015 election. Trudeau and Thomas Mulcair are both admirable individuals, but Mulcair is the smartest and sharpest of all four leaders in Ottawa. He is capable, smart, intelligent, articulate, experienced and deserves to be our next PM.

His only stigma is that he is the leader of the NDP. Wishful thinking is that both parties should organize a convention and agree to unite as one party called The New Democratic Liberal Party of Canada. NDLP for short. This merger would blow away the Conservatives; 75 per cent of Canadians would vote for the newly created party and send Stephen Harper packing — destination Alberta.

Trudeau is by no means a slacker. He is also intelligent, likable and good-looking but by no means prime minister material as of yet. I therefore suggest Trudeau be appointed to Foreign Affairs under Prime Minister Thomas Mulcair for four years where he could become a savvy and experienced politician and meet political leaders worldwide. In due time, he could vie for the prime minister’s job.

If (God forbid) Trudeau is elected prime minister in 2015, Harper and Mulcair will make mincemeat of him.

Helmuth Wiegert, Dartmouth

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Top 10 Failures of the United Nations

http://listverse.com/2013/01/28/top-10-failures-of-the-united-nations-2/

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the truth... bought Comedy Central cable monthly- because Stephen Colbert and Jon Stewart were the best on actual news of the day.... scary isn't it...and now can find the best quickest news ourown old selves... thanks 2 our troops and the horror of NO news in 2001-2013.... we had one of the best nato troops news sharing on the underground running ... as newbies who just wanted our troops 2 know how much we loved them...

Why Jon Stewart's departure matters to modern America

American Way: Jon Stewart's departure shows that at some point, fake news became more important than real news, writes Matt K Lewis. It is a development that is hard to imagine – but illustrates the decline of a once powerful industry

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11412945/Why-Jon-Stewarts-departure-matters-to-modern-America.html

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 saw Ike and Tina Turner at the Arrow's Club early 70s ... Ike and Tina made it a rule - front tables go 2  blacks first then whites.... we found it lucky 2 be young and beautiful and white .... what a show... Gottingen Street was the street of the 70s along with Barrington..... and TO SIR WITH LOVE - Sidney Poitier and Lulu in 1967 (we saw it 7 times).... and Ottis Redding at the Fleet Club... OMG...

Lived at the YWCA on Barrington St. in residence - 47 of us and 5 were black... and those of us in secretarial and hair dressing were fast friends... and the rules were strict at the YWCA... and we changed the world... 

let me share how bad the segration was and how hard.... Catholics never mixed with other Christian faiths and were hated almost as much as Jews and other races just did NOT count....

People of colour never were allowed 2 live in our little towns..... stipulated in the local town bylaws... and on and on and on... now look at 2 day's world....

and we changed it... we changed it all.. at the grassroots... hard gutwrenching heartbreaking heartwarming work one at a time......the young bloods... now it's your turn...

Breaking the colour barrier

By LOIS LEGGE FEATURES WRITER
Last Updated March 15, 2013 - 10:41am

Bottom of Form 1

Features writer Lois Legge recounts the heyday of the Arrow's Club, a Halifax lounge where black patrons and white customers mingled in a way they didn't elsewhere in the city during the 1960s and '70s

EDITOR'S NOTE: This story was originally published on May 28, 2010.

BILLY DOWNEY clicks on his old IBM computer and starts playing the past.

"This is what the sound would be (like), " says the 78-year-old former impresario. "This is what you would hear."

And Wilson Pickett sings, "I'm gonna wait 'til the midnight hour."

And then Marvin Gaye – smooth as sin – "Let's get it on."

"This used to turn your people crazy, white people, " laughs the lifelong Halifax resident, scrolling down the gold standard of '60s and '70s soul, the kind of music that brought races together at his pioneering Halifax Arrow's Club.

"I mean just listen and you'd just float into it."

"Whoo–ooh, ooh . . . understand me sugar."

"Oh geez, the girls used to freak. It was just like they were hooked to this dope. You know it was something!"

It was something.

White women and black men, black women and white men mingling in Downey's sheltered little world; a place, with black walls and black ceilings and multi–coloured lights, that dulled the sting of racism, at least for a little while.

EVERYONE WELCOME

Outside, doors closed and smiles faded for many in Halifax's black community. They often heard the n-word. And they often heard "no" when trying to enter city clubs - unofficial segregation, set in stone.

"They never really said we couldn't get in but there always seemed (to be) a reason why you didn't get in, " recalls Lou Gannon, now president of the African Nova Scotian Music Association.

But at Billy Downey's Arrow's Club, between 1962 and 1979, everything was different.

Even in the early days, whites and blacks drank and danced together, well into the wee hours. And for just a time, they washed away the colour lines that were sure to rise by morning.

By day, Downey worked the trains for Canadian National Railway. He started as a porter shining shoes and making beds - and hearing dirty racial slurs all along the rails.

"We were dirt under their feet, " he recalls, sitting in his Maynard Street apartment, images of Dr. Martin Luther King Jr., Malcolm X and Nelson Mandela looking down from the walls.

But for many nights, he was the emperor of equality, the ringmaster of rhythm and blues, the trailblazer for troubled times - founder of a little club that eventually attracted some of the biggest names in show business.

Ben E. King, Teddy Pendergrass, the Bluenotes, Ike and Tina Turner all came to shake, rattle and roll.

And some of the biggest names in Nova Scotia business and politics, former premier Gerald Regan, developer Ralph Medjuck, cabinet minister Scott McNutt, came to listen.

Other cabinet ministers too. And Atlantic premiers. And Voyageur hockey players. And then – Montreal Canadiens coach Claude Ruel.

Students, doctors, lawyers and sailors.

And Black Panther Stokely Carmichael.

"I rubbed shoulders with everybody in town then, " says Downey, honoured last year with the African Nova Scotian Music Association's Lifetime Achievement Award.

The citation, written by member Delvina Bernard, calls him a pioneer and trailblazer, "a man who had a special destiny"; a man who helped a generation "believe in the power of music to transform a city and the larger social world."

But the Arrow's Club and its founder came from humble beginnings.

Downey opened the establishment in 1962 after renovating a condemned house on Creighton Street - just a pool table and a jukebox. It was the first "black" club in the city.

And it was worlds away from south–end Halifax, where he'd helped his father deliver coal to white people as boy or tony Spring Garden Road where he started shining shoes at 14.

HUMBLE START

Six months later, his licensed, private club on Creighton - which he named after a segregated hockey team he played for in the 50s - moved to Agricola Street, opened its doors to everyone and launched a mini cultural revolution.

Lesser–known but stellar black entertainers, who played the "black" entertainment circuit from the U.S. to Montreal, came first. Then A–listers or soon–to–be A–listers rolled through the Agricola hot spot, and later the club's Brunswick Street location - home of The Palace today.

That first old house is long gone and the Agricola property, the first in the city to be granted a license to open until 3:30 a.m., is long–since re–modeled.

But Downey's memories remain.

And oh - the memories.

One of them hangs above his computer, an autographed picture of Lotsa Poppa, "400 pounds of soul, " a big man with a big voice who toured with legends like James Brown, Wilson Pickett and Sam Cooke.

"Billy you are my number one friend in Halifax, " writes the entertainer born Julius High Jr.

Lotsa Poppa is a lot smaller now. He can't move or speak like he used to but those long–ago times come back in songs over the long distance line.

"Of course I remember, " he says from his Atlanta nursing home bed. "I remember a nice crowd. . . . I became friends with Billy, Billy Downey and the Arrow's Club. I used to sing: "I don't want a soooooooul hangin' around my house when I get home."

"Yeah, that's what I would sing."

And a little Sam Cooke. "It's been a long, a long time comin' and I know, change gonna come."

"I would play like two weeks at a time. Oh my goodness yeah, I was there four or five times. . . I'd be glad to get back there."

"I'll do a little James Brown . . . adds the 74–year–old. "Ow!"

"Oh, every night, " he says of the Arrow's. "All kinds of people, all kinds of people."

Downey fondly recalls all kinds of singers. He loved Lotsa Poppa of course. And cover acts like Little Royal, who imitated James Brown. And big stars like Ike and Tina, who he first met at Montreal's multi–racial Esquire Show Bar.

That's where he first got the idea to create a similar Halifax club for high–end performers and people of all races.

IKE AND TINA ON STAGE

He used to stop over at the Montreal club on three–day train runs to the city. There he drank with the man so vividly portrayed later - in the Hollywood movie What's Love Got to Do with It - as a wife abuser.

"They used to (perform there) and Ike was a big drinker and he had Tina under control, " recalls the father of three and grandfather of six.

"I mean whatever (Ike) said, had to be. And he used to take his guitar and hit her. We used to see him do that even in practice. He'd tell her "shake yourself, " and man that girl could shake out of this world.

"And I used to buy them drinks. . . . I used to drink a lot and . . . I used to buy the entertainers drinks. Tina was just a quiet girl because she was scared to death of Ike."

On stage though, at the Esquire or the Arrow's - where the couple performed in the early 1970s - things were different. She wailed and she shook and she sang like nobody's business.

"The girl - she could move, " Downey says. "I mean she had everything, Tina."

DISCO WAS DOWNFALL

And there were so many more, Teddy Pendergrass, just starting out, on the stage with just a guitar. And South African singer Miriam Makeba, who came to the club in 1967 or '68 with her husband Stokely Carmichael.

On that occasion, Downey, who'd been away working on the trains, arrived at the club by taxi and noticed it was surrounded by police. He figured there'd been a fight but the driver told him Carmichael was inside with local black leaders and "the police are scared that they're talking this black power."

A sergeant outside told him "we don't need this in Halifax."

The police didn't go inside but Downey did, walking to the upstairs level of the club to invite Carmichael and his wife downstairs to hear the entertainment.

"He said, 'If I go down you have to segregate the club, ' " Downey recalls. "He said, 'I can't sit with no whites.' I said, 'Oh no . . . I can't do that . . . half of my clientele is white.'

Downey says Carmichael and Makeba eventually came down and sat by other black people. But he told them he wouldn't stop whites from joining them.

And then Makeba sang with Lotsa Poppa. "Man!" he recalls. "They tore up the place!"

He remembers so many other moments - like the songs that keep playing as he spins through the years - including Robert Stanfield dropping in to see the place one of his daughters kept praising and leaving quickly, none too pleased. And all his own drinking and "carousing, " and partying that eventually broke up his marriage.

He wishes that didn't happen.

And he wishes the club didn't have to close.

But Downey says he didn't see disco coming; didn't change with the times fast enough. Besides, his brother Graham, a partner in the business who'd held down the fort when Billy worked on the trains, became a city alderman and just didn't have the time anymore.

So, the Arrow's closed.

But not before helping usher in a new day and a new way.

"There was no sense of not belonging, " says the music association's Gannon, a waiter at the club who used to play there with his band Stone Free in the late '60s and early '70s.

"When you got there, it didn't matter who you were."

LOVED DEARLY

Downey also gave local musicians a chance to drink in the top talent and to perform on the Arrow's stage.

"I worked there, I played there and I went there the same as everybody else, to party, " Gannon recalls with a laugh. "I mean both these clubs . . . (on Agricola and Brunswick) . . . that was the place you had to be."

"I loved it dear, " Downey says of the place he created.

"Loved every moment of it."

And the Delfonics sing -"I gave my heart and soul to you girl. Didn't I do it baby? Didn't I do it baby?"

( llegge@herald.ca)

http://thechronicleherald.ca/artslife/1001081-breaking-the-colour-barrier

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The Admiral’s View-CUSTOM CONTENT

A GIANT STEP FORWARD FOR CANADA-ou can follow Rear-Admiral Newton on Twitter via@greatbigseas.You can also join the Maritime Forces Atlantic community on Twitter at@RCN_MARLANT and/or at Facebook at facebook.com/maritimeforcesatlantic

...

HONOURING MARCUS GARVEY- LEADER OF UNITED NEGRO IMPROVEMENT ASSOCIATION - 1937 VISITING AFRICVILLE-  famous speech-  Bob Marley honours

1937 – Marcus Garvey, the leader of the United Negro Improvement Association, visited Africville and gave a very important speech to the local community at the African Methodist Church. Subsquently in the 1970s singer Bob Marley referenced the speech given in Halifax in his song “Redemption Song”.

Bob Marley - Redemption Song (from the legend album, with lyrics)

https://www.youtube.com/watch?v=QrY9eHkXTa4

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O CANADA.... even seniors are looking at moving on from cable and news channels that just don't seem 2 get truth from fiction... dishonouring smart, savvy educated Canadians of all ages... it's pretty bad... when individuals can find more accurate and better news that the bigtime networks.... we learned this the hard way supporting our troops since 2001 in Afghanistan... and Rwanda's famous "100 days of silence" imho

LEGER: Finding trustworthy sources of news getting tougher

8 hours ago

DAN LEGER

 “The Source with Ezra Levant” program shown on a television in Toronto on Feb. 12. The Sun News Network shut down Friday morning after negotiations to sell the troubled television network were unsuccessful. (DOUG IVES/CP)

So a handsome guy in a nice suit, with good hair and many admirers, got caught spinning tales. They were barstool yarns, blending fact and fiction for entertainment and ego. That’s usually no big deal.

Except this guy was Brian Williams, who makes $10 million a year anchoring the NBC Nightly News. Now he’s banished from the airwaves, an Internet laughingstock.

Williams’ image-bolstering stories will cost him at least $5 million, surely the steepest fine ever paid for harmless fibbing.

But that’s how it is in the age of public skepticism of conventional news media. Williams has come to symbolize the pervasive sense of rot within the traditional empires of facts and images.

Television audiences have fallen off a cliff. The Neilsen ratings firm reported this month that U.S. viewership dropped by 12 per cent in January, compared to January 2014. And it’s not a one-time thing; people are switching en masse to streaming video services like Netflix.

It’s also not new. Neilsen found that U.S. network news ratings are now only a quarter of what they were in 1980. So it’s not just technology disruption from the Internet. The decline of the network newscast has been going on for a generation.

There are fundamental reasons for this. People are switching to mobile devices for entertainment and news. In Canada, our perversely labyrinthine cable system turns off subscribers who resent paying for channels they don’t want for the privilege of seeing the ones they do. Even more troubling for television is the emerging demographic gap. Many younger people just don’t bother with conventional TV.

Meanwhile, newspapers are holding their audience share, but not in print, where the money is, or was. When news happens, people still turn to traditional sources, but they go online, where many think content should be free. That has to change and it is.

But the media has also brought the trouble on itself, like Williams has at NBC.

Here in Canada, hardly a week goes by without some kind of devastating media shock. The CBC’s most popular radio personality, Jian Ghomeshi, is off the air, facing serious criminal charges for sexual assault.

Business host Amanda Lang has been accused of conflicts of interest with firms she covers. She denies all wrongdoing but the controversy has further damaged the CBC’s credibility.

CBC commentator Rex Murphy has been accused of taking money from the oil industry for speeches, while he denies the science behind climate change. The National’s anchor, Peter Mansbridge, has been criticized for accepting money for public speaking.

(Disclosure: Mansbridge wrote the foreword for my book last year on Mike Duffy and the Senate expense scandal.)

Making the situation worse, the CBC’s senior managers fumbled the response to the burgeoning Ghomeshi scandal. The corporation’s top radio executive and its head of human resources were both suspended indefinitely for their mishandling of the egotistical star.

Across town, Global Television’s star Toronto anchor, Leslie Roberts, was forced out last month over conflicts with a publicity firm of which he was an undeclared co-owner. He was putting clients on his show.

Last Friday, Sun News network went dark after failing to win credibility, subscribers or advertising for its bombastic programming.

With the standing of traditional news sources now badly undermined, new media choices are emerging. But so far, they have a poor record for accuracy and verification.

A report from Columbia University’s Tow Center for Digital Journalism blamed competition for clicks for online journalism’s many errors and omissions.

“Online media frequently promote misinformation in an attempt to drive traffic and social engagement,” said the report.

They are “more part of the problem of online misinformation than they are the solution.”

Eventually, this will get sorted out because people need reliable information. But for an undetermined time to come, maybe many years, it will be a struggle to find trusted sources for the news we all need.

http://m.thechronicleherald.ca/opinion/1269112-leger-finding-trustworthy-sources-of-news-getting-tougher

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“A penitentiary is not a place where the public has an expectation of exercising its right to freedom of expression,” Mosley said.

“The warden was called upon to balance freedom of expression against security and safety imperatives. She has the recognized experience and expertise to make such discretionary decisions, and she is owed significant deference.”

Ban on media interview with Omar Khadr not political, Federal Court rules

http://news.nationalpost.com/2015/02/14/omar-khadr-media-interview-ban/

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So proud... waited so long 4 this 2 happen... Respect

Disabled models take to catwalk in wheelchairs as New York Fashion Week promotes diversity... and British personal trainer and amputee makes runway debut

FTL Moda's AW15 show featured disabled models from all over the world

Took to runway in wheelchairs alongside other famous models

Producers wanted to show that disability is very often just a mental state

Jack Eyers, British personal trainer and amputee, walked the runway

By BIANCA LONDON FOR MAILONLINE

PUBLISHED: 09:38 GMT, 16 February 2015 | UPDATED: 11:11 GMT, 16 February 2015

http://www.dailymail.co.uk/femail/article-2955283/Disabled-models-catwalk-wheelchairs-New-York-Fashion-Week-promotes-diversity.html

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We Are Canadian Soldiers- Military, Militia, Reservists and Rangers, our Warriors of the North- LAND SEA AIR- TRUE PATRIOT LOVE BABY - LYRICS

Supporting Our Canadian Troops !!!

Lyrics:

It's time to strap out boots on,

This is a perfect day to die,

Wipe the blood out of our eyes.

In this life there's no surrender,

There's nothing left for us to do,

Find the strength to see this through.

We are the ones who will never be broken

With our final breath, we'll fight to the death

We Are Soldiers! We Are Soldiers!

Whoa, Who-oh-oh-oa, Who-oh-ohhhhhhh-oh-oa

WE ARE SOLDIERS!

I stand here right beside you,

Tonight we're fighting for ours lives,

Let me hear your battlecry. Your Battlecry!

We are the ones who will never be broken

With our final breath, we'll fight to the death

We Are Soldiers! We Are Soldiers!

We are the ones who will not go unspoken(unspoken)

No we will not sleep, we are not sheep

We Are Soldiers! We Are Soldiers! Yeah!

We stand shoulder to shoulder

We stand shoulder to shoulder

We stand shoulder to shoulder

You can't erase us, you'll just have to face us!

We stand shoulder to shoulder!

We stand shoulder to shoulder!

We stand shoulder to shoulder!

You can't erase us, you'll just have to face us!

We are the ones who will never be broken

With our final breath, we'll fight to the death

We Are Soldiers! We Are Soldiers!

We are the ones who will not go unspoken(unspoken)

No we will not sleep, we are not sheep

We Are Soldiers! We Are Soldiers! Yeah!

Whoa! Who-oh-oh-oa! Who-oh-ohhhhhhh-oh-oa!

We Are Soldiers!

Whoa! Who-oh-oh-oa! Who-oh-ohhhhhhh-oh-oa!

We Are Soldiers!

Whoa! Who-oh-oh-oa! Who-oh-ohhhhhhh-oh-oa!

We Are Soldiers!

 

https://www.youtube.com/watch?v=eml-5L8Qs6w

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OUR TROOPS DIE, WOUNDED AND SOULS BREAKING FROM TRYING 2 BRING BASIC FREEDOM AND HUMANITY 2 MUSLIM GIRLS AND WOMEN IN THE HARD PARTS OF THE WORLD.... because damm it! they matter!  God bless our troops and all the women who step up and join our military.... freedom is a hard word.... but tastes so good- and women and children matter everywhere

Poster Girl- (Wrong Side of the World)- From Nova Scotia 2 Afghanistan 2 Australia 2 the world... ONE BILLION RISING- no more abuses... no more excuses- Girl Power Rising Baby- thank u

https://www.youtube.com/watch?v=0BZ6aqgvdFI

 

CANADA'S BLURRED VISION-  HEY AYOTOLLAH- LEAVE THOSE KIDS ALONE -2009

12/12 JUNE 2009- ARTISTS UNITE 4 IRAN -  NEDA - WE HAVE NOT 4GOTTEN