Toward constructive harmonisation of Islamic family law and CEDAW: a study on the UAE’s reservation to CEDAW Article 16 and equal rights to marriage and family relations

ABSTRACT

The purpose of this study is to provide an evaluation of the United Arab Emirates’ (UAE) reservations to the Convention on the Elimination of All Forms of Discrimination against Women’s (CEDAW) Article 16 through the frame of constructive harmonisation between Islamic family law and CEDAW. It has been divided into two sections: firstly, women’s rights in Islamic family law, and secondly, the UAE’s reservation to CEDAW Article 16 and equal rights to marriage and family relations. The study concluded that gender equality under CEDAW and the complementarity principle of Shari’ah are two different concepts, since complementarity includes gender differences, but equality does not. According to the study, both concepts can be helpful in identifying areas of harmonisation since most Arab countries, including UAE, have enacted or amended laws that interpret Shari’ah in a way that is compatible with Human rights treaties, including CEDAW. As a result, the UAE may not be able to maintain most of its CEDAW reservations, including Article 16.

KEYWORDS:

• Human rights treaties
• CEDAW
• reservation
• principle of non-discrimination
• Islamic family law
• UAE Personal Status Act

Acknowledgements

I would like to express my profound thanks to the Editorial Board of the Australian Journal of Human Rights, particularly to Ms. Allison Henry for her valuable and constructive input during the development of this paper. Her willingness to give her time so generously has been very much appreciated. Additionally, I would like to express my gratitude to the administration of Al Ain University for consistently supporting scientific research.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, opened for signature 1 March 1980, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).

2 Hanna Beate Schöpp-Schilling, ‘The Role of the Convention on the Elimination of All Forms of Discrimination against Women and Its Monitoring Procedures for Achieving Gender Equality in Political Representation’ (International Institute for Democracy and Electoral Assistance and CEE Network for Gender Issues Conference, Budapest, 22–23 October 2004).

3 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16.

4 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). See Dianne Otto, ‘Women’s Rights’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (2nd edn, Oxford University Press 2013) 316; Angel Damayanti, ‘A Comparison of The Enforcement of CEDAW and CRC in Malaysia and Indonesia’ (2017) 15(1) Sociae Polites 23, 24.

5 Liliana Trofin and Madalina Tomescu, ‘Women’s Rights in the Middle East’ (2010) 2(1) Journal of Contemporary Readings in Law and Social Justice 154, 154–56.

6 Wade M Cole, ‘Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)’ in Angela Wong, Maithree Wickramasinghe, Renee Hoogland, and Nancy A Naples (eds), The Wiley Blackwell Encyclopaedia of Gender and Sexuality Studies (John Wiley & Sons Ltd 2016) 1–3.

7 Konstantin Korkelia, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’ (2002) 13(2) European Journal of International Law 437, 439.

8 (n 2).

9 Rachel George, ‘The Impact of International Human Rights Law Ratification on Local Discourses on Rights: The Case of CEDAW in Al-Anba Reporting in Kuwait’ (2020) 21(1) Human Rights Review 43, 50.

10 ibid.

11 Committee on the Elimination of Discrimination against Women, ‘General Recommendation on Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women’ UN Doc CEDAW/C/GC/29 (26 February 2013).

12 ibid.

13 See Tanya Monforte, ‘Broad Strokes and Bright Lines: A Reconsideration of Shari’a Based Reservations’ (2018) 35(1) Columbia Journal of Gender and Law 1, 28–29.

14 ibid 29.

15 Marsha A Freeman, ‘Reservations to CEDAW: An Analysis for UNICEF’ (Discussion Paper, UNICEF 2009) 6.

16 ibid.

17 Committee on the Elimination of Discrimination against Women, ‘Morocco: Partial Withdrawal of Reservations Made Upon Accession’ UN Doc C.N.176. 2011.TREATIES-2 (18 April 2011); Committee on the Elimination of Discrimination against Women, ‘Consideration of Reports Submitted by States Parties under Article 18 of the Convention: Second and Third Periodic Reports of States Parties Due in 2014, United Arab Emirates’ UN Doc CEDAW/C/ARE/2-3 (3 December 2014).

18 Muhammad Abu Zahra, ‘Family Law’ in Majid Khadduri and Herbert Liebesny (eds), Law in the Middle East (Washington, Middle East Institute 1995) 132.

19 Waqfs in Arabic means an Islamic endowment of property to be held in trust and used for a charitable or religious purpose.

20 See Lynn Welchman, ‘A Historiography of Islamic Family Law’ in Anver M Emon and Rumee Ahmed (eds), The Oxford Handbook of Islamic Law (Oxford University Press 2018).

21 Shaheen Sardar Ali, ‘A Comparative Perspective of the Convention on the Rights of the Child and the Principles of Islamic Law’ in UNICEF, Protecting the World’s Children (Cambridge University Press 2007).

22 Louay M Safi, ‘Islamic Law and Society’ (1990) 7(2) American Journal of Islam and Society 177, 177.

23 Fazlur Rahman, Islam (Weidenfeld and Nicolson 1996) 101; An-Na’im differentiates between the concept of Shari’ah and Islamic law as he considers that ‘not only because the term Islamic law is not an accurate translation’, but because ‘Shari’a generally refers to the totality of the normative system of Islam, ranging in subject matter from doctrine of belief and ritual worship practices, to ethical principles and social institutions’: Abdullahi Ahmed An-Na’im, ‘Shariah and Positive Legislation: Is an Islamic State Possible or Viable?’ in Eugene Cotran and Chibli Mallat (eds), Yearbook of Islamic and Middle Eastern Law, Volume 5 (Kluwer Law International 2000) 29. Others refer to Islamic law as Shari’ah law and many translate fiqh or Islamic jurisprudence as Islamic law: Abdullah Saeed, Islamic Thought: An Introduction (Routledge 2006).

24 Rahman (n 23) 101; Mohammad Hashim Kamali, Shari’ah Law: An Introduction (Oneworld Publications 2008) 64.

25 Maria Reiss, ‘The Materialization of Legal Pluralism in Britain: Why Shari’a Council Decisions Should Be Non-Binding’ (2009) 26(3) Arizona Journal of International & Comparative Law 739, 742.

26 Mashood A Baderin, ‘Islam and the Realization of Human Rights in the Muslim World: A Reflection on Two Essential Approaches and Two Divergent Perspectives’ (2007) 4(1) Muslim World Journal of Human Rights 1, 4.

27 ibid.

28 Kamali (n 24) 41.

29 Wael B Hallaq, An Introduction to Islamic Law (Cambridge University Press 2009) 9.

30 According to Hallaq, Muslims lived under a different conception and practice of government until the modern state was introduced to the Muslim world during the nineteenth century. He argued that the term ‘state’ must not be used to describe the early system of rule in which Muslims lived before the nineteenth century: ibid 7. Instead, we will use the terms ‘“ruler,” “rule,” or “government” for this kind of authority’. Thus, Shari’ah was not developed by the Islamic government, unlike modern law, which was developed by the state: ibid. Throughout history, societies in Islamic lands have developed their own legal experts, muftis and jurists, who come from many different backgrounds and fulfill a variety of functions that, in total, have contributed to the formation of Islamic law as a whole: ibid. Mufti is an Islamic jurist who possessed a thorough knowledge of the Quran, Sunnah and legal literature and qualified to issue a nonbinding opinion (fatwa) on a point of Islamic law (Shari’ah). While Faqih is a person who has the greatest expertise in deriving the rulings of the Shari’ah from its sources.

31 (n 29) 9.

32 ibid.

33 George Black (ed), Islam and Justice: Debating the Future of Human Rights in the Middle East and North Africa (Lawyers Committee for Human Rights 1997) 115.

34 Abdullahi Ahmed An-Na’im, ‘Secularism from an Islamic perspective: Theoretical Reflections on the Realities of Islamic Societies in the 21st Century’ (2006) 28 WLUML Dossier.

35 John L Esposito, ‘Classical Muslim Family Law’ in Women in Muslim Family Law (Syracuse University Press 1982) 35.

36 See Scott Lucas, ‘Justifying Gender Inequality in the Shāfiʿī Law School: Two Case Studies of Muslim Legal Reasoning’ (2009) 129(2) Journal of the American Oriental Society 237, 240; Joseph Schacht, The Origin of Muhammadan Jurisprudence (Oxford University Press 1950) 12.

37 Mulki Al-Sharmani, ‘Recent Reforms in Personal Status Laws and Women’s Empowerment: Family Courts in Egypt’ (2007) (Report, The American University in Cairo Social Research Centre).

38 See BA Roberson, ‘The Shaping of the Current Islamic Reformation’ (2002) 7(3) Mediterranean Politics 1, 4; Christie Warren, ‘Lifting the Veil: Women and Islamic Law’ (2008) 15(1) Cardozo Journal of Law & Gender 33, 53; Noel James Coulsen, Conflicts and Tensions in Islamic Jurisprudence (University of Chicago Press 1969) 34.

39 See John L Esposito and Natana J DeLong-Bas, Women in Muslim Family Law (Syracuse University Press 2001) 120.

40 The meaning of Takhayyur is selecting the view of one school of thought, while Talfiq is combining views from several schools. See Kristen Stilt, Salma Waheedi, and Swathi Gandhavadi Griffin, ‘The Ambitions of Muslim Family Law Reform’ (2018) 41 Harvard Journal of Law & Gender 301, 310–11.

41 ibid.

42 ibid.

43 ibid 310–11.

44 ibid 314–15.

45 ibid.

46 (n 29) 120–21.

47 Khalid Al-Azri, ‘The 20th Century Islamic Legal Reform of the Family Law with the Focus on Oman’s Response to Modernity’ (2010) 4(1) Journal of Middle Eastern and Islamic Studies (in Asia) 63. For instance, in 1926, Egypt announced the first documented Personal Status Law, followed in 1951 by Jordan and in 1953 by Syria. Morocco, Tunisia, and Iraq all issued Codes of Personal Status Law in 1956, 1958, and 1959 respectively: ibid.

48 ibid.

49 ibid.

50 Noor Aisha Abdul Rahman, ‘Convention on the Elimination of Discrimination Against Women and the Prospect of Development of Muslim Personal Law in Singapore’ (2014) 34(1) Journal of Muslim Minority Affairs 45, 47.

51 Javaid Rehman, ‘The Sharia, Islamic family laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq’ (2007) 21(1) International Journal of Law, Policy and the Family 108, 123.

52 The term ‘Muslim feminism’ is used by scholars to describe a wide range of phenomena, ranging from activists involved in formal Muslim feminist movements to Arab citizens who supported women’s education during the fight for independence, to women who support female political representation within Islamist systems: Saskia Glas and Amy Alexander, ‘Explaining Support for Muslim Feminism in the Arab Middle East and North Africa’ (2020) 34(3) Gender & Society 437, 438–39. In different countries, Muslim feminism compared to secularist feminism, which are feminist ideas among less religious Muslims: ibid. In some societies, Muslim feminism is more prevalent than in others: ibid.

53 Fatima Sadiqi, ‘The Central Role of the Family Law in the Moroccan Feminist Movement’ (2008) 35(3) British Journal of Middle Eastern Studies 325, 332.

54 John Hursh, ‘Advancing Women’s Rights Through Islamic Law: The Example of Morocco’ (2012) 27(2) Berkeley Journal of Gender, Law & Justice 252, 291.

55 Fatima Mernissi and Mary Jo Lakeland, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam (Addison-Wesley Publishing Company 1991) 115.

56 ibid viii.

57 ibid.

58 ibid.

59 ibid.

60 Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from A Woman’s Perspective (Oxford University Press 1999) 95.

61 (n 54) 293.

62 Jan Michel Otto, Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy (Law, Governance, and Development: Research & Policy Notes) (Amsterdam University Press 2008).

63 ibid.

64 The Basic Law of Saudi Arabia [1992] Royal Order No (A/91) <www.shura.gov.sa/wps/wcm/connect/ShuraEn/internet/Laws±and±Regulations/The±Basic±Law±Of±Government>.

65 ibid.

66 OECD Development Centre, ‘Social Institutions and Gender Index: Saudi Arabia’ <www.genderindex.org/wp-content/uploads/files/datasheets/SA.pdf>.

67 United Nations Treaty Collection, ‘Convention on the Elimination of All Forms of Discrimination against Women: Declarations and Reservations’ <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-8&chapter=4&clang=_en> accessed 15 June 2022.

68 The term Wahhabi refers to the Sunni Muslims who have adopted Sheikh Mohammed Bin Abdul-Wahhab’s lessons in what he claimed to be the purification of Muslim practices. Wahhabism is not a distinct Islamic sect in the same manner of Sunnism and Shiasm, nor is it universally recognised as a distinct Madhhab of the four Sunni jurisprudence schools (Hanafi, Maliki, Shafi’i and Hanbali). Indeed, they present themselves as successors to the founder of the movement, Bin Abdul-Wahhab (1703–1792); they even object to the term ‘Wahhabis’ as derogatory, preferring to be called Salafis or Ahl-sunna wa al-Jama’ah, as the term came to refer to intolerant fanatics in many contexts. Thus, Wahhabism is a Sunni movement not representing the whole of Sunnism: see Abdullah F Alrebh, ‘A Wahhabi Ethic in Saudi Arabia: Power, Authority, and Religion in a Muslim Society’ (2017) 5 Sociology of Islam 278, 278–302.

69 See Alrebh (n 68).

70 Amr Daoud Marar, ‘Saudi Arabia: The Duality of the Legal System and the Challenge of Adapting Law to Market Economies’ (2004) 19(1/4) Arab Law Quarterly 91, 111.

71 Butti Sultan Butti Ali Al-Muhairi, ‘The Position of Shari’a within the UAE Constitution and the Federal Supreme Court’s Application of the Constitutional Clause concerning Shari’a’ (1996) Arab Law Quarterly 11(3) 219, 223.

72 ibid.

73 See Ali Ahmari-Moghaddam, ‘Towards International Islamic Human Rights: A Comparative Study of Islamic Law, Shari’ah, with Universal Human Rights as Defined in the International Bill of Human Rights’ (Master of Laws Thesis, University of Toronto 2012) 29; George N Sfeir, ‘The Place of Islamic Law in Modern Arab Legal Systems: A Brief for Researchers and Reference Librarians’ (2000) 28 International Journal of Legal Information 117.

74 See Clark Lombardi, ‘SHARIA: “A” or “The” Chief Source of Legislation’ (2013) 28(3) American University International Law Review 733, 761.

75 (n 67).

76 (n 13).

77 Mustafa El-Mumin, ‘The GCC Human Rights Declaration: An Instrument of Rhetoric?’ (2000) 42(1) Arab Law Quarterly 34, 86, 91–92.

78 Committee on the Elimination of Discrimination Against Women, ‘Consideration of Reports Submitted by States Parties under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women: Initial Periodic Report of States Parties: United Arab Emirates’ UN Doc CEDAW/C/ARE/1 (2008) 28.

79 See Robert C Blitt, ‘Equality and Non-discrimination Through the Eyes of an International Religious Organization: The Organization of Islamic Cooperation’s (OIC) Response to Women’s Rights’ (2017) 34(4) Wisconsin International Law Journal 755, 819.

80 See Wael Allam, ‘The Arab Charter on Human Rights: Main Features’ (2014) 28(1) Arab Law Quarterly 40; Mervat Rishmawi, ‘The Arab Charter on Human Rights and the League of Arab States: An Update’ (2010) 10(1) Human Rights Law Review 169.

81 Mohamed Y Mattar, ‘Article 43 of the Arab Charter on Human Rights: Reconciling National, Regional, and International Standards’ (2013) 26 Harvard Human Rights Journal 91, 96.

82 (n 77) 90–92.

83 Khalifa Alfadhel, ‘The GCC Human Rights Declaration: An Instrumentation of Cultural Relativism’ (2017) 31(1) Arab Law Quarterly 89.

84 Nurulbahiah Awang and Nik Salida Suhaila Nik Saleh, ‘Constructive Harmonisation of Islamic family law and the Women’s Convention’ (IEBMC 2017 8th International Economics and Business Management Conference) 941–51.

85 ibid.

86 A Almutawa and K Magliveras, ‘Enforcing Women’s Rights under the Arab Charter on Human Rights 2004’ (2020) The International Journal of Human Rights (online 17 Sep 2020) 21.

87 ibid.

88 J Badawi, Gender Equity in Islam (USA Sellon Publication Co IMC 2004) 13–14.

89 J Badamasuiy and UM Shu’aib, ‘Gender Equality or Gender Equity? A Critique of CEDAW from Shari’ah Perspective’ (2012) 1 International Journal of Islamic Thought 21, 23.

90 ibid 28.

91 Mohamed Khalifa Alhmoudi, ‘The Impact of International Human Rights on Women’s Rights in the United Arab Emirates: Progress towards Gender Equality’ (Doctoral thesis, Middlesex University) 113.

92 Committee on the Elimination of Discrimination Against Women, ‘General Recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures’ (2004).

93 ibid.

94 Committee on the Elimination of Discrimination Against Women, ‘Consideration of reports submitted by States parties under article 18 of the Convention: Second and third periodic reports of States parties due in 2017, United Arab Emirates’ UN Doc CEDAW/C/ARE/2-3 (3 December 2014).

95 Jamal J Nasir, The Islamic Law of Personal Status (3rd edn, Brill 2009) 31.

96 See UAE Federal Supreme Court, Appeal no 48/2016 for the year 2016. Issued on 20 June 2016 (personal status chamber).

97 Mahmoud Al-Kubaisi, Al-Wajeez in the Jurisprudence of Personal Status (5th edn, Brighter Horizon Publishers 2014) 123.

98 Badamasuiy and Shu’aib (n 89) 29.

99 ibid.

100 ibid.

101 (n 94).

102 Maysa Bydoon, ‘Reservations on the “Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)” Based on Islam and Its Practical Application in Jordan: Legal Perspectives’ (2011) 25(1) Arab Law Quarterly 51, 58; Esposito (n 35) 16.

103 ibid.

104 Tanzil ur-Rahman, A Code of Muslim Personal Law (Hamdard Academy 1978) 39.

105 ibid.

106 ibid, 77.

107 W Al-Wahili, Encyclopedia of Islamic Jurisprudence and Contemporary Issues (3rd edn, Dar Al-Fikr 2012) 196.

108 Committee on the Elimination of Discrimination Against Women, ‘Responses to the list of issues and questions with regard to the consideration of the initial periodic report: United Arab Emirates’ UN Doc CEDAW/C/ARE/Q/1/Add.1 (19 October 2009) para 4.

109 Replaced by Article 1 of Federal Decree-Law No 8/2019 (29 August 2019).

110 The procedures are outlined in the Emirati government’s e-Guides for each emirate: see, eg <https://u.ae/en/information-and-services/social-affairs/marriage> accessed 5 August 2022.

111 (n 78).

112 ibid.

113 The provisions of Article 72 have been replaced by virtue of Article 1 of Federal Decree-Law No 8 dated 29 August 2019, then they have been replaced again by virtue of Article 1 of Federal Decree-Law No 5 dated 25 August 2020, to read as follows: Going out or to work as per law, Shari’ah or custom provisions or as necessary, shall not be deemed a breach of marital obligations by the spouses, and the judge shall take into account the family’s interest when deciding upon such matter.

114 (n 94) para 91.

115 Committee on the Elimination of Discrimination Against Women, ‘Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women: Initial periodic report of States parties, Qatar’ UN Doc CEDAW/C/QAT/1 (21 March 2012).

116 ibid.

117 ibid. See also Dar Al-Ifta Al Missrryah, ‘Do Women take Unequal Shares of Inheritance in Islam?’ (Egyptian Fatwaa House) <www.dar-alifta.org/foreign/ViewArticle.aspx?ID=120> accessed 17 June 2022.

118 (n 115). See SE Sultan, The Inheritance of Women and the Cause of Equality (Nahdet Misr 1999) 3–5.

119 ibid.

120 See Aisha Lemu and Fatima Heeren, Woman in Islam (Islamic Foundation 1978) 23.

121 Ali H Al-Obaidi, Non-Voluntary Sources of Compliance According to the Civil Transactions Law and the Rulings of the UAE Judiciary (Bright Horizons 2019) 182.

122 MY Al-Najimi, ‘Women’s Rights in Islam and the CEDAW Agreement’ (International Islamic Fiqh Academy Conference, Jedda, 2007) (Moez. 2019) 48.

123 (n 78).

124 See Article 2 of the law.

125 (n 97).

126 Fotis Law Firm, ‘Everything You Need to Know About Child Adoption in the UAE’ <https://fotislaw.com/lawtify/child-adoption-in-the-uae-things-you-should-know/> accessed 5 August 2022. See also Ella Landau-Tasseron, ‘Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic Societies’ (2003) 66(2) Bulletin of the School of Oriental and African Studies, University of London 169, 169.

127 Bin Eid, ‘Child Adoption in UAE’ <https://bineidlawfirmuae.com/blog/child-adoption-in-uae/> accessed 5 August 2022.

128 Badamasuiy and Shu’aib (n 89) 30.

129 (n 97).

130 Abu Dhabi Court of Cassation (personal status chamber), Appeal No 69/2008 (31 March 2008); Dubai Court of Cassation (personal status chamber), Appeal No 67/2008 (20 January 2009).

131 Abu Dhabi Court of Cassation (personal status chamber, Appeal No 61/2007 (28 November 2007).

132 (n 78).

133 Committee on the Elimination of Discrimination Against Women, ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women: United Arab Emirates’ UN Doc CEDAW/C/ARE/Q/1 (5 February 2010) paras 16–17, 33, 45–46.

134 ibid para 48.

135 See (n 133).

136 See (n 9) 44–45.

137 Organisation for Economic Co-operation and Development, Women’s Economic Empowerment in Selected MENA Countries: The Impact of Legal Frameworks in Algeria, Egypt, Jordan, Libya, Morocco and Tunisia, Competitiveness and Private Sector Development.

138 The revised Article (1) of the 2020 Decree stated that ‘The provisions of the Islamic Shari’a shall apply to the retribution and blood money crimes. Other crimes and their respective punishments shall be provided for in accordance with the provisions of this Law and other applicable penal codes’.

139 (n 137).

140 ibid.

141 ibid.

142 ibid.

Additional information

Notes on contributors

Zeyad Jaffal

Zeyad Jaffal is the head of the Public Law Department and associate professor of public international law at the College of Law at Al Ain University, UAE. He specialises in international human rights law, international criminal law, international humanitarian law and the law of the sea. He was awarded the Dubai Police Award for Research Innovation in 2016.

Faisal Shawabkeh

Faisal Shawabkeh is an associate professor at the College of Law at Al Ain University, UAE. He specialises in constitutional rights and freedoms, judicial oversight of constitutional laws, international administrative contracts, and constitutional protection of the environment.

Ali Hadi Al Obeidi

Ali Hadi Al Obeidi is a professor of civil law at the College of Law at Al Ain University, UAE. He specialises in civil law, the law of civil procedure, medical liability, consumer protection, investment promotion, social security and individual rights.