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http://www.musawah.org/cedaw-and-muslim-family-laws-search-common-ground

 

CEDAW & MUSLIM FAMILY LAWS

 

Direct Link to Full 87-Page Publication:

http://www.musawah.org/sites/default/files/CEDAW%20%26%20Muslim%20Family%20Laws.pdf

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This report documents the trends identified in the Musawah research project on the Convention on the Elimination of All Kinds of Discrimination against Women (CEDAW), which examined States Parties' justifications their failure to implement CEDAW with regard to family laws and pratices that discriminate against Muslim women.

 

2.2.1 STATEMENTS ON RESERVATIONS TO THE CEDAW CONVENTION -  Page 6

 

"The CEDAW Committee has written and commented extensively on reservations to the CEDAW Convention in both its 1998 Statement on Reservations, as well as in numerous references in its Concludiing Observations.......

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WUNRN Additions for Information:

 

CEDAW Convention Member State Ratifications & Reservations: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en

 

CEDAW Committee General Recommendation No. 4 on Country Reservations to the Convention:

http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom4

 

CEDAW Committee Statement on Reservations to CEDAW Convention:

http://www2.ohchr.org/english/bodies/cedaw/docs/statements/StatementsOnReservationsEnglish.pdf

 

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Continued CEDAW & Muslim Family Laws - p. 6:

 

The CEDAW Committee also remains convinced that reservations to CEDAW Convention Article 16, whether lodged for national, traditional, religious, or cultural reasons, are incompatible with the Convention and therefore., impermissible and should be reviewed and modified or withdrawn.

 

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http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm

 

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

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Continued CEDAW & Muslim Family Laws - pp.6-7:

 

The CEDAW Committee's stand is based, inter alia, on the Vienna Convention on the Law of Treaties, which clearly sets out that a treaty "is binding upon the parties to it and must be performed by them in good faith," and that a State may not make any reservation that "is incompatible with the object and purpose of the treaty."

 

Hence, when reviewing countries with reservations to the CEDAW Convention, the CEDAW Committee has consistently urged governments to withdraw their reservations, particularly with respect to reservations to Article 16.

 

The Committee has commented on reservations to the CEDAW Convention made ostensibly on the basis of protecting the rights of Muslim minorities, noting its concern about such reservations and recommending withdrawl.  For example, the Committee reiterated to Singapore "that it considers reservations to Articles 2 and 16 to be contrary to the object and purpose of the Convention." It "encouraged the State party to engage in a multi-stakeholder consultation, with women fully represented in each group, on the extent and scope of its reservations and their impact on all women's enjoyment of the rights enshrined in the CEDAW Convention," and requested analysis on the scope and impact of the reservations.

 

2.2.2 LEGAL SYSTEMS & CONFLICT OF LAWS

 

In its review of several States Parties, the CEDAW Committee noted with concern discrepancies between Shari'ah law and the CEDAW Convention. The Committed asked how the legal system addressed any inconsistencies or which system would prevail in the case of conflict of laws.......The CEDAW Committee has also asked what is being done to reconcile and harmonise a State Party's obligations under the CEDAW Convention and the requirements under Shari'ah, and has recommended that governments bring all of their laws into full compliance with the CEDAW Convention......

 

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