The Impact of the Convention on the Elimination of All Forms of Discrimination Against Women on the Domestic Legislation in Egypt [1 ed.] 9789004346840, 9789004346833

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The Impact of the Convention on the Elimination of All Forms of Discrimination against Women on the Domestic Legislation in Egypt

International Studies in Human Rights volume 124

The titles published in this series are listed at brill.com/ishr

The Impact of the Convention on the Elimination of All Forms of Discrimination against Women on the Domestic Legislation in Egypt By

Nora Salem

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Salem, Nora, 1983Title: The impact of the Convention on the Elimination of All Forms of Discrimination against Women on the domestic legislation in Egypt / by Nora Salem. Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: International studies in human rights ; volume 124 | Based on author’s dissertation (doctoral - Friedrich-Schiller-Universität Jena, 2016). | Includes bibliographical references. Identifiers: LCCN 2017051020 (print) | LCCN 2017051081 (ebook) | ISBN 9789004346840 (E-book) | ISBN 9789004346833 (hardback : alk. paper) Subjects: LCSH: Domestic relations--Egypt. | Women--Legal status, laws, etc.--Egypt. | International and municipal law--Egypt. | Convention on the Elimination of All Forms of Discrimination against Women (1979 December 18) Classification: LCC KRM540 (ebook) | LCC KRM540 .S255 2018 (print) | DDC 342.6208/78--dc23 LC record available at https://lccn.loc.gov/2017051020

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0924-4751 isbn 978-90-04-34683-3 (hardback) isbn 978-90-04-34684-0 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgements Vii List of Arabic Terms viii List of Abbreviations xii Introduction 1 Objective 7 Roadmap 7 1 Introduction to the Women’s Convention 10 1.1 States Parties’ Obligations under the Women’s Convention 12 1.2 Reservations to the Women’s Convention 13 1.3 Excerpt: Shariʾa Law 16 1.4 Excerpt: Egypt’s Legal and Judicial System 19 1.5 The Women’s Convention’s Monitoring Body 22 1.6 Additional un Entities Concerned with Gender Equality 24 2 Egypt’s Shariʾa-based Reservations to the Women’s Convention 26 2.1 Permissibility of Egypt’s Reservations 28 2.1.1 Women’s Convention’s Object and Purpose 30 2.1.2 Articles 2, 16 cedaw Reflect Women’s Convention’s Object and Purpose 31 2.1.3 Compatibility of Egypt’s Reservations with the Women’s Convention’s Object and Purpose 33 2.2 Legal Effect of Invalid Reservations 38 2.2.1 Treaty Law 38 2.2.2 Customary International Law 40 2.3 The Way Forward: Sharia-based Reservations: A Culturally Justified Restriction? 46 3 Revision of Egypt’s Implementation Efforts Regarding the Reserved Articles 2, 16 cedaw 50 3.1 Article 2 (g) cedaw: Domestic Violence 50 3.1.1 Dogmatic Considerations Regarding the Legal Context of Domestic Violence 52 3.1.2 Domestic Violence in Criminal Shariʾa Law 55 3.1.3 Domestic Violence in Egyptian Penal Law 66

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3.1.4 Discrepancies between Shariʾa and Egyptian Law Regarding Domestic Violence 75 3.2 Article 16 (1) (c) cedaw: Divorce Law 77 3.2.1 Right to Divorce in Shariʾa Law 79 3.2.2 Right to Divorce in Egyptian Domestic Law 83 3.2.3 Discrepancies between Shariʾa and Egyptian Domestic Divorce Law 94 3.3 The Way Forward: Withdrawal of Reservation in Near Future? 96 4 The Women’s Convention’s Impact on Egyptian Legislation 100 4.1 Egypt’s Constitution 100 4.1.1 Scope of States Parties Obligation under cedaw 100 4.1.2 Egypt’s Compliance 101 4.1.3 Summary 109 4.2 Egypt’s Statutory Laws 110 4.2.1 Combatting Female Genital Mutilation in Light of Article 12, 2 and 5 cedaw 110 4.2.2 Combatting “Summer Marriages” as a Form of Trafficking in Women in Light of Article 6 cedaw 129 4.2.3 Egypt’s Legislative Efforts on Combatting Gender-discriminatory Nationality Laws in Light of Article 9 cedaw 151 4.2.4 Egypt’s Legislative Efforts on Combatting Gender Discrimination in Employment in Light of Article 11 cedaw 164 4.2.5 Summary 180 4.3 The Way Forward: How to Improve Egypt’s Implementation Efforts? 181 Conclusion 185 Effectiveness of the Women’s Convention 187 International Impact of the Women’s Convention 188 Domestic Impact of the Women’s Convention 190 Obstacles to the Women’s Convention’s Effective Implementation 193 Appendix 1 Documents Issued by the United Nations 199 Appendix 2 International Treaties and Declarations 203 Appendix 3 Egyptian Legislation 204 Appendix 4 International Case Law 206 Bibliography 207 Websites 225 Index 228

Acknowledgements This book was made possible by the relentless support of Professor Martina Haedrich. Your patience, trust and constructive ideas gave me the confidence to embark on and most importantly finish this journey. I owe my deepest gratitude to the Friedrich-Ebert-Foundation, especially to Ms. Ursula Bitzegeio, for the financial and moral support. This financial ­security – a luxury not many scholars are fortunate to be granted – allowed me to live in New York, which provided me with the opportunity to conduct research, experience first-hand how international law is formed and personally grow. Every step along this journey was made possible due to your generosity, which I am indefinitely grateful for. Also I would like to thank Fordham Law School, especially Professor Martin Flaherty and Professor Toni Fine, for including me into the diverse and supportive Fordham family during my two-year visiting scholarship. You gave me a home and sense of belonging in times when my actual home was far away. Deep appreciation must be expressed to the true souls of all universities: librarians (Cologne University, Fordham Law School, Columbia Law School, United Nations Headquarter, Technical University Berlin – El Gouna campus). Your patience brought this research to another level. A number of friends cannot go unacknowledged: Armaghan Naghipour, Eileen Mai, Melike Wanik, Dominik Becker-Schwarz, Sarah Sadek, Ferdaous Kabteni, Radwa Elrafai, Fatema Waheb, Kaylee Dueber, Gaudys Sanclemente, Wiebke Uhde and Mohamed Reda. Your emotional support and intellectual generosity gave me tremendous strength. Finally, I would like to thank my beautiful family: my parents Cornelia and Adel Salem, who would not miss a chance to include me and my sister in political discussions since we were little and thereby encouraged us to form political opinions. Due to your unconditional love, mental stimulation, pesistant encouragement, guidance and trust, you bestowed upon me deep-rooted belief that I can achieve anything in life if I only worked hard enough. To my incredible sister, Schirin Salem, who inspired me initially to write this book. You have helped me in so many ways that to mention each single one of them would drastically increase the number of pages. Every word in this book is dedicated to you. I am who I am because you are who you are. This book is dedicated to New York and Noar Salem Dawy.

List of Arabic Terms ʿArd1 Women’s reputation ʿIsmah / talaq al tafwid Specific form of non-judicial unilateral divorce right (repudiation) through delegation from a husband to his wife so that she may repudiate herself Al-dustur Constitution, as the supreme type of legislation in Egypt’s legal system Al-gareedah al-rasmeyah Egyptian Official Gazette Al-lawaʾeh Decrees, as the lowest ranked type of legislation in Egypt’s legal system Al-qadaʾ al-ʿadi Ordinary courts pertaining to criminal, commercial and civil matters Al-qanun al ʿadi Statutory laws, as the mid-level ranked type of legislation in Egypt’s legal system Anti taleqa “You are repudiated” Awgoh sharʾiya A legitimate reason for a wife to leave the matrimonial home Baghi Criminal offense of armed rebellion Darar A wife’s right to be save from harm caused by her husband Diya Monetary compensation for damages Diyat-offenses One of three categories of criminal offenses in Criminal Shariʾa Law, which provides for the mildest punishment, that is compensation Faskh Dissolving marriage by revoking the consent of either party Fatwas Non-binding advisory opinions Fiqh Islamic jurisprudence Fiqh al-jenayah Criminal Shariʾa Law Gheir mubarrih Non-extreme physical disciplining Ghusl Bathing or purifying

1 The Latin spelling of Arabic terms used throughout this document follows the standard rules of transcription. However, the usage of transcribed Arabic terms is to be found incoherent depending on the author’s phonetic background. Therefore, the exact spelling used in this document may vary from the spelling found elsewhere.

List Of Arabic Terms

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Hadd, pl. hudud-offenses One of three categories of criminal offenses in Criminal Shariʾa Law, which provides for the maximum punishment, that is capital punishment Hadith, pl. ahadith Reported sayings of the Prophet Mohamed Hanafi One of four Sunni Islamic schools of thought (predominant mainly in Turkey, Egypt, Afghanistan and Pakistan) Hanbali One of four Sunni Islamic schools of thought (predominant in Saudi Arabia and Qatar) Hirabah Criminal offense of highway robbery Huqm Binding rulings Ilaʾ Specific form of non-judicial unilateral divorce under oath right attributed to men (repudiation) Iddah Mandatory waiting period for a widowed or divorced woman before she can enter a new marriage to ensure the absence of pregnancy Ijmaa Islamic technique of interpreting primary sources of Shariʾa Law through consensus in order to come to a legal principle Ijtihad Islamic technique of interpreting primary sources of Shariʾa Law through personal reasoning in order to come to a legal principle Jafari Shiʾa Islamic schools of thought (predominant in Iran, Iraq, Bahrain, Azerbaijan, Syria) Jaraʾim al-sharaf Honor killing Khalifa Local ruler Khilaf mustahkam A wife’s misconduct leading to discord between the spouses Khulʾ Specific form of judicial unilateral divorce right available to women accompanied by financial obligations Liʾan Specific form of judicial unilateral divorce right available to men if the wife committed adultery La yaliq bimithliha not suitable to women of a certain standing Maazun Religious notary Maglis al-shaʾb Egypt’s House of Representatives Mahkmat al-Askariyah Egypt’s specialized Military Courts Mahkmat al-Ausrah Egypt’s specialized Family Courts Mahkmat al-Beaeyah Egypt’s specialized Environmental Courts

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List Of Arabic Terms

Mahkmat al-Daragah al-Aoulah Egypt’s courts of first instance within the ordinary judiciary Mahkmah al-Dostouriah al-Aolyah Egypt’s Supreme Constitutional Court Mahkmat al-Estiʾanaf Egypt’s courts of appeal within the ordinary judiciary Mahkmat al-Eqtsadyah Egypt’s specialized Economic Courts Mahkmah al-Naqd Egypt’s court of cassation within the ordinary judiciary Mahkmah al-Qdaʾa al-Edari  Egypt’s specialized Administrative Judicial Court Mahr Bridal dowry Maliki One of four Sunni Islamic schools of thought (predominant in the Maghreb States) Mathab, pl. mathahib General term for Islamic schools of thought / thought Moakhar al sadaq Remaining payment of deferred dowry Mubaraʾa Specific form of non-judicial bilateral contractual divorce Mufti Legal consultant Muhsan / a Married adulterers Mutʾa  Wife’s post-divorce financial entitlement to compensation for a period of two years Muqaddam Wife’s post-divorce financial entitlement to receive the remaining payment of her deferred dowry Nafaqa  Wife’s post-divorce financial entitlement to maintenance for a period of three month (iddah) Nushuz Wife’s disobedience towards her husband Sariqa Criminal offense of theft Sharaf Honor Shafiʾi One of four Sunni Islamic schools of thought (predominant in South East Asia and Eastern Africa) Shariʾa Overall body of Islamic religious laws Shiʾa Branch of Islam Sunnah Practices of the Prophet Mohamed, i.e. sayings, deeds and actions Sunni Branch of Islam, which includes four schools of thought: Hanafi, Maliki, Shafiʾi and Hanbali Shrub al-khamr Criminal offense of drinking wine

List Of Arabic Terms

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Taaʾa A wife’s obligation to be obedient to her husband Taʾazir-offenses One of three categories of criminal offenses in Criminal Shariʾa Law, which provides for the disciplinary punishments Takhayyur Islamic technique, which allows for the selection of the most favorable interpretation of all four Sunni schools of thought Talfiq Islamic technique, which allows for a combination of opinions from different schools of thought Talaq General term for non-judicial unilateral divorce right available to men (repudiation) Talaq al bidda / thalath Specific form of non-judicial unilateral irrevocable divorce right available to men (repudiation) Talaq al Sunnah Specific form of non-judicial unilateral revocable divorce right available to men (repudiation) Tatliq / tafrik Specific form of judicial unilateral divorce right available to women limited to specific grounds Tark al-zina Procedure of beautifying Tusallim Person submitting him / herself to someone Usul ul-fiqh Specific legal methodology Qadhf Criminal offense of defamation of an individual’s chastity Qadi Judge applying Shariʾa law Qatl Criminal offense of homicide Quran The holy book of Islam Qias The Islamic technique of interpreting primary sources of Shariʾa Law through reasoning by analogy in order to come to a legal principle Qisas-offenses Retaliation – criminal offenses, which are mentioned in the Quran and / or Sunnah while no punishment is recommended Ridda Criminal offense of apostasy Wali Male legal guardian Zawaj ʿurfi Informal and unregistered customary marriage Zina Unlawful sexual intercourse

List of Abbreviations ahtl Anti-Human Trafficking Law cedaw / Women’s Convention Convention on the Elimination of All Forms of Discrimination Against Women csw Commission on the Status of Women devaw Declaration on the Elimination of Violence against Women echr European Court of Human Rights ecosoc Economic and Social Council egp Egyptian Pound epsl Egyptian Personal Status Law epc Egyptian Penal Code fgm Female Genital Mutilation ga General Assembly gdp Gross Domestic Product hrc Human Rights Commission iccpr International Covenant of Civil and Political Rights icescr International Covenant of Economic, Social and Cultural Rights icj International Court of Justice ilc International Law Commission ll Labor Law na Nationality Act ncw National Council for Women ndp National Democratic Party ngo’s Non-Governmental Organizations npa-ht National Plan of Action Against Human Trafficking op-cedaw Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women Trafficking Protocol un Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children udhr Universal Declaration of Human Rights un United Nation Organization vclt Vienna Convention on the Law of Treaties who World Health Organization

Introduction Women are omnipresent in Egyptian daily life. They do not only shape the streetscape of national streets, but are constructively active in hosting tv talk shows, work as professors, teachers, doctors, are well represented in the art scene and approximately 35 percent of Egypt’s households are solely led by women.1 Women also played a crucial role throughout Egypt’s political upheaval, which ultimately led to the overthrow of former President Hosni Mubarak in February 2011, as well as former President Mohamed Morsi in July 2013. They fiercely participated in each phase of the revolution denouncing Egypt’s emergency law, police brutality and corruption, demanding an egalitarian distribution of wealth, accountability, rule of law, free elections as well as respect for human dignity by chanting “bread, freedom and social justice.” As female protestors, they were particularly targeted with sexualized brutality (from stripping down and beating, groping to gang-raping) by the police, armed forces, government-paid thugs, revolutionaries, ­counter-revolutionaries and men, who simply seized the absence of public order.2 Once detained, women were subjected to torture and other inhumane or degrading treatment, including

1 See Hoda Salah, “Die Revolution in Ägypten Als Bruch Mit Den Patriarchalischen Strukturen Vom Staat Bis in Die Familie,” in Arabischer Frühling? Alte Und Neue Geschlechterpolitiken in Einer Region Im Umbruch, ed. Dagmar Filter, Jana Reich, and Eva Fuchs (Freiburg im Breisgau: Centaurus Verlag & Media, 2015), 158, available at http://meta-katalog.eu/ Record/61869genderbib (last accessed 16 August 2017). 2 See Hoda Elsadda, “Women’s Rights Activism in Post-Jan 25 Egypt: Combating the Shadow of the First Lady Syndrome in the Arab World,” Middle East Law and Governance 3 (2011): 85; ­Inderdeep Bains, “Day of Shame in the Middle East: Female Protesters Beaten with Metal Poles as Vicious Soldiers Drag Girls through Streets,” Daily Mail Online, December 18, 2011, available at http://www.dailymail.co.uk/news/article-2075683/Egypt-violence-Female -­protesters-brutally-beaten-metal-poles-vicious-soldiers.html (last accessed 16 August 2017); Bel Trew, “Breaking the Silence: Mob Sexual Assault on Egypt’s Tahrir,” Ahram Online, March 7, 2012, available at http://english.ahram.org.eg/NewsContentPrint/1/0/46800/Egypt/0/ Breaking-the-silence-Mob-sexual-assault-on-Egypts-.aspx (last accessed 16 August 2017); Nina Burleigh, “Opinion: Gang Rapes, the Dark Side of Egypt’s Protests,” cnn, March 7, 2013, available at http://www.cnn.com/2013/07/03/opinion/burleigh-rapes-tahrir-square/­index .html (last accessed 16 August 2017); Patrick Kingsley, “80 Sexual Assaults in One Day – the Other S­ tory of Tahrir Square,” The Guardian, May 7, 2013, available at http://www.­theguardian .com/world/2013/jul/05/egypt-women-rape-sexual-assault-tahrir-square (last accessed 16 August 2017).

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004346840_002

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coercive virginity tests performed by male military officers.3 These techniques aimed at breaking their revolutionary spirit through psychological humiliation, discrediting them as loose women serving a malicious foreign agenda and sending a warning message to other women not to participate in future public protests.4 Despite the existing risks, women nevertheless fearlessly continued to participate politically as protestors, first aid providers treating injured fellow protestors, voters waiting for hours to cast their votes and as active debaters privately and publicly. Yet women’s equal burden sharing is not fairly reflected in the Egyptian legal system. Although Egypt’s 2014 Constitution guarantees gender equality in civil, political, economic, social and cultural rights, women in Egypt still face many forms of discrimination, de jure as well as de facto. The list of de jure gender discrimination includes, but is not limited to, Egypt’s Personal Status Law, Inheritance Law, Penal Code, Nationality Law as well as its Labor Law. According to the Egyptian Personal Status Law, women have limited divorce rights compared to men. While a husband has a customary right to divorce his wife unilaterally simply by repeating an oral declaration three times, a woman has no similar customary right to seek a divorce. Instead she is forced to resort to lengthy and highly bureaucratic judicial divorce procedures, either by proving the husband’s wrongful conduct (fault-based divorce), or by giving-up her entire set of post-divorce financial rights (non-fault-based divorce). The Egyptian Inheritance Law grants women half of the inheritance of a man. The Egyptian Penal Code prescribes harsher prison sentences for a female spouse committing adultery, compared to her male counterpart. The latter also provides grounds for mitigation for a husband killing his wife during or subsequent to her act of adultery, while a woman faces charges of premeditated murder for the same offense. The Egyptian Penal Code moreover provides for grounds for justification pursuant to a husband’s act of wife battery. A woman’s testimony in court is accounted for half of that of a man. The Egyptian Nationality Law denies Egyptian women, married to foreign men, the right to transfer their nationality to their foreign husbands. The Egyptian Labor Law prohibits women from working nightshifts and at certain establishments. De facto, the status of women’s education, health, nutrition, political participation and economic well-being is significantly lower than that of men. Furthermore, a large number of women in Egypt are exposed to all forms 3 See Amnesty International, “Egypt: Gender-Based Violence against Women around Tahrir Square” (London, 2013), available at http://www.refworld.org/docid/5114e69f2.html (last accessed 16 August 2017). 4 See Sahar F. Aziz, “Egypt’s Protracted Revolution,” Human Rights Brief 19, no. 2 (2012 2011): 6.

Introduction

3

of ­gender-based violence. Those forms include spousal emotional, physical and / or sexual violence, the widespread social practice of Female Genital Mutilation, child marriage, forced temporary child marriage, honor crimes and social violence, such as sexual harassment, sexual assault and rape in public places. According to a governmental nation-wide sexual harassment study in Egypt, 99.3 per cent of girls and women in Egypt experienced some form of sexual harassment throughout their lifetime.5 These de jure and de facto forms of discrimination against women are somewhat surprising considering Egypt’s commitment to eliminate gender-specific discrimination, given that it had ratified the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter the “Women’s Convention” or “cedaw”) in 1981. The Women’s Convention calls upon States parties to undertake all appropriate measures in the public and private sphere, to achieve this aim. Thus, the central question of this book is, to what extent did Egypt implement the overall obligation to eliminate gender-based discrimi­ nation in its domestic legislation, thirty-seven years after ratifying the ­Women’s Convention? When investigating the question, the first factor that must be addressed is the scope of Egypt’s legal obligations resulting from the Women’s Convention. Public International Law provides States parties with a right to enter reservations to multilateral treaties, and thereby limit the treaty’s scope of application in their jurisdictions, provided these reservations do not defeat the object and purpose of the relevant multilateral treaty. In line with many other Muslim majority States, Egypt maintains one procedural and two substantive reservations to the Women’s Convention, primarily in the field of penal and family law. These two substantive reservations are justified by Egypt on the prevalence of Shariʾa Law (commonly referred to as “Shariʾa-reservations”). As a result, Egypt is by virtue of its reservations exempted from implementing the Women’s Convention, where its scope of application runs counter to Shariʾa Law in the field of penal and family law. It will be argued that, Egypt is legally obliged to implement the reserved articles (referring to penal and family law), where no contradiction between Shariʾa Law and the Women’s Convention occurs. In simpler terms, Egypt’s domestic legislation must provide at the very least as much gender equality as Shariʾa Law does. To this end, 5 See Bouthaina El Deeb, “Study on Ways and Methods to Eliminate Sexual Harassment in Egypt” (Cairo: un Women, National Council for Women, National Planning Institute and Demographics Center in Cairo, 2013), available at http://web.law.columbia.edu/sites/default/ files/microsites/gender-sexuality/un_womensexual-harassment-study-egypt-final-en.pdf (last accessed 16 August 2017).

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case studies of penal law provisions regarding domestic violence offenses, as well as family law provisions regarding the establishment of divorce rights, in both Shariʾa and Egyptian Law, will be examined. This examination serves the purpose of identifying discrepancies between Shariʾa and Egyptian Law, regarding gender-discriminatory provisions in penal and family law. Provided such discrepancies do exist – meaning Shariʾa Law providing for more advanced women’s rights with regard to domestic violence and divorce rights than Egypt’s domestic legislation does – Egypt has an international duty to align the latter to the former. Otherwise, Egypt would violate its international obligations towards the Women’s Convention in conjunction with its Shariʾabased reservations. While Shariʾa Law at first glance may not necessarily seem to be a viable source for gender-progressive laws, a closer examination will reveal that classic Shariʾa Law in fact provides – to some extent – for more gender-advanced laws than Egypt’s domestic legislation does. It will be demonstrated that this is particularly true for divorce rights, and the criminal offense of honor killings. If the Egyptian government was willing to consider modern gender-egalitarian interpretations of the Quran, Shariʾa Law could indeed even be utilized as an effective source to further gender-equal legislation. Another legally relevant consideration in the context of treaty reservations is whether Shariʾa-reservations qualify as valid reservations according to International Law. The threshold that International Law sets for the permissibility of reservations is the compatibility with the treaty’s object and purpose. Another factor that will be addressed is whether Egypt’s Shariʾa-reservations are in fact valid reservations, considering the intention to modify two essential provisions of the Women’s Convention, which reflect the Convention’s object and purpose. Moreover, the highly debated question of the legal effects of invalid reservations will be presented and analyzed, which at its core addresses the dichotomy of integrity of a treaty versus its universal participation. While some international human rights courts opt for considering a State party fully bound to the treaty, regardless of their reservation(s), simply by severing the invalid reservations from the State party’s ratification. Other courts completely deny such States the right to remain a State party to the treaty, by nullifying their entire ratification. It will be seen that the Women’s Convention’s monitoring body takes none of these two extreme positions. Instead it accepts invalid reservations and thereby forms a middle ground position in the fierce debate around the question of the higher good: integrity versus universality.

Introduction

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Considering that Egypt has only maintained substantive reservations to two articles of the Women’s Convention, raises the question regarding Egypt’s implementation efforts of the remaining non-reserved articles. Upon Egypt’s ratification of the Women’s Convention, it has expressively committed itself to take all appropriate measures to eliminate gender-discriminatory laws. This entails first and foremost an obligation to guarantee gender equality on a supreme legislative level (constitutional level), which would naturally prevail over inconsistent statutory norms of lower legislative status. Moreover, it ­entails an obligation to abolish gender-discriminatory laws on the national statutory level. In the course of Egypt’s tumultuous political events, which started in 2011, the country had three constitutions in place: the 1971 Constitution, the 2012 Constitution and the current 2014 Constitution. It will be demonstrated how women’s equality guarantee has varied considerably in its constitutional standing. While the 1971 Constitution enshrined the principle of n ­ on-discrimination on the basis of sex, the constitutional status of women suffered a sensitive setback in the 2012 Constitution, which was adopted under the religiously ultra-conservative Muslim Brotherhood’s president Mohamed Morsi, when it recognized women only in a family related context. The 2012 Constitution included numerous polarizing and ambiguous provisions beyond the already troubling status of women, such as the supreme role of Shariʾa Law, emergency powers, as well as limited judicial independence and freedom of expression and assembly. As such, beyond the constitutional text, some of the Brotherhood’s legislative initiatives – such as the parliamentary debate on lowering the minimum age of marriage for women from eighteen to nine, decriminalizing ­Female Genital Mutilation and withdrawing the recently reformed divorce provisions – fueled people’s fear to enter an Islamic dictatorship, which ultimately led to the counter-revolution in July 2013. After the election of the current president of Egypt, Abdel Fattah El-Sisi, the current third constitution was adopted in 2014. It will be argue that the 2014 Constitution is the most progressive in terms of gender equality and constitutional advancement of women’s rights Egypt has ever adopted, despite the prevalence of many troublesome provisions, such as the supreme president’s and military’s powers. Light will also be shed on the supreme place of Shariʾa Law throughout all three constitutions as well as the question whether this poses an obstacle to the constitutional gender equality clause. Beyond the constitutional level, the question arises as to how Egypt’s legislator responded to the country’s commitment to abolish gender-discriminatory laws on the national statutory level? Four areas of Egypt’s statutory law have

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sparked a national debate on gender-discriminatory practices and will therefore be examined as case studies. Those include, the Law on Female Genital Mutilation, the Law on Human Trafficking, the Nationality Law and the Labor Law. Female Genital Mutilation is a widespread cultural practice in Egypt with a longstanding tradition predating Christianity. An analysis will be made as to whether Egypt fulfilled its international obligation resulting from the Women’s Convention, in light of its legislative efforts to counter Female Genital Mutilation, which culminated in 2008 with its penalization. Similarly, the issue of “summer marriages,” as a form of human trafficking, has become an increasing problem in Egypt, given the poor economic situation in the aftermath of the 2011 revolution. The concept of “summer,” “tourist,” or “temporary” marriages refers to wealthy Arab tourists, who pay a dowry to marry Egyptian under-aged girls from poor families during their summer vacation in Egypt for sexual gratification in order to circumvent Islamic rules on pre-marital sex and abandon these girls upon their departure. The question as to whether Egypt fulfilled its international obligation to suppress all forms of traffic in women, by adopting numerous legislative responses to combat summer marriages, will be addressed accordingly. The longstanding demands of women’s rights groups to amend Egypt’s Nationality Law in a way that grants Egyptian women, married to foreign men, the right to transfer their nationality to their children were finally met when Egypt amended its Nationality Law in 2004. Despite these legislative advancements, the Nationality Law to this date denies Egyptian women married to foreign men, the right to transfer their nationality to their alien husbands. Therefore, the question whether Egypt’s Nationality Law still violates Egypt’s international obligation to eliminate gender-discriminatory provisions, regarding the acquisition of nationality will be discussed in detail. Egypt’s Labor Law bars women from working nightshifts (with e­ xceptions) and from working in certain areas of work, such as bars, in the production of coal or in animal processing. In addition to these explicit ­gender-discriminatory provisions, the question as to whether the absence of a comprehensive legal strategy to address sexual harassment in the workplace constitutes an implicit discrimination, which would infringe upon Egypt’s international obligation to establish equal employment rights, will be addressed. It should be noted that the analysis of Egypt’s implementation efforts will be primarily legal in nature, focusing first and foremost on legal texts. Therefore, the fact that many of the outlined legislative advances are de facto not yet implemented, due to entrenched societal norms and a lack of effective enforcement mechanisms, will only be briefly touched.

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Objective This research will seek to find answers to the following three questions: First, do Egypt’s Shariʾa-reservations to Articles 2 and 16 cedaw effectively modify the Women’s Convention’s scope in relation to Egypt’s obligations as a State party? Second, did Egypt implement the Women’s Convention’s modified scope with regard to the reserved articles in light of the constraints imposed by Shariʾa Law? Third, did Egypt implement the substance of the Women’s Convention’s obligations in the non-reserved areas of law, in its domestic legislation? The analysis will mainly be based on the evaluation of the un reporting mechanisms for the Women’s Convention. Those include Periodic State Reports submitted by States parties to the cedaw Committee, Shadow Reports ­submitted by civil society to the cedaw Committee, the corresponding Concluding O ­ bservations issued by the cedaw Committee in response to Periodic State Reports, General Recommendations issued by the cedaw Committee as well as Egyptian legislation. Roadmap This book is divided into four chapters. Following this introduction, Chapter 1 will embed the issue of women’s human rights in the un legal framework, by giving a brief historical outline of the development of the principle of gender equality in the un context and pointing out the particularities of the Women’s Convention and its Optional Protocol (1). In order to assess the Women’s Convention’s implementation, it is imperative to provide an overview of the States parties’ obligations resulting from the Women’s Convention (1.1), as well as the concept of reservations to the Women’s Convention (1.2). While Egypt entered two substantive reservations to the Women’s Convention, whereby the country evaded an obligation to implement certain parts of the Women’s Convention based on the prevalence of Shariʾa Law, this text will provide a brief excerpt to Shariʾa Law (1.3), as well as to Egypt’s legal and judicial system (1.4). It will then return to the Women’s Convention by outlining the duties of the Women’s Convention’s monitoring body, the cedaw Committee (1.5). The introduction will close by pointing out other un entities concerned with gender equality (1.6).

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The ­objective of C ­ hapter 1 is to provide the reader with the necessary background information to follow the assessment of the Women’s Convention’s implementation in Egypt. Chapter 2 will attempt to assess whether Egypt’s Shariʾa-based reservations to Articles 2 and 16 cedaw effectively modify the Convention’s scope in relation to Egypt’s obligations as a State party. For that purpose, this text will first examine the reservations’ compliance with the permissibility requirements set out by the Vienna Convention of the Law of Treaties (2.1). Hereinafter, the legal effects of invalid reservations will be evaluated and applied to Egypt’s Shariʾareservations to the Women’s Convention (2.2). This chapter will conclude by discussing the legitimacy of Sharia reservations – as culturally justified restrictions to international human rights standards – and thus touch upon the debate revolving around universalism of human rights versus cultural relativism (2.3). Chapter 3 will focus on the question whether Egypt implemented the Women’s Convention’s modified scope with regard to its reserved articles. To this end, an analysis as to whether Egypt has fulfilled its modified obligation to eliminate gender-discriminatory legislation, below the threshold of contradictions between the Women’s Convention and Shariʾa Law, will be conducted. For this purpose, two areas of law – domestic violence (3.1) and divorce law (3.2) – will be examined as case studies in order to identify discrepancies ­between Shariʾa Law and Egyptian laws regarding gender-discriminatory legislation, in the field of penal and family law. The object of this chapter is to determine rights, that Egyptian women are entitled to according to Shariʾa Law, and yet denied under Egyptian domestic law. After discussing some dogmatic considerations regarding the legal context of domestic violence (3.1.1), three domestic violence offenses, namely honor killings, wife battery, and marital rape, will be analyzed according to Criminal Shariʾa Law (3.1.2) and according to Egypt’s Penal Code (3.1.3). ­Subsequently, the three domestic violence offenses in both legal systems will be compared in order to assess gender discrepancies between both, which would indicate a potential violation of Egypt’s modified obligation to eliminate ­gender-discriminatory legislation below the threshold of contradictions between the Women’s Convention and Shariʾa Law (3.1.4). Similarly, Chapter 3 will proceed to examine legal options for women to seek a divorce according to Shariʾa Law (3.2.1) and according to Egypt’s Personal Status Law (3.2.2). Hereinafter, these legal options to seek a divorce in both legal systems will be compared in order to assess gender discrepancies between both, which again would indicate a potential violation of Egypt’s modified obligation to eliminate ­gender-discriminatory legislation below the threshold of contradictions

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between the ­Women’s Convention and Shariʾa Law (3.2.3). Chapter 3 will conclude by discussing whether or not Egypt is expected to withdrawl its Shariʾabased reservations in the near future (3.3). Chapter 4 will attempt to assess whether Egypt implemented the Women’s Convention’s obligation to eliminate gender-discriminatory legislation in the non-reserved areas of law in its domestic legislation. For this purpose, this book will analyze Egypt’s domestic legal status in regard to its Constitution (4.1) as well as its national statutory laws (4.2). Section  4.1 will examine to what extent formal equality between men and women has found its way into Egypt’s Constitution. While the relevant subject of reference is the most recent Constitution of 2014 (4.1.3), the prior two Constitutions of 2012 (4.1.2) and 1971 (4.1.1) will equally be looked at. Section 4.2 examines the degree to which the Women’s Convention has been implemented in Egypt’s statutory laws. In this regard four areas of law will be examined as case studies namely, Egypt’s Law on Female Genital Mutilation (4.2.1), Egypt’s Law on Human Trafficking (4.2.2), Egypt’s Nationality Law (4.2.3) and Egypt’s Labor Law (4.2.4). Chapter 4 will conclude by discussing how Egypt can improve its implementation efforts in the non-reserved areas of law (4.3). The book will close with a conclusion, in which the findings of each chapter will be summarized and an answer to the research question – as to Egypt’s implementation efforts regarding its obligation to eliminate gender-based discrimination from its domestic legislation – will be given. Hereinafter, related questions emerging from the conclusion will be addressed. Those include, the Women’s Convention’s effectiveness; its international and domestic impact; as well as prevailing obstacles to its effective implementation. The latter will touch upon the notion of “gender equality being a Western concept and thus infringing on Egypt’s cultural and religious values” and shed light on the “cultural defense” employed by multiple Muslim-majority States.

chapter 1

Introduction to the Women’s Convention The first international recognition of women’s rights as human rights, has been granted by the Universal Declaration of Human Rights (hereinafter “udhr”)1 in 1948.2 The International Covenant on Civil and Political Rights (hereinafter “­i ccpr”) and the International Covenant on Economic, Social and Cultural Rights (hereinafter “icescr”), reinforced the principle of equality between men and women and outlawed discrimination on the basis of sex.3 These three international documents collectively form the International Bill of Rights and address gender equality in Articles 2, 3, 7, 10 icescr and Articles 2, 3, 23, 26 iccpr. Based on the understanding that discrimination of women must be tackled on a social, economic and cultural level, the un General Assembly passed the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter “Women’s Convention” or “cedaw”)4 in 1979. It came into effect in 1981 and was ratified by 189 States as of July 2017.5 The Women’s Convention has been a major achievement in effectively countering gender discrimination. Article 1 cedaw provides a comprehensive definition of discrimination against women. Article 2 cedaw establishes a duty for States parties “to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.” Based on this article, States 1 un General Assembly, Universal Declaration of Human Rights (udhr), un Doc A/810, 1948. 2 See Hanna Beate Schöpp-Schilling, “Das Frauenrechtsübereinkommen – Ein wirksames Instrument für die weltweite Gleichberechtigung,” in Menschenrechtsschutz in Der Praxis Der Vereinten Nationen, ed. Eibe H. Riedel, Michael Schaefer, and Gerhart Rudolf Baum (BadenBaden: Nomos, 1998), 155. 3 See Pauline Kruiniger, “Article 16 of the Women’s Convention and the Status of Muslim ­Women at Divorce,” in The Women’s Convention Turned 30: Achievements, Setbacks, and Prospects, ed. Ingrid Westendorp (Cambridge: Intersentia Publishing Ltd, 2012), 366. 4 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, entered into force 3 September 1981, 1249 unts 13. To view the complete text of the Women’s Convention, visit Office of the United Nations High Commissioner for Human Rights ohchr, “Text to the Women’s Convention,” available at http://www .ohchr.org/Documents/ProfessionalInterest/cedaw.pdf (last accessed 16 August 2017). 5 For an enumeration of States parties to the Women’s Convention including their reservations, visit United Nations Treaty Collection untc, “Database on Multilateral Treaties Deposited with the Secretary-General,” available at https://treaties.un.org/Pages/ViewDetails .aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (last accessed 16 August 2017).

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004346840_003

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parties have an obligation to review their domestic legislation and repeal all discriminatory laws. Successive articles name various forms of discrimination against women and call upon States parties to adopt comprehensive measures to counter them. In addition to sex role stereotyping, prostitution, political participation, nationality, education, employment, health, economic and social benefits, the rights of women in rural areas and in marriage are addressed. The Women’s Convention differs from other un human rights treaties,6 in the sense that it requires States to achieve gender equality not only in the public sector, but also in the private sector, whereas other human rights treaties predominantly pertain merely to the public sector.7 Moreover, it strives for de jure and de facto equality in all areas of life, as it prohibits direct and indirect forms of discrimination against women (intent and effect).8 Therefore, the Women’s Convention is considered to be “the most progressive tool in international human rights law.”9 The Women’s Convention provides for two monitoring procedures. First, the interstate complaints procedure, in which disputes between States parties over conflicting interpretations and application of the Convention can be brought to arbitration and ultimately to the International Court of Justice (hereinafter “icj”) (Article 29 cedaw). Second, the periodic State reporting procedure, in which States parties are required to submit periodic reports about their 6 As of July 2017, there are nine core international human rights instruments: icerd (1965), ­i ccpr (1966), icescr (1966), cedaw (1979), cat (1984), crc (1989), icmw (1990), cped (2006) and crpd (2006) with its own separate monitoring bodies. Some of these nine core human rights instruments are supplemented by optional protocols. For a list of the nine core international human rights instruments, the optional protocols and its monitoring bodies, visit http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (last ­accessed 16 August 2017). 7 See Hanna Beate Schöpp-Schilling and Cees Flinterman, The Circle of Empowerment: ­Twenty-Five Years of the un Committee on the Elimination of Discrimination against Women (New York: Feminist Press at the City University of New York, 2007), 10, 17. 8 See Christine M. Chinkin, “Thoughts on the un Convention on the Elimination of All Forms of Discrimination against Women (cedaw),” in Without Prejudice: cedaw and the Determination of Women’s Rights in a Legal and Cultural Context, ed. Meena Shivdas and Sarah ­Coleman (London: Commonwealth Secretariat, 2010), 5. 9 Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “The International Human Rights of Women: An Overview of the Most Significant International Conventions and the Instruments for Their Implementation” (Eschborn, 2003), 8, available at http://www.gender -in-german-development.net/custom/images/contentBilderGalerie/bilderGalerie1000492/ GTZ-BMZ-The-international-human-rights-of-women-2003-EN.pdf (last accessed 16 August 2017).

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i­mplementation efforts to the cedaw Committee, which then issues corresponding concluding observations to each State party (Article 18 cedaw). The Women’s Convention was supplemented by the Optional Protocol (hereinafter “op-cedaw”).10 The op-cedaw mainly enhances the monitoring mechanisms by offering two additional monitoring procedures.11 First, the individual complaints procedure, in which individuals or groups of individuals of a State party to the Women’s Convention may submit complaints against their government for violating the terms of the Convention (Article 2 op-cedaw).12 Second, the inquiry procedure, according to which the cedaw Committee is enabled to conduct inquiries regarding serious and systematic abuses of women’s human rights within the territory of a State party (Article 8 op-cedaw). Since the latter two procedures are only binding States parties to the opcedaw, the periodic State reporting procedure and the interstate complaints procedure are the only mandatory monitoring procedures for all States parties to the Women’s Convection.13 1.1

States Parties’ Obligations under the Women’s Convention

While the language of many human rights provisions may create uncertainty as to the exact scale of States parties’ obligations, the Committee for ­Economic, Social and Cultural Rights had developed the model of multilayered State 10

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Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 10 December 1999, entered into force 22 December 2000, 2131 unts 83. To view the complete text of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, visit Office of the United Nations High Commissioner for Human Rights ohchr, “Text to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women,” available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCEDAW .aspx (last accessed 16 August 2017). See Ineke Boerefijn, “Article 17–22 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 489; Laboni Amena Hoq, “The Women’s Convention and Its Optional Protocol: Empowering Women to Claim Their Internationally Protected Rights,” Columbia Human Rights Law Review 32, no. 3 (2001): 678. For more detailed information on the individual complaints procedure of the op-cedaw, see Wouter Vandenhole, The Procedures before the un Human Rights Treaty Bodies (­Antwerp: Intersentia Publishing Ltd, 2004), 271 ff. See Ibid., 171.

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­obligations.14 This model was later adopted by the cedaw Committee15 as a useful tool for analyzing State parties’ implementation efforts. The model requires States parties to respect, protect, and fulfill the rights outlined in the Convention.16 The obligation to respect is a negative obligation and requires States parties to refrain from any act that directly or indirectly interferes with the enjoyment of human rights.17 The obligation to protect is a positive obligation and requires States parties to take active measures in the event human rights violations occur.18 The obligation to fulfill is a forward-looking obligation and requires States parties to adopt measures towards the full realization of human rights, including public policies, programs and institutional frameworks.19 In addition, States parties have a due diligence obligation, which includes the duty “to prevent violations of human rights, protect victims and witnesses from human rights violations, to investigate and punish those responsible, including private actors and the obligation to provide access to redress for human rights violations.”20 1.2

Reservations to the Women’s Convention

To secure a widespread and universal participation in international treaties, International Law provides for the formulation of reservations.21 The Vienna Convention on the Law of Treaties (hereinafter “vclt”)22 sets out the ­procedural 14

See Committee on Economic, Social and Cultural Rights, “General Comment No. 12” (un Doc E/C.12/1999/5, twentieth session 1999), para. 15. 15 See cedaw Committee, “General Recommendation No. 25” (un Doc CEDAW/C/GC/25, thirtieth Session 2004), para. 4. 16 See Marsha A. Freeman and Christine M. Chinkin, “Introduction,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 20. 17 See Ibid. 18 See Ibid. 19 See Ibid. 20 cedaw Committee, “General Recommendation No. 31” (un Doc cedaw/C/GC/31, 2014), para. 10. 21 See Thomas Giegerich, “Treaties, Multilateral, Reservations to,” in Max Planck Encyclopedia of Public International Law, Volume ix, ed. Rüdiger Wolfrum (New York: Oxford University Press, 2012), para. 5, available at http://opil.ouplaw.com/home/EPIL (last accessed 16 August 2017). 22 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, entered into force 27 January 1980, 1155 unts 331. To view the complete text of the Vienna Convention

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law for the making, operation and termination of treaties between States, which entails an intricate regime of reservations. According to Article 2 (1) (d) vclt a reservation is: [a] unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.23 Thus, reservations allow States to become a party to an international treaty without complying with the entire set of provisions. However, to avoid an erosion of a treaty, the vclt limits the possibility to enter reservations by establishing the impermissibility principle in Article 19 (c), according to which “[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted.”24 Article 28 (2) cedaw mirrors Article 19 (c) vclt and adopts the impermissibility principle for State parties to the Women’s Convention. Reservations have a twofold effect: One the one hand, they ensure widespread State participation, while on the other hand, the commonly agreed number of provisions decreases. This ambiguity is often referred to as “universality vs. integrity” of international treaties25 and can be well observed in the Women’s Convention, which has been described as “among the most heavily reserved international human rights conventions.”26 Accordingly, the Women’s Convention is, with 189 State parties out of 193 un member States, one of the on the Law of Treaties, visit United Nations Treaty Collection untc, “Text to the Vienna Convention on the Law of Treaties,” available at https://treaties.un.org/pages/View DetailsIII.aspx?src=IND&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en (last accessed 16 August 2017). 23 Ibid. 24 Ibid. 25 See, inter alia, Catherine Redgwell, “Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties,” British Yearbook of International Law 64 (1993): 245 ff. 26 Anja Wiesbrock, “Equal Employment Opportunities and Equal Pay: Measuring eu Law against the Standards of the Women’s Convention,” in The Women’s Convention Turned 30: Achievements, Setbacks and Prospects, ed. Ingrid Westendorp (Cambridge: Intersentia Publishing Ltd, 2012), 417; Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals: Texts and Materials., 3rd ed. (Oxford: Oxford University Press, 2008), 439; Francisco Forrest Martin, International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis (New York: Cambridge University Press, 2006), 25.

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most ratified human rights conventions as of July 2017.27 Yet, the commonly agreed number of provisions is relatively moderate, which ultimately degrades the quality of the Convention, as reservations limit the scope of multilateral treaties.28 Egypt had initially entered three substantive and one procedural reservation to the Women’s Convention’s upon signature.29 Namely, to Article 2 cedaw dealing with the duty of States to pursue a policy of eliminating gender discrimination in legislation, economy and society; to Article 9 (2) cedaw in relation to gender equality in nationality law; to Article 16 cedaw in relation to gender equality within the family and to Article 29 (2) cedaw in relation to the constitution of an arbitral body for any disputes between States. It o­ fficially withdrew its reservation to Article 9 (2) cedaw in 2008.30 In line with many other Muslim majority States,31 Egypt refers to “Islam as the religion of the State and Islamic Law as the principle source of legislation”32 in its Constitution and accordingly based its remaining substantive reservations to Articles 2 and 16 cedaw on the prevalence of Shariʾa Law.33 Therefore, these reservations are commonly referred to as “Shariʾa-based reservations.”34 27 28 29 30 31

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untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” See Giegerich, “Treaties, Multilateral, Reservations to,” para. 1. untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” See Freeman and Chinkin, “Introduction,” 20. Hereinafter “Islamic States.” The term “Islamic States” will in this book be used for pragmatic reasons to refer to those States influenced by Islam, e.g. States with a large Muslim population or States with legislation incorporating Shariʾa Law or customs. Article 2 of the Constitution of the Arab Republic of Egypt, adopted 18 January 2014 (hereinafter “Egyptian Constitution (2014)”). To view the complete text, see “Constitution of the Arab Republic of Egypt, Adopted 18 January 2014,” available at http://www.sis.gov.eg/ Newvr/Dustor-en001.pdf (last accessed 16 August 2017). untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” Donner points out that in contrast “The Rac[e] Convention contains very strict rules about the type of reservations States parties can adopt. Article 20 of the Convention provides that reservations that are incompatible with the object and purpose of the convention shall not be allowed. The Rac[e] Convention goes on to declare that reservations will be considered incompatible if at least two-thirds of the States parties to the Convention object to it.” See Laura A. Donner, “Gender Bias in Drafting International Discrimination Conventions: The 1979 Women’s Convention Compared with the 1965 Racial Convention,” California Western International Law Journal 24 (1994): 241, 252 f. The question as to what Shariʾa Law entails, will be dealt with in Chapter 1.3.

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Excerpt: Shariʾa Law

Given the reference to Shariʾa Law in Egypt’s reservation to Articles 2 and 16 cedaw, the question arises as to what Shariʾa Law actually entails. Shariʾa Law derives from five different sources, two primary, and three secondary ones. The primary sources are composed of the holy book (Quran), which was revealed to Prophet Mohamed in 610, and the traditional sayings, deeds and actions of the Prophet (Sunnah).35 These two primary sources were used by legal scholars to further develop Shariʾa Law, by applying the three secondary sources, namely, personal reasoning (ijtihad), restricted reasoning by analogy (qiyas) and consensus (ijmaa).36 The application of the primary and secondary sources lead to a set of legal rules referred to as “jurisprudence of Shariʾa Law” ( fiqh). Hence, fiqh is a part of, but not limited to, the broader Shariʾa, which includes not only legal but also religious obligations.37 Applying Shariʾa Law to everyday conflicts falls within the purview of judges (qadi) and legal consults (mufti).38 While the qadi is responsible of issuing binding rulings (huqm), the mufti gives non-binding advisory opinions ( fatwas), on a case by case basis, to an individual questioner whether in the course of litigation or not.39 With the expansion of Islam in the eighth and ninth century, four Sunni schools of thought and one Shiʾa school of thought (mathahib) established in order to address new questions in society.40 Those schools are namely the Hanafi (Sunni, predominant mainly in Turkey, Egypt, Afghanistan and Pakistan), 35 36

37 38

39 40

See Heinz Halm, Der Islam: Geschichte und Gegenwart, 8th ed. (München: C.H. Beck, 2011), 76 f. See Abdullahi Ahmad An-Naʿim, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse: Syracuse University Press, 1990), 19. While the majority of scholars agree to the above mentioned four sources of Shariʾa, some scholars regard “Ijtihad,” referring to independent juristic reasoning when the Quran and Sunnah are silent, as a fifth source of Shariʾa, see A. Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt.,” Human Rights Quarterly 27 (2005): 566. See Mathias Rohe, Das islamische Recht: Geschichte und Gegenwart, 3rd ed. (München: C.H. Beck, 2011), 16. See Muhammad Khalid Masud, Brinkley Morris Messick, and David Stephan Powers, Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge: Harvard University Press, 1996), 431. See Ibid. See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 567.

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­ aliki (Sunni, predominant in the Maghreb States), Hanbali (Sunni, predomiM nant in Saudi Arabia and Qatar), Shafiʾi (Sunni, predominant in South East Asia and Eastern Africa), and Jafari (Shiʾa, predominant in Iran, Iraq, Bahrain, Azerbaijan, Syria).41 Although the four major Sunni schools of thought agreed upon the aforementioned five different sources and methods for the interpretation and formulation of Shariʾa Law, their legal opinions differ considerably.42 Due to this subdivision into different schools of thought, and the ongoing development of Shariʾa Law based on Islamic jurisprudence, Shariʾa Law cannot be codified in one comprehensive textbook.43 However, the further development of Islamic legal doctrine is arguably considered to have come to an end, as many Islamic scholars take the view that the “gates of ijtihad” (reasoning) were closed in the late ninth century,44 leaving present scholars with the mere application of classical Shariʾa Law.45 It is important to note, that Shariʾa Law is not a divine law, but based on the aforementioned five different sources (Quran, Sunnah, ijtihad, qias and ijmaa), which are a blend of divine revelation and human expansion.46 Even though the Quran and Sunnah, as the primary sources of Shariʾa Law, are based on divine revelation, the fact that they have been subjected to interpretation when manifested into laws cannot be neglected. Thus, there can be no doubt that a scholar’s personal educational and cultural context, as well as the historical epoch he lived in influenced his interpretation of both divine sources.47 In addition, with respect to the Quran, its symbolic language ­broadens 41 42 43 44

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See Donna E. Arzt, “The Application of International Human Rights Law in Islamic States,” Human Rights Quarterly 12, no. 2 (1990): 204; An-Naʿim, Toward an Islamic Reformation, 18. See Rubya Mehdi, Werner Menski, and Jørgen S. Nielsen, Interpreting Divorce Laws in Islam (Copenhagen: DJØF Pub, 2012), 21. See Halm, Der Islam, 77; Rohe, Das islamische Recht, 16; Kruiniger, “Article 16 of the ­Women’s Convention and the Status of Muslim Women at Divorce,” 363. See Judith E. Tucker, In the House of the Law, Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of Carlifornia Press, 1998), 11; Mathias Rohe, “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen Islamischen Recht,” Das Standesamt, 2001, 202. Others consider the gates of Ijtihad as permanently open, which renders Shariʾa Law open to further development. For a detailed presentation of the controversy on whether the gates of Ijtihad are closed, see Mohamed H. Reda, Shariʾa Commercial Law: “Old Wine in New Bottles?” (Ph.D. thesis University of Montreal, 2015), 229–45, https://papyrus.bib .umontreal.ca/xmlui/handle/1866/12628. See Mehdi, Menski, and Nielsen, Interpreting Divorce Laws in Islam, 21. See Ayesha S. Chaudhry, Domestic Violence and the Islamic Tradition: Ethics, Law and the Muslim Discourse on Gender (Oxford: Oxford University Press, 2013), 96.

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the spectrum of possible interpretations even further.48 With respect to the Sunnah, it must be noted that the Prophet’s deeds and sayings were passedalong by his associates for more than one hundred and fifty years, until they were eventually gathered into a number of canonical collections,49 which may have affected its authenticity. Although a collection of the ­Prophet’s authentic sayings (ahadith), including the identification of varying levels of a­ uthenticity, was conducted through a “rigorous and sophisticated methodology of hadith authentication”50 by two Islamic scholars, named Al-Bukhari (810–870) and Muslim (817–875), disagreement among Sunni scholars regarding the authenticity of some narratives still remains up to today.51 As of the three secondary sources of Shariʾa Law (ijtihad, qias and ijmaa), no claim of divinity was raised, as they were applied by Islamic scholars and thus did not derive directly from God or his Messenger. Hence, the regulations of Shariʾa Law must be seen as a result of an interpretation of the five aforementioned sources conducted by male scholars of the eighth and ninth century in Arabia. Consequently, particularly regarding gender roles in Shariʾa Law, patriarchal interpretations prevailed over egalitarian ones.52 Contemporary scholars, such as Asma Barlas,53 Amina Wadud,54 Leila Ahmed,55 Fatima Mernissi,56 introduced in recent years gender-neutral interpretation of Quranic verses dealing with gender-related legal issues, an emerging field of knowledge referred to as “Islamic feminism.”57 However, the applicable parameter of this text must be classical Shariʾa Law, in contrast to 48

See Asghar Ali Engineer, The Rights of Women in Islam, 2nd ed. (New York: New Dawn Press, 2004), 49. 49 See Judith E. Tucker, Women, Family, and Gender in Islamic Law, Themes in Islamic Law 3 (Cambridge: Cambridge University Press, 2008), 12. 50 Ibid. 51 See Ibid., 12 f. 52 See Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven: Yale University Press, 1993), 65 f. 53 Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the Qurʾan (Austin: University of Texas Press, 2002). 54 Amina Wadud, Qurʾan and Woman: Rereading the Sacred Text from a Woman’s Perspective (New York: Oxford University Press, 1999). 55 Ahmed, Women and Gender in Islam. 56 Fatima Mernissi, The Veil And The Male Elite: A Feminist Interpretation Of Women’s Rights In Islam, trans. Mary Jo Lakeland (Cambridge: Perseus Books, 1992). 57 See Ziba Mir-Hosseini, Mulki Al-Sharmani, and Jana Rumminger, Men in Charge?: Rethinking Authority in Muslim Legal Tradition (London: Oneworld, 2015). In this book scholars from different academic backgrounds challenge the traditional Islamic concept of “qiwamah” and “wilayah,” which generally places women under men’s guardianship, from within Muslim legal tradition.

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the Quran or the Sunnah itself, as Egypt’s reservations to the Women’s Convention refer to Shariʾa Law. 1.4

Excerpt: Egypt’s Legal and Judicial System

For the purposes of identifying the extent of Egypt’s implementation efforts of its obligations towards the Women’s Convention in domestic legislation, a short introduction to Egypt’s legal and judicial system is necessary. The Egyptian Civil Code identifies in Article 1 four sources of law, namely, (1) legislation, in the absence of legislation, judges are required to have recourse to (2) customs, (3) principles of Islamic Shariʾa, as well as (4) principles of natural law and rules of justice.58 The primary source of law – legislation – includes, the 2014 Constitution (al-dustur), statutory or ordinary laws (al-qanun al-ʿadi), as well as executive decrees (al-lawaʾeh). It follows a legal hierarchical order according to which, the higher ranked legislation has precedents over the lower ranked ones.59 Thus, decrees, deemed contrary to statutory laws or the Constitution, must be amended accordingly; similarly, statutory laws must comply with the Constitution or elsewise be amended. Due to Egypt’s legal nature of a civil law system – as opposed to common law system – jurisprudence does not qualify as a primary source of legislation and subsequently is not binding for other courts with the exception of the jurisprudence of the Supreme Constitutional Court, the Supreme Administrative Court, as well as the Court of Cassation.60 58

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Article 1 of the Egyptian Civil Code states: “Provisions of laws govern all matters to which these provisions apply in letter or spirit. In the absence of a provision of a law that is applicable, the Judge will decide according to custom and in the absence of custom in accordance with the principles of Moslem Law. In the absence of such principles, the Judge will apply the principles of natural justice and the rules of equity.” To view the complete text, see The People’s Assembly of the Arab Republic of Egypt, “Civil Code of the Arab Republic of Egypt, Promulgated by Law No. 131 of 1948 in Force since 15 October 1949,” available at http://hrlibrary.umn.edu/research/Egypt/Civil%20 Law.pdf (last accessed 16 August 2017). See Abdallah Khalil and Takrek Badawy, “Rights of Foreigners and Access to Citizenship,” in Africa Citizenship and Discrimination Audit: The Case Study of Egypt (Cairo: The Center for Migration and Refugee Studies of the American University in Cairo, Open Society Justice Initiative, 2005), 4, available at http://schools.aucegypt.edu/GAPP/cmrs/reports/ Documents/Citizenship_Report.pdf (last accessed 16 August 2017). See Mohamed S.E. Abdel Wahab, An Overview of the Egyptian Legal System and Legal Research, October 2012, available at http://www.nyulawglobal.org/globalex/Egypt1.html (last accessed 16 August 2017).

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With regard to Egypt’s legislation passing process, the 2014 Constitution61 stipulates, that the House of Representatives (maglis al-shaʾb) is mainly entrusted with passing statutory laws,62 while decrees are issued by Egypt’s executive branch, namely, the President63 or the responsible Minister.64 Amendments to the Constitution require a two-third majority of the House of Representatives.65 Egypt’s legislation comes into effect one month subsequent to its 61

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The 2014 Constitution was drafted by a ten-member legal committee (formed based on a presidential decree, issued on 20 July 2013 by Interim President Adly Mansour), further amended by a fifty-member Constituent Assembly (formed based on a presidential decree number 570, issued on 1 September 2013), approved by popular referendum on 14 and 15 January 2014 (by 98.1 percent with a turnout of 38.6 percent out of Egypt’s 53 million registered voters) and finally announced as effective on 18 January 2014 by the High Election Commission. See Michael Meyer-Resende, “Egypt: In-Depth Analysis of the Main Elements of the New Constitution” (Belgium: European Parliament – Directorate-General for external policies of the Union, 2014), 6–8, available at http://www.europarl.europa .eu/RegData/etudes/note/join/2014/433846/EXPO-AFET_NT(2014)433846_EN.pdf (last accessed 16 August 2017). Article 101 of the Egyptian Constitution (2014) states: “In the manner stated in the Constitution, the House of Representatives is entrusted with the authority to enact legislations and approve the general policy of the State, the general plan of economic and social development and the State budget. It exercises oversight over the actions of the executive power.” Article 156 of the Egyptian Constitution (2014) states: “In case an event which requires taking urgent measures, which cannot be delayed, occurs while the House of Representatives is not in session, the President of the Republic shall call the House for an urgent meeting to present the matter thereto. If the House of Representatives has not been elected, the President of the Republic may issue decrees having the force of law, provided that they are then presented to, discussed and approved by the new House of Representatives within fifteen days from the commencement of its session. If such decrees are neither presented nor discussed by the House, or if they are presented but not ratified thereby, their force of law shall retroactively be revoked without need for issuing a decision to that effect, unless the House confirms its effectiveness during the previous period or decides to settle the consequences thereof.” Article 167 (4) and (5) of the Egyptian Constitution (2014) states: “The government shall particularly exercise the following functions: […] (4) To prepare draft bills and decrees; (5) To issue administrative decrees in accordance with the law, and to follow up on their implementation […]” Article 171 of the Egyptian Constitution (2014) states: “Upon the approval of the Council of Ministries, the Prime Minister shall issue the decrees necessary for the creation and organization of public utilities and services.” Article 226 (4) of the Egyptian Constitution (2014) states: “ […] If the amendment request is approved by the House, it shall discuss the text of the articles requested to be amended

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­publication in the Egyptian Official Gazette (Al-Gareedah al-Rasmeyah), unless a specific date is indicated.66 It is worth mentioning that the Constitution attributes to International Conventions the rank of statutory laws, which can be applied by domestic courts upon ratification by the House of Representatives and publication in the Official Gazette.67 Furthermore, it should be noted that Egypt’s Constitution refers in Article 2 to Islamic jurisprudence being the principal source of legislation.68 While Egypt’s legislation was mainly influenced by the Hanafi School of thought,69 the legislature may base its domestic laws on all four Sunni schools of thought since the adoption of Article 3 of Law No. 1 of 2000.70 Egypt’s judicial system comprises three tiers, namely, the Courts of First Instance (Mahkmat al-Daragah al-Aoulah), the Courts of Appeal (Mahkmat alEstiʾanaf), and the Court of Cassation (Mahkmat al-Naqd).71 While the Courts of First Instance have jurisdiction over misdemeanors and civil disputes up to 5,000 Egyptian Pound (hereinafter “egp”) (equivalent to usd 295); the Courts of Appeal serve as courts of first instance for capital crimes as well as for civil disputes exceeding egp 5,000, and as courts of appeal for decisions issued by

66

67

68

69 70 71

within 60 days from the date of approval. If approved by a two-thirds majority of the House’s members, the amendment shall be put to a public referendum within 30 days from the date the approval is issued. The amendment shall be effective from the date on which the referendum’s result and the approval of a valid majority of the participants in the referendum are announced. […]” Article 225 of the Egyptian Constitution (2014) states: “Laws shall be published in the Official Gazette within 15 days from the date of their issuance, to be effective after 30 days from the day following the date of publication, unless the law specifies a different date.” Article 93 of the Egyptian Constitution (2014) states: “The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.” See Abdullahi Ahmad An-Naʾim, Islamic Family Law in a Changing World: A Global Resource Book (London: Zed Books, 2002), 170. Article 2 of the Egyptian Constitution (2014) states: “Islam is the religion of the State and Arabic is its official language. The principles of Islamic Shariʾa are the main source of legislation.” See Y. Qassem, “Law of the Family,” in Egypt and Its Laws, ed. Nathalie Bernard-Maugiron, Baudouin Dupret, and Wael Rady (New York: Kluwer Law International, 2002), 20. See Jasmine Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights: International Law and the Reform of Shariʾa-Derived Legislation (Leiden: Brill, 2011), 128. See United States Law Library of Congress, “Legal Research Guide: Egypt,” September 6, 2015, available at http://www.loc.gov/law/help/legal-research-guide/egypt.php (last accessed 16 August 2017).

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the Courts of First Instance. The Court of Cassation is the highest judicial body and serves as a Court of Appeal related to criminal and civil matters. In addition to the aforementioned ordinary judiciary (Al-qadaʾ al-ʿadi), which has jurisdiction over civil, commercial and criminal matters, Egypt’s judicial system provides for courts with specialized jurisdiction, including, Family Courts (Mahkmat al-Ausrah), Economic Courts (Mahkmat al-Eqtsadyah), Environmental Courts (Mahkmat al-Beaeyah),72 the Administrative Judicial Court (Mahkmah al-Qdaʾa al-Edari), Military Courts (Mahkmah al-Askariyah) and the Supreme Constitutional Court (Mahkmah al-Dostouriah al-Aolyah).73 It is noteworthy that Shariʾa courts were first integrated into the ordinary judiciary in 1956 when judges of the ordinary judiciary had been trained in Shariʾa Law as well as in legislation applying to different Christian sects74 up to the establishment of specialized Family Courts in 2004.75 Ever since Family Courts apply religious laws depending on the plaintiff’s religion in matters pertaining to tutelage, divorce, alimony, custody and inheritance.76 Thus, two courts within Egypt’s judicial system apply Shariʾa Law, namely the Family Courts and the Fatwa Council of the Al-Azhar Mosque.77 1.5

The Women’s Convention’s Monitoring Body

The present section will shed light on the functions of the Women’s Convention’s monitoring body, the cedaw Committee. Article 17 cedaw outlines the establishment of the cedaw Committee, responsible for monitoring the implementation of the Women’s Convention. The cedaw Committee is a body of twenty-three independent experts on women’s rights with geographical representation, who meet annually in accordance with Article 20 cedaw.78 According to the Women’s Convention, the 72

73 74 75 76 77 78

Like the ordinary judiciary, Family Courts, Economic Courts and Environmental Courts are comprised of a three tiers system, including, a first instance, an intermediate instance and a final appellate court. See Ibid. See Ibid. See Abdel Wahab. See United States Law Library of Congress, “Legal Research Guide: Egypt.” See Ibid. See Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (Chicago: The University of Chicago Press, 2012), 4. See Andrew Byrnes, “The Committee on the Elimination of Discrimination against Women,” in Women’s Human Rights: cedaw in International, Regional and National Law, eds. Anne Hellum and Henriette S. Aasen (Oxford: Oxford University Press, 2013), 29.

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­Committee’s responsibilities include, reviewing periodic State reports on the implementation of the Convention (Article 18), issuing Concluding Observations with regard to legislative and political measures (Article 20) and formulating interpretations of the Women’s Convention’s articles by issuing General Recommendations (Article 21). However, the Women’s Convention does not provide for details as to how the cedaw Committee should undertake its tasks, which allowed the Committee to establish its own working methods, laid down in the cedaw Committee’s rules of procedure.79 Pursuant to Article 18 cedaw, all member States are required to submit every four years a periodic State report on their implementation efforts. The cedaw Committee considers each States party’s report, addresses its concerns, and gives recommendations to the States parties in form of Concluding Observations.80 Since 1999, Non-Governmental Organizations (ngo’s) holding consultancy status at the un, are permitted to submit alternative or shadow reports, on the Convention’s implementation efforts and may attend the Committee’s meetings.81 In order to get a comprehensive overview of the progress made in relation to a State’s implementation efforts, the cedaw Committee regularly puts these shadow reports into consideration when issuing Concluding Observations, as these ngo-reports generally provide a more critical evaluation compared to States party’s reports.82 In addition to the periodic report, the cedaw Committee can request exceptional reports for cases of grave women’s human rights violations (Article 18 (1) (b) cedaw).83 Pursuant to Article 21 (1) cedaw, the cedaw Committee is entitled to issue General Recommendations, which address issues of general concern and are directed at all States parties, whereas Concluding Observations address merely one specific State party.84 Some General Recommendations85 deserve special 79

See Boerefijn, “Article 17–22 cedaw,” 490. To view the Committee’s Rules of Procedure, see un Doc A/56/38 (supp), amended by A/62/38 (supp), visit the online Database of the Office of the un High Commissioner for Human Rights, available at http://www2.ohchr.org/english/bodies/cedaw/rules.htm (last accessed 16 August 2017). 80 The cedaw Committee decided in 1994 to adopt “Concluding Comments” upon the consideration of States parties’ periodic reports and changed its title to “Concluding Observations,” see cedaw Committee, “Decision 40/III” (un Doc A/63/38, fortieth session 2008). 81 See Vandenhole, The Procedures before the un Human Rights Treaty Bodies, 37, 72. 82 See Christian Tomuschat, Human Rights between Idealism and Realism, 2nd ed. (Oxford: Oxford University Press, 2008), 184. 83 See Boerefijn, “Article 17–22 cedaw,” 500. 84 See Ibid., 523. 85 To view all General Recommendations issued by the cedaw Committee, visit the online Database of the Office of the un High Commissioner for Human Rights, available

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attention, such as, the rejection of Female Genital Mutilation (hereinafter “fgm”),86 the condemnation of violence against women,87 the call for equality in marriage and family relations,88 as well as the claim for equality in political and public life.89 As outlined in Section 1.1, the op-cedaw enables the cedaw Committee to receive communications from individuals or groups about violations of rights protected by the Women’s Convention, and to initiate an inquiry procedure when grave or systematic violations occur.90 Based on these competencies, the cedaw Committee is considered to be part of the adjudicative un bodies with quasi-judicial powers.91 1.6 Additional un Entities Concerned with Gender Equality The present section will briefly highlight other un bodies, beyond the cedaw Committee, working towards the goal of achieving gender equality within the un system. Based on Article 68 un-Charter,92 the Economic and Social Council (hereinafter “ecosoc”) established the former Human Rights Commission in 1946, replaced by the Human Rights Council in 2006, as well as the Commission on the Status of Women (hereinafter “csw”) in 1947.93 The csw is the institutional center for the un’s women’s rights policy.94 It drafted the Women’s C ­ onvention, prepares the annual un Women’s conference, and is responsible for monitoring the implementation of the outcome documents.95 Additionally, the csw

86 87 88 89 90 91 92 93 94 95

at http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Recommendations.aspx (last accessed 16 August 2017). cedaw Committee, “General Recommendation No. 14” (un Doc cedaw/C/GC/14, ninth session 1990). cedaw Committee, “General Recommendation No. 19” (un Doc CEDAW/C/GC/19, ­eleventh session 1992). cedaw Committee, “General Recommendation No. 21” (un Doc CEDAW/C/GC/21, ­thirteenth session 1994). cedaw Committee, “General Recommendation No. 23” (un Doc CEDAW/C/gc/23, ­sixteenth session 1997). See Vandenhole, The Procedures before the un Human Rights Treaty Bodies, 303 ff. See Martin, International Human Rights and Humanitarian Law, 7. Charter of the United Nations, opened for signature 26 June 1945, entered into force 24 October 1945. See Gerd Oberleitner, Global Human Rights Institutions (Cambridge: Polity, 2007), 40. See Philip Alston, Ryan Goodman, and Henry J. Steiner, International Human Rights (­Oxford: Oxford University Press, 2013), 693. See Schöpp-Schilling, “Das Frauenrechtsübereinkommen,” 155.

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undertakes studies and formulates recommendations for the implementation of women’s rights.96 The former Human Rights Commission only started to pay greater attention to women’s rights in 1993, particularly regarding gender mainstreaming and violence against women, by appointing a Special Rapporteur on Violence against Women, who submits an annual report to the Human Rights Council. These “Charter-based bodies” are intergovernmental commissions mandated to protect human rights.97 The cedaw Committee, on the other hand, is a “Treaty-based body,” established on the grounds of the Women’s Convention to monitor the implementation of the Convention.98 A notable difference between the cedaw Committee, the csw and the Human Rights Council, is that the former is composed of independent experts elected by States parties, whereas the latter two are composed of State representatives, which is the reason why they are often referred to as “political commissions.”99 Nevertheless, the different entities interact with each other.100 The cedaw Committee and the Special Rapporteur, for instance, established an ongoing formal exchange on the issue of gender-based violence in 1997.101 In 2010, the General Assembly established the un Entity for Gender Equality and the Empowerment of Women, known as un Women, and thereby unified the four previous un entities102 working on gender equality.103 The General Assembly equipped un Women with a three-fold mandate – normative, coordinative and operational – to work towards gender equality. The normative mandate aims at supporting inter-governmental bodies in formulating policies, global standards and norms. The coordinative mandate aims at s­ upporting member States and civil society in the implementation of these standards; while the operational mandate aims at holding the un system accountable for applying these standard internally.104 96 97 98 99 100 101 102

103 104

See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “The International Human Rights of Women,” 8. See Oberleitner, Global Human Rights Institutions, 40. See Chapter 1.5. See Oberleitner, Global Human Rights Institutions, 40. See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “The International Human Rights of Women,” 8; Boerefijn, “Article 17–22 cedaw,” 478. See Philip Alston, Ryan Goodman, and Henry J. Steiner, International Human Rights, 693. These four previous entities included: Division for the Advancement of Women (daw), International Research and Training Institute for the Advancement of Women (­i nstraw), Office of the Special Adviser on Gender Issues and Advancement of Women (osagi), United Nations Development Fund for Women (unifem). See Boerefijn, “Article 17–22 cedaw,” 479. See General Assembly (ga), “Resolution on System-Wide Coherence” (un Doc A/RES/ 64/289, Sixty-fourth session 2010).

chapter 2

Egypt’s Shariʾa-based Reservations to the Women’s Convention This chapter seeks to assess whether the scope of Egypt’s legal obligations ­resulting from the Women’s Convention are modified in light of Egypt’s Shariʾabased reservations. When assessing Egypt’s implementation efforts, the first question arising is the scope of Egypt’s legal obligations. According to general principles in Public International Law, States parties may enter reservations to multilateral treaties and thereby limit or modify treaty obligations. The modification effect, however, presumes that reservations comply with certain formal requirements as well as with the treaty’s object and purpose as set out in the Vienna Convention of the Law of Treaties (vclt), which governs the making, operation and termination of treaties between States. It should be noted that these rules established by the vclt mostly reflect Customary International Law1 and are thus also applicable to non-States parties to the vclt. As mentioned in Chapter 1.2, Egypt had initially entered reservation to ­Articles 2, 9 (2), 16 and 29 (2) cedaw upon signature, but withdrew its reservation to Article 9 (2) cedaw in 2008 after amending its Nationality Law accordingly. While the reservation to Article 29 (2) cedaw is merely of procedural nature, the reservations to Articles 2 and 16 cedaw are substantive in nature, justified based on the prevalence of Shariʾa Law. Whether these two substantive reservations qualify as permissible reservations and thus have a modifying effect will be subject of the present chapter. For that purpose Egypt’s two ­substantive reservations, namely Articles 2 and 16 cedaw, will be looked at in light of its compliance with the rules set out in the vclt. Egypt’s reservation to Article 2 cedaw states:

1 As noted by the International Court of Justice, for instances, in the Namibia case, Advisory Opinion, icj Reports, 1971, pp. 16, 47 and the Fisheries Jurisdiction case (uk v. Iceland), icj Reports, 1973, pp. 3, 18. See also Malcolm N. Shaw, International Law, 7th ed. (Cambridge: Cambridge University Press, 2014), 474.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004346840_004

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The Arab Republic of Egypt is willing to comply with the content of this Article, provided that such compliance does not run counter to the ­Islamic Shariʾa.2 Egypt’s reservation to Article 16 cedaw states: Reservation to the text of Article 16 concerning the equality of men and women in all matters relating to marriage and family relations during the marriage and upon its dissolution, without prejudice to the Islamic Shariʾa 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 in 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, not a quasi-equality that renders the marriage a burden on the wife. The provisions of the Shariʾa lay down that the husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not obliged to spend anything on her keep. The Shariʾa therefore restricts the wife’s rights to divorce by making it contingent on a judge’s ruling, whereas no such restriction is laid down in the case of the husband.3 The following sections will first examine whether both reservations comply with the permissibility requirements set out by the vclt in conjunction with Article 28 cedaw (2.1). Hereinafter, the legal effects of invalid reservations will be evaluated and applied to Egypt’s reservations to the Women’s Convention (2.2). This chapter will conclude by discussing the legitimacy of Sharia reservations – as culturally justified restrictions to international human rights standards – and thus touch upon the debate revolving around universalism of human rights versus cultural relativism (2.3).

2 untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” 3 Ibid.

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Permissibility of Egypt’s Reservations

For Egypt’s substantive reservations to Articles 2 and 16 cedaw to have the legal effect of modifying these treaty obligations, they must meet the permissibility requirements set out in Articles 2 (1) (d) and 19 vclt. Those include the following three requirements: First, the relevant reservation must qualify as an actual reservation, as opposed to a mere interpretation. According to Article 2 (1) (d) vclt a reservation is: [a] unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.4 Egypt entered both amendments to Articles 2 and 16 cedaw in written form upon signature. Both amendments intend to limit Egypt’s obligations resulting from Articles 2 and 16 cedaw, namely to eliminate gender discrimination in its domestic criminal and family law, where it runs counter to Shariʾa Law provisions. Thus, both amendments qualify as reservations. Second, the specific treaty must not prohibit States parties from entering reservations according to Article 19 (a) vclt. Article 28 (1) cedaw explicitly permits States to enter reservations to the Women’s Convention. Therefore, the general debate on whether the reservation regime of the vclt is applicable to human rights treaties5 becomes obsolete. Third, the relevant reservation must be compatible with the object and purpose of the respective treaty, according to Article 19 (c) vclt. Article 28 (2) 4 untc, “Text to the vclt.” 5 For a detailed presentation of the academic controversy around the applicability of the vclt to human rights treaties, see Alain Pellet and David Müller, “Reservations to Human Rights Treaties: Not an Absolute Evil…,” in From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, ed. Bruno Simma and Ulrich Fastenrath (Oxford: Oxford University Press, 2011), 521, 533. In summary, opponents of the vclt’s applicability to human rights treaties stress that these human rights treaties provide for an entire normative system, which would fail if States were for instance allowed to withdrew from this system. Opponents further argue that the vclt is based on the principle of reciprocity and therefore cannot be applied to human rights instruments, because human rights treaties aim at universal applicability. While proponents of the vclt’s applicability to human rights treaties admit the difference in nature of human rights treaties, they however deny that the absence of reciprocity constitutes a specific characteristic to human rights instruments.

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cedaw mirrors Article 19 (c) vclt as it states “[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted.”6 In order to determine the compatibility of Egypt’s reservations with the object and purpose of the Women’s Convention, the following assessment is necessary: first, determining the object and purpose of the Women’s Convention (2.1.1), second, evaluating whether the reserved provisions, namely Article 2 and 16 cedaw, reflect the object and purpose of the Women’s Convention (2.1.2), and third, analyzing Egypt’s specific reservations (2.1.3). Beforehand, some basic notions as to the establishment of the central provision within the vclt’s reservations regime, commonly referred to as the “compatibility rule” or “object and purpose test,” will be provided. The “­compatibility rule” was a compromise between two opposing views regarding the question whether reservations must be accepted by other States parties to the treaty. This question was referred to the International Court of Justice (hereinafter “icj”) by the un General Assembly for an advisory opinion in 1951.7 The first view strove for a universal adoption of international treaties, and considered States to be permitted to enter reservations without depending on other States’ acceptance, due to their sovereignty.8 The other view strove for the integrity of international treaties, and therefore regarded the acceptance of reservations by all other States parties as essential.9 Based on these two views, the icj developed the “object and purpose test” which attempts to achieve a balance between maintaining the integrity of the text and securing widespread acceptance by allowing reservations unless they are incompatible with the object and purpose of the treaty.10 The “object and purpose test” constitutes an objective criterion, which marks the threshold of validity, and has been accepted by the International Law Commission (hereinafter “ilc”) in 1962, and finally established by Article 19 (c) vclt in 1969.11

6 7

ohchr, “Text to Women’s Convention.” Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case, Advisory Opinion, icj Reports, 1951, p. 31. 8 Predominantly followed by the Soviet Union, see Report of the Secretary General to the Six Committee of the unga, 20 September 1950, un Doc A/1372, para 3–50; Christian Walter, “Article 19 vclt,” in The Vienna Convention on the Law of Treaties: A Commentary, ed. Olivier Corten et al. (Oxford: Oxford University Press, 2011), 244. 9 Predominantly followed by the un Secretary General, see Ibid. 10 See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case, Advisory Opinion, icj Reports, 1951, p. 31. 11 See Pellet and Müller, “Reservations to Human Rights Treaties: Not an Absolute Evil…,” 521, 224.

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2.1.1 Women’s Convention’s Object and Purpose In line with many other international treaties, the Women’s Convention does not provide a distinct definition of the object and purpose, which often creates some difficulties when it comes to its determination. Therefore, the ilc adopted the Guide to Practice on Reservations to Treaties12 in 2011 for the purpose of clarifying circumstances involving reservations, which states: The object and purpose of the treaty is to be determined in good faith, taking account of the terms of the treaty in their context, in particular the title and the preamble of the treaty. Recourse may also be had to the preparatory work of the treaty and the circumstances of its conclusion and, where appropriate, the subsequent practice of the parties.13 The Women’s Convention’s title asserts a rather general definition of the object and purpose: It aims for the elimination of all forms of discrimination against women.14 Throughout the preamble the principle of “non-discrimination on the basis of sex” is emphasized.15 It introduces the subject matter of the treaty as the “prohibition of discrimination on the basis of sex.” It further underlines the promotion of “equality of rights of men and women”16 and the ­determination “to adopt the measures required for the elimination of such discrimination in all its forms and manifestations.”17 It can be noted that the p ­ reamble aligns with the treaty text and can therefore be used to determine the object and purpose of the treaty. As the preamble coincides with the title of the ­Women’s Convention as well as the travaux preparatoires,18 the object and purpose 12

13 14

15 16 17 18

Based on the un ga Resolution 48/31 of 9 December 1993, the International Law Commission (ilc) was appointed to adopt a guide to practice in respect of reservations. Accordingly the ilc appointed Allain Pellet as Special Rapporteur on Reservations to Treaties in 1995. Based on his sixteen reports (1995 to 2010), the ilc completed its work by adopting the Guide to Practice on Reservations to Treaties, see International Law Commission ilc, “Guide to Practice on Reservations to Treaties” (un Doc A/66/10, sixty-sixth session 2011), available at http://legal.un.org/ilc/reports/2011/english/addendum.pdf (last accessed 16 August 2017). Ibid., Sec. 3.1.5.1. See Anna Jenefsky, “Permissibility of Egypt’s Reservations to the Convention on the Elimination of All Forms of Discrimination against Women,” Maryland Journal of International Law and Trade 15 (1991): 210. See Freeman and Chinkin, “Introduction,” 17. Preamble para 5, ohchr, “Text to Women’s Convention.” Preamble para 6 Ibid. “According to the vclt the preamble is resorted to for determination of the object and purpose of the treaty as long as there is no inconsistency between them,” see Beate ­Rudolf

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of the Women’s Convention can be determined as “ensuring equality between man and women” and “setting an obligation for States parties to provide the means to reach this result.”19 Articles 2, 16 cedaw Reflect Women’s Convention’s Object and Purpose Furthermore, Articles 2 and 16 cedaw are required to be considered “core provisions” of the Women’s Convention, in order to reflect the Women’s Convention’s object and purpose. The ilc’s Guide to Practice on Reservations to Treaties stipulates:

2.1.2

To assess the compatibility of a reservation with the object and purpose of a treaty containing numerous interdependent rights and obligations, account shall be taken of that interdependence as well as the importance that the provision to which the reservation relates has within the general tenour of the treaty, and the extent of the impact that the reservation has on the treaty.20 Article 2 cedaw requires governments to take specific legislative action to implement the Women’s Convention.21 It is the basic norm for the Women’s Convention’s implementation, as it gives governments concrete force to implement the Women’s Convention. Along with Articles 3 and 24 cedaw, it requires States parties to work towards the elimination of discrimination against women by adopting legislation, legal institutions and other measures including sanctions where appropriate.22 Article 2 cedaw is therefore the “key provision” to the Women’s Convention’s implementation as it expresses how the Women’s Convention’s objective can be achieved, and had been described by the cedaw Committee as “the very essence of the Convention and crucial to

19

20 21 22

and Christine M. Chinkin, “Preamble,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 38. See Rebecca J. Cook, “Reservations to the Convention on the Elimination of All Forms of Discrimination against Women,” Virginia Journal of International Law 30 (1990 1989): 650. ilc, “Guide to Practice on Reservations to Treaties,” Sec. 3.1.5.6. See Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 206. See Andrew Byrnes, “Article 2 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. ­Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 72.

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its full implementation.”23 Thus, it must be concluded that Article 2 cedaw is a central provision, and a “core right” of the Women’s Convention.24 Article 16 cedaw requires States parties to eliminate discrimination against women “in all matters relating to marriage and family relation,” including the right to enter a marriage (para. 1 a), to choose a spouse (b), the rights and responsibilities during marriage, and dissolution (c), as parents (d), the right to decide the number of children (e), to guardianship (f), the same personal (g) and property rights (h) and in paragraph 2 the abrogation of child betrothal and marriage. The female’s reproductive biology has been her historical heritage, and has led to her limitation within the domestic sphere.25 This traditional role of females is considered to be inferior, as it does not contribute to the financial stability of the family.26 To date, this perception is the primary reason for women not being an equal part within the public sphere, society and work environment worldwide.27 This perception thus violates the concept of equality, stipulated not only in Article 1 cedaw and the preamble, but in many other human rights documents, as well.28 Article 16 requests member States to implement domestic laws in marriage and family relations in order to ensure the principle of equality and justice. The cedaw Committee asserted, “[a] women’s right to freely [choose when, if and whom she will marry] is central to her life, to her dignity and equality as a human being.”29 The same applies to the ­dissolution 23 See cedaw Committee, “General Recommendation No. 28” (un Doc CEDAW/C/GC/28, forty-seventh Session 2010), para. 41. 24 See cedaw Committee, “Annual Report of the Committee on the Elimination of Discrimination against Women to the General Assembly on the Committee’s Eighteenth and Nineteenth Sessions” (un Doc A/53/38/Rev.1, ga fifty-third session 1998), para. 6, http:// www.un.org/womenwatch/daw/cedaw/reports/18report.pdf (last accessed 16 August 2017); Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 211; Hilary Charlesworth and Christine M. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000), 105, 107; Ekaterina Yahyaoui Krivenko, Women, Islam and International Law: Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women (Leiden: Brill, 2009), 123. 25 See Marsha A. Freeman, “Article 16 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 411. 26 cedaw Committee, “gr No. 21,” para. 3, 11; Schöpp-Schilling and Flinterman, The Circle of Empowerment: Twenty-Five Years of the un Committee on the Elimination of Discrimination against Women, 16, 23. 27 See Freeman, “Article 16 cedaw,” 415. 28 See Ibid. 29 cedaw Committee, “gr No. 21,” para. 16.

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of marriage and the guardianship for children. Article 16 cedaw is therefore of utmost importance to ensure the object and purpose of the Women’s ­Convention, that is gender equality. Reservations to this provision do have a substantive impact on the implementation of the Women’s Convention, as gender ­discrimination within the family affects women in two different essential stages in life: As a wife and as a daughter.30 For those reasons, it must be concluded that Article 16 cedaw constitutes a central provision and a “core right” of the Women’s Convention.31 Compatibility of Egypt’s Reservations with the Women’s Convention’s Object and Purpose After having determined the Women’s Convention’s object and purpose and evaluated that Articles 2 and 16 cedaw are core provisions within the Women’s Convention, Egypt’s specific reservations to Articles 2 and 16 cedaw must be assessed in light of their compatibility with the Women’s Convention’s object and purpose. According to the ilc’s Guide to Practice on Reservations to Treaties:

2.1.3

[a] reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general tenour, in such a way that the reservation impairs the raison dʾêtre of the treaty.32 As of Egypt’s reservation to Article 2 cedaw, it allows Egypt to refrain from the obligation to implement the provisions of the Women’s Convention in general as long as it violates Shariʾa Law. Without this obligation, the Women’s Convention is of no practical value, as Article 2 cedaw is the “transformative key” necessary to convert merely theoretical rules to a concrete obligation for governments.33 Egypt’s reservation to Article 2 cedaw must therefore be considered as incompatible with the object and purpose of the Women’s Convention, and is thus impermissible.34 30

See Tove Stang Dahl, The Muslim Family: A Study of Women’s Rights in Islam (Oslo: Scandinavian University Press, 1997), 53. 31 See cedaw Committee, “Annual Report of the cedaw Committee to the ga (un Doc A/53/38/Rev.1)”; Kruiniger, “Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce,” 365. 32 ilc, “Guide to Practice on Reservations to Treaties,” Sec. 3.1.5. 33 See Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 211. 34 See Charlesworth and Chinkin, The Boundaries of International Law, 106; Belinda Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination

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In addition, according to the ilc’s Guide to Practice on Reservations to Treaties, governments should be encouraged: […] to consider limiting the extent of any reservations they lodge to international human rights instruments [and] formulate any reservations as precisely and narrowly as possible […].35 Considering that Egypt’s reservation generally refers to Shariʾa without further specifications, the question arises as to whether this reservation contravenes the international recommendation, according to which reservations should be formulated as narrowly and precisely as possible.36 Shariʾa is a not monolithic legal system but rather a complex set of rules,37 which vary significantly among the different Islamic schools of thought (“madhahib”), particularly in regard to Family Law.38 Accordingly, and by way of example, under the Maliki school of thought, women have the broadest set of grounds based on which women can seek a judicial divorce; according to the Hanafi school, the set of grounds is significantly more restricted.39 Hence, Egypt’s general Sharia-based reservation, which fails to elaborate as to which Islamic school of thought it adheres to, is not formulated as precisely and narrowly as possible and thus contravenes the above outlined international recommendation. In addition, Egypt’s reservation to Article 2 cedaw also fails to explain in which regard Shariʾa is against Women,” American Journal of International Law 85 (1991): 287; Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 211. 35 cedaw Committee, “Annual Report of the cedaw Committee to the ga (un Doc A/53/38/Rev.1).” 36 See cedaw Committee, “gr No. 21.” 37 See Rohe, Das islamische Recht, 7, 16; Charlesworth and Chinkin, The Boundaries of International Law, 106. For further arguments on the compatibility of Shariʾa-based reservations with the object and purpose of the cedaw, see Belinda Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women,” 281. 38 See John L. Esposito, Women in Muslim Family Law, 2nd ed. (Syracuse: Syracuse University Press, 2001), 35; Urfan Khaliq, “Beyond the Veil: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shariʾa,” Buffalo Journal of International Law 2 (1996 1995): 37 f. Esposito describes the differences in Muslim Family Law among the different schools of thought with regard to divorce law, maintenance claims for a divorced women and inheritance law, see Esposito, Women in Muslim Family Law, 28–48. 39 See Esposito, Women in Muslim Family Law, 34 f. For a list of the set of circumstances for each school of though, see Ibid.

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­incompatible with Article 2 cedaw and hence creates uncertainty among other States parties with regard to the full dimension of the reservation.40 In sum, Egypt’s reservation to Article 2 cedaw is not only contrary to the object and purpose of the Women’s Convention but also to the certainty requirement. As of Egypt’s reservation to Article 16 cedaw, the wording differs from the generally worded reservation entered to Article 2 cedaw. Although this reservation is also based on Shariʾa, it provides for a detailed explanation by stating that Shariʾa provisions accord women “rights equivalent to those of their spouses so as to ensure a just balance between them.”41 It continues with the acknowledgement that Shariʾa Law governs marital relations in Egypt and acknowledges that “one of the most important bases of (marital) relations is an equivalency of rights and duties so as to ensure complementarity which guarantees true equality between the spouses.”42 The reservation then lists duties of a husband and wife, with respect to provisions regarding marriage and family relations in Shariʾa Law. Accordingly, on the one hand, the duties of a husband include, payment of bridal money to his wife, her full maintenance during the marriage and a payment upon divorce. Corresponding to the duties, the husband is granted a right to customary (talaq) and to judicial divorce. On the other hand, the rights of a wife include, retaining her property without an obligation to spend income or property on her family. Correspondingly, her right to divorce is restricted to a judge’s ruling. Egypt’s justification of its reservation to Article 16 cedaw is based on the concept of “equivalency” and “complementarity” of rights and duties between spouses. Although Egypt’s reservation to Article 16 cedaw still lacks a reference as to which Islamic school of thought it refers to, it clearly states which provisions, in particular within the Shariʾa, Egypt intends to refrain from. Thus, third parties to the Women’s Convention are able to assess the full dimension of Egypt’s reservation. Therefore, this reservation does not contravene the certainty requirement as set out by the ilc’s Guide to Practice on Reservations to Treaties. 40

See Charlesworth and Chinkin, The Boundaries of International Law, 106; Belinda Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women,” 310; Jane Connors, “Article 28 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 577. 41 untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” 42 Ibid.

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However, Egypt’s reservation to Article 16 cedaw may be incompatible to the object and purpose of the Women’s Convention. Egypt justifies in its reservation to Article 16 cedaw the male’s right to both customary and judicial divorce – in contrast to the female’s right to mere judicial divorce – with the male’s obligation to pay bridal money, and maintain her fully during the marriage. This understanding reflects the concept of equivalence of rights and duties, rather than the concept of equality in the sense of identity of rights and duties.43 As outlined in Section 2.1.2, the Women’s Convention’s main purpose is to achieve gender equality, which is not only stipulated in Article 1 cedaw but also in its preamble. A woman’s equal right to divorce is indispensible for ensuring gender equality.44 By Egypt reserving to this concept of equality and substituting it with the concept of equivalency, the reservation goes contrary to the object and purpose of the Women’s Convention.45 In addition, this Shariʾabased reservation neglects the fact that a substantial minority of the Egyptian population is Christian (Coptic Orthodox), accounting for between 6 and 18 percent of the population.46 These individuals do not follow Shariʾa Law and therefore do not “benefit” from its rules concerning marital and family rights. The notion of other scholars who have indicated that “the reservation implicitly invokes Article 23 cedaw,”47 according to which “the convention shall not supersede domestic legislation which is more conducive to the achievement of equality,”48 is not convincing. This notion would require that the rules concerning marital and family rights provided by Shariʾa Law in fact grant women more rights than the Women’s Convention. Although Shari’a Law had introduced significant improvements to the status and rights of women, such as in regard to an independent legal personality to own property or conclude 43

44 45 46

47 48

See Alexandra Petersohn, Islamisches Menschenrechtsverständnis unter Berücksichtigung der Vorbehalte muslimischer Staaten zu den un-Menschenrechtsverträgen (Ph.D. thesis University of Bonn, 1999), 194. See Kruiniger, “Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce,” 364 f. See Petersohn, Islamisches Menschenrechtsverständnis unter Berücksichtigung der Vorbehalte muslimischer Staaten zu den un-Menschenrechtsverträgen, 194. The statistics on the number of Christian Copts in Egypt vary considerably. While Egypt’s official statistics agency “Central Agency for Public Mobilization and Statistics” (campas) estimated the number at 5.13 million in 2012; the Coptic Church estimated the Coptic community at 15–18 million, see Cornelis Hulsman, The Sharia as the Main Source of Legislation?: The Egyptian Debate on Article ii of the Egyptian Constitution (Marburg: Tectum Verlag, 2014). Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 232. ohchr, “Text to Women’s Convention.”

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contracts, it still denies women many rights, such as women receiving only half of a man’s share in inheritance. Furthermore, Shariʾa Law requires two women to make testimonials to count for a single witness testimony in a civil case. Shariʾa Law also restricts women to marrying one husband at a time and to seek merely judicial divorce, whereas men are entitled to marry up to four women at a time and divorce them on the grounds of customary or judicial divorce.49 Particularly the last point is important, as a customary divorce has two significant practical advantages. Firstly, to file for divorce, no legal reasons are required to be presented and validated in court. Second, in a country like Egypt – where many people live below the poverty line,50 are illiterate,51 and do not possess personal identification documents52 – the right to carry out a customary divorce might in many cases be the only practical option to achieve a dissolution.53 The fact that women, regardless of their economic privileges during the marriage, are deprived from the customary divorce is not more conducive to the achievement of equality. As the cedaw Committee pointed out, reservations to Article 16 cedaw “entrench inferior roles for women in domestic life,”54 which is why the cedaw Committee has been particularly critical of Shariʾa-based reservations to Article 16 cedaw.55 49

See Abdullahi Ahmad An-Naʾim, “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights,” in Asian Perspectives on Human Rights, ed. Claude Emerson Welch and Virginia A. Leary (Boulder: Westview Press, 1990), 78. 50 Egypt’s Central Agency for Public Mobilization and Statistics (campas), which carries out population and economic censuses and produces current statistics in various social and economic fields, estimates that one fourth of Egypt’s 90 million citizens in 2014 live on or under the un poverty line of 2 usd a day, available at http://www.capmas.gov.eg/ recited in Egyptian Streets, “More than 22 Million Egyptians Live in Poverty: Report.” 51 It is estimated that 25 percent of Egypt’s population in illiterate, see Egyptian Streets, “More than 25% of Egypt’s Population ‘Illiterate’” September 9, 2014, available at http:// egyptianstreets.com/2014/09/09/more-than-25-of-egypts-population-illiterate/ (last accessed 16 August 2017). 52 It is estimated that around 40 percent of Egyptian women possess neither a birth certificate nor an identification card, see Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit: Strategien und Instrumente gegen rechtliche Diskriminierungen von Frauen in der arabischen Welt” (Eschborn, 2008), 14 ff., available at http://www.gender-in-german-development.net/ custom/images/contentBilderGalerie/bilderGalerie1000507/GTZ-BMZ-Auf-dem-weg -zueiner-verbesserten-rechtswirklichkeit-2008-DE.pdf (last accessed 16 August 2017). 53 For a detailed comparison between a judicial and a customary divorce procedure, see Chapter 3.2. 54 See Connors, “Article 28 cedaw,” 573. 55 Ibid.

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Thus, in light of all the above mentioned inconsistencies and the factual discrepancies between both rights of men and women in Egypt, it follows that both reservations must be deemed impermissible as they run counter to the Convention’s object and purpose. 2.2

Legal Effect of Invalid Reservations

After having found that both of Egypt’s reservations to the Women’s Convention are impermissible and thus invalid, the question as to the legal effect of invalid reservations arises. A legal rule may be found in either treaty law (2.2.1) or customary law (2.2.2) as the main primary sources in Public International Law outlined by Article 38 (1) icj-Statute. 2.2.1 Treaty Law Neither the vclt nor the Women’s Convention deals with the legal effects of invalid reservations.56 Although the vclt provides for rules on the acceptance of and objections to reservations, as a legal means to oppose invalid reservations, it appears inadequate for the application on human rights treaties.57 According to Articles 20–23 vclt, States parties may accept or object to reservations entered by other States parties, of which two different scenarios may take place. Firstly, objecting to a reservation, would exempt both the objecting and reserving state from applying the reserved provision. Secondly, if explicitly expressed by the objecting state, objecting to a reservation my even result in the prevention of the entry into force of the treaty between the two States parties. However, the vclt fails to include those legal consequences in the objective criteria stated in Article 19 vclt, which leaves the determination of what constitutes an impermissible reservation to the States parties and leads to “a subjective application of [an] objective criteria.”58 56

See Belinda Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women,” 281; Shaw, International Law, 662. 57 Agreeing: Walter, “Article 19 vclt,” 267; Charlesworth and Chinkin, The Boundaries of International Law, 106; Giegerich, “Treaties, Multilateral, Reservations to,” para. 31; Bruno Simma, “Reservations to Human Rights Treaties – Some Recent Developments,” in Liber Amicorum: Professor Ignaz Seidl-Hohenveldern in Honour of His 80th Birthday, ed. Gerhard Loibl et al. (The Hague: Kluwer Law International, 1998), 662; Roberto Baratta, “Should Invalid Reservations to Human Rights Treaties Be Disregarded?,” European Journal of International Law 11 (2000): 413. Disagreeing: Pellet and Müller, “Reservations to Human Rights Treaties: Not an Absolute Evil…,” 523. 58 Shaw, International Law, 668.

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At this very point, the three major discrepancies between the conceptions of the vclt – as a regime intended to draw rules based on the principle of reciprocity59 as mentioned in Article 21 (1)(b) vclt (contractual treaty) – and the Women’s Convention – as a standard stetting human rights treaty (law-making treaty)60 – become obtrusive: First, as previously mentioned, according to the vclt, States parties determine whether a reservation is impermissible or not. This concept leads to a subjective and possibly even political assessment of the permissibility of reservations. It does not specify whether it refers to all – admissible as well as inadmissible – reservations, or only to those reservations that have passed the object and purpose test.61 In other terms, if States parties have the competency to determine the permissibility of reservations, they may accept impermissible reservations or may object to permissible reservations. Second, according to the vclt, only the reserving and the objecting States are exempted from the application of the reserved provisions, which leads to a complicated and fragmented net of obligations between the different States parties.62 The third practical deficiency of this concept, is that it requires States parties to become proactive and object to a reservation. The past decades have shown, however, that most States parties do not make use of their right to object to a reservation for various reasons, among others, that the use of reservations has become highly politicized.63 This is particularly valid for member States to the Women’s Convention.64 Thus, the vclt, as the relevant international treaty dealing with the permissibility of reservations, does not provide for an adequate answer to the question of legal effects of invalid reservations to human rights treaties.65 59

60 61 62

63 64

65

See Giegerich, “Treaties, Multilateral, Reservations to,” para. 31; Frank Horn, Reservations and Interpretative Declarations to Multilateral Treaties (Amsterdam: North-Holland Publishing Company, 1988), 145 ff. See Horn, Reservations and Interpretative Declarations to Multilateral Treaties, 153. See Simma, “Reservations to Human Rights Treaties,” 663. See Giegerich, “Treaties, Multilateral, Reservations to,” para. 41; Belinda Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women,” 316. See Redgwell, “Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties,” 281. See According to Charlesworth / Chinkin “fewer than 10 percent of States have objected to the reservations on the grounds of incompatibility with the object and purpose of the Convention,” see Charlesworth and Chinkin, The Boundaries of International Law, 107. See Walter, “Article 19 vclt,” 275; Giegerich, “Treaties, Multilateral, Reservations to,” para. 31; Belinda Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women,” 282; Simma, “Reservations to Human Rights Treaties,” 663; Ryan Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,”

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2.2.2 Customary International Law Proof of a legal norm, which defines legal effects of invalid reservations to human rights treaties, may, however, be found in Customary International Law, which consists of State practice (usus) and the corresponding views of states (opinion iuris).66 To preserve the integrity of human rights conventions, and counter the concept provided by the vclt, the call for shifting the competency to determine the impermissibility of reservations from States parties to a third independent institution, such as human rights treaty bodies, has become louder among human rights institutions.67 In fact, two different questions must be distinguished when approaching this matter: First, the question of what legal consequences should be attached to invalid reservations? Second, what consequences would result from invalid reservations for the reserving State’s ratification of the treaty?68 With regard to the first question, the ilc’s Draft Guidelines outline “a reservation that does not meet the conditions of formal validity and permissibility set out [in] the Guide to Practice is null and void, and therefore devoid of legal effects.”69 It further stipulates that this consequence arises irrespective of the reactions of other contracting States.70 Based on the assumption that invalid reservations are null and void, the question as to whether this affects the State’s consent to the treaty as such occurs.71 This controversial issue has been discussed extensively by legal scholars,72 un member States,73 and human rights treaty bodies on American Journal of International Law 96 (2002): 531; Baratta, “Should Invalid Reservations to Human Rights Treaties Be Disregarded?,” 414; Pellet and Müller, “Reservations to Human Rights Treaties: Not an Absolute Evil…,” 544. 66 See Antonio Cassese, International Law, 2nd ed. (Oxford: Oxford University Press, 2005), 157. 67 See infra note 196. 68 See Walter, “Article 19 vclt,” 275. 69 ilc, “Guide to Practice on Reservations to Treaties,” Sec. 4.5.1. 70 See Ibid., Sec. 4.5.3. 71 See Walter, “Article 19 vclt,” 279. 72 See, inter alia, Simma, “Reservations to Human Rights Treaties,” 670 ff; Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 531; Walter, “Article 19 vclt,” 279; Baratta, “Should Invalid Reservations to Human Rights Treaties Be Disregarded?,” 413 ff; Pellet and Müller, “Reservations to Human Rights Treaties: Not an Absolute Evil…,” 544 ff. 73 See, inter alia, United States of America, United Kingdom, and France, “Annexes vi: Observations of States Parties under Article 40, Paragraph 5, of the Covenant” (Report of the Human Rights Committee, Vol. i, gaor, Supp. No. 40 (A/50/40), fiftieth session 1995), 131–40.

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a ­universal74 as well as on a regional75 level. Essentially three different approaches can be distinguished:76 One school of thought77 takes the view that the State party, which entered an invalid reservation, nevertheless remains bound to the treaty without being bound to the reserved provision. This approach has prominently been taken by the u.s. government,78 which bases its argument on the legal concept of “State sovereignty” and “State consent.” This school of thought fails to outline the difference between valid and invalid reservations, as the reserving member State continues benefiting from the State community’s acknowledgement for its “symbolic”79 respect of human rights, while violating the integrity of the treaty as well as Article 19 (c) vclt without facing any consequences. It further infringes upon the interest of other States parties, namely, preserving the bargained-for elements of each provision and thereby affecting the State consent of the other States parties.80 A second school of thought, known as the “absolute invalidity solution,”81 is of the opinion that the invalidity of a reservation nullifies the whole acceptance of the treaty by the reserving State, meaning that the reserving State is no longer a party to the treaty. Proponents of the absolute invalidity solution are likewise backed up by the principle of State consent, which is fundamental to the law of treaties.82 However, opponents of this solution argue that 74 75

76

77 78 79 80 81

82

See, inter alia, Human Rights Committee, “General Comment No. 24” (un Doc CCPR/C/21/ Rev.1/Add.6, fifty-second session 1994). See, inter alia, Belilos v. Switzerland, European Court of Human Rights, (1988) 10 ehrr 466; Loizidou v. Turkey, European Court of Human Rights, Preliminary Objections, (1995) 20 ehrr 99; The Effect of Reservations on Entry into force of the American Convention on Human Rights (Arts. 74 and 75), Inter-American Court of Human Rights, Advisory Opinion oc 2/82, 1982, Ser. A, No. 2. For a detailed presentation of the controversy on whether an impermissible reservation affects the State’s ratification to the treaty, see Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 531 ff. See, inter alia, the us, United States of America, United Kingdom, and France, “Annexes vi: Observations of States Parties under Article 40, Paragraph 5, of the Covenant,” 131. See Ibid. Simma, “Reservations to Human Rights Treaties,” 666; Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 551. See Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 533. See, inter alia, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case, International Court of Justice, Advisory Opinion, icj Reports, 1951, p. 3; Baratta, “Should Invalid Reservations to Human Rights Treaties Be Disregarded?,” 413 ff; Simma, “Reservations to Human Rights Treaties,” 675. See Walter, “Article 19 vclt,” 279.

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d­ isregarding the reserving State’s ratification to the treaty would not be fully in line with the principle of State consent either, because the State in question did initially ratify the treaty.83 Moreover, this solution fails to exercise any kind of “political pressure” on reserving States parties, if there are practically no risks attached to invalid reservations other than the withdrawal of the ratification.84 This could ultimately lead to an extensive practice of formulating invalid reservations.85 In recent years a third school of thought, known as the “severability doctrine” or “Strasbourg approach,”86 has become more popular amongst human rights based institutions. Based on this approach, monitoring bodies determine reservations as invalid and sever such reservations from the ratification. Subsequently, the reserving member State remains bound to the treaty, while at the same time the reservations’ intended legal effect is denied. The severability doctrine has been developed in the late 1980-ies by the European Court of Human Rights’ jurisprudence87 in which the court assumed its competence to determine the validity of reservations and further decided that the reserving State was fully bound to the reserved provision. The Human Rights Committee adopted the severability doctrine in its General Comment No. 24 in 199488 as well as the Inter-American Court of Human Rights in its jurisdiction on H ­ ilaire vs. Trinidad and Tobago – case in 2001.89 In addition to that, a number of States – as the primary subjects of international law – have been supportive 83

84 85 86

87

88 89

See Ibid.; Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 550. Goodman points out that Switzerland stated during the oral argument in Belilos v. Switzerland, “The Swiss Government considers that it would be obviously disproportionate, both in the view of the other Contracting Parties to the Convention and in that of Switzerland, to apply this solution [of annulling its status as a state party] in the Belilos case,” see Belilos v. Switzerland, “Verbatim Report of the Public Hearings held on 26 October 1987,” European Court of Human Rights. Doc. Court Misc (87) 237, para. 47. See Giegerich, “Treaties, Multilateral, Reservations to,” para. 22. See Walter, “Article 19 vclt,” 280. Proponents of this doctrine include, inter alia, Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 556; Simma, “Reservations to Human Rights Treaties,” 666, 669; Cassese, International Law, 175. echr arrogated for itself first the competence to determine the validity of reservations and second to decide that the reserving State (Switzerland) was fully bound to the reserved provision, see Belilos v. Switzerland, European Court of Human Rights, (1988) 10 ehrr 466; Loizidou v. Turkey, European Court of Human Rights, Preliminary Objections, (1995) 20 ehrr 99. See Human Rights Committee, “gc No. 24,” para. 18; Shaw, International Law, 679 f. Hilaire vs. Trinidad and Tobago, Inter-American Court of Human Rights, Preliminary Objections, 2001, iachr Series C no 80, paras. 78 ff.

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of the severability doctrine. Among them,90 the Nordic States (Denmark, Finland, Iceland, Norway and Sweden) pointed out at an annual meeting of the General Assembly’s Sixth Committee that: [t]he reserving state should be regarded as a party to the treaty without the benefit of the reservation. This is the so-called severability doctrine, which has been applied in a number of instances by i.e. the Nordic countries during the past few years. […] It is our hope that this part of the report will reflect practice adopted lately by among others the Nordic countries especially in connection with human rights treaties.91 Finally, the ilc adopted in its Draft Guide to Practice on Reservations to Treaties, the severability doctrine, but allows for modifications if necessary: [w]hen an invalid reservation has been formulated, the reserving State […] is considered a contradicting State […] a party to the treaty without the benefits of the reservation, unless a contrary intention of the said State or organization can be identified. The intention of the author of the reservation shall be identified by taking into consideration all factors that may be relevant to that end, including: (1) the wording of the reservation; (2) statements made by the author of the reservation when negotiating, signing or ratifying the treaty, or otherwise expressing its consent to be bound by the treaty; (3) subsequent conduct of the author of the reservation; (4) reactions of other contracting states and contracting organizations; (5) the provision or provisions to which the reservation relates, and the object and purpose of the treaty.92 Although the severability approach had been exposed to criticism, mainly by the governments of United Kingdom, United States and France,93 based on the

90

91

92 93

For a complete analysis of State practice regarding the severability doctrine, see Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 538; Simma, “Reservations to Human Rights Treaties,” 664 ff. See Swedish statement on behalf of Nordic countries before un Sixth Committee 29.10.1998, reprinted in: Päivi Kaukoranta and Manta Lehto, “Elements of Nordic Practice 1998: The Nordic Countries in Coordination,” Nordic Journal of International Law 68 (1999): 210 ff. ilc, “Guide to Practice on Reservations to Treaties,” Sec. 4.5.2. See United States of America, United Kingdom, and France, “Annexes vi: Observations of States Parties under Article 40, Paragraph 5, of the Covenant,” 131–40.

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argument that this doctrine violates the concept of State consent, a closer look may deconstruct this argument. First, a human rights regime that allows for severing invalid reservations maximizes the overall State consent as it shows consideration of the State consent of the other States parties.94 Moreover, it appears to be questionable whether the State consent of the reserving State party is indeed violated, as each State has the possibility to enter permissible reservations. Second, a human rights regime that allows for severing invalid reservations ensures further the integrity of the treaty as it preserves the purpose of the treaty, which is essential when it comes to standard-setting human rights treaties.95 Even though there seems to be more convincing arguments in favor of the severability doctrine on a theoretical level, a generally consistent State practice among the State community supporting the severability doctrine – as required for the establishment of Customary International Law – cannot be proven.96 A different conclusion may result from looking at the cedaw Committee’s practice regarding legal effects of invalid reservations.97 The Committee has addressed its concerns about invalid reservations in various forms, among others, in the Committee’s General Recommendation No. 498 and No. 20,99 in its successive reporting guidelines,100 during its consideration of Egypt’s initial State report,101 as well as in its request for legal advice on its functions with

94 95 96

See Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 533. See Giegerich, “Treaties, Multilateral, Reservations to,” para. 22. See Goodman, “Human Rights Treaties, Invalid Reservations, and State Consent,” 555; Simma, “Reservations to Human Rights Treaties,” 680; Giegerich, “Treaties, Multilateral, Reservations to,” para. 24. 97 For a detailed examination of the cedaw Committee’s reaction to reservations entered by Islamic States within the reporting mechanism, see Wiesbrock, “Equal Employment Opportunities and Equal Pay,” 430 f. 98 cedaw Committee, “General Recommendation No. 4” (un Doc CEDAW/C/GC/4, sixth session 1987). 99 cedaw Committee, “General Recommendation No 20” (un Doc CEDAW/C/GC/20, eleventh session 1992). 100 cedaw Committee, “Guidelines Regarding the Form and Content of Initial Reports of States Parties” (un Doc A/50/38, fourteenth session 1995), 652 ff. 101 cedaw Committee, “Annual Report of the Committee on the Elimination of Discrimination against Women to the General Assembly on the Committee’s Third Sessions” (un Doc A/39/45, thirty-ninth session 1983), para. 190–193.

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r­ espect to reservations to the Treaty Section of the un Office of Legal Affairs.102 In response, the un Office of Legal Affairs provided an opinion, stipulating that the functions of the Committee “did not appear to include a determination of the incompatibility of reservations, although reservations undoubtedly affect the application of the Convention and the Committee might have to comment thereon in its reports in this context.”103 Although the cedaw Committee has addressed the issue of invalid reservations, it has not yet deemed a single reservation invalid.104 However, it should be mentioned that the cedaw Committee has in recent years considered ­Niger’s reservations to Articles 2 and 16 cedaw105 as well as Bahrain’s reservations to Articles 2, 9, 15, 16106 as “contrary to the object and purpose of the Convention.” It has also considered Tunisia’s reservations to Articles 9, 15 and 16107 as “incompatible with the object and purpose of the Convention.” ­Nevertheless, the Committee refrained from deeming any existing reservation “­invalid,” possibly in order to comply with the opinion provided by the un ­Office of ­Legal Affairs.108 Hence, it follows that the cedaw Committee – unlike e.g. the European Court of Human Rights or the Human Rights Committee – does not arrogate for itself the competency to determine the validity of reservations109 and particularly not to sever invalid reservations from a State’s ratification. Instead, the current States’ practice among the Women’s Convention’s States parties and the cedaw Committee itself seems to favor the first approach, which attaches no direct legal consequences to invalid reservations.110 Due to the Women’s Conventions’ “cultural sensitive content,”111 the Committee chose 102 See Connors, “Article 28 cedaw,” 581. 103 Ibid. 104 See Ibid., 582. 105 cedaw Committee, “Concluding Observations Niger” (un Doc CEDAW/C/NER/CO/2, thirty-eighth session 2007), para. 9. 106 cedaw Committee, “Concluding Observations Bahrain” (un Doc CEDAW/C/BHR/CO/2, forty-second session 2008), para. 16. 107 cedaw Committee, “Concluding Observations Tunesia” (un Doc CEDAW/C/TUN/CO/6, forty-seventh session 2010), para. 12. 108 See Connors, “Article 28 cedaw,” 582. 109 Ibid., 581. Opposing view, see Wiesbrock, “Equal Employment Opportunities and Equal Pay,” 430 f. 110 See Connors, “Article 28 cedaw,” 583. 111 Bangladesh and Egypt’s delegation found that the Committee’s request to the un system to carry out a study on the status of women under Islamic law and customs was “indulging in cultural imperialism and religious intolerance,” see Ibid., 582.

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to approach questionable reservations by engaging States parties on the issue of reservations during the Committee’s consideration of State reports, and through questions submitted in advance of such considerations.112 The cedaw Committee moreover requests reserving States parties to specifically report on their reservations in respect to why they consider reservations to be necessary, and requires them to indicate plans of limiting these reservations’ effect, and where possible, specify a timetable for withdrawing them. Subsequently, the Committee has not developed a specific approach, nor been in favor of a specific doctrine with regard to legal effects of invalid reservations. Therefore, Egypt’s invalid reservations to the Women’s Convention can neither be considered as severable – which would leave Egypt a fully bound State party to the Women’s Convention – nor can they nullify Egypt’s ratification – which would end Egypt’s status as a State party in the Women’s Convention. Subsequently, Egypt’s invalid reservations to the Women’s Convention have no legal effect, as Egypt remains a party to the Convention, with the benefit of its reservation. 2.3

The Way Forward: Sharia-based Reservations: A Culturally Justified Restriction?

Beyond these purely legal considerations, the fact that Egypt entered Shariabased reservations – as culturally justified restrictions to international human rights standards – indicates a cultural relativist conception of human rights over a universal one. While a detailed discussion of the two conceptions is beyond the scope of this book, some notions are in order for assessing the legitimacy of such cultural justifications. On the one hand, proponents of cultural relativism argue that all cultures113 are equally valid, and no culture can be judged by the standards of another culture.114 Thus, human rights as a moral concept, must be shaped according to different cultural or religious traditions, and will therefore naturally vary 112 See Ibid., 583. 113 Culture is generally defined as “the shared ideas, norms, values and beliefs of a people and has both material and non-material components,” see Oluyemisi Bamgbose, “Legal & Cultural Approaches to Sexual Matters in Africa: The Cry of the Adolescent Girl,” University of Miami International and Comparative Law Review 10 (2015): 128. 114 Donnelly portrays the general debate on “cultural relativism vs. universalism,” including the different positions taken within the wide spectrum of relativism – radical, strong, weak – versus universalism – radical, strong, weak – see Jack Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly 6 (1984): 403 ff.

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depending on the cultural or religious context.115 Consequently, proponents of cultural relativism oppose the idea that human rights are universal, and transcultural116 as they consider the set of human rights, embedded in the udhr, as “neo-colonialist,” “patronizing,” “re-enforcing the Western oppressor view”117 or “a tool of western modern imperialism against non-Western States.”118 On the other hand, proponents of universalism argue that humans are all connected by a common cause that is being equal in dignity.119 Hence, all humans have the right to live free from discrimination, inequality, or any treatment infringing on the dignity of a person.120 These rights are possessed by humans simply by virtue of being human,121 and are thus universal inalienable entitlements of individuals held against the State.122 According to proponents of universalism, human rights therefore cannot depend on any cultural or religious context.123 In fact, the udhr, which was the first international document entailing a list of core human rights, was at the time of its adoption in 1948, dominated by Western States, as most of the countries from the global south were still under colonial rule.124 However, to suggest that the udhr mainly reflects Western values ignores the values of other ethical systems, such as Hinduism, Buddhism, Confucianism or Islam.125 All these recognize the basic values of humanity, justice and the limitation of State sovereignty by certain fundamental 115 See Rachelle Cassman, “Fighting to Make the Cut: Female Genital Cutting Studied within the Context of Cultural Relativism,” Northwestern Journal of International Human Rights 6, no. 1 (2008): 128. 116 See Elene G. Mountis, “Cultural Relativity and Universalism: Re-Evaluating Gender Rights in a Multicultural Context,” Dickinson Journal of International Law 15 (1997): 115. 117 See Jason Morgan-Foster, “A New Perspective on the Universality Debate: Reverse Moderate Relativism in the Islamic Context,” ilsa Journal of International & Comparative Law 10 (2004 2003): 47. 118 See Helen Stacy, Human Rights for the 21st Century: Sovereignty, Civil Society, Culture (Stanford: Stanford University Press, 2009), 48. 119 See Sandra Danial, “Cultural Relativism vs. Universalism: Female Genital Mutilation, Pragmatic Remedies,” The Journal of Historical Studies 2, no. 1–10 (2013): 3. 120 See Philip Alston, Ryan Goodman, and Henry J. Steiner, International Human Rights, 490. 121 See Ibid. 122 See Ibid. 123 See Shelley Simms, “What’s Culture Got To Do With It? Excising the Harmful Tradition of Female Circumcisio,” Harvard Law Review 106 (1993): 1953. 124 See Morgan-Foster, “A New Perspective on the Universality Debate,” 47. 125 See Fernand de Varennes, “The Fallacies in the ‘Universalim versus Relativism’ Debate in Human Rights Law,” Asia-Pacific Journal on Human Rights and the Law 7 (2006): 75; Zaunbrecher, “When Culture Hurts,” 690.

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values, which had been rejected by the Western political concept up to the end of the Second World War.126 In addition, the udhr reconciled the two ideological approaches to human rights existent at the time of the cold war, which entailed on the one hand, civil and political rights – supported by the market economies of the Western bloc – and on the other hand, economic, social and cultural rights – supported by the centrally planned economies of the Eastern bloc.127 Thus, the notion of “Western imperialism,” that cultural relativists hold, seems inappropriate and historically incorrect, particularly when considering that heads of States reaffirmed the universality of human rights fifty-three years after the adoption of the udhr, at a time when “countries of the global south” were no longer under colonial rule.128 Apart from the questionable notion of “Western imperialism,” cultural relativists fail to recognize that the doctrine of universalism in fact considers a cultural perspective, when practically assessing whether a certain conduct amounts to a human rights violation. By way of example, when legally assessing whether the right to non-discrimination has been violated, it is generally recognized that a difference in treatment only amounts to discrimination “if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim, or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.”129 In the course of balancing the different interests, one would validly consider the national context, including religious or cultural factors.130 Similarly, the a­ ssessment of 126 See Varennes, “The Fallacies in the ‘Universalim versus Relativism’ Debate in Human Rights Law,” 75. Although An-Naʾim notes that “[i]t may take some innovative reinterpretation of traditional norms to bring them into complete accord with the present formulation of the international standards, but the essence of these standards is already present [which] is particularly true of the Islamic tradition.” See Abdullahi Ahmad An-Naʾim, “Religious Minorities under Islamic Law and the Limits of Cultural Relativism,” Human Rights Quarterly 9, no. 1 (1987): 4. 127 See Shaw, International Law, 197–99. 128 Article 4 of the unesco Universal Declaration on Cultural Diversity, adopted in November 2001, reads: “The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.” 129 See William Schabas, The European Convention on Human Rights: A Commentary (Oxford: Oxford University Press, 2015), 1984. 130 See Varennes, “The Fallacies in the ‘Universalim versus Relativism’ Debate in Human Rights Law,” 75.

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a violation of the right to freedom of speech would lead to a different result for example in Germany, as it would in any other State, due to Germany’s restrictive criminal laws regarding the protection of the victims’ dignity under the Nazi regime. According to Section 130 (4) of the German Penal Code it is prohibited to publicly approve of, glorify or justify the National Socialist rule of arbitrary force,131 which limits the scope of freedom of speech. However, this limitation is justified due to Germany’s particular history,132 whereas such criminal provision would be deemed an unjustified limitation of the freedom of speech for example in the u.s. legal system.133 Hence, the cultural context finds sufficient consideration within the practical application of human rights standards, particularly those allowing for limitations for reasons of a greater national good, such as morality, security, health or public order.134 Subsequently, there seems to be no necessity to subject the theoretical conception of human rights to cultural considerations. The differentiation between placing cultural considerations within the ­theoretical ­conception of human rights standards or within its practical application is important because the latter denies States the a priori exclusion of certain aspects of their domestic legislation from international scrutiny. This exclusion seems to be the inherent interest behind Shariʾa-based reservations rather than a genuine interest in culture or religion. 131 Section  130 (4) StGB reads: “Whosoever publically or in a meeting disturbs the public peace in a manner that violates the dignity of the victims by approving of, glorifying, or justifying National Socialist rule of arbitrary force shall be liable to imprisonment not exceeding three years or a fine.” Available at http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html #p1241 (last accessed 16 August 2017). 132 bverfG, Beschluss des Ersten Senats vom 04. November 2009, 1 BvR 2150/08 available at http://www.bverfg.de/e/re20091104_1bvr215008.html (last accessed 16 August 2017). 133 See Philipp Maximilian Schmidt, Meinungsfreiheit und Religion im Spannungsverhältnis: Eine rechtsvergleichende Untersuchung zwischen Deutschland, Malaysia und den usa (Wiesbaden: Springer-Verlag, 2015), 228. 134 As for those human rights standards, which do not allow for such limitations, it follows that they belong to an absolute minimum core of rights, which can be considered purely universal, leaving no room for the consideration of cultural particularities. (Similarly, the “moderate cultural relativists” who believe that “human rights are culturally relevant to a degree, but there is some minimum core of rights that can be considered universal” see Kimberly Younce Schooley, “Cultural Sovereignty, Islam, and Human Rights – Towards a Communitarian Revision,” Columbia Law Review 25 (1994): 678.) Such list of human rights, which are regarded as “possessing a special place in the hierarchy of rights” (Shaw, International Law, 198.) due to their nature as non-derogable even in times of public emergency, could be found in Article 4 (2) iccpr.

chapter 3

Revision of Egypt’s Implementation Efforts Regarding the Reserved Articles 2, 16 cedaw The object of this chapter will be to determine the extent of Egypt’s legal obligations resulting from its reserved cedaw articles in light of the constraints imposed by Shariʾa Law. According to the wording of Egypt’s reservations to Articles 2 and 16 cedaw, Egypt is exempted from implementing the Women’s Convention where contradictions between the Women’s Convention and Shariʾa Law occur. Effectively, it is bound to implement its reserved Articles (Articles 2 and 16) where no such contradictions occur. To this end an analysis of the question, whether Egypt has taken the necessary steps to eliminate gender-discriminatory legislation – to meet its legal obligation – will be carried out. For this purpose two areas of Egyptian law – domestic violence (3.1) and divorce law (3.2) – will be examined as case studies. This Chapter will conclude by discussing whether or not Egypt is expected to withdraw its Shariʾa-based reservations in the near future (3.3). 3.1

Article 2 (g) cedaw: Domestic Violence

Article 2 cedaw stipulates: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; © koninklijke brill nv, leiden, ���� | doi 10.1163/9789004346840_005

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(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.1 Based on Egypt’s reservation to Article 2 cedaw, the government is merely obliged to implement these obligations as long as they do not conflict with Shariʾa Law. In order to assess whether Egypt meets its modified obligation, the following section will look at Article 2 (g) cedaw to analyze Egypt’s penal law provisions. Egypt’s modified obligation includes a duty to review its penal code where the penal provisions in Criminal Shariʾa Law guarantee more gender equality, than Egypt’s domestic penal provisions. In other terms, Egypt’s Penal Code (hereinafter “epc”) must concede at minimum as much gender equality as Criminal Shariʾa Law does, in order to meet the restriction of the reservation to Article 2 cedaw. Whether or not Egypt fulfilled this obligation, is subject of the current section. For that purpose, three forms of domestic violence will be assessed as case studies, namely “honor” killings,2 wife battery, and marital rape. Those three forms of domestic violence have been selected for analysis, due to the fact that the cedaw Committee explicitly mentioned them in its latest Concluding Observations3 to Egypt’s Periodic State Report.4 After discussing the question whether domestic violence should be considered in light of a family or penal law context (3.1.1), the three domestic violence offenses will be examined in Criminal Shariʾa Law (3.1.2) as well as in the epc (3.1.3). Hereinafter, the three domestic violence offenses in both legal systems will be compared in order to assess gender discrepancies between both. This 1 ohchr, “Text to Women’s Convention.” 2 The term “honor killings” – although commonly used in academic discourse – is problematic in many regards. Feminists and rights activists refuse to accept “a notion of honor that endorses […] violence against women.” For a comprehensive presentation on the discourse, see Lynn Welchman and Sara Hossain, “Honour”: Crimes, Paradigms, and Violence Against Women (London: Zed Books, 2005), 6–8. 3 cedaw Committee, “Concluding Observations Egypt” (un Doc CEDAW/C/EGY/CO/7, fortyfifth session 2010). 4 Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee” (un Doc CEDAW/C/EGY/7, 2008).

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would indicate Egypt’s violation of its modified obligation, resulting from Article 2 (g) cedaw in conjunction with Egypt’s reservation, to eliminate genderdiscriminatory legislation, below the threshold of contradictions between the Women’s Convention and Shariʾa Law (3.1.4). A definition of the terms “violence against women” and “domestic violence” should be provided beforehand. The cedaw Committee defines violence against women as: violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.5 Various un entities6 and frameworks7 categorize domestic violence as a form of violence against women, and define it as: violence that occurs within the private sphere, generally between individuals who are related through blood or intimacy [and] can take many different forms, including physical, psychological and sexual violence.8 Dogmatic Considerations Regarding the Legal Context of Domestic Violence Prior to assessing Egypt’s compliance with Shariʾa Law and subsequently with Article 2 (f) and (g) cedaw, dogmatic considerations as to the legal context of domestic violence will be discussed. When researching domestic violence in Shariʾa Law, the question of whether to address domestic violence in the context of family law or in the context of penal law arises. Considering that the relevant Quranic passage (Sura 4, Aya 34) addresses domestic violence in the context of general inter-marital relations, one could suggest that family law is the relevant legal context in which domestic violence should be assessed. 3.1.1

5 cedaw Committee, “gr No. 19,” para. 6. 6 Inter alia, Commission on Human Rights (chr), “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy, Submitted in Accordance with Commission on Human Rights Resolution 1995/85” (E/CN.4/1996/53, fifty-second session 1996). 7 Inter alia, General Assembly ga, “Declaration on the Elimination of Violence against Women (devaw)” (un Doc A/RES/48/104, December 20, 1993). 8 General Assembly ga, “Resolution on Elimination of Domestic Violence against Women” (un Doc A/58/147, fifty-eighth session 2003).

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However, given the actual act of violence, penal law seems to be the more appropriate legal context. Domestic violence by virtue of its existence has implications on penal as well as family law, both legal contexts do not exclude but rather complement one another.9 However, in order to find out whether domestic violence should be assessed in the course of Article 16 cedaw (addressing the elimination of gender discrimination in family matters), or in the course of Article 2 (f) and (g) cedaw (addressing the elimination of gender discrimination in penal law), it is necessary to categorize domestic violence into either legal context. Such categorization may vary depending on the legal perspective, namely, an international, a Shariʾa or a domestic law perspective. Hence, this question is not only of dogmatic nature, but also of practical importance. Approaching this question through an international law perspective, a look into international frameworks and the jurisprudence of un monitoring bodies, provides an answer on the relevant legal context. Violence against women, specifically domestic violence, is not explicitly addressed by the Women’s Convention. This can be attributed to the “institutional understanding of the issue at the time of its adoption […].”10 However, several un entities have included combating domestic violence in the agenda of un human rights mechanisms, inter alia, the cedaw Committee by adopting General Recommendation No. 1911 in 1992, the ga by adopting the Declaration on the Elimination of Violence Against Women (devaw)12 in 1993, the former Human Rights Commission by adopting the mandate for the first Special Rapporteur on Violence against Women13 in 1994, and the Fourth World Conference on women by adopting the Beijing Declaration and Platform for Action14 in 1995. The aforementioned documents determine an obligation to combat violence against women, and address specifically the issue of domestic 9

10

11 12 13

14

See Lisa Hajjar, “Domestic Violence and Sharia: A Comparative Study of Muslim Societies in the Middle East, Africa and Asia,” in Women’s Rights and Islamic Family Law: Perspectives on Reform, ed. Lynn Welchman (London: Zed Books Ltd, 2004), 1. Christine M. Chinkin, “Violence against Women,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 444. cedaw Committee, “gr No. 19.” ga, “davaw.” Commission on Human Rights chr, “Resolution on Integrating the Rights of Women into the Human Rights Mechanisms of the United Nations” (un Doc E/CN.4/RES/1994/45, ­fiftieth session 1994). Fourth World Conference on Women, “Beijing Declaration and Platform of Action” (un Doc DPI/1766/Wom, September 15, 1995).

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violence.15 Through the adoption of General Recommendation No. 19, violence against women was brought within the terms of the Women’s Convention.16 This General Recommendation not only intends to widen the definition of discrimination against women outlined in Article 1 cedaw to include genderbased violence, but also reads the application of domestic violence into the scope of several Articles of the Women’s Convention (Articles 2 (g), (f), 3, 5, 6, 10 (c), 11, 12, 14, 16 cedaw).17 It that sense, General Recommendation No. 19 sheds light on different dimensions of domestic violence and requires States parties to review its penal provisions, in order to criminalize domestic violence in the scope of Article 2 cedaw, as well as to enumerate its actual forms in the scope of Article 16 cedaw.18 Subsequently, this General Recommendation not only allows for assessing domestic violence in the scope of Article 2 cedaw, but also entails an obligation for States parties to do so. Hence, this approach calls for addressing domestic violence in the context of Article 2 cedaw. When approaching the question of the relevant legal context of domestic violence through a Shariʾa Law perspective, a look into the practice of Islamic scholars on domestic violence provides an answer. Criminal Shariʾa Law (fiqh al-jenayah) includes all those commands or prohibitions mentioned in the Quran, accompanied by the threat of a punishment.19 Due to the fact that domestic violence is not a stand-alone chapter in Criminal Shariʾa Law, each offense must be examined separately. Honor killings are considered in the context of penal law, because taking the life of another person is an act that is generally accompanied with a punishment. Wife battery is considered to be a disciplinary measure in a marital relationship and therefore a family matter, while marital rape is considered neither a family nor a criminal matter. Hence, Shariʾa Law addresses the aforementioned offenses partially in the context of penal law and partially in the context of family law, and thus does not provide a definite answer to the relevant question. A third approach to the question of the relevant legal context of domestic violence is to look into Egypt’s domestic laws. Two facts rule in favor of assessing domestic violence in the context of penal law. First, the epc in principle criminalizes honor killings, battery and rape, although it provides for mitigated penalties in the event that the crime occurred in a domestic environment. 15 16 17 18 19

See Hajjar, “Domestic Violence and Sharia,” 13. See Chinkin, “Violence against Women,” 447. cedaw Committee, “gr No. 19,” 6, 10–23. Ibid., 22 f. See E. Ann Black, Hossein Esmaeili, and Nadirsyah Hosen, Modern Perspectives on Islamic Law (Cheltenham: Edward Elgar Publishing, 2013), 217.

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­Second, the criminal courts have jurisdiction over penal offenses involving domestic violence. Hence, Egypt’s domestic laws consider domestic violence in the scope of penal law. In summary, international and Egypt’s domestic law consider domestic violence in the scope of penal law, whereas Shariʾa Law addresses domestic violence in the context of penal and family law. It can therefore be concluded that domestic violence may be reviewed in the scope of Article 2 (f) and (g) cedaw. 3.1.2 Domestic Violence in Criminal Shariʾa Law Before presenting Shariʾa provisions on honor killings, wife battery and marital rape, an introduction to Criminal Sharia Law will be given. 3.1.2.1 Basic Conception of Criminal Shariʾa Law Shariʾa Law encompasses three different categories of crimes. First, all those offenses of which the punishment is explicitly mentioned in the Quran and / or Sunnah (hadd, plural hudud-offenses). Second, all those offenses which are mentioned in the Quran and / or Sunnah while no punishment is recommended (qisas / diyat-offenses). Finally, all those offenses which were recognized by the local ruler as unwanted conduct, although not mentioned in the Quran and / or Sunnah (taʾazir-offenses).20 Unlike offenses in modern penal codes, which are categorized alongside the protected legal interest, offenses in criminal Shariʾa Law are categorized by the source and conception of the penalties.21 Hudud-offenses comprise at least five crimes, which are considered to be “transgressions of God’s limits,”22 namely, (1) unlawful sexual intercourse (zina), (2) defamation of an individual’s chastity (qadhf), (3) drinking wine (shrub al-khamr), (4) theft (sariqa), and (5) highway robbery (hirabah).23 The Maliki School of thought recognizes two additional hudud-offenses, that are

20

See Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University, 2005), 7; Adel Omar Sherif, “Generalities on Criminal Procedure under Islamic Shariʾa,” in Criminal Justice in Islam: Judicial Procedure in the Shariʾa, ed. M.A. Abdel Haleem, ʿAdil ʿUmar Sharīf, and Kate Daniels (London: I.B. Tauris, 2003), 5 f; Matthew Ross Lippman, Seán McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York: Praeger, 1988), 38. 21 See Lippman, McConville, and Yerushalmi, Islamic Criminal Law and Procedure, 38. 22 See Ziba Mir-Hosseini and Vanja Hamzic, Control and Sexuality: The Revival of Zina Laws in Muslim Contexts (London: Women Living Under Muslim Laws, 2010), 27. 23 See ʿAbd al-Qādir ʾOudah Shaheed, Criminal Law of Islam (Delhi: Adam Publishers & Distributors, 2005), 6.

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armed rebellion (baghi) and apostasy (ridda).24 Hudud-offenses have in common that they address different violations against the public and social order and are explicitly mentioned in the Quran and, or Sunnah.25 While the imposed punishments are fairly harsh, hudud-offenses have particularly high standards when proving its legal requirements in court. The mandatory punishment laid down for these offenses include, firstly the death penalty, carried out by either stoning, crucifixion, or with a sword. Secondly, cutting-off a hand or a foot, and thirdly, flogging with a various number of lashes.26 As hudud-offenses are considered to be crimes against the word of God, the victim cannot waive the punishment. Both women and men face identical punishments.27 Qisas-offenses, the second category of crimes, are referred to in the Quran as criminal acts although no explicit punishments were mentioned.28 This category encompasses offenses against a person or property, punishable by retaliation (qisas) or by compensation (diyat) if the victim or his / her heirs refrain from retaliation.29 Although the penalty is defined and implemented by the local authority, it will only be applied in the event that the victim claims retaliation or compensation, which is why it is often referred to as a matter of private claims.30 As qisas / diyat-penalties are considered to bring redress to the victim, s/he may waive the penalty.31 The third category, taʾazir (discipline)-offenses, was established by the local authority by using its discretionary powers and is not limited to a specific type of offenses.32 They may rather be considered a residual category of offenses providing grounds for penalties of those perpetrators, who have either committed one of the above mentioned offenses, but cannot be convicted due to procedural reasons, or who have committed offenses which resemble these crimes, but do not fall under their legal definition.33 Those include, inter alia, 24

See M. Cherif Bassiouni, The Sharia and Islamic Public Law in Time of War and Peace (Cambridge: Cambridge University Press, 2014), 134; Raj Bhala, Understanding Islamic Law: Sharīʿa (New Providence: LexisNexis, 2011), 1174. 25 See Bassiouni, The Sharia and Islamic Public Law in Time of War and Peace, 134. 26 See Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 183. 27 See Tucker, Women, Family, and Gender in Islamic Law, 187; Krivenko, Women, Islam and International Law, 123. 28 See Sherif, “Generalities on Criminal Procedure under Islamic Shariʾa,” 6. 29 See ʾOudah Shaheed, Criminal Law of Islam, 87; Mathias Rohe, Das islamische Recht: Eine Einführung (München: C.H. Beck, 2013), 39; Paul R. Powers, Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh (Leiden: Brill, 2006), 169 f. 30 See Mir-Hosseini and Hamzic, Control and Sexuality, 28. 31 See Bassiouni, The Sharia and Islamic Public Law in Time of War and Peace, 139. 32 See Sherif, “Generalities on Criminal Procedure under Islamic Shariʾa,” 6. 33 See Peters, Crime and Punishment in Islamic Law, 66.

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embezzlement, perjury or illegal sexual acts not amounting in intercourse.34 There are no specific rules regarding the sentence for taʾazir-offenses, which vary from reprimand to death penalty, as its function is to prevent the perpetrator from repeating the offense.35 According to Criminal Shariʾa Law, a person can only be convicted of a hadd or qisas-offense, if all elements of a crime are present, e.g. the intentional commission or omission of an explicitly prohibited act, carried out by an accountable person (excluding insane or minors), without grounds for justification (exempting offenses committed under duress or in self-defense) or the offender’s repentance.36 All these elements must be proven by two to four witnesses, depending on the charges the offender is accused of.37 3.1.2.2 “Honor” Killings The term “honor killing” (jaraʾim al-sharaf)38 refers to crimes, in which a family member: kills a female relative deemed to have defiled the honour of the family. […] Honour is defined in terms of women’s assigned sexual and familial roles as dictated by traditional family ideology. Thus, adultery, premarital relationships (which may or may not include sexual relations), rape and falling in love with an “inappropriate” person may constitute violations of family honour.39 Although men may also be subject to honor killings, women are the primary victims of such crimes as females are considered to embody the honor of the family.40 34 See Lippman, McConville, and Yerushalmi, Islamic Criminal Law and Procedure, 39–41. 35 See Peters, Crime and Punishment in Islamic Law, 66. 36 See ʾOudah Shaheed, Criminal Law of Islam, 123; Peters, Crime and Punishment in Islamic Law, 19–28; Rohe, Das islamische Recht, 37; Tauqir Mohammad Khan, “Criminal Law in Islam,” in Encyclopaedia of Islamic Law, ed. Arif Ali Khan, vol. 8 (New Delhi: Pentagon Press, 2006), 120–30; Bassiouni, The Sharia and Islamic Public Law in Time of War and Peace, 131 f. 37 See Rohe, Das islamische Recht, 37. 38 See Lama Abu-Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies,” in Feminism and Islam: Legal and Literary Perspectives, ed. Mai Yamani and Andrew Allen (New York: New York University Press, 1996), 141. 39 See Commission on Human Rights (chr), “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences” (un Doc E/CN.4/1999/68, fifty-fifth session 1999), para. 18. 40 See Mohammad Mazher Idriss and Tahir Abbas, Honour, Violence, Women and Islam (Abingdon: Routledge, 2011), 2 f.

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The act of an honor killing entails two separate relevant criminal acts a­ ccording to Criminal Shariʾa Law. First, the offense of unlawful sexual intercourse (zina),41 and second, the responding offense of homicide (qatl), committed by a family member. Both offenses apply equally to men and women.42 Zina is a hadd-offense and as such a conviction presumes the following elements: (1) sexual intercourse between any two persons who are not married to each other, and (2) a confession or concurring testimonies of the adulterers’ sexual intercourse “in flagrante delicto” by four adult, male, Muslim eyewitnesses with thorough credibility.43 If those requirements are met, the judge (kadi) or the local ruler (khalifa) is required to impose death penalty on the married adulterers (muhsan / a), or one hundred lashes on unmarried perpetrators.44 Due to a basic principle in Criminal Shariʾa Law, hadd- and taʾazirpenalties must be executed by a competent authority, after a sentence of the 41

42

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44

See Mir-Hosseini and Hamzic, Control and Sexuality, 43. The crime of Zina is based on Sura 24:2, saying “The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment,” see Yusuf Abdullah Ali, The Meaning of the Holy Qurʾan (Seattle: Create Space Independent Publishing Platform, 2010), Sura 24:2. See Lynn Welchman, “Criminal Law: Overview,” in Encyclopaedia of Women and Islamic Cultures Vol. ii: Family, Law and Politics, ed. Suad Joseph and Afsaneh Najmabadi (Leiden: Brill, 2003), 399. However, Islamic scholars disagreed as to certain scenarios in which the hadd-penalty should be waived for man, for instance, if a soldier has intercourse with a women captured as part of the spoils, or a men has intercourse with his female slave, see Ibn Rushd, The Distinguished Jurist’s Primer (Bidayat Al-Mujtahid Wa Nihayat Al-Muqtasid), trans. Imran Ahsan Khan Nyazee, vol. 2 (Reading: Garnet, 2000), 522. See Doi I. Abdar-Rahman and Abdassamad Clarke, Shariah: Islamic Law, ed. Abia AfsarSiddiqui, 2nd ed. (London: Ta-Ha, 2008), 1204. Considering the high standards of evidentiary, it makes it almost impossible to convict adulterers on the basis of hadd, unless it was committed in public. Therefore, many scholars regard zina as a crime of public indecency, rather than an act carried out in the private sphere. See, inter alia, Asifa Quraishi, “Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,” Michigan Journal of International Law 18, no. 2 (1997): 296. Among all four Sunni schools of thought, Maliki jurists were the only ones accepting the pregnancy of an unmarried woman as evidence for zina, unless there is proof of rape or compulsion; see Rushd, The Distinguished Jurist’s Primer, 2:530. See Black, Esmaeili, and Hosen, Modern Perspectives on Islamic Law, 222. The author points out that the death penalty for zina is not mentioned in the Quran, but based on a number of hadith and therefore taken by the four Sunni schools of thought as the lawful punishment.

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ruling authority had been issued.45 Lynn Welchmann illustrates this principle by pointing out the example of a Hanafi jurist, named Muhammad Ibn Ahmad Al-Sarakhsi, who stated that a man is liable for a qisas-offense, if he kills a person accused of adultery, despite four positive witnesses testimonials, yet prior to the judge rendering his decision.46 This principle aimed at ending the pre-Islamic practices of “revenge killings.”47 Prior to the establishment of Islamic rules, the concept of revenge killings between different tribes was widely spread, which led to an endless cycle of violence and death based on merely alleged grounds of preceding violence.48 Even in the event of public stoning following a death sentence imposed by a judge’s ruling, the four Sunni schools of thought agreed that the first person to commence the stoning was the Imam followed by the public.49 Hence, a family member is not permitted to kill a relative for committing adultery, as this would infringe the two before mentioned procedural rules of hudud-offenses, namely, the penalty must be pronounced by a judge and executed by a local authority. If the high standards of evidence for a conviction based on a hadd-offense are not met, the act of adultery can still be prosecuted as a taʾazir-offense. Although the procedural and substantive requirements for taʾazir-offenses are lower than those for hadd-offenses, the penalty again necessitates a ruling by a judge or local ruler, as well as an appointed person executing the penalty.50 The only category of offenses that may allow for private retaliation is qisas. However, qisas-penalties are merely applicable for offenses against the body and / or property of a person. Hence, adultery does not fall under this category and subsequently does not allow for retaliation.51 Thus, the act of killing an adulterer can neither be regarded as carrying out a penalty on behalf of the State nor as retaliation, but as a separate criminal act of homicide.

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46 47 48 49 50 51

See Zaleha Kamaruddin and Umar A. Oseni, “Between Ideals and Reality: Violence against Women and the Real Image of Women in Islam,” The Journal of Oriental Studies 23 (2013): 84. See Lynn Welchman, “Honour and Violence Against Women in a Modern Sharʾi Discourse,” Hawwa Journal of Women of the Middle East and the Islamic World 5 (2007): 31 f. See Ibid., 26. See Ibid., 27 f. See Rushd, The Distinguished Jurist’s Primer, 2:527. See Bassiouni, The Sharia and Islamic Public Law in Time of War and Peace, 141. Welchman seems to disagree when she mentions in her comment of the Chief Islamic Justice of the Palestinian Authority’s intervention against “murder as revenge or in defense of honour,” that if a husband kills his wife, the homicide may be seen as a means of retaliation (qisas) for the wife’s adultery, provided that the husband can prove the wife’s guilt.

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The second responding offense of homicide (qatl) of one or both adulterers, committed by a family member, falls under the category of qisas-offenses, punishable by retaliation or compensation, depending on the intention of the perpetrator.52 Criminal Shariʾa Law provides for a set of grounds for justification, including self-defense, rendering an unlawful act lawful, thus not punishable. Although almost completely left out in the academic discourse of honor killings,53 self-defense under Criminal Shariʾa Law may in theory serve as grounds of justification for honor killings. The following legal requirements must be met when justifying any offense carried out in self-defense. Firstly, the person acting in self-defense may do so in order to protect its relative’s life, honor, or property, and secondly, the act of self-defense must be proportional, allowing for all those acts necessary to ward off the attacker.54 All four Sunni schools of thought consider it an obligation for anyone physically capable to defend him- or herself to do so, otherwise the initial offense is regarded as consented to.55 In theory the requirements for invoking self-defense seem applicable to some narrow constellations of honor killings. Those include, that firstly the adulterous act (initial attack) amounts to sexual intercourse and thus violates the relative’s honor. Secondly, the killing (defending act) takes place while the adulterous act is still lasting. As mentioned previously, according to Criminal Shariʾa Law, a perpetrator may defend his honor by any act ensuring to end the continuation of the initial attack, including killing both offenders.56 That would exclude alleged adultery, any kind of conduct below the threshold of sexual intercourse, as well as any killing committed after the sexual intercourse took place. However, when looking into the jurisprudence of Islamic scholars it seems that self-defense is not invoked as grounds for justification of honor killings in practice.57 As a result, it may be concluded that killing in the name of honor is illegal in classical Criminal 52 53

54 55 56 57

See Powers, Intent in Islamic Law, 171 f. Merely Peters mentions, that a person may defend an attack on his honour by killing both adulterers, Peters, Crime and Punishment in Islamic Law, 25. Welchman on the other hand, mentions in her comment of the Chief Islamic Justice of the Palestinian Authority’s intervention against “murder as revenge or in defense of honour,” that the husband’s homicide may be seen as a means of retaliation (qisas) for the wife’s adultery, if he can prove the wife’s guilt. See Ibid. See Ibid. See Ibid., 26. For an outline of rulings on homicide in Sunni schools of thought, see Rushd, The Distinguished Jurist’s Primer, 2:479–90. For an outline of zina rulings in Sunni schools of thought, see Ibid., 2:521–30.

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Shariʾa Law.58 The fact that honor killings are prevalent throughout the Muslim world59 is thus more likely to be traditional in nature, than legal.

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To the author’s knowledge, there is no text book on Islamic criminal law which touches explicitly upon the issue of honor killings. It seems that it neither constitutes a form of legal retaliation for the wife’s adultery, nor grounds of defense for her murder. If the specific circumstances are neither mentioned in the course of defense, nor in the course of retaliation, the conclusion must be drawn that the adulterous act does not matter in respect of the murder. Hence, the perpetrator of an honor killing must be regarded as a “regular” murder. Despite the lack of an academic discourse in Shariʾa Law books, some modern Islamic scholars have publically mentioned that honor killings have no religious basis, as recognized by the un Special Rapporteur, Asma Jahangier, on Extra Judicial Summary or Arbitrary Execution, who stated in her report “[…] a number of renowned Islamic leaders and scholars have publically condemned this practice and clarified that it has no religious basis,” see Commission on Human Rights (chr), “Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions 1999” (un Doc E/CN.4/2000/3, fifty-sixth session 2000), para. 78. See also the press release of the Presidency of Religious Affairs, 8 March 2004, stating that “crimes of honour have no place in the Koran and the Islamic religion,” reprinted in Idriss and Abbas, Honour, Violence, Women and Islam, 151. In addition, see Kamaruddin and Oseni, “Between Ideals and Reality,” 83. Here it is argued that the tradition of honor killings contradicts many passages in Quran and Sunnah, which clearly prohibits killing. They assert that even if a prohibited conduct was committed, which may result in death penalty, the punishment must be carried out by an objective authority, rather than a family member. To substantiate the argument, they invoke, for instance, the Quranic verse 4:93 stating: “If a man kills a believer intentionally, his recompense is Hell, to abide therein (For ever): And the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him”; or the Hadith, stating: “The believer will continue to be encompassed by the mercy of Allah so long as he does not shed blood that is forbidden to shed,” related by Al-Bukhari and translated by Muhammad Muhsin Khan, The Translations of the Meanings of Sahih Al-Bukhari (Arabic-English) (Riyadh: Darussalam, 1997). Differing view, see Mir-Hosseini and Hamzic, Control and Sexuality, 28. The authors state, “[b]y making homicide a private matter, the revival of qisas laws allows so-called ‘honour’ crimes, whereby families can kill female members for presumed ‘sexual transgressions’ and the killer can escape with at most a few years imprisonment.” This argument seems to miss out on the fact that although court trials based on qisas-offenses require private claims, the penalty presumes a court sentence. See the un Special Rapporteur, Asma Jahangier, on Extra Judicial Summary or Arbitrary Execution, who stated in her report “[T]he practice of ‘honour killings’ is more prevalent although not limited to countries where the majority of the population is Muslim,” see Commission on Human Rights (chr), “Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions 1999,” para. 78.

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This section results in the conclusion that honor killings are illegal according to Criminal Shariʾa Law. 3.1.2.3 Wife Battery Wounding another person, male or female, generally constitutes the qisas / diyat-offense of bodily harm. Within a marital relationship, however, all four Sunni schools of thought grant the husband a right to physically discipline his wife under certain conditions, as an ultimate disciplinary measure.60 If the 60

See Chaudhry, Domestic Violence and the Islamic Tradition, 27; Hajjar, “Domestic Violence and Sharia,” 9. It should be noted that the basis of this patriarchal conjugal relationship in Islamic Law is the concept of the husband’s authority (“quwwama”) and the wife’s obedience (“taaʾa”), which derives from the Quranic verse 4:34, stating: “Men are the protectors and maintainers of women, because Allah has given the one more [strength] than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in [the husband’s] absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them [first], [Next], refuse to share their beds, [And last] beat them [lightly]; but if they return to obedience, seek not against them Means [of annoyance]: For Allah is Most High, great [above you all].” (Ali, The Meaning of the Holy Qurʾan, Sura 4:34.) Many modern scholars (such as Chaudhry, Sheikh, Karmi, Arberry, Mir-Hosseini, AbuBakr, Lamrabet, just to name a few) disagree with this interpretation of the Quranic verse 4:34. Instead, they buttress a gender-friendly interpretation of this particular verse based on the context of the verse within the Quran, its historical context, the different meanings of the word “beating” as well as the telos (overall spirit) of the Qurʾan, being the enhancement of equality between women and men. Karmi, for instance, asserts that the context in which verse 4:34 is mentioned refers to financial and family matters. Therefore, she argues that men’s authority over women could be seen as only a part of the economic and social situation that existed at that time. She concludes that the husband’s disciplinary measures were meant merely in a symbolic sense because men’s knowledge in terms of financial matters prevailed over that of women at the times of pre-Islamic Arabia (See Ghada Karmi, “Women, Islam and Patriarchalism,” in Women and Islam: Images and Realities, ed. Haideh Moghissi (Oxon: Taylor & Francis, 2005), 169.) Engineer concludes, “[t]he verse must be seen in its sociological context and not as a normative prescription for all times to come. Seen as such it does not advocate male superiority.” (See Engineer, The Rights of Women in Islam, 62.) Mashhour points out the contradiction of the classic interpretation of verse 4:34 to verse 9:71 (which states, “[t]he Believers, men and women, are protectors one of another: they enjoin what is just, and forbid what is evil: they observe regular prayers, practice regular charity, and obey Allah and His Messenger. On them will Allah pour His mercy: for Allah is Exalted in power, Wise.”). Therefore, she argues that verse 4:34 cannot be

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husband meets the conditions, under which he may physically discipline his wife, without exceeding the permitted degree of force, wife battery does not constitute a criminal offense. It is rather considered a discretionary punishment for the wife’s misconduct of disobeying her husband.61 The husband’s set of disciplinary measures merely presumes the wife’s disobedience (nushuz). However, Islamic scholars disagree on how to interpret nushuz. Maliki jurists were in favor of a narrow definition and included “a wife’s sexual refusal, general disobedience and / or her leaving the house without her husband’s permission.”62 At the same time, the Hanafi jurists interpreted nushuz broader, and added to the above mentioned scenarios of nushuz, “not beautifying herself (tark al-zina), not bathing or purifying herself (ghusl), possibly for abandoning her daily prayer, failing to submit herself to her husband (tusallim) and / or struggling against him (al-ʿisaba ʿala).”63 Shafiʾi jurists agreed with Maliki jurists that nushuz should be defined narrowly, but expanded the applicable set of disciplinary measures beyond actual nushuz, to mere fear of nushuz.64 Hanbali jurists shared the same view as Hanafi jurists regarding the definition of nushuz, but expanded it, like the Shafiʾi jurists, to fear of nushuz.65 The husband may choose to react to his wife’s disobedience by applying a set of subsequent disciplinary measures. This comprises first, verbal admonishing, followed by separation of nuptial beds, and ultimately as a last resort, physical beating.66 The Sunni schools of thought disagree as to which degree ­ nderstood in a sense that men have authority over women, if they are ought to be u ­“protectors of one another.” (See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 593). 61 See Al-Nasafi, Hanafi scholar (died in 1310 ad), cited by Zayn al-Din ibn Ibrahim Ibn Nujaym, Al-Bahr al-raʾiq: sharh Kanz al-daqaʾiq (Cairo: al-Matbaʿah al-ʿIlmiyah, 1894), 69 f; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 109. 62 Al-Hattab, Maliki scholar (died in 1547 ad), cited by Muhammad ibn Muhammad Hattab, Mawahib Al-Jalil Li-Sharh Mukhtasar Khalil (Beirut: Dar al-Kutub al-ʾIlmiyah, 1995), 187; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 109. 63 Chaudhry, Domestic Violence and the Islamic Tradition, 101. 64 See Al-Nawawi, Shafiʾi scholar (died in 1277 ad), cited by Abu Zakariya Yahya ibn Sharaf Al-Nawawi, Rawdat Al-Talibin (Beirut: Dar al-Kutub al-ʾIlmiyah, 1992), 677; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 118. 65 See Chaudhry, Domestic Violence and the Islamic Tradition, 125, 129. 66 See Saʾdiyya Shaikh, “Exegetical Violence: Nushuz in Quranic Gender Ideology,” Journal for Islamic Studies 17 (1997): 12, 14. The Sunni schools of thought disagree in how the three subsequent punishments should be carried out. The Maliki school included judges and local leaders to carry out the first punishment of admonishing the wife and set a time frame of one to four months for

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a male’s physical punishment is permitted. The general rule is that beating should be non-extreme (gheir mubarrih) and not cause disfigurement. Maliki jurists understood “non-extreme” as only mildly violent, meaning that the hitting could not be fearsome, cause fractures, or disfiguring wounds, thereby excluding particularly any kind of punching, but allowing for hitting with a whip.67 As for the Shafiʾi jurists, they understood “non-extreme” in a way in which the husband should avoid hitting the face, sensitive places, and places of beauty.68 They prohibited the use of a whip, and allowed merely for the use of cloth, sandal, or a stick.69 Hanbali jurists understood under “non-extreme” that lashes should not be directed at the face, or places of beauty or perilous parts of the body and it should not be applied repeatedly to the same part.70 They allowed for a maximum of ten whiplashes. There is no clear understanding of what constitutes “non-extreme” among the Hanafi jurists, varying from ten71 to a hundred72 lashes. Maliki and Shafiʾi jurists further permitted physical discipline only provided the husband intended to end the wife’s disobedience and provided he believed that she would discard her nushuz subsequently.73 The different Sunni schools of thought also disagree on the legal consequences related to the husband’s exceedance of the permitted degree of

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the second punishment of abandoning the wife in the marital bed, whereby they delayed the third punishment of hitting by a considerable amount of time. The Hanafi, Shafiʾi and Hanbali school, in contrast, view the husband as the person in charge to carry out the punishment. See Al-Khurashi, Maliki scholar (died in 1601 ad), cited by Muhammad ibn ʾAbd Allah Kharshi, Zakariya Khalil ibn Ishaq al-Jundi ʾUmayrat, and ʾAli ibn Ahmad al-Mukhtasar Saʾidi, Hashiyat al-Khurashi ʾala Mukhtasar Sidi Khalil / Muhammad ibn ʾAbd Allah Kharashi (Beirut: Dar al-Kutub al-Ilmiyah, 1997), 19; recited by Chaudhry, Domestic Violence and the Islamic Tradition. See Al-Nawawi, Rawdat Al-Talibin, 676; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 121. See Al-Nawawi, Rawdat Al-Talibin, 670; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 122. See Ibn Qudama, Hanbali scholar (died in 1223 ad), cited by Mawaffaq ad-Din Abdullah Ibn Ahmad Ibn Qudama, Al-Mughni li Ibn Qudama (Cairo: Hajr, 1986), 261 f; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 128. See Al-Humam, Hanafi scholar (died in 1457 ad), cited by Mahmud ibn ʾAbd al-Wahid Ibn Al-Humam, Sharh Fath al-Qadir lil-ʾajiz al-faqir (Beirut: Dar Ihyaʾ al-Turath al-ʾArabi, 1986), 345; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 105 f. See Al-Nasafi, cited by Ibn Nujaym, al-Bahr al-raʾiq, 68, 79 f.; Chaudhry, Domestic Violence and the Islamic Tradition, 106. See Chaudhry, Domestic Violence and the Islamic Tradition, 111 f., 121.

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b­ attery. Pursuant to the Maliki and Shafiʾi school,74 the husband is legally liable for the damages he caused her in form of a monetary compensation (diya). The Hanafi school merely holds him accountable in case his wife dies during corporal punishment.75 Only the Hanbali school does not hold a husband liable for excessive force, regardless of a wife’s death.76 It should be noted that excessive wife battery does not result in retaliation (qisas) for the husband, Maliki jurists however make an exception of this rule for intentional disfigurement.77 This section results in the conclusion that wife battery does not constitute a criminal offense in Criminal Shariʾa Law provided the husband meets the requirements under which he may physically discipline his wife and does not exceed the permitted degree of violence. 3.1.2.4 Marital Rape Similarly to bodily harm, rape in itself constitutes a criminal offense, punishable under the category of taʾazir in Criminal Shariʾa Law. Within a marital relation, however, sexual intercourse is considered to be elemental to the marriage contract, and does not depend on the consent of either spouse.78 Due to the lack of regulation, it follows that marital rape does not constitute a criminal offense according to Criminal Shariʾa Law. Some Islamic scholars go even further by regarding marital rape as permissible means to discipline a spouse in the event of disobedience. As mentioned in the previous section, a husband may apply a set of disciplinary measures, inter alia, the separation of the nuptial bed. Those scholars have been in disagreement as to what this particular disciplinary sanction entails, ranging from confining the wife at home,79 to abandoning a conversation during 74 75 76

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See Ibid., 115, 122. See Ibid., 108. See Al-Karmi, Hanbali scholar (died in 1623), cited by Marʾi ibn Yusuf Al-Karmi, Ghayat almuntaha fi al-jamʾ bayny al-iqnaʾ wa al-Muntaha (Riyadh: Al-Muʾassasa al-Saʾidiyya, 1989), 91 f.; recited by Chaudhry, Domestic Violence and the Islamic Tradition, 129. Chaudhry argues, that the silence of Hanbali jurists on the liability of husbands, in combination with Al-Karmi’s statement that there was no liability in case the wife dies, leads to the conclusion that they protect the husband from any form of legal liability, see Ibid., 129. See Chaudhry, Domestic Violence and the Islamic Tradition, 103, 115 f.; Rushd, The Distinguished Jurist’s Primer, 2:492 f. See Lisa Hajjar, “Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis,” Law & Social Inquiry 29, no. 1 (2004): 11. See Abu Jafar Muhammad ibn Jarir Al Tabari, Jāmiʿ Al-Bayān ʿan Taʾwīl Āy Al-Qurʾān, p. 65, recited by Shaikh, “Exegetical Violence: Nushuz in Quranic Gender Ideology,” 12.

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sexual intercourse,80 to tying her up and forcing himself on her.81 The latter interpretation views marital rape not only as non-penalized conduct, but also as a legitimate way to discipline a wife, thereby adding a sense of legality to marital rape. Although many Quranic verses82 and ahadith83 condemn violence between spouses,84 Criminal Shariʾa Law does not entail a provision that criminalizes marital rape. This section results in the conclusion that marital rape does not constitute a criminal offense in Criminal Shariʾa Law. 3.1.3 Domestic Violence in Egyptian Penal Law Before presenting the composition of honor killings, wife battery and marital rape in the Egyptian Penal Code (hereinafter “epc”), an overall introduction to Egypt’s penal law will be provided. 3.1.3.1 Basic Conception of Egyptian Penal Law The epc is divided into procedural and substantive provisions; the latter encompasses general and special penal provisions.85 The general provisions comprise all those rules pertaining to criminal acts and penalties, such as “[…] terms of time, places and persons, the elements of a crime, participation in crime, reasons for justification and obstacles to penalties […].”86 The epc acknowledges the following circumstances as grounds for justification: legitimate self-defense, exercise of a right, performance of a duty, and consent of a 80 81

82 83

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85 86

See Ibid. See Abu al-Qasim Jar Al-Zamakhshari and Allah Mahmud Ibn ʿUmar, Al-Kashshaaf “an Haqa”iq at-Tanzil Wa “Uyun Al-Aqawil Fi Wujuh Al-Ta”wil (Beirut: Dar al-kitab, 2006), 507; recited by Shaikh, “Exegetical Violence: Nushuz in Quranic Gender Ideology,” 12. See, for instance, verse 30:21, which describe marriages as “tranquil, merciful and affectionate,” Ali, The Meaning of the Holy Qurʾan. See, for instance, Abu Hurairah who narrated that the Prophet said: “The believers who show the most perfect faith are those who have the best character, and the best of you are those who are best to their wives.” Collected and compiled by Abu Isa Muhammad Al-Tirmidhi, Jamiʾal-Tirmidhi (Beirut: Dar al-Gharb al-Islami and Dar al-Jil, 2007). See Hajjar, “Religion, State Power, and Domestic Violence in Muslim Societies,” 11. Hajjar also refers to verse 2:223, which serves for many conservative scholars as the basis for permitting marital rape. Verse 2:223 states, “Your wives are as a tilth unto you; so approach your tilth when or how ye will […],” Ali, The Meaning of the Holy Qurʾan. See Akida, M., “Criminal Law,” in Egypt and Its Laws, ed. Nathalie Bernard-Maugiron and Baudouin Dupret (London: Kluwer Law International, 2002), 37. See Ibid.

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victim.87 Moreover, it names the following circumstances as causes precluding criminal liability: age, insanity or mental disturbance, drunkenness, duress, and cases of necessity.88 The special provisions, on the other hand, name individual offenses, its specific elements and penalties. Those individual offenses are divided into three main chapters, (1) offenses against the public interest, (2) offenses against a person, dignity or honor, and (3) offenses against property.89 It must be noted that the epc does not distinguish between violence committed in a domestic sphere, as opposed to violence committed in a public one, and penalizes violence regardless of the location or perpetrator of the offense.90 3.1.3.2 “Honor” Killings As a general rule, the epc addresses all forms of homicide in Articles 230–239 and sets out one of the following penalties: execution, permanent or temporary hard labor, or imprisonment. The epc does not directly provide for provisions on crimes of honor91 (garaem al-Sharaf).92 However, it does provide for grounds to mitigate the penalty depending on the specific circumstances. In this regard three constraints must be considered, namely specific grounds for mitigation (Article 237), general grounds for mitigation (Article 17), and specific grounds for justification against the criminal offense of adultery (Articles 274, 277 epc). The epc includes in Article 237 an often criticized93 exception to the three prescribed penalties mentioned before. Accordingly a perpetrator faces detention, provided that (1) the offender is the husband, (2) the victim is his wife or her adulterer-partner, (3) who had sexual intercourse, (4) the offender witnesses the sexual act, (5) and the killing is an imminent reaction to the a­ dulterous

87 88 89 90

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See Ibid., 42. See Ibid., 37. See Ibid. See Farkhonda Hassan, “Egypt Violence against Women Study: Summary of Findings” (Cairo: National Council of Women (ncw), United States Agency for International Development (usaid), 2009), 39, available at http://pdf.usaid.gov/pdf_docs/PNADQ885.pdf (last accessed 16 August 2017). The term “honor killings” is defined in Chapter 3.1.2.1. See Center for Egyptian Women’s Legal Assistance cewla, “‘Crimes of Honour’ as Violence against Women in Egypt,” in “Honour”: Crimes, Paradigms, and Violence Against Women, ed. Lynn Welchman and Sara Hossain (London: Zed Books, 2005), 142. See, for instance, cedaw Committee, “Concluding Observations Egypt,” para. 23.

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act.94 Hence, Article 237 epc mitigates the punishment from death penalty, ­labor or imprisonment to detention, in which the minimum is as low as twenty-four hours.95 Article 237 epc can dogmatically be regarded as grounds for mitigating the penalty, although such general provisions are commonly addressed in the first book of the epc (Articles 1–76), rather than in between the special criminal offenses, addressed by book two to four (Articles 77–395). Regarding the substance of Article 237 epc, the present provision explicitly addresses men as beneficiaries of the mitigating circumstances and thus discriminates against women. The rationale of this provision is the husband’s provocation by the adulterous act of his wife leading to a psychological state of mind in which he loses his reason.96 A wife, on the other hand, is not permitted the same degree of emotions, as she is fully liable for premeditated murder without any possibility of mitigation in the event she killed her adulterous husband or his adulterer-partner.97 In addition, the mitigating circumstances are restricted to husbands as potential offenders, actual sexual intercourse between a wife and her male sexual partner as relevant conduct, and the killing being committed immediately after discovering the act of adultery. Thus, Article 237 epc excludes all other relatives as potential perpetrators, all sexual conduct that does not amount to sexual intercourse, and all commissions carried out with a temporal break in time after the adulterous act had occurred. Subsequently, the requirements for mitigating the penalty are narrower than many existing forms of honor killings committed by female relatives, brothers, fathers or uncles98 as revenge 94

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Article 237 epc states: “Whoever surprises his wife in an act of adultery and kills her on the spot together with her adulterer-partner shall be punished with detention instead of the penalties prescribed in Article 234 and 236.” See The People’s Assembly of the Arab Republic of Egypt, “Penal Code of the Arab Republic of Egypt, Promulgated by Law No. 5801 of 1937, Amended by Law No. 126 of 2008,” available at http://www1.umn.edu/ humanrts/research/Egypt/criminal-code.pdf (last accessed 16 August 2017). See Nazra for Feminist Studies and Center for Egyptian Women’s Legal Assistance (cewla), “‘Qanun Nashaz’ A Campaign on the Legal Issues Associated with Violence against Women in Both Public and Private Spheres” (Cairo, 2014), 6, available at http:// nazra.org/en/2014/12/%E2%80%9Cqanun-nashaz%E2%80%9D-campaign-legal -issues-associated-violence-against-women-both-public-and (last accessed 16 August 2017). See Abu-Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies,” 146. See Nazra for Feminist Studies and Center for Egyptian Women’s Legal Assistance (cewla), “‘Qanun Nashaz’ A Campaign on the Legal Issues Associated with Violence against Women in Both Public and Private Spheres,” 6. According to a study carried out by cewla, the perpetrators of honor killings were in 42 percent of the cases husbands; in 34 percent fathers; in 18 percent brother; and in

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for conduct other than sexual intercourse99 after a significant time has passed. The Egyptian approach to address honor killings in the epc is therefore described as being closer connected to the concept of passion, than the concept of honor.100 Regarding the latter mentioned forms of honor killings, judges mostly apply Article 17 epc101 stating: In felony counts, if the conditions of the crime for which the popular action is brought necessitate the judge’s lenity, the penalty may be changed as follows: Capital punishment may be reduced to life imprisonment or rigorous imprisonment; life imprisonment may be reduced to rigorous or imprisonment; rigorous imprisonment may be reduced to imprisonment or incarceration for no less than six months; imprisonment may be reduced to incarceration for no less than three months.102 Like Article 237 epc, this provision serves as grounds for mitigating the penalty and is often utilized by judges in honor killing cases in the event that the narrow legal requirements of Article 237 epc do not apply.103 It gives the judge discretionary authority to reduce and suspend the criminal sentence in a m ­ urder case, if the court decides for the existence of mitigating circumstances for the perpetrator.104 7 percent other male relative, see Fatma Khafagy, “Honour Killing in Egypt – Violence against Women: Good Practices in Combating and Eliminating Violence against Women” (Vienna: un Division for the Advancement of Women, 2005), 5, available at http://www .un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/khafagy.honorcrimes.pdf (last accessed 16 August 2017). 99 According to the same study, the causes of honor killings were in 79 percent of the cases suspected extra martial sexual intercourse; in 9 percent adultery; in 6 percent to hide incest; and in 6 percent other reasons. 100 See Abu-Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies,” 147 f. 101 See Khafagy, “Honour Killing in Egypt,” 8. Apart from honor killing cases, Article 17 is mostly used in rape and sexual assault cases, see Center for Reproductive Rights and Egyptian Initiative for Personal Rights, “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women” (Cairo, 2009), 23, available at http://www2.ohchr.org/ english/bodies/cedaw/docs/ngos/EIPR_CRR_Egypt45.pdf (last accessed 16 August 2017). 102 The People’s Assembly of the Arab Republic of Egypt, “Egyptian Penal Code.” 103 See Abu-Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies,” 163. 104 See cewla, “‘Crimes of Honour’ as Violence against Women in Egypt,” 148.

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It is this particular judicial discretion that builds the basis for criticism. ­Article 17 epc allows for an individual appraisal, which is inevitably influenced by societal views.105 As a member of the society a judge lives in, s / he is influenced by its social values.106 According to Egypt’s traditional views on gender roles, women are considered to embody the honor (sharaf) of a family.107 Subsequently, all her deeds are scrutinized in respect of their consistency with the concept of family honor, more specifically the women’s reputation (ʾard).108 Such deeds range from any kind of sexual conduct outside marriage to marrying without the consent of the family, engaging in a customary marriage, divorcing the husband, laughing too loud in public, talking to male strangers, or wearing “inappropriate” clothing.109 As the honor of a family plays a vital role in all aspects of social life, such as, engaging in contracts, businesses, or marriages, particularly in traditional families and tribes, it is important that the women’s reputation is unblemished. Once her reputation is in question, whether based on actual facts or false allegations, the family honor can only be restored by her death.110 Such honor killings can be carried out by any ­family member and are viewed by society as “part of highly valued and well respected tradition.”111 The concept of honor is deeply enrooted in Egypt’s patriarchal society and maintained in many ways, e.g. through films.112 As a result, a judge being raised in this society tends to regard the circumstances of an honor killing as “conditions [which] necessitate lenity” for the perpetrator. The fact that the criminal court of Qena, in the governorate of Upper Egypt, applied Article 17 epc to all murder cases related to the violation of honor,113 105 See Center for Egyptian Women’s Legal Assistance cewla, “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to cedaw Convention’ Submitted to the cedaw Committee,” 2008, 10, available at http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/CEWLAEgypt_45 .pdf (last accessed 16 August 2017). 106 See cewla, “‘Crimes of Honour’ as Violence against Women in Egypt,” 143 f. 107 See Ibid., 140. 108 See Ibid. 109 See Ibid., 139 f. 110 See Ibid., 140 f. 111 See Khafagy, “Honour Killing in Egypt,” 4. 112 See Ibid., 7. In a country like Egypt, where the total adult illiteracy rate is estimated at 25 percent, “television is a powerful and dominant mode of communication and reflection of norms,” see Nawal H. Ammar, “Beyond the Shadows: Domestic Spousal Violence in a ‘Democratizing’ Egypt,” Trauma, Violence, & Abuse 7 (2006): 250. 113 Despite the lack of data on the frequency of honor killings in Egypt, the Center of the Egyptian Women’s Law Association (cewla) managed to conduct an analysis of murder cases in Qena’s criminal court in the governorate of Upper Egypt in 2005. cewla

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­illustrates the judiciary’s “tolerance for the deliberate murder of women in certain circumstances.”114 Moreover, Article 17 epc is problematic in a sense that it does not call for any additional normative requirements to define “conditions [which] necessitate lenity.”115 Such unspecific wording may result in an arbitrary application of Article 17 epc, which infringes the constitutional principle of prohibiting arbitrary decision-making.116 In order to prevent such arbitrary application, norms that allow for judicial discretion must be applied in light of constitutional interpretative principles. However, Article 17 epc does neither on a normative nor on an application level require constitutional considerations. In addition to this unlimited judicial discretion, Article 17 epc calls for “compassion for the conditions of the crime,” which literally invites the judge to subjectivity and bias. Thus, Article 17 epc infringes the judicial rule of impartiality, as enshrined in Egypt’s Constitution.117 Finally, it is worth mentioning that only the court of fact has jurisdiction over the consideration of reasons for mitigating circumstances, which are neither published, due to the fact that verdicts of first instance courts are not made public, nor subject to appeal in front of the Court of Cassation.118 It is this non-transparent application and indeterminate wording of Article 17 epc that caused many experts describing it as a “very problematic”119 provision, “a violation of international human rights […] as it is always used against women in a discriminatory way,”120 challenging Egypt’s constitutionality,121 and constituting “an infringement on the victim’s right to justice.”122

114 115

116 117 118 119

120 121 122

c­ oncluded that the judges applied to all cases related to honor killings Article 17 of the epc, while the sentences ranged from no verdict to imprisonment between two to four years. See cewla, “‘Crimes of Honour’ as Violence against Women in Egypt,” 149–54. See Ibid., 144. See Center for Reproductive Rights and Egyptian Initiative for Personal Rights, “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women,” 23. Articles 184 of the 2014 Egyptian Constitution prescribes the prohibition of arbitrary decision-making. Articles 94 of the 2014 Egyptian Constitution prescribes the impartiality of the judiciary. See Abu-Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies,” 163. cewla, “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to cedaw Convention’ Submitted to the cedaw Committee,” 11. See Khafagy, “Honour Killing in Egypt,” 9. See Ibid., 4. See Center for Reproductive Rights and Egyptian Initiative for Personal Rights, “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women,” 23.

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The last legal consideration regarding honor killings in the epc is based on Articles 274 and 277 epc, which penalize adultery. The act of killing an adulterous spouse could be considered a justified act in defense of the defender’s honor. Articles 274 and 277 epc distinguish between adulterous acts, committed by a wife and those committed by a husband. Article 274 epc imposes a criminal prison sentence of two years on an adulterous wife, whereas Article 277 epc imposes a criminal prison sentence of six month on an adulterous husband. Also, the elements of the crime distinguish between men and women, as Article 277 epc only applies to an adulterous act committed by the husband in the marital residence, while Article 274 epc criminalizes an adulterous act committed by a wife regardless of the place it occurs.123 Hence, these two provisions in the epc discriminate against women in terms of the length of the imposed prison sentence, as well as the broader normative requirements although the criminal act is the same. Regardless of unconstitutionality considerations regarding Articles 274 and 277 epc,124 the justification of self-defense cannot be invoked for killing an adulterous spouse, as Articles 237 and 17 epc serve as “lex specialis” in this regard, leaving no room for subsidiary regulations. Thus, it can be concluded that the epc considers a situation, in which a male relative commits an act of killing to defend the family honor, as grounds for mitigating the penalty. While Article 237 epc is restricted to a husband, who killed his adulterous wife or her adulterer-partner immediately after discovering the act of adultery, Article 17 epc may be applied to a wider circle of offenders and does not even require that the women’s “misconduct” amounts to actual sexual intercourse. 123 Article 274 refers to a wife committing adultery, who faces a prison sentence not exceeding two years; whereas Article 277 refers to a husband committing adultery, who faces a prison sentence not exceeding six months. cewla points out, that “[t]he elements of a crime also discriminate between the ­husband and the wife, although the act is the same. In order to impose the penalty upon the husband, it is required that the act be committed in the marital residence, while the same is not required for the wife. Thus, if the husband commits adultery anywhere else it not a crime, and therefore there is no punishment. However, adultery committed by the wife is a crime regardless of the place where it occurred.” See cewla, “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to cedaw Convention’ Submitted to the cedaw Committee,” 56. 124 As raised by Nazra for Feminist Studies and Center for Egyptian Women’s Legal Assistance (cewla), “‘Qanun Nashaz’ A Campaign on the Legal Issues Associated with Violence against Women in Both Public and Private Spheres,” 5.

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3.1.3.3 Wife Battery Outside a marital relationship, wounding another person constitutes the offense of battery, according to Articles 240–242 epc. Within a marital relationship, however, such conduct may be justified pursuant to Article 60 epc125 stating: The provisions of the Penal Code shall not apply to any deed, committed in good faith, pursuant to a right determined by the virtue of the Shariʾa.126 This provision dogmatically serves as grounds for justification and places Shariʾa Law above domestic penal provisions. Article 209 Egypt’s Personal Status Law (hereinafter “epsl”) provides for such Shariʾa Law-based right, as it “allows men to use a moderate level of violence against wives and children in the name of maintaining discipline in the household.”127 The Court of Cassation has established limits on the level of violence by presuming “good faith” only in cases in which “(1) the beating is not severe, (2) the beating is not directed at the face, and (3) the beating is not aimed at vulnerable fatal blow areas.”128 Subsequently, Article 60 epc cannot be invoked as justifying grounds for any force beyond the aforementioned level of violence, particularly when causing severe injury or disability (addressed by Article 240 epc), or contributing to a woman’s spontaneous abortion (addressed by Article 260 epc).129 However, women carry the burden of proof in court regarding the cause of harm.130 This creates a considerable obstacle to a successful criminal conviction against an abusive husband, especially for poor women, as injuries may have healed by the time of the court hearing, and medical records are highly costly to obtain.

125 The Egyptian Association for Community Participation and Encancement points out, that “[a] significant number of cases was monitored where women were beaten and the judges used Article 60,” see Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition” (Egypt, 2009), 63, available at http://www2.ohchr.org/english/bodies/cedaw/docs/EACPE_E.pdf (last accessed 16 August 2017). 126 The People’s Assembly of the Arab Republic of Egypt, “Egyptian Penal Code.” 127 See Hassan, “Egypt Violence against Women Study: Summary of Findings,” 39. 128 See Nawal H. Ammar, “In the Shadow of the Pyramids: Domestic Violence in Egypt,” International Review of Victimology 7 (2000): 39; Hassan, “Egypt Violence against Women Study: Summary of Findings,” 43. 129 See Ammar, “Beyond the Shadows,” 251. 130 See Ammar, “In the Shadow of the Pyramids: Domestic Violence in Egypt,” 36.

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It can subsequently be concluded that only severe cases of wife battery are penalized by law. The epc provides judges with discretionary authority to interpret whether violent conduct perpetrated by men against a spouse is ­committed in good faith or not, by placing Shariʾa principles over criminal accountability. Furthermore, the evidence rules and procedural practices reduce the remaining chances of a criminal conviction based on domestic violence even further. 3.1.3.4 Marital Rape Rape, outside a marital relationship, constitutes a criminal offense according to Article 267 epc, which states: Whoever lies with a female without her consent shall be punished with permanent or temporary hard labor.131 The wording of this provision penalizes sexual intercourse between a male and a female, without the consent132 of the latter. The judicial interpretation of the Egyptian Court of Cassation, has excluded wives from the scope of Article 267 epc, by stating that: […] a woman is not allowed to refuse sexual intercourse with her husband without a valid reason according to Shariʾa.133 The Court of Cassation based this interpretation normatively on Article 7 epc, which stipulates: The provisions of the present law shall in no case derogate the personal rights prescribed in the Islamic Shariʾa.134 According to the Court of Cassation, a husband is “entitled to sexual intercourse” with his wife based on what is known as “marriage rules” which c­ ontinue to 131 The People’s Assembly of the Arab Republic of Egypt, “Egyptian Penal Code.” 132 Although the provision itself merely requires sexual intercourse without the consent of a female, courts require the rape victim to “prove her lack of consent by providing evidence that she was physically forced into sexual intercourse,” see Center for Reproductive Rights and Egyptian Initiative for Personal Rights, “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women,” 22. 133 Case No 45/1193, Court of Cassation, 22 November 1928, recited by Ibid. 134 The People’s Assembly of the Arab Republic of Egypt, “Egyptian Penal Code.”

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e­ xist even throughout the separation period (iddah) of a divorce.135 Article 267 epc also excludes any conduct that does not amount to sexual intercourse, or is perpetrated against a male.136 Such conduct is addressed by Article 268 epc, which penalizes sexual assault as it states: Whoever indecently assaults a person by force or threat, or attempts such assault shall be punished with hard labor for three to seven years.137 This provision was intended to criminalize, inter alia, buggery without reference to gender.138 In this regard wives may invoke rape by sexual assault. Apart from anal sexual intercourse, however, the husband’s entitlement to sexual intercourse precludes wives from being subject to sexual offenses perpetrated by their husbands. Subsequently, it can be concluded that marital rape is not criminalized under the epc, except for anal perpetration.139 Discrepancies between Shariʾa and Egyptian Law Regarding Domestic Violence The subject of this section will be the analysis of existing discrepancies between Criminal Shariʾa Law and Egyptian penal law, in regard to domestic ­violence. The analysis is necessary for assessing whether Egypt has met its modified international obligation – in light of its reservation to Article 2 cedaw – based on which Egypt must at a minimum concede as much gender equality, as Shariʾa Law provisions do. Hence, the threshold for assessing Egypt’s compliance with Article 2 cedaw is Shariʾa Law. Three criminal offenses namely, honor killings, 3.1.4

135 The Court of Cassation states, “a husband is entitled to sexual intercourse even if he divorces her ‘talaq radjei’ (revocable divorce*) since it does not lift marriage rules before the lapse of ‘iddah’ (retreat period**), it is rather thought of as a way to reconsider revocation.” See Dr. Fadia Abu Shahba, Dr. Magda Abdel Ghany, “The Phenomenon of Violence in the Egyptian Family: The first report on domestic violence: a social and legal perspective,” recited by Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition,” 63. 136 See Nazra for Feminist Studies and Center for Egyptian Women’s Legal Assistance (cewla), “‘Qanun Nashaz’ A Campaign on the Legal Issues Associated with Violence against Women in Both Public and Private Spheres,” 2. 137 The People’s Assembly of the Arab Republic of Egypt, “Egyptian Penal Code.” 138 See Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition,” 63. 139 See Sameena Nazir and Leigh Tomppert, Women’s Rights in the Middle East and North Africa: Citizenship and Justice (New York: Rowman & Littlefield Publishers, 2005), 74.

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wife battery, and marital rape, have been selected for analysis as case studies, due to the fact that the cedaw Committee explicitly mentions them in its latest concluding observations140 to Egypt’s Periodic State Report.141 While honor killings have no legal basis in Criminal Shariʾa Law, the epc criminalizes such offenses although providing for mitigating clauses. Those include, Articles 237 and 17 epc.142 Article 237 epc is only applicable under narrow conditions being, (1) the offender is the husband, (2) the victim is his wife or her adulterer-partner, (3) who had sexual intercourse, (4) the offender witnesses the sexual act and (5) the killing is an imminent reaction to the adulterous act. This provision is problematic as it provides mitigating grounds only to men as beneficiaries and thus discriminates against women.143 Article 17 epc, is rather general in its wording and allows for discretionary authority in the event that the court is sympathetic with the crime. This provision is problematic in two respects. First, it calls for compassion with the crime, and hence infringes Egypt’s constitutional principle of impartiality. Second, it does not refer to any interpretative principles, in which the judicial discretion should be carried out, and thus leads to an arbitrary application.144 The Egyptian penal provisions regarding honor killings are therefore more gender-discriminatory than Shariʾa Law provisions. Subsequently, Egypt is obliged based on its own reservation to Article 2 (g) cedaw, to repeal its gender-discriminatory penal provisions by eliminating Article 237 and amending Article 17 the epc in a way that explicitly restricts judicial discretion related to lenity in honor related killings.145 140 See cedaw Committee, “Concluding Observations Egypt.” 141 See Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee.” 142 For a presentation of Shariʾa and the Egyptian legal provisions regarding honor killing, see Chapter 3.1.2.1 and Chapter 3.1.3.1. 143 See cewla, “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to cedaw Convention’ Submitted to the cedaw Committee,” 11. 144 See Nazra for Feminist Studies and Center for Egyptian Women’s Legal Assistance ­(cewla), “‘Qanun Nashaz’ A Campaign on the Legal Issues Associated with Violence against Women in Both Public and Private Spheres,” 5. 145 As suggested by cewla, “[t]he need for a clear legal amendment that explicitly restricts the powers of the judge to use article 17 in the epc which is related to using clemency in honor crimes, as happened in crimes of criminal law related to drug fighting No. 162 of 1960 that was amended by Act 122 of 1989 (article 36), article 88 (c) of the panel code related to the internal protection of the state.” See cewla, “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to cedaw Convention’ Submitted to the cedaw Committee,” 11.

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A different picture emerges when looking at the offense of wife battery.146 Shariʾa Law does not consider wife battery a criminal offense, but rather a family matter. Accordingly, a husband may beat his wife as a last resort, within a set of three subsequently applied disciplinary measures, in the event of her disobedience. While the limits of appropriate force vary among the four Sunni schools of thought, excessive force does not lead to criminal charges according to Shariʾa Law. The Maliki School of thought, which considers intentional disfigurement a criminal offense, forms an exception to this mainstream view. While the epc criminalizes general battery, it provides for grounds of justification in Article 60 epc in conjunction with Article 209 epsl in case a husband uses “a moderate level of violence” against his wife in order to maintain discipline. Severe wife battery is thus not justified. The Egyptian penal provisions therefore provide more, or at least the same, protection for women than Shariʾa Law provisions do regarding wife battery. In conclusion, it follows that Egypt meets its modified international obligation resulting from Article 2 (g) cedaw in conjunction with its Shariʾa-based reservation. Neither Shariʾa nor Egyptian law considers marital rape as criminal conduct.147 Sexual intercourse in a marriage is rather viewed as an entitlement, regardless of the spouse’s consent. Subsequently, Egypt’s regulations do not fall short in comparison to Criminal Shariʾa Law and thus Egypt does not violate Article 2 (g) cedaw in conjunction with its Shariʾa-based reservation. 3.2

Article 16 (1) (c) cedaw: Divorce Law

Article 16 (1) cedaw stipulates that “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations […]” and outlines areas, in which States parties shall particularly ensure gender equality. Those areas include: (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; 146 For a presentation of Shariʾa and the Egyptian legal provisions regarding wife battery, see Chapter 3.1.2.2 and Chapter 3.1.3.2. 147 For a presentation of the Shariʾa and the Egyptian legal provisions regarding marital rape, see Chapter 3.1.2.3 and Chapter 3.1.3.3.

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(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.148 Based on Egypt’s reservation to Article 16 cedaw, the government is merely obliged to ensure gender equality in family matters as long as the obligations resulting from Article 16 cedaw do not conflict with Shariʾa Law. In order to assess whether Egypt met its modified obligation, the following section will look specifically at Article 16 (1) (c) cedaw as a case study to analyze the legal options to seek divorce provided by Shariʾa Law (3.2.1) and by Egypt’s domestic law (3.2.2).149 Hereinafter, divorce rights in both legal systems will be compared in order to assess gender discrepancies between both (3.2.3). This would indicate Egypt’s violation of its modified obligation, resulting from Article 16 (1) (c) cedaw in conjunction with Egypt’s reservation, to eliminate gender-discriminatory legislation, below the threshold of contradictions between the Women’s Convention and Shariʾa Law in family related matters. 148 ohchr, “Text to Women’s Convention.” 149 This section will merely focus on divorce law provisions as outlined by Article 16 (c) cedaw as it serves as an illustration of the overall State’s parties’ obligation under Article 16 cedaw. Divorce law was chosen to serve as an illustration, because it was considered to be “the most controversial area of Egypt’s Personal Status Law,” (inter alia by Krivenko, Women, Islam and International Law, 141.) Other relevant aspects under Article 16 cedaw, such as equal rights to marriage, custody of children and inheritance, will not be examined in this section, as the purpose of this section is to identify a possible gap between Shariʾa Law and Egyptian law with regard to Egypt’s obligation under Article 16.

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3.2.1 Right to Divorce in Shariʾa Law As mentioned in Chapter 2.1.3, the revelation of the Quran intended to raise women’s status, and eliminate cruel practices from customary law in pre-­ Islamic Arabia.150 This intention of enhancing women’s rights is also evident in Shariʾa Law provisions related to divorce. In that spirit, Shariʾa Law introduced many reforms, among them the payment of the dowry (mahr), to the bride herself instead of to her father,151 or the establishment of a mandatory waiting period (iddah) before the divorce is legally effective to ensure the wife is not pregnant.152 In addition, Shariʾa Law provided for the first time in pre-Islamic Arabia a possibility for women to seek divorce.153 Like many other areas of Shariʾa Law, family law – which governs marriage, divorce, custody and inheritance – shows differences among the four Sunni schools of thought.154 Nonetheless, all schools of thought consider marriage to be a civil contract, which can be dissolved by either party.155 It provides for three different ways to dissolve a marriage, namely, divorce, death and revoking the consent (faskh).156 From a non-Shariʾa Law perspective, two notions are to be kept in mind, when considering divorce rights in Shariʾa Law: Firstly, customary and judicial divorce rights coexist beside one another. Secondly, women’s ability to initiate a divorce is – unlike men’s – limited to a specific set of grounds.157 Generally, while a men’s right to divorce is extra-judicial and unilateral, the women’s right to divorce is only obtainable through court procedures, with the exception of ʿismah (see chapter 3.2.2.2.2).158 According to classical Shariʾa Law, divorce rights can be categorized into the following seven categories:159

150 151 152 153 154 155 156 157 158 159

See Esposito, Women in Muslim Family Law, 14. See Schacht, An Introduction to Islamic Law, 161. See Esposito, Women in Muslim Family Law, 4. See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 564. See Rohe, Das islamische Recht, 79. See Engineer, The Rights of Women in Islam, 143; Rohe, “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen Islamischen Recht,” 195. See Rohe, Das islamische Recht, 91. See Esposito, Women in Muslim Family Law, 32. See Mehdi, Menski, and Nielsen, Interpreting Divorce Laws in Islam, 24 f. It should be noted that these categories are not inalterable. However, they have been defined differently among scholars, see, for instance, Schacht, An Introduction to Islamic Law, 166–68; Rohe, Das Islamische Recht, 91–96; Esposito, Women in Muslim Family Law, 28; Jamal J. Nasir, The Islamic Law of Personal Status, 3rd ed. (Leiden: Brill, 2009), 106–133.

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First, talaq, which is a customary, extra-judicial and unilateral form of divorce in the sense of repudiation, whereby the husband declares three times “You are repudiated” and abstains from sexual intercourse.160 It neither requires a specific form, nor citing a cause.161 The presence of witnesses is deemed preferable among the Sunni schools of thought,162 and the wife’s presence or at least her notification of the repudiation is required in all Sunni schools of thought, except for the Hanafi School.163 There are two forms of talaq, namely, talaq al Sunnah, whereby a husband states a single repudiation, and abstains from sexual intercourse for a period of three months (iddah).164 During the iddah the spouses can reconcile with one another, as the pronouncement of talaq is revocable.165 The second one, talaq al bidda, is irrevocable and is composed of three successive statements of repudiation, leading to an immediate irrevocable divorce.166 Second, ilaʾ, is a form of repudiation, whereby the husband states under oath his abstinence from intercourse with his wife for four months.167 According to the Hanafi School, this oath will lead to the dissolution of the marriage after the lapse.168 Other remaining schools of thought grant the wife a civil law suit in order to either persuade the husband to resume the marital obligation, otherwise to repeat the ilaʾ in front of the court or to achieve a court-based divorce.169

160 See Esposito, Women in Muslim Family Law, 30. There are further classifications of talaq and subcategories such as talaq el ahsan and talaq el hasan. For the purpose of this book, it does not appear beneficial to present each divorce classification in depth, but rather present briefly the different options to seek a divorce. For a more comprehensive presentation, see Rohe, Das islamische Recht, 91–96; Nasir, The Islamic Law of Personal Status, 106–13; Esposito, Women in Muslim Family Law, 30. 161 See Willy Jansen, “Divorce and Custody: Contemporary Practices – Arab States,” in Encyclopaedia of Women and Islamic Cultures Vol. ii: Family, Law and Politics, ed. Afsaneh Najmabadi and Suad Joseph (Leiden: Brill, 2003), 99. 162 Whereas the Shiʾa School of Thought deems the presence of two witnesses as necessary, see Nasir, The Islamic Law of Personal Status, 117. 163 See Rohe, “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen Islamischen Recht,” 195. 164 See Nasir, The Islamic Law of Personal Status, 107. 165 See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 573. 166 See Rohe, Das islamische Recht, 92. 167 See Schacht, An Introduction to Islamic Law, 165. 168 See Nasir, The Islamic Law of Personal Status, 114. 169 See Rohe, Das islamische Recht, 93.

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Third, mubaraʾa, is a contractual agreement between the two spouses to dissolve the marriage and waive any financial obligations.170 A reason for mubaraʾa is not required.171 Fourth, ʿismah or talaq al tafwid, is again a form of repudiation, whereby the husband delegates in the marriage contract his above mentioned extra-judicial and unilateral right to talaq to his wife, so that she repudiates herself.172 The Hanafi School predominantly accorded this form of divorce.173 Fifth, khulʾ, on the other hand is a divorce right obtainable through a court’s decision, whereby the wife expresses her desire to separate by stating that she has an invincible aversion against her husband.174 According to all four Sunni schools of thought the husband’s consent is needed for a khulʾ-divorce.175 It is noteworthy that neither the Quranic verse (2:229) itself, nor the specific Prophet’s Hadith – as the two primary sources of Shariʾa Law – mention the necessity of the husband’s consent.176 Hence, Shariʾa Law diverted in this aspect from its primary sources. A khulʾ-divorce is usually accompanied by a compensation 170 See Schacht, An Introduction to Islamic Law, 164; Rohe, “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen Islamischen Recht,” 196. 171 See Nasir, The Islamic Law of Personal Status, 115. 172 See Schacht, An Introduction to Islamic Law, 164. 173 See Jasmine Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” Human Rights Law Commentary 1 (2005): 13. 174 See Mehdi, Menski, and Nielsen, Interpreting Divorce Laws in Islam, 25. 175 See Rohe, “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen Islamischen Recht,” 197. 176 Khulʿ-divorce is primarily based on a Hadith, in which “[t]he wife of Thabit b. Qays b. Shammas [Habiba] came to the Messenger, peace be upon him, and said: ‘Oh Messenger of God, I do not hate Thabib neither because of his faith not his nature, except that I fear unbelief’. The Messenger of God, peace be upon him, said: ‘Will you give back his orchard?’ She said ‘Yes’ and she gave it back to him and he [the Prophet] orderd him and so he [Thabit] separated her.” (Al-Bukhari 1868, 266, printed in Nadia Sonneveld, Khulʿ Divorce in Egypt: Public Debates, Judicial Practices, and Everyday Life (Cairo: American University in Cairo Press, 2012), 30.) Khulʿ-divorce is further based on the relevant Quranic verse 2: 229 stating: “A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah. so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others).” (Ali, The Meaning of the Holy Qurʾan.)

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paid by the wife to her husband, such as returning her dowry (mahr) or paying a certain agreed amount of money.177 In addition, the Hanafi School requires that all outstanding mutual claims must be dispensed.178 Sixth, liʾan, is according to the Hanafi and Hanbali school, a judicial form of divorce related to penal provisions, in which the husband accuses his wife of adultery.179 She is then entitled to take the case to court, in front of which he must repeat his accusation under oath and she retracts or admits his accusations under oath.180 Hereinafter, the husband can either divorce his wife or the court dissolves the marriage if they cannot forgive one another.181 According to the Maliki and Shafiʾi school, the marriage is automatically dissolved once the husband accused his wife of adultery under oath.182 Seven, tatliq or tafrik, allows women to seek a judicial divorce. It is limited to specific grounds, for which she carries the burden of proof in court.183 These grounds vary among the different schools of thought: the Hanafi school provides the narrowest grounds, followed by the Hanbali, Shafiʾi and Maliki school, being the most liberal.184 The Hanafi school allows for tatliq only in the occurrence of the husband’s impotence, a serious disease or his absence for a period of many years.185 The other more liberal schools of thought, such as the Maliki and Shari schools, also include the husband’s inability to consummate the marriage, the spouses being prohibited from marriage, the marriage being concluded by a non-Muslim, the husband’s imprisonment, his desertion, the husband’s or wife’s apostasy, harming the wife or the husband’s failure to provide maintenance for his wife.186 Bearing in mind the absence of any divorce rights in pre-Islamic Arabia, tatliq is a remarkable advancement of women’s rights. Nevertheless, its practical benefit is limited, considering the difficulty to prove such allegations.187 177 See Leila Hessini, “Domestic Violence – Arab States,” in Encyclopaedia of Women and Islamic Cultures Vol. ii: Family, Law and Politics, ed. Suad Joseph and Afsaneh Najmabadi (Leiden: Brill, 2003), 99. 178 See Rohe, Das islamische Recht, 95. 179 See Ibid., 165. 180 See Esposito, Women in Muslim Family Law, 33. 181 See Ibid. 182 See Rohe, Das islamische Recht, 93. 183 See Ibid. 184 See Esposito, Women in Muslim Family Law, 33. 185 See Edge, Inan, “Egypitian Family Law: The Jinn,” International and Comparative Law Quarterly 38 (1989): 682. 186 See Nasir, The Islamic Law of Personal Status, 119; Ramadan, Understanding Islamic Law, 121–24; Esposito, Women in Muslim Family Law, 34; Rohe, Das islamische Recht, 93 f. 187 See Rohe, Das islamische Recht, 93.

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In summary, Shariʾa Law provides three188 different means to obtain a divorce for women, namely, two customary means of divorce, khulʾ and ʿismah, and one judicial form of divorce, tatliq. 3.2.2 Right to Divorce in Egyptian Domestic Law Egypt’s Personal Status Law (epsl) governs marriage, divorce, child custody and succession.189 It is worth mentioning that the epsl is the only area of law in Egypt’s legislation, which has not yet been secularized.190 3.2.2.1

Legal History Regarding the Establishment of the Personal Status Law When analyzing Egypt’s current divorce law, it is essential to bear in mind Egypt’s legal tradition, in order to comprehend the current legal nature of Egyptian law and place it into context. In the eighth century, Islam started to spread throughout Egypt.191 When the Arab leader Salah el Din conquered Egypt in 1171, he paved the way for the Sunni schools of thought.192 The Ayyubeddin (1171–1250), Mammeluks (1250–1517) and Ottomans (1517–1874), were then able to establish an Islamic government in Egypt, whereby all aspects of life were governed by Shariʾa Law and Shariʾa courts.193 When Egypt attained independence from the Ottoman Empire in 1874, it increasingly came under European influence, which was also reflected in its legal system.194 Comparing the French (1798–1801) to the British occupation (1882–1914195), it is notable that the French have had far more i­nfluence on the Egyptian legal system, even though their occupation was earlier and 188 As Mashhour mentions, a fourth means to seek divorce could be seen in the breach of a condition included in the marriage contract. As Islam provides for the opportunity to install a marriage contracts, any breach of the provisions in that contract might be the basis for a divorce, see Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 575. 189 See Qassem, “Law of the Familie,” 1. 190 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 5. 191 See An-Naʾim, Islamic Family Law in a Changing World, 151. 192 See Ibid. 193 See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 578. 194 See An-Naʾim, Islamic Family Law in a Changing World, 169. 195 The British occupation concluded formally in 1914, nevertheless Egypt stayed British protectorate until 1922. Afterwards it fell back to monarchy under King Fuad until 1936 and King Faruq until 1952, when Egypt’s revolution lead to the declaration of the Arab Republic of Egypt with a presidential parliament.

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shorter in time.196 In 1876 a commercial, civil and criminal code inspired by the French law was established.197 Despite those establishments, family law remained the only area of law being governed by Shariʾa Law and Shariʾa courts.198 In the 1920’s Egypt’s legislature adopted two laws, which together constituted Egypt’s first Personal Status Law,199 namely Law No. 25 of 1920 on Maintenance and Personal Status200 and Law No. 25 of 1929 on the Dissolution of Marriage.201 These decrees established procedural and substantive provisions regarding spousal rights resulting from a marriage, grounds for divorce and rights resulting from a divorce, including custody, maintenance or compensation. Till present, these laws still form the basis of the current epsl.202 Although the former president of Egypt Gamal Abdel Nasser (1954–1970) endorsed rights for women related to voting, education and employment, no further legal amendments with regard to the epsl were implemented until Anwar El Sadat’s presidency (1970–1981).203 After his attempt to introduce a farreaching reform of the epsl in 1975, the opposition groups blocked the draft.204 196 See Qassem, “Law of the Familie,” xxv. 197 See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 578. 198 See Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 216. 199 See An-Naʾim, Islamic Family Law in a Changing World, 169. It should be noted that the term “Personal Status Law” is originally not used in Islamic Jurisprudence. Therefore, Qassem pointed out that the Egyptian Court of Cassation took a stand in a famous decision from 21 June 1934 and clarified that “what differentiates one person from another in terms of natural and family characteristics and which is taken into consideration by the law to entail legal effects governing his / her social life: weather he is a man or a women; a spouse, a widow, a divorcee, a father, a legitimate child; weather he / she enjoys full legal capacity ot not. As a waqf, donations and alimony, even though they are real estate, yet they fall within the jurisdiction of Personal Status Law since they are, more often than not, based on the idea of “charity” which falls within the purview of religion.” See Qassem, “Law of the Familie,” 19. 200 Decree Law No. 25 of 1920 Concerning Maintenance and some Provisions in Personal Status, Official Gazette, Issue 61 (15 July 1920). 201 Decree Law No. 25 of 1929 Concerning Provisions in Personal Status, Official Gazette, Issue 27 (25 March 1929). 202 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 121. 203 See Farida Deif, Egypt, Divorced from Justice: Women’s Unequal Access to Divorce in Egypt, New York: Human Rights Watch, 2004, 11, available at http://www.hrw.org/sites/default/ files/reports/egypt1204.pdf (last accessed 16 August 2017); Sonneveld, Khulʿ Divorce in Egypt, 22. 204 See Sonneveld, Khulʿ Divorce in Egypt, 25.

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For various national and international political reasons (e.g. the peace treaty with Israel in 1979 and the upcoming Second World Conference on Women in Copenhagen in 1980), El Sadat issued per emergency decree the progressive205 Law No. 44 of 1979, using the absence of the People’s Assembly.206 This law was appealed before Egypt’s Supreme Court in 1985, and repealed due to procedural matters as it had been issued without a true state of emergency.207 Two months later and before the Egyptian women’s delegation left for the third un Forum on Women in Nairobi, the parliament promulgated Law No. 100 of 1985208 under Hosni Mubarak’s presidency (1981–2011), which is a “watereddown version”209 of Law No. 44 of 1979.210 Egypt’s latest substantial211 amendment of its epsl was issued by Law No. 1 of 2000,212 which enlarged women’s options to seek divorce by introducing khul-divorce.213 205 The new law not only altered the definition of the conjugal relationship and extended women’s maintenance rights for a period of two years after a divorce, but also enlarged the grounds for divorce further by giving women an automatic right to divorce when her husband takes a subsequent (second, third or fourth) wife without her consent. See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 138. 206 See Sonneveld, Khulʿ Divorce in Egypt, 26. 207 See An-Naʾim, Islamic Family Law in a Changing World, 170; Edge, Inan, “Egypitian Family Law: The Jinn,” 684. 208 Law No. 100 of 1985 amending certain rulings of the Personal Status Law (issued in the Official Gazette, Issue 27, 4 July 1985). 209 The new law exchanged the wife’s automatic right to divorce in the occurrence of her husband’s polygynous union with the requirement to actually prove that she has suffered harm from his subsequent marriage. See An-Naʾim, Islamic Family Law in a Changing World, 170. 210 See Tove Stang Dahl, The Muslim Family, 195; Sonneveld, Khulʿ Divorce in Egypt, 28; Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 138. 211 This book will focus merely on substantial provisions. Nevertheless, some important amendments have been introduced with regard to procedural provisions, namely: Law No. 1 of 2000 aiming at facilitating a litigation procedure in matters of personal status; Law No. 10 of 2004 introducing a variety of mechanisms to resolve family disputes and aiming at achieving prompt justice; Law No. 11 of 2004 establishing a fund to facilitate the implementation of court sentences regarding the wife and children’s alimony; and finally Law No. 4 of 2005 increasing the custody age of children. See cewla, “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to cedaw Convention’ Submitted to the cedaw ­Committee,” 5. 212 Law No. 1 of 2000, Regarding the Promulgation of a Law to Organize certain Conditions and Procedures in matters of Personal Status, (issued in the Official Gazette, Issue 4 Bis, 29 January 2000). 213 See Sonneveld, Khulʿ Divorce in Egypt, 32.

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3.2.2.2 Contemporary Personal Status Law Attempts to promulgate a comprehensive code governing all rights related to family matters, have failed as of today. Therefore the above mentioned enactments (Laws No. 29/1920, No. 29/1929, No. 100/1985, No. 1/2000), which were intended as a temporary solution to specific problems, stay active as later enactments do not abrogate earlier ones but replace some of their provisions or add new articles.214 Until 2004, judges had to take recourse “to the most appropriate opinion from the Hanafi school in the absence of any textual provision in the legislation”215 when applying provisions from the epsl, pursuant to Article 280 of Decree Law No. 78 of 1931. This law was replaced by Article 3 of Law No. 1 of 2000, whereby judges now have the possibility to refer to any of the four Sunni schools of thought.216 It is noteworthy, that epsl is based on Shariʾa Law, and therefore only applicable to Muslims, whereas the Personal Status Law for non-Muslims governs family relations for non-Muslims, namely Christians and Jews.217 The following analysis will only focus on epsl for Muslims, as it applies to the vast majority of Egyptians. Although the object of this section is to present Egypt’s divorce laws, some brief notions on marriage and post-divorce rights should be made. Marriage is regarded a civil contract between two mutual parties.218 The minimum age to marry in Egypt is eighteen years for both males and females,219 although females need to be represented by a guardian (wali).220 The marriage must be attended by two witnesses and is concluded before a religious notary (maazun), who falls under the authority of the Ministry of Justice. He is obliged by law to 214 See Qassem, “Law of the Familie,” 20; Nathalie Bernard-Maugiron and Baudouin Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” Recht van de Islam 19 (2002): 5. 215 See An-Naʾim, Islamic Family Law in a Changing World, 171. 216 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 128. 217 See Qassem, “Law of the Familie,” 3, 19. 218 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 16. 219 According to Law 126 of 2008 “no marriage contract would be authenticated if the parties had not reached the legal age of 18.” Prior to that, Law No. 56 of 1923 on Marriage Age set the legal age for marriage at 16 years for girls and 18 years for boys, see Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 165 ff. 220 See An-Naʾim, Islamic Family Law in a Changing World, 171. An-Naʾim also points out that “[a] wali cannot prevent his ward from marrying for reasons relating to social status or the amount of dower, for example as judges may authorize marriages if walis refuse.”

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inform the parties of the option to insert further conditions into the marriage contract, such as the amount of the dowry (mahr) or additional rights and obligations, like a wife’s customary right to divorce (ʿismah).221 Upon marriage, the groom has an obligation to pay the bride a certain portion of her dowry, the remaining portion can be paid upon divorce or death (moakhar al sadaq) as the intention of the dowry is to secure the wife financially in case her husband dies or repudiates her.222 In addition, a husband can marry up to four wives when notification to the existing and intended wives is provided.223 Once a marriage is concluded, the husband has a right to his wife’s obedience, a right of decision-taking at home and a right of authority and guidance of his wife.224 The wife, on the other hand, is entitled to receive the dowry and maintenance, including food, clothing and medical expenses.225 In addition, she has a right to a fair treatment, and to be protected from harm (darar) caused by her husband.226 The husband’s duty to pay maintenance and the wife’s duty to obedience are reciprocal in nature, as Article 11 bis2 of Law No. 25 of 1929, amended by Law 100 of 1985, states “the wife’s maintenance is suspended if she refuses to obey her husband, effective on the day of her refusal.”227 Upon divorce of a marriage, a wife is entitled to maintenance (nafaqa) during the iddah; to a compensation (mutʾa) equivalent to the maintenance of no less than two years, to the remaining payment of her deferred dowry (moakhar al sadaq), to obtain custody for common children until the age of 15, to receive child support, and to remain in the matrimonial home for the duration of the custody for the common children or until her remarriage if the husband fails to provide equivalent accommodation within the iddah.228 These “post-divorce rights” are enshrined in Article 18 bis1 – 3 of Law No. 25 of 1929, amended by Law No. 100 of 1985. 221 It should be noted that the vast majority of Egyptian women fail to establish a marriage contract for many reasons, among others the lack of knowledge or the social stigma that goes along with it, see (Deif, Egypt, Divorced from Justice, 16–18). 222 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 16. 223 See An-Naʾim, Islamic Family Law in a Changing World, 171. 224 See Qassem, “Law of the Familie,” 23. 225 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 6. 226 See Qassem, “Law of the Familie,” 24. 227 See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 582. 228 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 9 f.; An-Naʾim, Islamic Family Law in a Changing World, 172.

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The epsl moreover entails the following means to seek divorce: talaq, “ismah, tatliq and khul.” 3.2.2.2.1 Customary Unilateral Divorce by Husband (talaq) Law No. 25 of 1929 sets out the rules for the husband’s customary unilateral right to repudiate his wife (talaq). Article 3 of Law No. 25 of 1929 stipulates, that a husband must pronounce “You are repudiated” (anti taleqa) in three separate pronouncements in order to achieve an irreversible divorce.229 According to Article 1 of Law No. 25 of 1929, the repudiation is null and void if performed in a state of intoxication or under duress. Pursuant to Articles 2 and 4 of Law No. 25 of 1929, formulating the repudiation formula can neither be conditional nor ambiguous.230 Furthermore, the divorce must be registered with a religious notary (maazun), within thirty days pursuant to Article 5 bis of Law No. 25 of 1929.231 The maazun has the obligation to notify the repudiated wife of her repudiation.232 In addition, Article 18 of Law No. 25 of 1929 establishes a mandatory waiting period (iddah) before the divorce becomes effective. The iddah is usually three months or, in case of a pregnancy, until the wife gives birth.233 During this time the divorce is revocable, meaning that the husband can ­return to the matrimonial home in order to continue the matrimonial relationship even against the divorcee’s will.234 By establishing the iddah, the legislature abolished the irrevocable form of talaq (talaq thalath), based on which a divorce is immediately effective once the husband repeats his repudiation three successive times.235 The repudiated wife is entitled to the above-mentioned post-divorce financial rights (maintenance, compensation and remaining payment of her deferred dowry), which become effective from the date of her notification, whereas the thirty days notification time period begins upon formulating of the repudiation formula.236 229 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 12. 230 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 137. 231 See Deif, Egypt, Divorced from Justice, 19. 232 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 8. 233 See Deif, Egypt, Divorced from Justice, 20. 234 See Ibid. 235 See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 579; Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 217. 236 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 8.

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3.2.2.2.2 Customary Unilateral Divorce by Wife (ʾismah) Article 21 of Law No. 1 of 2000 refers to a customary unilateral right of repudiation initiated by the wife, referred to as ʿismah.237 The nature of this form of divorce complies with the husband’s right to talaq and must be seen as a wife’s right to divorce herself in certain circumstances through delegation.238 For this purpose, Egypt’s legislature has adopted a new standard format of a marriage contract, in which the prospective wife can agree by mutual consent with her prospective husband to be granted such right to divorce.239 Pursuant toArticle 21 the exercise of ʿismah must be registered by the maazun.240 Prior to repudiation, the maazun is required to try to reconcile the spouses.241 ʿIsmah does not affect the wife’s post-divorce financial rights (maintenance, compensation and remaining payment of her deferred dowry).242 3.2.2.2.3 Fault-based Judicial Divorce by Wife (tatliq) Article 6 of Law No. 25 of 1929,243 amended by Law No. 100 of 1985, establishes a wife’s right to seek judicial divorce based on harm (darar) caused by her husband, referred to as tatliq. Since the adoption of Law No. 1 of 2000, women who were married, based on an informal and unregistered customary marriage (zawaj ʿurfi) are also entitled to exercise tatliq, pursuant to Article 17 of Law 1 of 2000.244 237 See Ibid., 15. 238 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 13. 239 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 15. 240 See Ibid. 241 See Ibid. 242 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 193. 243 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 13. Article 6 of Law 25 of 1929 stipulates: “If the wife claimed being victim of harm by her husband whereby continuing the cohabitation becomes impossible, she may request the judge to separate them. In this event, the judge applies a minor irrevocable divorce if harm is proved and he has exhausted all means for reconciliation in vain. In case the claim had been dismissed, yet, the complaint had been recurrent and still harm had not been proved, the judge shall send two arbitrators and rule as indicated in Articles (7, 8, 9, 10, 11).” Reprinted in Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law” (Cairo, 2011), 49, available at http://www .wmf.org.eg/library/legal-guide-for-developing-a-more-just-integrated-family-law/ (last accessed 16 August 2017). 244 See Lynn Welchman, “Egypt: New Deal on Divorce,” in The International Survey of Family Law, ed. Andrew Bainham (The Hague: Martinus Nijhoff Publishers, 2004), 12.

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As the term “harm” is considerably broad, Egypt’s Court of Appeal narrowed down its scope to “the husband’s systematic maltreatment, either verbal or physical, of the wife in a manner that is not suitable to women of her standing (la yaliq bimithliha).”245 Beyond this attempt to define physical harm, Egypt’s legislator codified the grounds as explicit examples of harm in Law No. 20 of 1920, No. 25 of 1929 and No. 100 of 1985. These examples cannot be seen as grounds on which the legislature presumed harm by default – which would consequently lead to simplifying the burden of proof in favor of the wife246 – but rather as instances which potentially could constitute harm. These grounds to seek judicial divorce based on harm include: First, the husband’s failure to provide maintenance (nafaqah), pursuant to Article 4 and 5 of Law No. 25 of 1920.247 Second, the husband’s illness or defect (marad aw ʿayb), pursuant to Articles 9–11 of Law No. 25 of 1920.248 This provision implies a certain degree of illness, whereby only chronic and incurable conditions, which would cause harm to 245 Egypt’s Court of Appeal Decision No. 432 in 1964, recited by Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 139. 246 Law No. 44 of 1979, which was repealed due to procedural matters by Egypt’s Supreme Court in 1985, established an automatic right to divorce for women in case the husband takes a subsequent wife. This provision presumed harm by default once it was proven that the husband had remarried, leading to no further obligation for the first wife to provide proof of harm resulting from this subsequent marriage. Law No. 100 of 1985, which was passed only two months after the Supreme Court’s decision, deliberately lacked this assumption and established instead a requirement for the first wife to prove that the subsequent marriage caused her moral or material harm. 247 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 13. Articles 4 and 5 of Law No. 25 of 1920 stipulate that the husband’s failure to provide maintenance may be considered grounds for judicial divorce. 248 See Ibid., 14. Article 9 of Law No. 25 of 1920 stipulates: “A wife is entitled to petition for separation from her husband if she discovered he suffers incurable chronic disease (defect) or might be cured after a long period, such as madness or leprosy. Under such conditions, by cohabiting with him, she shall certainly be exposed to harm whether the husband had been inflicted with this defect before the conclusion of the marriage contract and she was not aware thereof or occurred after the contract’s conclusion and she is unsatisfied therewith. Separation is inadmissible in case she entered into marriage with prior knowledge of the defect or the defect occurred after the contract and she accepted it after being aware of it either explicitly or implicitly.” For English translation of Article 14 of Law No. 25 of 1929, see Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law,” 50.

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the wife if she remained married, lead to the abovementioned right to seek divorce. Nevertheless, this right is forfeited if the wife knew about the husband’s illness or defect upon marriage. Third, the husband’s prolonged absence for more than one year without justifiable reasons, pursuant to Articles 12 and 13 of Law No. 25 of 1929.249 Justifiable are any reasons that are in accordance with Shariʾa Law, including work, education and trade.250 Fourth, the husband’s imprisonment for three years or more, pursuant to Article 14 of Law No. 25 of 1929.251 Fifth, the husband’s marriage of a subsequent wife without the first wife’s consent, resulting in material or moral harm, pursuant to Article 11 bis (1) of Law No. 100 of 1985.252 The law restricts the wife’s right to seek divorce on the 249 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 14. Article 12 of Law 25 of 1929 stipulates: “In the event of the husband’s absence for one year or more without an acceptable excuse, it is permissible for the wife to petition for the judge to process a minor irrevocable divorce if harm befell her due to the husband’s absence, even if he had sufficient money she could use to cover her expenses.” Article 13 of Law 25 of 1929 stipulates: “if it is possible to send the absent husband messages, the judge shall send to him setting forth a time period and warning him that the judge shall process her divorce if the husband failed to return and live with her, bring her to live where he does, or divorce her.” For English translation of Article 12 and 13 of Law No. 25 of 1929, see Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law,” 50. 250 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 14. 251 See Ibid. Article 14 of Law No. 25 of 1929 stipulates: “The wife of a detainee, who is judged by a final, liberty-restricting sentence to three years and more, shall be entitled to request from the judge after one year of imprisonment to apply a minor irrevocable divorce from this husband due to being subject to harm even if the husband owns money sufficient for her to spend from.” For English translation of Article 14 of Law No. 25 of 1929, see Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law,” 50. 252 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 15; Qassem, “Law of the Familie,” 25. Article 11 bis (1) of Law No. 100 of 1985 stipulates: “A husband should declare his marital status in the marriage contract, in case he is married he should state his wife / wives names who are in a marriage bond with him, and their place of residence and the marriage officer should notify them with the new marriage by an acknowledged registered

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grounds of polygamy, by requiring her unknowingness or her lack of consent to the subsequent marriage. The notary is required to register a subsequent marriage and notify the first wife of the new marriage.253 Upon her notification, the first wife may file for divorce within one year. After that period, the law presumes her acceptance of the subsequent marriage. Sixth, the wife’s misconduct leading to discord between the spouses (khilaf mustahkam), pursuant to Article 11 bis (2) of Law No. 100 of 1985. According to Article 11 bis (2) of Law No. 25 of 1929, amended by Law No. 100 of 1985,254 a wife has an obligation to be obedient (taaʾa) to her husband. In the event of her disobedience – meaning her refusal to return to the matrimonial home after her husband’s invitation to return delivered by her legal representative in the form of a notification (daʾwa) – she loses her right to maintenance. Article 11 bis (2) of Law No. 100 of 1985 establishes means to object this procedure before a judge in case the wife had a legitimate reason (awgoh sharʾiya) to leave the home. Considering the absence of a definition as to what constitutes a “legitimate reason,” courts concluded in the past that the following incidents constitute a “legitimate reason,” namely, the husband’s systematic maltreatment of his wife, the husband’s failure to provide a matrimonial home or mistrusting him with regard to her wealth and property.255 mail. It is permissible for the wife whose husband took another wife to petition for divorce if she had been subjected to physical or moral harm whereby life becomes i­ mpossible between them. This shall apply even if she did not stipulate in the marriage contract that the ­husband should not take a second wife. In case the judge failed to reconcile between them, she would receive a minor irrevocable divorce. But a wife who becomes aware of her husband’s remarriage for over one year shall not be entitled to enjoy this right as long as she has accepted the situation either explicitly or implicitly. Her right to petition for divorce shall be renewed every time her husband re-marries. In the event that the new wife was unaware that he is married to another woman, and it was revealed that he is married, she is entitled to seek divorce thereof.” For English translation of Article 11 bis (1) of Law No. 100 of 1985, see Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law,” 51 f. 253 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 6.d. 254 Article 11 m of Law No. 25 of 1929 amended by Law No. 100 of 1985 states: “if the wife unduly refrained from obeying the husband, the husband would hold the maintenance as of the date of refrain. A wife shall be deemed as unduly refrained if she failed to return to the matrimonial house after having received an invitation from the husband to return delivered by a clerk to her or whosoever represents her in the form of a notification.” For English translation, see Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law,” 30. 255 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 139 f.

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It should be noted that due to the nature of judicial divorces, women – as applicants of the judicial process – carry the burden of proof for the aforementioned instances resulting in harm. In addition, a prior mediation process is compulsory pursuant to Article 6 of Law No. 10 of 2004.256 A wife, who is exercising tatliq, keeps her post-divorce financial rights (maintenance, compensation and remaining payment of her deferred dowry).257 3.2.2.2.4 Non-fault Judicial Divorce by Wife (khulʾ) Article 20 of Law No. 1 of 2000258 established a second type of unilateral judicial divorce initiated by women, referred to as khulʾ. A wife seeking a khulʾdivorce is not required to present any grounds for her request other than her no longer being able to bear living with her husband. The husband’s agreement to the divorce is not required.259 In exchange she relinquishes her postdivorce financial rights (maintenance (nafaqa), compensation (mutʾa) and the remaining payment of her deferred dowry (muʾakhar)) as well as returning her advanced dowry (muqaddam) to her husband.260 According to Article 20 of Law No. 1 of 2000, the spouses must go through a reconciliation period that does not exceed three months, which is supervised by a mediator from each 256 See Ibid., 141. 257 See Ibid., 194. 258 Article 20 of Law No. 1 of 2000 stipulates: “The two spouses may agree between themselves upon khul, but if they do not agree mutually and the wife files a claim requesting khul, and ransoms herself and releases herself from her husband by khul by forfeiting all of the lawful financial rights, and restores to him the dower he have to her, then the court is to divorce her from him. The court shall not grant a divorce by khul until there has been an attempt at reconciling (sulh) the two spouses, and after it has appointed two arbitrators to undertake the endeavor to reconcile them within a period not exceeding three months [in the manner set out in Articles 18(2) and 19(1) and (2) of this law] and after the wife declares explicitly that she detests life with her husband and at continuation of married life between them is impossible and that she fears that she will not maintain God’s limits due to this detestation. The consideration of khulʾ may not be the forfeiting of custody of minors, or their maintenance or any of their rights. The separation effected by khul is, under all circumstances an irrevocable divorce: and the court’s decision is, under all circumstances, not subject to appeal, in any of the forms of appeal.” For English translation of Article 20 of Law No. 1 of 2000, see Ibid., 194 f.; BernardMaugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 13. 259 See Sonneveld, Khulʿ Divorce in Egypt, 1. 260 See Welchman, “Egypt: New Deal on Divorce,” 13.

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side.261 Pursuant to Article 20 (3) of Law No. 1 of 2000, neither the wife’s right to custody for common children, nor the payment of child support is affected by this type of divorce.262 Unlike the judicial divorce on the grounds of harm (tatliq), the khulʾ divorce is not subject to appeal, pursuant to Article 20 (4) of Law No. 1 of 2000.263 Comparing the two judicial divorce options women posses based on the epsl, the khulʾ-divorce has the advantage that no evidence of harm has to be presented in court and men cannot delay the divorce procedure by appealing the court’s decision.264 Hence, khulʾ-divorce may be achieved much faster than the fault-based divorce (tatliq). The major disadvantage of khulʾ-divorce, however, is the women’s forfeiture of her post-divorce financial rights. In sum, the epsl provides for four different types of divorce: one initiated on behalf of the husband (talaq), and three initiated on behalf of the wife, namely “ismah, tatliq and khul.” 3.2.3 Discrepancies between Shariʾa and Egyptian Domestic Divorce Law In order to assess whether the Egyptian legislature incorporated all divorce rights provided by Shariʾa Law into its domestic legislation, two aspects must be considered: firstly, the establishment of the divorce right as such, and secondly, its particular conception in the legislation. Considering the objective of this section – analyzing women’s divorce rights with regard to their equal access – only females’ divorce rights will be relevant in the present comparison. Thus, males’ divorce rights are only considered implicitly in the event that the Egyptian legislation grants men broader access to divorce than Shariʾa Law. Only in this case, would a male’s divorce right create a disadvantage for women. With regard to the establishment of divorce rights as such, it must be noted that all three female divorce rights provided by Shariʾa Law are incorporated into the epsl. Their conception on the other hand varies. Article 21 (2) of Law No. 1 of 2000, which grants a female the possibility to include the right to divorce herself through delegation (ʿismah) in the marriage contract, is with regard to its conception in accordance with the Hanafi School of thought. Since ʿismah is a contractual right of dissolution, its specific

261 See Qassem, “Law of the Familie,” 26. 262 See Bernard-Maugiron and Dupret, “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt,” 14. 263 Network of Women’s Rights Organizations (nwro), “Legal Guide for Developing a More Just Integrated Family Law,” 56. 264 See Sonneveld, Khulʿ Divorce in Egypt, 1.

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­contractual prerequisites depend on individual negotiation. Hence, a discrepancy between Shariʾa Law and the epsl cannot be noted.265 With the constant extension of grounds for fault-based divorce (tatliq), Egypt’s legislature has gone beyond the available grounds of tatliq provided by all four Sunni schools of thought. Initially, Egypt’s legislature was bound to take recourse to the Hanafi school of thought. However, the many Personal ­Status Law reforms indicate a clear departure from the Hanafi school, often considered as the most restrictive school when it comes to personal status matters.266 These reforms included the recognition of additional grounds to those recognized by the Hanafi school, such as the husband’s failure to provide maintenance, maltreatment, his polygamous marriage without the wife’s consent, imposing physical or moral harm, and his misconduct creating discord. ­Additionally, the conditions on which a wife could file for divorce on the grounds of the husband’s absence were put in concrete terms. While the period of absence under the Hanafi school was three years, Article 12 and 13 of Law No. 25 of 1929 narrowed it down to one year. Moreover, imprisonment was acknowledged as a specific kind of absence and established a further reason enabling woman to seek judicial divorce. According to the explanatory note of Law No. 25 of 1920, the reforms introduced by that law were based on the more liberal Maliki school of thought, and were made possible through the application of two Islamic techniques: takhayyur (selection of the most favorable interpretation of all four Sunni schools of thought) and talfiq (combination of opinions from different schools of thought).267 Hence, all grounds to seek a judicial divorce provided for by the Hanafi school and those provided for by the three other Sunni schools of thought were incorporated into the epsl. Therefore, no gap between both legal systems can be found. Also the conception of the non-fault judicial right to divorce (khulʾ) in the epsl goes beyond the conception of khulʾ in Shariʾa Law. Although all four Sunni schools of thought accept khulʾ-divorce in principle, including the forfeit of all financial rights, they do require the husband’s consent prior to divorce.268 Article 20 (1) of Law No. 1 of 2000, on the other hand, does not require the husband’s consent. In order to enhance women’s equality, the legislature had to depart from Shariʾa Law by taking direct recourse to the actual primary sources 265 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 192. 266 See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 11; Abu-Odeh, “Crimes of Honour and the Construction of Gender in Arab Societies,” 1049. 267 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 126. 268 See Sonneveld, Khulʿ Divorce in Egypt, 141.

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of Shariʾa Law, Quran and Sunnah, which allowed for khulʾ-divorce without the husband’s consent.269 Hence, the Egyptian legislature exceeded the predominant perception of khulʾ in Shariʾa Law by establishing khulʾ-divorce without the need of the husband’s consent.270 Comparing the conception of a male’s divorce right (talaq) in Shariʾa Law to its conception in the epsl, it must be noted that the latter has implemented many restrictions to the unconditional perception of talaq in Shariʾa Law,271 intending to lead towards a more equal access to divorce. Law No. 25 of 1929 limits the right to repudiation beyond the provisions of Shariʾa Law, not only by establishing certain conditions for the formulation of the repudiation formula (Article 1, 2 and 4: no intoxication or duress, wording cannot be conditional or ambiguous), but also by abolishing the irrevocable form of talaq (talaq albidda). Based on this form of talaq, the divorce used to be immediately effective without waiting for three months (iddah) in case the husband repeated his repudiation three times successively (Article 3). During that period, a woman had not been entitled to maintenance. Law No. 25 of 1929 further implemented restrictions on the male’s right to talaq by requiring the registration of the repudiation within thirty days (Article 5).272 These restrictions on the husband’s unilateral unconditional right to repudiation as provided for in Shariʾa Law, were again possible through the application of Islamic techniques of takhayyur and talfiq by the Egyptian legislature.273 3.3

The Way Forward: Withdrawal of Reservation in Near Future?

With regard to Egypt’s obligation resulting from Article 2 (g) cedaw in conjunction with the Shariʾa-based reservation, namely the elimination of gender discrimination in the epc below the threshold of any contradiction between the Women’s Convention and Shariʾa Law, it follows that Egypt fails to meet this 269 270 271 272

See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 215. See Welchman, “Egypt: New Deal on Divorce,” 15 f. See Esposito, Women in Muslim Family Law, 56. See Mashhour, “Islamic Law and Gender Equality – Could There Be a Common Ground?” 579; Jenefsky, “Permissibility of Egypt’s Reservations to the cedaw,” 217; Esposito, Women in Muslim Family Law, 56–59. 273 See Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights, 126. Moussa points out that “[a]ccording to the explanatory note of Law No. 25 of 1929 the reforms introduced by that law were based on the more liberal Maliki school of thought and were made possible through the application of two Islamic techniques: takhayyur and talfiq.”

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obligation. The provision in the epc, which provides for grounds for mitigation in the event male relatives kill to defend the family honor, infringes upon Egypt’s obligation resulting from Article 2 (g) cedaw in conjunction with the Shariʾa-based reservation. No legal provision in classic Islamic criminal law provides for similar grounds for mitigation. Therefore, Egypt cannot invoke its reservation to Article 2 (g) cedaw, based on which Egypt is exempted from complying with the obligation to eliminate gender-discriminatory penal legislation where “such compliance does […] run counter to the Islamic Shariʾa.” Article 2 (g) cedaw in conjunction with Egypt’s reservation does not establish any further obligation for the Egyptian parliament to repeal its criminal provisions. There is no discrepancy between Shariʾa Law and the epc regarding the analyzed forms of domestic violence, namely wife battery and marital rape. With regard to Egypt’s obligation resulting from Article 16 (1) (c) cedaw in conjunction with the Shariʾa-based reservation, namely the elimination of gender-discriminatory divorce law provisions below the threshold of any contradiction between the Women’s Convention and Shariʾa Law, it follows that Egypt meets its obligation. The current epsl grants women at minimum those divorce rights provided for by all four Sunni schools of thought (khulʾ, ʿismah, tatliq). This status quo can be attributed to Egypt’s establishment of Article 3 of Law No. 1 of 2000, which gave judges the possibility to refer to any of the four Sunni schools of thought (takhayyur), instead of being bound to the most restrictive school of thought. In addition to that, Egypt’s legislator applied the practice of ijtihad (novel interpretation of the primary sources of Shariʾa Law and thus departing from the jurisprudence of the medieval schools of thought) in order to legitimize reforms intending to advance women’s rights in the field of the epsl.274 Albeit Egypt’s recent reforms, it must be noted that Egypt failed to comply with this obligation prior to the adoption of Law No. 1 of 2000, whereby khulʾdivorce was established, despite the fact that khulʾ-divorce has always been acknowledged by all four Sunni schools.275 Egypt’s failure to include khulʾ-divorce into its domestic legislation until the year 2000, exposes its shortcomings in the past with regard to Egypt’s reservation to Article 16 (1) (c) cedaw, in which Egypt agreed to implement women’s equality related to divorce law as long as it does not conflict with Shariʾa Law. In fact, it is due to the relentless efforts of Egypt’s feminist movement that khulʾ-divorce had been adopted, which based

274 See Ibid. 275 See Sonneveld, Khulʿ Divorce in Egypt, 2.

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their arguments on Islamic sources,276 and on Egypt’s international obligation manifested through the Women’s Convention.277 Its establishment nonetheless triggered much opposition and provoked widespread public discussions, as it gave Egyptian women some of the most extensive divorce rights in the Muslim world.278 The more far reaching question, as to whether women have full equal ­divorce rights, which may in the future lead to Egypt’s withdrawal of its reservation to Article 16 cedaw, must be disagreed with at this point in time. It was therefore surprising, that shortly after amending the EPSL to include khulaʾ divorce, the Egyptian government announced considering to withdraw the reservation to Article 16 cedaw.279 Although the establishment of khulʾ-divorce gives ­women the opportunity to initiate a non-fault divorce; it cannot be neglected that men are still privileged over women by means of talaq, whereby no reference to grounds nor adherence to legal procedures is required for men divorcing women. Even if it was argued, that the legal option of ʿ­ismah grants women an equal non-judicial and non-fault based right to divorce, women still need their husband’s consent to include such right into a marriage contract in the first place. In addition, it is noteworthy that Egyptian women do rarely make practical use of ʿismah, as it is socially considered a “bad omen” to talk about divorce, which results in their discouragement to insist on including ʿismah into a marriage contract at a point in life where divorce is not on a woman’s agenda.280

276 See Chapter 3.2.1. “Islamic divorce law,” supra note 420 states the relevant Hadith and the Quranic verse (Surah 2: 229). 277 See Deif, Egypt, Divorced from Justice, 24. 278 See Sonneveld, Khulʿ Divorce in Egypt, 2; Marwa Sharafeldin, “Islamic Law Meets Human Rights: Reformulating Qiwamah and Wilayah for Personal Status Law Reform Advocacy in Egypt,” in Men in Charge?: Rethinking Authority in Muslim Legal Tradition, ed. Ziba MirHosseini, Mulki Al-Sharmani, and Jana Rumminger (London: Oneworld, 2015), 163 ff. 279 See, Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee.” CEDAW/PSWG/2001/I/CRP.2/Add.3 23 October 2000; page 4, on Question 3. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women concerns equality in marriage and at its dissolution. The National Council for Women (Egypt’s central governmental entity responsible for eliminating gender discrimination) highlighted in the report that “[a]n important step has been taken to promote equality between women and men in the area of Family Law which will pave the way to make Egypt’s withdrawal of its reservation to Article 16 possible. Law no. 1 of 2000, effective as of 1 March 2000, gave women the equal right of divorce through Khul.” 280 See Mehdi, Menski, and Nielsen, Interpreting Divorce Laws in Islam, 26.

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Nonetheless, the cedaw Committee’s assessment of khulʾ-divorce, arguing that a wife’s obligation to forfeit all post-divorce financial rights creates inequality,281 must be disagreed with due to the fact that a husband who initiated a divorce is equally required to pay a compensation to his wife. Subsequently, a woman’s forfeiture of her financial rights under khulʾ law does not result in inequality. However, men and women in Egypt do not have equal divorce rights yet. Therefore, Egypt’s announcement to withdraw its reservation to Article 16 cedaw must be deemed unlikely in the near future. 281 See cedaw Committee, “Concluding Observations Egypt,” para. 323, 328.

chapter 4

The Women’s Convention’s Impact on Egyptian Legislation The objective of this chapter is to evaluate whether Egypt implemented the Women’s Convention’s obligations in its domestic legislation ­thirty-seven years after Egypt’s ratification. Effectively, by being a signatory State to the Women’s Convention, Egypt is bound to carry out its international obligation to eliminate gender-discriminatory legislation from its domestic legislation in the non-reserved areas of law. In order to assess Egypt’s implementation efforts, an analysis of two different hierarchical levels will be conducted, namely, the constitutional (4.1) and the statutory level (4.2). To this end, four areas of Egypt’s statutory law will be examined as case studies, specifically, the Law on Female Genital Mutilation (4.2.1), the Law on Human Trafficking (4.2.2), the Nationality Law (4.2.3) and the Labor Law (4.2.4), followed by a summary of the findings (4.5). This chapter will conclude with suggestions to improve Egypt’s implementation efforts (4.3). 4.1

Egypt’s Constitution

The object of this section is to assess the extent to which formal equality between men and women has found its way into the Egyptian constitution. While the relevant subject of reference is the most recent 2014 Constitution, the prior two Constitutions of 2012 and 1971 will be equally assessed, due to the fact that the 2014 Constitution was based on the earlier ones. 4.1.1 Scope of States Parties Obligation under cedaw According to Article 2 (a) cedaw, States Parties are required, inter alia: [t]o embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle.1 1 ohchr, “Text to Women’s Convention.”

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004346840_006

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States parties thus have an obligation to either incorporate a constitutional guarantee of gender equality in their national constitutions, or to ensure by other supplementary legislation the principle of gender equality. It must be noted that both alternatives entail an obligation to establish an equality guarantee on a supreme legislative level.2 Therefore, the second alternative must be understood as an acknowledgement of the States parties’ different legal traditions, and legislative structures to implement such guarantee, rather than a mitigation of the obligation as such.3 The rationale of an equality guarantee on a constitutional level is the establishment of a norm of supreme hierarchy, which prevails over inconsistent statutory norms of lower legislative status and enables national constitutional courts to deem such laws as unconstitutional.4 Considering Egypt’s reservation to Article 2 cedaw, this obligation applies to Egypt merely “provided that such compliance does not run counter to the Islamic Shariʾa.”5 As pointed out by the National Council for Women6 in Egypt’s State Report to the cedaw Committee in 2008, the government considers itself bound to this obligation and subsequently there seems to be no conflicting Shariʾa Law provision.7 4.1.2 Egypt’s Compliance Throughout Egypt’s recent tumultuous constitutional history, in which the country has witnessed three constitutions between 2011 and 2014, women have not been evenly guaranteed equality with men. The latter two constitutions, namely the Constitution of 2012 and 2014, were based on the 1971 Constitution and share two fundamental characteristics, namely a remarkably powerful presidency and an institutionalized religion. 4.1.2.1 Constitution of 1971 With regard to the status of women, the 1971 Constitution, which had been in force at the time the Women’s Convention was drafted, acknowledged women’s equal rights in the political, social, cultural and economic life 2 3 4 5

See Byrnes, “Article 2 cedaw,” 79. See Ibid. See Ibid. untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” 6 The National Council for Women is Egypt’s central governmental entity responsible for eliminating gender discrimination. 7 Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 15 f.

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(Article 11).8 However, two constraints were made to the State’s equality guarantee in that same provision. First, the acknowledgement of women’s equal rights was placed within the broader provision dealing with duties of women towards the family. This provision explicitly attributes family duties solely to women and guarantees a proper coordination between a woman’s family and her social obligations. However, if women bear the main responsibility for running a family, ipso facto, they have no equal status with men in the aforementioned areas of life.9 Second, the State’s equality guarantee is limited by rules of Islamic jurisprudence. Despite the aforementioned critique regarding the vagueness of the term “Islamic jurisprudence,” and the legal instability such vagueness entails,10 this limitation could be understood in two ways. Either as the concept of “non-identical but equal responsibilities,”11 according to which women carry the principal responsibility for the immaterial well-being of the family, whereas men bear the material one. Alternatively, it could refer to the traditional Islamic concept of “qiwamah and wilayah,” according to which women are placed under men’s authority.12 Either interpretation is incompatible with the concept of gender equality, as women are constitutionally burdened with additional obligations. Moreover, the 1971 Constitution provided for a general non-discrimination provision, in which all citizens are granted equality before the law (Article 40).13 It includes a catalogue of reasons due to which no discrimination was ought to be implemented, namely race, ethnic origin, language, religion and creed, 8

9

10 11 12 13

“Constitution of the Arab Republic of Egypt, Adopted 11 September 1971, Amended 22 May 1980, 25 May 2005, 26 March 2007,” available at http://www.constitutionnet.org/files/ Egypt%20Constitution.pdf (last accessed 16 August 2017). Article 11 stipulates: “The State shall guarantee the proper coordination between the duties of woman towards the family and her work in the society, considering her equal status with man in the fields of political, social, cultural and economic life without violation of the rules of Islamic jurisprudence.” It should be noted that the Noational Council for Women (ncw) clarified in Egypt’s latest Periodic State Report to the cedaw Committee expressly that Article 11 would not entrench gender discrimination, as “the Article did not state women were alone responsible for the family,” see Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 17. See Chapter 2.2.3. Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 74. See Mir-Hosseini, Al-Sharmani, and Rumminger, Men in Charge?, 16. Article 40 stipulates: “All citizens are equal before the law. They have equal rights and duties without discrimination between them due to race, ethnic origin, language, religion or creed.”

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leaving out the category of gender. However, as the Supreme Constitutional Court’s jurisprudence showed, cases challenging gender-discriminatory legislation were addressed in the scope of Article 40, in which the Court read “gender” into the prohibitive catalogue of reasons for discrimination.14 Thus, on an application level, Article 40 included the prohibition of gender discrimination. Although not specifically related to the status of women, it should be mentioned that the 1971 Constitution names Islam as the religion of the State and Shariʾa Law as the principle source of legislation (Article 2).15 Apart from the status of women and the role of Shariʾa, the 1971 Constitution was characterized by a strong executive branch of government, leaving a rather weak legislative and judicial one. The great executive powers included, inter alia, the establishment of emergency laws by the government, or the authoritarian election laws prohibiting political parties based on religion and social class, which in turn resulted in a parliament widely comprised of members of former President Hosni Mubarak’s National Democratic Party (ndp).16 4.1.2.2 Constitution of 2012 In the course of Egypt’s large-scale protests, beginning on 25 January 2011, leading to an overthrow of Mubarak on 11 February 2011,17 the call for a new constitution became a major demand of the people,18 as the 1971 Constitution was made responsible for the authoritarian regime of Mubarak and his government.19 After the interim regime of the Supreme Council of the Armed 14

15 16 17 18

19

See, for instance, the Supreme Constitutional Court’s ruling of Novermber 4, 2000, on the unconstitutionality of the decree issued by the Minister of Interior according to which a wife was required to obtain her husband’s permission to travel. Recited in Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 74. Article 2 stipulates: “Islam is the religion of the state and Arabic its official language. Principles of Islamic law (Shariʾa) are the principal source of legislation.” See Alper Y. Dede, “The Egyptian Spring: Continuing Challenges a Year after the Arab Spring,” usak Yearbook of Politics and International Relations 5 (2012): 111–17. For a comprehensive overview of the events of the revolution, particularily considering the role of women in the revolution, see Aziz, “Egypt’s Protracted Revolution.” The key factors leading to the Egyptian Spring included, the lack of democracy, brutal repression of political opposition, economic stagnation, lack of opportunities for young educated Egyptian and mass discontent with Egypt’s pro-American foreign policy position, see Dede, “The Egyptian Spring,” 100 f.; Nicolas Heliotis, “A Textual Analysis of Presidential Power under the 2014 Egyptian Constitution,” International Lawyer 48, no. 2 (2014): 131. See Meyer-Resende, “Egypt: In-Depth Analysis of the Main Elements of the New Constitution,” 6.

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Forces (scaf) was replaced20 on 24 June 2012, by the newly elected government of the deposed former President of Egypt Mohammed Morsi, the candidate of the Muslim Brotherhood’s Freedom and Justice Party (Hezb Al-horya w Al-adalah),21 a new constitution was adopted on 1 December 2012, following a popular referendum.22 The 2012 Constitution23 merely referred to women in the family context by recognizing that “reconciliation between the duties of a woman towards her family and her work” should be provided for by the State (Article 10).24 Throughout the 236-article document, no reference to gender equality or nondiscrimination on the basis of gender was made. It must therefore be concluded that the 2012 Constitution was a significant setback in terms of women’s rights and a violation of Article 2 (a) cedaw. In this vein, the Constituent Assembly,25 which was set up to draft the new Constitution and largely comprised of members of the Muslim Brotherhood’s 20 The scarf suspended the 1971 Constitution and issued a provisional constitution on March 30, 2011, see Ibid. 21 For a detailed overview of the Muslim Brotherhood’s history, its political agenda and its significance in the region, see Kirsten Stilt, “‘Islam Is the Solution’: Constitutional Visions of the Egyptian Muslim Brotherhood,” Texas International Law Journal 46, no. 1 (2010): 73–108. 22 The approval rate was 63,8 percent with a turnout rate of 32,9 percent out of Egypt’s 51,918,866 voters, see Meyer-Resende, “Egypt: In-Depth Analysis of the Main Elements of the New Constitution,” 6. 23 For a comprehensive analysis of the 2012 Constitution, see Mara Revkin, “Egypt’s Constitution in Question,” Middle East Law and Governance 5 (2013): 331–43. 24 “Constitution of the Arab Republic of Egypt, Adopted 1 December 2012,” available at http://hrlibrary.umn.edu/research/Egypt/EGYPT%20CONSTITUTION%202012.pdf (last accessed 16 August 2017). Article 10 stipulates: “The family is the basis of the society and is founded on religion, morality and patriotism. The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law. The State shall ensure maternal and child health services free of charge, and enable the reconciliation between the duties of a woman toward her family and her work. The State shall provide special care and protection to female breadwinners, divorced women and widows.” 25 The first Constituent Assembly, which was mainly comprised of members of the two majority parties, the Freedom and Justice Party and the The Light Party, was suspended by Cairo’s Administrative Court on 10 April 2012, as it was considered to be “unrepresentative for involving too few women, young people and minority representatives,” and later recomposed. Available at http://www.sis.gov.eg/En/Templates/Articles/tmpArticles .aspx?CatID=206#.VqDFW1N97dQ (last accessed 16 August 2017).

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Freedom and Justice Party (Hezb Al-horya w Al-adalahʾ) and the Salafists’ The Light Party (Hezb Al-nour), granted Shariʾa Law a greater place in the 2012 Constitution. In addition to literally reiterating Article 2 of the 1971 Constitution, the 2012 Constitution defined the principles of Islamic Shariʾa and narrowed it down to Sunni doctrines (Article 219).26 Article 219 thus restricted the legislator’s and the Supreme Constitutional Court’s discretion to refer to other than Sunni doctrines. Moreover, the center of Sunni Islamic scholarship “Al-Azhar”27 was granted exclusive autonomy and its scholars were ought to be consulted in matters pertaining to Shariʾa Law (Article 4).28 Such consultation would, on the one hand, interfere with the legislator’s independency when drafting legislation, which included Shariʾa Law, and on the other hand, with the judiciary’s independency when ruling on cases, involving Shariʾa Law. Hence, Article 4 challenged the independence of two essential branches of government and shifted Egypt’s governmental system from a secular one to one that has theocratic features.29 While it could be argued that the formulation “principles of Shariʾa Law are the principal source of legislation,” outlined in Article 2 of both constitutions, would already challenge the notion of a secular system, it must be borne in mind that under Article 175 of the 1971 Constitution, the Supreme Constitutional Court – a secular institution – maintained the sole authority to determine what the principles of Shariʾa Law were.30 The 2012 Constitution 26

27 28

29

30

Article 219 stipulates: “The principles of Islamic Shariʾa include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.” Al-Azhar is one of the major religious institutions for Islamic scholarship, located in Cairo. Article 4 stipulates: “Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law. The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the Senior Scholars is to be determined by law. The State shall ensure sufficient funds for Al-Azhar to achieve its objectives. All of the above is subject to law regulations.” See Mohamed Abdelaal, “Egypt’s Constitution: What Went Wrong?” Vienna Journal on International Constitutional Law 7, no. 2 (2013): 204. See also Mohamed El-Baradei (former interim Vice President for foreign relations from 14 July to 14 August 2013, opposition leader, former Director General of the iaea and Nobel Peace Prize winner in 2005), who cosidered the 2014 constitution as a “major threat to democracy,” see Bawar Bammarny, “The New Egyptian Constitution of 2012,” Arab Law Quarterly 27, no. 3 (2013): 281. See Abdelaal, “Egypt’s Constitution: What Went Wrong?” 201 f.

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also restricted the Supreme Constitutional Court’s competency from interpreting the law to merely reviewing its constitutionality (Article 175).31 Together these three provisions elevated the status of Shariʾa and – as feared by the opposition – could have served as justification for future parliaments to pass widespread Shariʾa Law-based legislation, which would have adversely affected religious minorities and the rights of women.32 Merely as a side note, it should be mentioned, that the parliament had already debated draft legislation, according to which three legislative achievements, namely the increase in marriage age, the penalization of Female Genital Mutilation and non-fault judicial divorce right of women khulʾ, were intended to be reversed.33 Apart from the status of women and the role of Shariʾa, the 2012 Constitution included many ambiguous provisions – i.e. on judicial independence – and thereby created a system, which did not clarify the balance of powers between the executive, legislative and judicial branches of government as well as the Al-Azhar institution with adequate certainty.34 Due to the growing economic crisis, as well as widespread concerns about the President’s power concentration, millions of Egyptians began to question the former President Mohamed Morsi’s capability to lead effectively the country into a democracy, which again led to large-scale protests.35 After Morsi refused to meet any of the demands of the protestors, the Armed Forces removed him from his position on 3 July 2013, and suspended the 2012 Constitution, only six months after its adoption.36 4.1.2.3 Constitution of 2014 The subsequent elected government of the current Egyptian President Abdel Fattah El-Sisi adopted a third Constitution on 18 January 2014 following

31 32 33 34 35

36

See Bammarny, “The New Egyptian Constitution of 2012,” 287. See Revkin, “Egypt’s Constitution in Question,” 334. See Ibid. See Ibid., 333. Heliotis concludes that “Morsi’s presidency was in the end doomed by a combination of political and administrative incompetence, lack of support from the military, and popular unrest [which] largely came down to the economy, […] to his more geneal inability to effectivly manage the egyptian state [and his] inability to provide for the basic expectations of his people,” see Heliotis, “A Textual Analysis of Presidential Power under the 2014 Egyptian Constitution,” 135. See Meyer-Resende, “Egypt: In-Depth Analysis of the Main Elements of the New Constitution,” 6.

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a­ nother popular referendum, which is presently in force.37 The 2014 Constitution38 includes a general non-discrimination provision based on a wide catalogue, namely “discrimination based on religion, belief, sex, origin, race, color, language, disability, social class, political or geographic affiliation” (Article 53).39 Compared to Article 40 of the 1971 Constitution, Article 53 specifically names “sex” as a prohibited means of discrimination. In addition, it provides for a specific gender equality guarantee, requiring the State to “ensure the achievement of equality between women and men in all civil, political, economic, social, and cultural rights” (Article 11 (1)).40 Unlike Article 11 of the 1971 Constitution, the current gender equality guarantee is free of any restrictions. Moreover, it includes a commitment to grant women offices in the parliament, in judicial bodies, as well as senior management offices (Article 11 (2)), 37

38 39

40

See Ibid. For a comprehensive portray of President Abdel Fattah El-Sisi including the events following his election, see Peter Hessler, “Egypt’s failed revolution,” The New Yorker, 02.01.2017, available at http://www.newyorker.com/magazine/2017/01/02/egypts-failed -revolution (last accessed 16 August 2017). For a comprehensive analysis of the 2014 Constitution, see Heliotis, “A Textual Analysis of Presidential Power under the 2014 Egyptian Constitution.” Text to the “Egyptian Constitution 2014.” available at http://www.sis.gov.eg/Newvr/ Dustor-en001.pdf (last accessed 16 August 2017). Article 53 stipulates: “Citizens are equal before the law, possess equal rights and public duties, and may not be discriminated against on the basis of religion, belief, sex, origin, race, color, language, disability, social class, political or geographical affiliation, or for any other reason. Discrimination and incitement to hate are crimes punishable by law. The state shall take all necessary measures to eliminate all forms of discrimination, and the law shall regulate the establishment of an independent commission for this purpose.” Article 11 stipulates: “The state commits to achieving equality between women and men in all civil, political, economic, social, and cultural rights in accordance with the provisions of this Constitution. The state commits to taking the necessary measures to ensure appropriate representation of women in the houses of parliament, in the manner specified by law. It grants women the right to hold public posts and high management posts in the state, and to appointment in judicial bodies and entities without discrimination. The state commits to the protection of women against all forms of violence, and ensures women empowerment to reconcile the duties of a woman toward her family and her work requirements. The state ensures care and protection and care for motherhood and childhood, and for breadwinning, and elderly women, and women most in need.”

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and allocates a quarter of local council seats to women (Article 180).41 Furthermore, the text ensures the State’s commitment to protect women against all forms of violence (Article 11 (3)), and grants Egyptian women the right to transfer citizenship to their bi-national children (Article 6).42 In addition, the 2014 Constitution gives certain national councils a constitutional legitimation, including the National Council for Women (Article 214),43 which was established under Decree No. 90 of 2000 “to propose public policy matters […] concerning the development and the empowerment of women to enable them to play their social and economic role, and to integrate their efforts in comprehensive development programs.”44

41

Article 180 stipulates: “Every local unit elects a local council by direct, secret ballot for a term of four years. A candidate must be no younger than 21 years old. The law regulates other conditions for candidacy and procedures of election, provided that one quarter of the seats are allocated to youth under 35 years old, one quarter is allocated for women, workers and farmers are represented by no less than 50 percent of the total number of seats, and these percentages include a proper representation of Christians and people with disability. Local councils are responsible for developing and implementing the development plan, monitoring the activity’s different aspects, exercising the tools of monitoring the executive authority such as proposals, and submitting questions, briefing motions, interpellations and others, and withdrawing confidence from the heads of local units, in the manner organized by law. The law defines the mandate of other local councils, their financial sources, guarantees of its members, and their independence.” 42 Article 6 stipulates: “Citizenship is a right to anyone born to an Egyptian father or an Egyptian mother. Being legally recognized and obtaining official papers proving his personal data is a right guaranteed and organized by law. Requirements for acquiring citizenship are specified by law.” 43 Article 214 stipulates: “The law specifies independent national councils including the National Council for Human Rights, the National Council for Women, the National Council for Childhood and Motherhood, and the National Council for Persons with Disability. The law sets out their structures, mandates, and guarantees for the independence and neutrality of their members. They have the right to report to the public authorities any violations pertaining to their fields of work. These councils have legal personalities and enjoy technical, financial, and administrative independence. They are to be consulted with regard to draft laws and regulations pertaining to their affairs and fields of work.” 44 Article iii of the Presidential Decree No. 90 of 2000 for the establishment of the National Council for Women.

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Apart from the outlined major advances on women’s rights, the 2014 Constitution again literally reiterates Article 2 of the 1971 Constitution, by which Shariʾa is the principle source of legislation (Article 2),45 and recognizes Al-Azhar as an independent scientific Islamic institution and as the main a­ uthority for religious sciences (Article 7).46 However, unlike the 2012 Constitution, it does not provide its scholars consultation status in matters pertaining to Shariʾa Law, and therefore refrains from the non-secular vein of the 2012 Constitution. Although the 2014 Constitution includes several provisions pertaining to the government’s construction, which run counter to democratic principles,47 it provides for women’s fundamental rights and must therefore be considered a true “paradigm shift”48 in terms of the progression on women’s rights. 4.1.3 Summary Egypt’s 2014 Constitution subsequently satisfies the aforementioned States parties’ obligation to embody the principle of the gender equality into national constitutions, outlined in Article 2 (a) cedaw. This assessment evidently does not apply to the 2012 Constitution; while the 1971 Constitution – although not formally, but in its practical application – entailed the principle of nondiscrimination and thus complied with Egypt’s international obligation under Article 2 (a) cedaw. 45 46

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48

Article 2 stipulates: “Islam is the religion of the state and Arabic is its official language. The principles of Islamic Shariʾa are the principle source of legislation.” Article 7 stipulates: “Al-Azhar is an independent scientific Islamic institution, with exclusive competence over its own affairs. It is the main authority for religious sciences, and Islamic affairs. It is responsible for preaching Islam and disseminating the religious sciences and the Arabic language in Egypt and the world. The state shall provide enough financial allocations to achieve its purposes. Al-Azhar’s Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among the members of the Council of Senior Scholars is to be determined by law.” Inter alia, an excessively strong presidency, which questions the concept of separation and balance of powers; an ambiguous division between the roles of the president and the prime minister resulting in no clear accountability for the executive; a considerablly influential military, which may also interfere in civil matters and is beyond democratic control; as well as an institutionalized Islam. See Meyer-Resende, “Egypt: In-Depth Analysis of the Main Elements of the New Constitution,” 4; Heliotis, “A Textual Analysis of Presidential Power under the 2014 Egyptian Constitution,” 140–46. See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Country Gender Analysis: Egypt” (Eschborn, 2014), 7.

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Egypt’s Statutory Laws

The following sections will evaluate Egypt’s statutory laws, in order to assess the extent of the Women’s Convention’s implementation. In this regard four areas of law will be examined as case studies: namely the Law on Female Genital Mutilation (4.2.1), the Law on Human Trafficking (4.2.2), the Law on Nationality (4.2.3), and the Labor Law (4.2.4). Due to the author’s legal background, this analysis will be limited to the legal measures employed by Egypt in response to the Women’s Convention (de jure implementation) and will not include its enactment (de facto implementation). However, some aspects regarding the de facto implementation of the Women’s Convention will be briefly considered at the end of each section (“de jure vs. de facto considerations”) and at the end of this chapter (4.3). Combatting Female Genital Mutilation in Light of Article 12, 2 and 5 cedaw This section seeks to examine Egypt’s implementation efforts regarding its obligations under the Women’s Convention to eliminate Female Genital Mutilation (hereinafter “fgm”). Therefore, the next sections will first provide necessary background information on fgm (4.2.1.1), followed by an overall analysis of States parties’ obligation regarding its elimination (4.2.1.2). Hereinafter, Egypt’s legislative efforts on fgm will be looked at in detail, to assess whether Egypt fulfilled its obligation under cedaw (4.2.1.3), followed by a summary of the findings and brief notes on the de facto implementation of Egypt’s legislation (4.2.3.4). Suggestions on what may be required to fully comply with Articles 12, 5, 2 cedaw de jure and de facto will be provided at the end of Chapter 4 (4.3). 4.2.1

4.2.1.1 Background Information on Female Genital Mutilation The cedaw Committee noted that: Female genital mutilation, female circumcision or female genital cutting is the practice of partially or wholly removing the external female genitalia or otherwise injuring the female genital organs for non-­medical or non-health reasons. […] fgm is performed in every region of the world and within some cultures, is a requirement for marriage and believed to be an effective method to control women’s and girls’ sexuality.49 49

cedaw Committee, “gr No. 19,” para. 18. The cedaw Committee further noted that, “who and unicef estimate that between 100 and 140 million girls and women worldwide have been subjected to one of the types of fgm.”

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Depending on the geographic region or the ethnic groups in which fgm is practiced, its procedure may vary greatly.50 The World Health Organization (hereinafter “who”) has recognized four different categories of fgm51 namely: [T]he partial or total removal of the clitoris and / or the prepuce, referred to as ‘clitoridectomy’ (Type i); the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora, referred to as ‘excision’ (Type ii); narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and / or the labia majora, with or without excision of the clitoris, referred to as ‘infibulations’ (Type iii); and all other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization all other procedures (Type iv).52 These procedures differ distinctly from male circumcision, in which the foreskin from the tip of the penis is removed, leaving the organ itself undamaged.53 Female circumcision is therefore anatomically noticeably more invasive, and may – depending on the type of fgm – be compared to an “amputation of most of the penis.”54 Another difference is the social connotation of male circumcision, which is intended to affirm manhood, whereas fgm is intended to restrain women’s sexual desire. In addition, unlike male circumcision, fgm has no known health benefits, but is rather acknowledged to be harmful.55 50 51

52

53

54 55

See Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (London: Zed Books, 2000), 7 f. To view images of the female genital anatomy affected by Female Genital Mutilation, see Committee on American Academy of Pediatrics, “Female Genital Mutilation” (1998) 102 Pediatrics 153, 154–55, available at http://pediatrics.aappublications.org/content/102/1/153 (last accessed 16 August 2017). World Health Organization (who), “Eliminating Female Genital Mutilation. An Interagency Statement – ohchr, unaids, undp, uneca, unesco, unfpa, unhcr, unicef, unifem, who” (New York, 2008), 24, available at http://www.who.int/reproductivehealth/ publications/fgm/9789241596442/en/ (last accessed 16 August 2017). See Robert Darby and J. Steven Svoboda, “A Rose by Any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting,” ed. American Anthropological Association, Medical Anthropology Quarterly 21, no. 3 (2007): 305. See Rahman and Toubia, Female Genital Mutilation, 4. See Ibid.

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Apart from the procedure itself being painful and traumatic, fgm may cause imminent life-threatening complications such as, serve blood loss, shock following blood loss or pain, local infection, blood poisoning, tetanus, or urinary retention.56 Moreover, fgm is often associated with long-term health consequences, including, reoccurring urinary tract or pelvic infections, cysts along the cutting, infertility, reduced sexual desire and pleasure, painful menstruation, painful sexual intercourse, significantly greater risk of a Caesarean, maternal death, or stillbirth.57 Furthermore, babies of women, who underwent fgm, suffer a higher rate of neonatal death compared to babies of women, who did not undergo fgm.58 The psychological effects of fgm on a woman should not be neglected either. Those psychological effects result, on the one hand, from being forcibly held and physically harmed and, on the other hand, from having mutilated genitals.59 fgm is mostly performed between the age of 0 and 15 years.60 While the procedure was traditionally carried out by local village practitioners or midwifes without anesthesia using knives, razor blades, broken glasses or scissors, in more recent years trained health personnel started to perform fgm under more sterile conditions and using anesthesia.61 It is important to note that fgm is a multi-causal matter, which is predominantly based on justifications such as, preserving cultural identity, controlling women’s sexuality, applying religious commends, as well as submitting to social pressure within the community.62 Families, who support fgm, do not necessarily intend to harm their daughters, but to prevent them from stigmatization and rejection from the community as uncircumcised girls are often considered “dirty, different and even dangerous.”63 Societies, which practice

56 57 58 59 60 61 62 63

See American Academy of Pediatrics, Committee on Bioethics, “Female Genital Mutilation,” Pediatrics 102, no. 1 (1998): 154. See Ibid. See World Health Organization (who), “Eliminating Female Genital Mutilation,” 1. See American Academy of Pediatrics, Committee on Bioethics, “Female Genital Mutilation,” 154. See World Health Organization (who), “Eliminating Female Genital Mutilation,” 4. See American Academy of Pediatrics, Committee on Bioethics, “Female Genital Mutilation,” 153; Rahman and Toubia, Female Genital Mutilation, 3. See Rahman and Toubia, Female Genital Mutilation, 5 f. See Marjolein Van Den Brink and Marjan Wijers, “‘Because to Me, a Woman Who Speaks in Public Is a Public Woman’: 30 Years Women’s Convention and the Struggle to Eliminate Discrimination Against Women in the Field of Trafficking and Prostitution,” in The Women’s

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fgm, perceive it as necessary to prepare a girl for womanhood, to purify her by eliminating “masculine” parts such as the clitoris, to enhance men’s sexual pleasure, to preserve her virginity, to restrain her sexual desire and thus preventing “deviant and immoral” behavior.64 Girls, who undergo fgm, are rewarded by the community through celebrations, public recognition, and gifts, which impart a sense of pride and a feeling of community membership, often resulting in a girl’s desire to undergo this practice.65 Furthermore, it should be noted that fgm is not a religious but a cultural practice, as its prevalence predates the arrival of Christianity and is carried out by Jews, Christians, Muslims, as well as indigenous religious groups in Africa, where it is most prevalent.66 4.2.1.2 Scope of States Parties Obligation under cedaw The scope of the current section is to analyze which of the cedaw-articles are violated through fgm and outline the States parties’ obligations resulting thereto. While fgm appears to be a “clear case” of a serious women’s human rights violation, a closer look into the Women’s Convention reveals certain challenges as to which specific article applies to fgm. Although none of the articles specifically mention fgm, the Women’s Convention provides for a foundation of rights, which leads to the conclusion that fgm is an infringement upon women’s human rights.67 In this context the cedaw Committee issued ten General Recommendations regarding the practice of fgm as of July 201768 and thereby utilized “its interpretative authority by issuing General Recommendations and Concluding Observations.”69 In these General Recommendations, the Committee considered fgm in a broad normative context.70 While fgm

64 65 66 67

68 69 70

Convention Turned 30: Achievements, Setbacks, and Prospects, ed. Ingrid Westendorp (Cambridge: Intersentia Publishing Ltd, 2012), 283. See World Health Organization (who), “Eliminating Female Genital Mutilation,” 6. See Ibid. See Rahman and Toubia, Female Genital Mutilation, 6. See The Advocates for Human Rights, “Developing Legislation on Violence against Women and Girls,” 2011, 411, available at http://www.endvawnow.org/uploads/modules/ pdf/1355776748.pdf (last accessed 16 August 2017). Namely, General Recommendation No. 3 (1987), 14 (1990), 19 (1992), 21 (1994), 24 (1999), 25 (2004), 28 (2010), 29 (2013), 30 (2013), and 31 (2014). See Freeman and Chinkin, “Introduction,” 21. Apart from the cedaw Committee, other un bodies have interpreted fgm as a human rights violation, inter alia, the Committee on the Rights of the Child in its General

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is primarily “harmful to the health of women”71 addressed by Article 12 cedaw, fgm constitutes “Violence against Women”72 addressed by Article 2 cedaw, as well as a “harmful traditional custom”73 addressed by Article 5 cedaw. The Committee requires States parties to include in their Periodic State Reports “under articles 10 and 12 [cedaw] information about measures taken to eliminate female circumcision”74 and assesses States parties’ efforts to combat fgm in its Concluding Observations in the scope of Article 12 cedaw.75 Whether fgm fulfills the specific requirements of Articles 12, 2 and 5 cedaw will be assessed in the following section. 4.2.1.2.1 fgm as an Infringement of Article 12 cedaw Article 12 cedaw specifically protects the right to non-discriminatory health care service, rather than the right to health as such76 and states: 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a

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Comment No. 18 (2014), un Doc crc/C/GC/18; and the Human Rights Committee in its concluding observations to Sudan’s State Report submitted in 1997, un Doc CCPR/C/79/ Add.85; the un ga by adopting the davaw (Article 3 (f)). In addition, particularly two outcome documents of international conferences called upon governments “to take action to eliminate female circumcision,” see the Program of Action of the International Conference on Population and Development, Cairo, Egypt, 5–13 September 1994, un Doc A/CONF.171/13/Rev. i paras 4.22, 5.5, 7.6, 7.40; and the Beijing Declaration and Platform for Action, Fourth World Conference on Women, Beijing, China, 4–15 September 1995, un Doc dpi/1766/Wom. paras 107, 113, 124, 232, 277. See also Brink and Wijers, “‘Because to Me, a Woman Who Speaks in Public Is a Public Woman’,” 292 ff. She points out that fgm imposes an infringement to other internationally recognized human rights beyond those included in the Women’s Convention, inter alia, the right to life and physical integrity; the right to health; the rights of a child, the right to be free from torture and other cruel, inhumane or degrading treatment and the right to personal dignity. cedaw Committee, “gr No. 14,” para. 14. cedaw Committee, “gr No. 19,” para. 11. cedaw Committee, “General Recommendation No. 24” (un Doc CEDAW/C/GC/24, twentieth session 1999), para. 18. cedaw Committee, “gr No. 14,” para. lit.d. See, for instance, cedaw Committee, “Concluding Observations Egypt.” See Rebecca J. Cook and Veronica Undurrage, “Article 12 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 317.

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basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph i of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.77 It seems at first sight that the wording of Article 12 cedaw is not applicable to fgm, as there is no apparent link between harmful practices, and the right to non-discriminatory health care services per se. However, a closer look reveals that in order for States parties to provide health care services and access to such in a non-discriminatory manner, a gender dimension to health care must be considered beforehand. This presumes that the practice of fgm leads to a status of ill-health, which is specific to women and results in gender inequality. The who understands the term “health” as a state of “physical, mental and social well-being and not merely the absence of disease or infirmity.”78 As outlined in Section 4.2.1.1, fgm generally alters the physiology of the female body, affects the female’s mental state as well as her social well-being, resulting in poor health and thus falling within the before-mentioned definition. In addition, the term “health” also encompasses reproductive health,79 which addresses the “reproductive process, functions and systems at all stages in life.”80 It includes the ability to have “a responsible, satisfying and safe sex life [as well as] the capability to reproduce and the freedom to decide if, when and how often to do so.”81 As fgm leads to painful menstruation, painful sexual intercourse, reduced sexual desire and pleasure, as well as a significantly greater

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81

ohchr, “Text to Women’s Convention.” See Constitution of the who, Preamble. See Cook and Undurrage, “Article 12 cedaw,” 320. United Nations Population Information Network (popin), United Nations Population Division (undp), Department of Economic and Social Affairs (desa), and United Nations Fund for Population Activities (unfpa), “Guidelines on Reproductive Health for the un Resident Coordinator System,” 1994, para. 1, available at http://www.un.org/popin/unfpa/ taskforce/guide/iatfreph.gdl.html (last accessed 16 August 2017). Ibid.; World Health Organization (who), “Reproductive Health,” February 20, 2015, available at http://www.who.int/topics/reproductive_health/en/ (last accessed 16 August 2017).

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risk of a Caesarean, maternal death, or stillbirth, the reproductive process is considerably impaired.82 Such ill-health is the result of a practice that reflects deep-rooted inequalities between the sexes, and thus bears a specific gender dimension, as it ­includes factors that differ for women in comparison to men. Among those factors are biological,83 socio-economic,84 psychological,85 and health system factors.86 As outlined in Section 4.2.1.1, fgm is carried out for various reasons, mainly for repressing and controlling a woman’s independent sexuality and thereby manifesting existing gender roles. Hence, the practice symbolizes and perpetuates the patriarchal idea of women being the “property of men.”87 When applying a gender dimension to the right to non-discriminatory health care service, it is important to identify those factors that put women at greater risk of poor health.88 The cedaw Committee therefore requires States parties “to place a gender perspective to all policies and programmes affecting women’s health,”89 and “to address the underlying determinants […] that negatively affect women’s health, including […] cultural and traditional practices such as fgm […].”90 Hence, Article 12 cedaw is applicable to fgm. This result must a fortiori apply when fgm is carried out by public health care personnel. The term “health care” implies improving or at a very minimum sustaining the health condition of a patient. Cutting of healthy parts of the female genitals – which not only in itself constitutes an infringement on 82

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See Nahid Toubia, “Female Circumcision as a Public Health Issue,” New England Journal of Medicine 331, no. 11 (1994): 713; Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural, and Medical Issues (Jefferson: McFarland, 2005), 23; United Nations Fund for Population Activities (unfpa), “Implementation of the International and Regional Human Rights Framework for the Elimination of Female Genital Mutilation” (New York, 2014), 30, https://www.unfpa.org/sites/default/files/pub-pdf/FGMC-humanrights.pdf; The Advocates for Human Rights, “Developing Legislation on Violence against Women and Girls,” 410. cedaw Committee, “Concluding Observation Mauritania” (un Doc cedaw/C/MRT/co/1, 2007), para. 39 f. cedaw Committee, “Concluding Observation El Salvador” (un Doc CEDAW/C/SLV/CO/7, 2008), para. 35 f. cedaw Committee, “Concluding Observation Finland” (un Doc A/63/38, forty-first session 2008), para. 185 f. cedaw Committee, “gr No. 24,” para. 12 (d), 18, 22, 31 (e). See The Advocates for Human Rights, “Developing Legislation on Violence against Women and Girls,” 415. See Cook and Undurrage, “Article 12 cedaw,” 316 ff. cedaw Committee, “gr No. 24,” para. 31 (a). Ibid., para. 18.

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the female’s physical integrity but will most likely lead to immediate and longterm complications – deteriorates the health status and inflicts harm. If such harm is inflicted by health care personnel, they do not only contravene their original profession of healing a patient, but also deny the very essence of the right to health care services. Moreover, the Committee reads Article 12 cedaw in conjunction with paragraph 2 of the Convention’s Preamble requiring States parties “to protect women’s human dignity in the field of health care.”91 In this context the Committee outlined that fgm is an “unacceptable and dignity-denying treatment,”92 and thereby contravening Article 12 cedaw. Subsequently, the practice of fgm imposes an infringement on Article 12 cedaw.93 The cedaw Committee noted that the corresponding States parties’ obligations regarding Article 12 cedaw violations are threefold: the obligation to respect, protect and fulfill.94 The “obligation to respect” requires States parties “to refrain from obstructing action taken by women in pursuit of their health goals.”95 Such obstructing actions refer, inter alia, to laws or policies that “criminalize procedures only needed by women and that punish women who undergo this procedure.”96 The “obligation to protect” requires States parties “to take action to prevent and impose sanctions for violations [of women’s physical integrity carried out] by private persons and organizations.”97 This obligation refers to the due diligence standards in the health sector, and “requires States parties to take steps directly aimed at eliminating customary and all other practices that […] perpetuate the notion of inferiority or superiority of either sexes […].”98 In order to meet this obligation States parties have to “institut[e] protocols to ensure respect for women’s dignity as they access both the public and private health care systems and [to implement] programmes such as to eliminate fgm.”99 91 92

Ibid., para. 21. cedaw Committee, “Concluding Observation Togo” (un Doc cedaw/C/TGO/CO/5, 2006), para. 15. 93 See cedaw Committee, “gr No. 24,” para. 5; United Nations Fund for Population Activities (unfpa), “Implementation of the International and Regional Human Rights Framework for the Elimination of Female Genital Mutilation,” 28. 94 See cedaw Committee, “gr No. 24,” para. 13. 95 Ibid., para. 14. 96 Ibid. 97 Ibid., para.15. 98 cedaw Committee, “gr No. 28,” para. 9. 99 Cook and Undurrage, “Article 12 cedaw,” 331.

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The “obligation to fulfill” requires States parties “to take appropriate legislative, judicial, administrative, budgetary, economic and other measures to the maximum extent of their available resources to ensure that women realize their rights to health care.”100 In order to meet this obligation, States parties are required to establish a “gender sensitive public health infrastructure that addresses the magnitude of women’s ill-health”101 and “to allocate the necessary budgetary resources to prevent, detect, and treat illnesses specific to women.”102 4.2.1.2.2 fgm in the Scope of Article 2 cedaw Whether the practice of fgm also imposes an infringement on Article 2 cedaw depends on its qualification as a form of “Violence against Women.” As outlined in Chapter 3.1, violence against women was initially not addressed by the Women’s Convention. The cedaw Committee addressed the issue for the first time in its General Recommendation No.14 (1992), and defined Violence against Women as: [v]iolence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.103 Thus, establishing an act of Violence against Women entails two elements: First, a violent act and second, a discriminatory intention or consequence. Regarding the first element, it is to say that the act of cutting off healthy parts of female genitals constitutes an infringement on the female’s physical integrity, as outlined in Section  4.2.1.2.1. Moreover, both possible short-term and long-term physical and psychological consequences inflict additional physical and mental harm on subjects to such procedure. The fact that fgm is initiated by parents, and therefore formally consented to, raises the question whether consent may nullify the violent act. The Women’s Convention does not address the issue of consent to harmful practices directly. However, the cedaw Committee considered the question of consent to harmful practices in its Joint General Recommendation, issued in 100 cedaw Committee, “gr No. 24,” para. 17. 101 Cook and Undurrage, “Article 12 cedaw,” 323. 102 Ibid. For instance, by subsidizing basic medicines such as contraceptives and condoms. 103 cedaw Committee, “gr No. 19,” para. 6.

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collaboration with the Committee on the Rights of the Child.104 The Committees noted in this context, that consent presumes “full, free and informed consent.”105 The General Assembly further defined “informed consent to medical treatment” as: [c]onsent obtained freely, without threats or improper inducements after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on possible pain or discomfort, risks and side-effects of the proposed treatment.106 Since minors are particularly vulnerable to social pressure, which may urge them to undergo the procedure in order to be accepted as a full member of the community, minors are considered to lack the decision-making ability to provide consent free of coercion to harmful procedures.107 In the unlikely event that minors were presumed to be provided comprehensive information beforehand, regarding the physical and psychological consequences, as well as possible medical complications of fgm, they would still lack the ability to fully comprehend such information, and therefore take a fully informed decision.108 Hence, their decision is neither informed, nor free of coercion.109 The consent of parents – as minors’ legal guardians – must be considered in light of the “best interest of the child,” which is one of the guiding principles of the Convention on the Rights of the Child.110 Although parents, who submit their daughters to fgm, perceive that their daughters benefit from such procedure for the above-mentioned reasons, the striking health risks overweigh such

104 cedaw Committee, “gr No. 31,” para. 15. 105 Ibid. 106 General Assembly ga, “Resolution on the Protection of Persosn with Mental Illness and the Improvement of Mental Health Care” (un Doc A/res/46/119, forty-six session 1991), Principle 11. 107 World Health Organization (who), “Eliminating Female Genital Mutilation,” 9. 108 See Rahman and Toubia, Female Genital Mutilation, 65. 109 See World Health Organization (who), “Eliminating Female Genital Mutilation,” 9. 110 The obligation to consider the “best interest of the child” is one of the guiding principles of the Convention on the Rights of the Child, opened for signature 18 December 1989, entered into force 2 September, 1577 unts 3. To view the complete text of the crc, visit Office of the United Nations High Commissioner for Human Rights ohchr, “Text to the Convention on the Rights of the Child,” n.d., available at http://www.ohchr.org/EN/ ProfessionalInterest/Pages/CRC.aspx (last accessed 16 August 2017). See also World Health Organization (who), “Eliminating Female Genital Mutilation,” 9.

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benefits.111 Subsequently, the parents consent to fgm contradicts the “best interest of the child” and is hence invalid.112 Furthermore, most parents lack full information regarding the health and life risks of fgm, as the procedure is predominantly carried out by local village practitioners, or midwives under very basic circumstances.113 In countries, in which fgm constitutes a criminal offense, fgm cannot be subject of consent at all, as the practice itself is prohibited.114 As a result, it must be concluded that neither minors nor legal guardians can give meaningful consent to fgm. Accordingly, fgm constitutes a violent act. The second element of Violence against Women – a discriminatory intention or consequence – requires that the act of violence is inflicted on women solely because they are women. The intention is to repress women’s independent sexuality, and to limit women to their roles of mothers and spouses, and thus reinforcing women’s subordination.115 Although, males are also subjected to circumcision involving the removal of healthy tissue, the practice of fgm is distinctly more invasive, has devastating health consequences, as well as a gender-discriminatory social message, as outlined in Section 4.2.1.1.116 Therefore, fgm remains incomparably different from male circumcision. Thus, fgm also fulfills the second element of Violence against Women.117 This conclusion leads to the question of corresponding States parties’ obligations resulting from a violation of Article 2 (f) cedaw. The cedaw Committee pointed out in General Recommendation No. 19, that violence against women may “breach specific provisions of the Convention,” particularly Article 2 (f), 5, 6, 10 (c), 11, 12, 14 and 16 cedaw.118 Article 2 (f) cedaw is primarily interesting when regarding fgm through a legal perspective, as it requires States parties: 111 112 113 114 115 116

World Health Organization (who), “Eliminating Female Genital Mutilation,” 9. cedaw Committee, “gr No. 31,” para. 15. See Skaine, Female Genital Mutilation, 11. See Rahman and Toubia, Female Genital Mutilation, 65. See Ibid., 21. The Advocates for Human Rights, “Developing Legislation on Violence against Women and Girls,” 409. 117 See also ga, “davaw”; cedaw Committee, “gr No. 19”; Commission on Human Rights (chr), “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences” (un Doc E/CN.4/1995/42, fifty-first session 1995). General Assembly Resolution adopting the davaw (A/RES/48/104), 20 December 1993; 118 cedaw Committee, “gr No. 19,” para. 6 f.

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[t]o take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.119 Accordingly, States parties have to take active measures to eliminate fgm, provided it constitutes discrimination against women. Article 1 cedaw defines “gender discrimination” as: [a]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women […] of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.120 Subsequently, for fgm to be viewed as an act of discrimination the following two criteria must be fulfilled. First, fgm must be a distinction on the basis of sex and second, it must have the effect or purpose to diminish the enjoyment of equal rights. The cedaw Committee specified those “human rights and fundamental freedoms” with respect to Violence against Women constituting gender discrimination, in its General Recommendation No. 19 by providing a list of such rights. These enumerated rights include, inter alia, the right to life, the right not to be subject to torture or to cruelty, inhuman or degrading treatment or punishment, and the right to the highest standard attainable of physical and mental health.121 Regarding the first criteria – distinction on the basis of sex – fgm is practiced on women solely because they are women, and hence represents a distinction on the basis of sex. Regarding the second criteria – effect or purpose to diminish the enjoyment of equal rights – it must be noted that neither the parents, who order their daughters to be subjected to fgm, nor the practitioners, who carry out the procedure, are motivated by an intention to harm.122 As a result the procedure of fgm is not committed with the purpose of impairing or nullifying the right to life, the right of physical and mental health, or the right not to be subjected to torture or cruelty, inhuman or degrading treatment or punishment. However, fgm has the effect of nullifying the enjoyment of the right to the highest standard attainable, of physical and mental health, as described in Section 4.2.1.1. The cedaw Committee acknowledged in this 119 ohchr, “Text to Women’s Convention.” 120 Ibid. 121 cedaw Committee, “gr No. 19,” para. 7. 122 See Rahman and Toubia, Female Genital Mutilation, 25.

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regard that the effect of fgm “on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.”123 Given the risk of fgm resulting in death, it also has a possible effect of impairing the right to life. Some even argue that fgm may be a cruel and degrading treatment.124 In conclusion, fgm constitutes discrimination against women in accordance with Article 1 cedaw. Subsequently, States parties are under the obligation of effectively eliminating fgm. This includes adopting legislation, regulations, as well as changing local customs and practices. Such obligation applies to cases in which public and private actors conduct fgm equally. In this regard the cedaw Committee noted that: [s]tates may also be responsible for private acts if they fail to act with due diligence125 to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.126 4.2.1.2.3 fgm in the Scope of Article 5 cedaw In addition, fgm may also constitute an infringement of Article 5 (a) cedaw, which obliges States parties to modify gender stereotypes, while Article 5 (b) involves an obligation to modify fixed parental gender roles.127 Article 5 (a) cedaw states: States parties shall take all appropriate measures to 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.128 Prerequisite for the obligation to modify gender stereotypes based on social and cultural patterns is (1) either a direct, indirect or a structural 123 cedaw Committee, “gr No. 19,” para. 11. 124 See Human Rights Council (hrc), “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (un Doc A/HRC/13/39/Add.5, thirteenth session 2010), para. 201. 125 See Chapter 1.1 for the definition of due diligence. 126 cedaw Committee, “gr No. 19.” 127 See Rikki Holtmaat, “Article 5 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 143. 128 ohchr, “Text to Women’s Convention.”

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discrimination against women (2) resulting from the concept of gender stereotypes.129 As outlined in Section  4.2.1.2 the practice of fgm constitutes discrimination against women, and is based on “the idea of inferiority” as well as gender stereotypes and hence fulfills the prerequisites of Article 5 (a) cedaw.130 The absence of a prohibition of FGM in official laws or policies is ­considered a direct discrimination. Official laws in this regard include customary, traditional or religious laws and practices that States parties do not prohibit.131 Even where no official laws and policies prohibit fgm, Article 5 (a) cedaw may be infringed because the practice of fgm may also result from indirect or structural discrimination. An indirect discrimination relates to laws and policies which do not intend to discriminate against women but do have such effect, while structural discrimination refers to rules, customs, patterns of conduct and other societal structures, which create obstacles to women’s equal rights and opportunities.132 Particularly where fgm is carried out by medical personnel and is accepted widely by society, certain societal structures supporting the practice are presumed. It should be mentioned that the practice of fgm cannot be justified on the basis of cultural, minority, or religious rights, because it prevents its victims from the full realization of their human rights.133 The cedaw Committee noted in this context, “culture and religion could or should be changed,”134 when women’s rights are violated based on culture, and called for the necessity for State intervention.135 Hence, fgm violates Article 5 (a) cedaw. 129 See Holtmaat, “Article 5 cedaw,” 155. 130 Cook and Cusack define stereotype as “a generalized view or preconception of attributes or characteristics possessed by, or the roles that are or should be performed by, members of a particular group,” see Rebecca J. Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (Philadelphia: University of Pennsylvania Press, 2010), 9. 131 See Holtmaat, “Article 5 cedaw,” 155. 132 See Ibid. 133 For a comprehensive discussion on “States obligation vs. cultural, minority and religious rights,” see Brink and Wijers, “‘Because to Me, a Woman Who Speaks in Public Is a Public Woman’,” 282 ff.; Rahman and Toubia, Female Genital Mutilation, 31; Sophia KoukoulisSpiliotopoulos, “The Limits of Cultural Traditions,” Annuaire International Des Droits de l’Homme 3 (2008): 420. 134 cedaw Committee, “Concluding Observations Libyan Arab Jamahiriya” (un Doc A/49/38, thirteenth session 1994), para. 130; cedaw Committee, “Concluding Observations Morocco” (un Doc A/52/38, sixteenth session 1997), para. 71. 135 cedaw Committee, “Concluding Observations Guinea-Bissau” (un Doc cedaw/ C/GNB/CO/6, forty-fourth session 2009), para. 29.

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This conclusion leads to the question of corresponding States parties’ obligations resulting from a violation of Article 5 (a) cedaw. Its current wording suggests that States parties are obliged to “take all appropriate measures to modify the social and cultural patterns of conduct.” This includes firstly, “to review stereotyped ideologies expressed in educational materials [and media]” and secondly, “to scrutinize […] laws, policies, practices and the structural features of society in order to reveal the presence of gender stereotypes […] and to amend such laws.”136 This may practically be achieved by launching information and education campaigns,137 as well as abolishing laws, which sustain direct, indirect or structural discrimination.138 The cedaw Committee noted in its General Recommendation No. 31 on harmful practices – such as fgm – that: the effective prevention and elimination of harmful practices require the establishment of a […] holistic strategy which includes supportive legal and policy measures, including social measures that are combined with a commensurate political commitment and accountability at all levels.139 Such holistic strategy requires the participation of all relevant stakeholders on a vertical level – meaning local, regional and national actors as well as traditional and religious authorities – and on a horizontal level – meaning across sectors, such as education, health, justice, social welfare, law enforcement and immigration department. The cedaw Committee outlines the following measures essential for the implementation of the holistic strategy to eliminate harmful practices such as fgm: data collection in order to monitor the occurrence of fgm as well as the effectiveness of policies,140 development, enactment, implementation and monitoring of relevant legislation,141 changing social and cultural norms by empowering women, building the capacity of all relevant professionals who are in contact with victims, potential victims and perpetrators, and raising the awareness of causes and consequences,142

136 137 138 139 140 141 142

See Holtmaat, “Article 5 cedaw,” 161. See Ibid., 143. See Ibid., 163. cedaw Committee, “gr No. 31,” para. 32. cedaw Committee, “gr No. 31,” para. 36–38. Ibid., para. 39–54. Ibid., para. 55–80.

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and providing medical, social and legal protective measures and responsive services for victims of fgm.143 4.2.1.3 Egypt’s Compliance with Its Obligation under cedaw As analyzed in the previous section, States parties to cedaw are obliged to effectively eliminate fgm by virtue of Articles 2, 5, and 12 cedaw. This includes adopting legislation (Article 2 cedaw), modifying social and cultural patterns of conduct based on the idea of gender-stereotyped roles, which can practically be achieved by launching information and education campaigns (Article 5 cedaw), and finally taking action to prevent fgm as a state of “ill-health” and imposing sanctions for health care personnel who carry out fgm, including private persons (Article 12 cedaw). Egypt is bound by the aforementioned obligations as well.144 Its reservation to Article 2 cedaw does not lead to a different conclusion, as it merely exempts Egypt from abiding by Article 2 cedaw, where such obligation runs counter to Shariʾa Law. While none of the sources of Shariʾa Law refer to the practice of fgm,145 a minority among Islamic scholars nevertheless interprets a statement of the Prophet as favoring fgm.146 However, in 1998, the highest Islamic interpretative authorities in Egypt, namely the International Islamic Center for Population Studies and Research of Al-Azhar University147 as well as 143 Ibid., para. 81–86. 144 For background information on the prevalence of fgm in Egypt, see World Health Organization (who), “Men’s and Women’s Perceptions of the Relationship between Female Genital Mutilation and Women’s Sexuality in Three Communities in Egypt” (Egypt, 2010), available at http://apps.who.int/iris/bitstream/10665/70468/1/WHO_RHR_HRP_10.17_eng .pdf (last accessed 16 August 2017). 145 See statement of Grand Mufti of Egypt: “Many have distorted this natural difference to permit discrimination, especially in the form of barbaric activities. An example of this is the very serious problem of female genital mutilation (fgm). The Prophetic example makes clear that this was not something he ever encouraged or practiced. More to the point, as I made clear in a fatwa issued after a scientific conference on the topic convened by Dar al-Ifta in 2006, it is a transgression against a particularly sensitive body part, and if carried out to an extreme degree merits proper punishment.” Available at Dar Al-Ifta, “Islam and Modernity,” available at http://eng.dar-alifta .org/foreign/ViewArticle.aspx?ID=6&text=Islam%20and%20modernity (last accessed 16 August 2017). 146 See Rahman and Toubia, Female Genital Mutilation, 6. 147 “Al-Azhar University” is one of the most prestigious Islamic academic institutions in the Muslim world. Its International Islamic Centre for Population Studies and Research conducts research on population issues, provides information about Islam, dispels misconceptions and is recognized by Muslim communities as a credible source of information.

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Egypt’s Fatwa Department “Dar al-Ifta al-Misriyyah,”148 clarified that the practice of fgm was based on a misunderstanding of Islamic sources149 and declared it as forbidden in Islam.150 In 1996, the Egyptian government began its legislative initiative to combat fgm, when the Ministry of Health and Population issued Ministerial Decree No. 261 of 1996, which generally prohibits fgm with the exception that fgm is performed for medical reasons, conducted by medical personnel, and upon prior approval by the head of a hospital’s obstetric department.151 This exception was often criticized as a “loophole,”152 and thus abolished by Ministerial Decree No. 271 of 2007.153 In 2008, the parliament passed a comprehensive reform of Egypt’s Child’s Act,154 by which children are guaranteed the right to life, health and non-discrimination, as well as the right to be protected from 148 “Dar al-Ifta al-Misriyyah” is Egypt’s official department responsible for the issuance of fatwas (singular: fatwa, which is a legal opinion or decree issued by an Islamic scholar or council) and a center for Islamic legal research founded in 1859. 149 See Al-Azhar University, International Islamic Center for Population Studies and Research, “Final Communique and Recommendations, Based on Highlights, Papers, Discussions and Recommendations of the International Conference on ‘Population and Reproductive Health in the Muslim World’, February (21–24), 1998” (Cairo, 1998), available at http://www.ncbi.nlm.nih.gov/nlmcatalog/101081139 (last accessed 16 August 2017). 150 See statement of Dr. Mohammed Wessam Khidr, Head of the Written Fatwa and Minority Issues Department and Research Supervisor, representing Egypt’s Grand Mufti, Dr. Shawqi ʾAllam “[…] its recommendations included prohibiting female circumcision and called upon legislating laws and regulations to criminalize it.” Available at Dar Al-Ifta, “Through Its Participation in the Activities of the ‘National Day Against fgm’ in Cairo,” available at http://eng.dar-alifta.org/foreign/ViewArticle.aspx?ID=254&text=fgm (last accessed 16 August 2017). See also Ibid (last accessed 16 August 2017). 151 Ministerial Decree No. 261 of 8 July 1996 of the Minister of Health and Population stating: “It is forbidden to perform circumcision on females either in hospitals or public or private clinics. The procedure can only be performed in cases of disease and when approved by the head of the obstetrics and gynecology department at the hospital, and upon the suggestion of the treating physician. Performance of this operation will be considered a violation of the laws governing the medical profession. Nor is this operation to be performed by non-physicians.” Available at http://www.hsph.harvard.edu/population/fgm/Egypt.fgm.htm (last ­accessed 16 August 2017). 152 cedaw Committee, “Concluding Observations Egypt,” para. 41. 153 Ministerial Decree No. 271 of 2007 of the Minister of Health and Population. 154 The People’s Assembly of the Arab Republic of Egypt, “Child’s Act of the Arab Republic of Egypt, Promulgated by Law No. 12 of 1996, Amended by Law 126 of 2008,” available at https://www.unodc.org/res/cld/document/egy/2002/egypt_child_act_english_html/ Egypt_Child_Act_English.pdf (last accessed 16 August 2017).

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any form of violence (Article 3).155 In addition, the Child’s Act required the government to ensure that all children enjoy the highest level of healthcare, to provide essential information related to healthcare, and to take effective measures to eliminate harmful practices (Article 7 bis). It also established criminal responsibility for perpetrators who put children at risk of physical harm (­Article 96), provided for an aggravating circumstance in case the perpetrator is an adult, parent or legal guardian (Article 116 bis), and established institutionalized protection of such children (Article 96 in conjunction with Article 97 and Article 99), inter alia, the General Committee for Child Protection or the General Department for Child Helpline. Moreover, the Child’s Act criminalized fgm by amending Article 242 bis epc.156 This article in conjunction with Article 116 bis of the Child’s Act sets the minimum punishment for fgm at egp 2000 (equivalent to usd 118) and six months imprisonment.157 In conclusion, it follows that Egypt has met its international obligation resulting from Article 2 cedaw to adopt legislation combating fgm. Furthermore, Egypt’s National Council for Childhood and Motherhood launched a comprehensive national campaign to counter fgm, named “The fgm-free village project.”158 This initiative seeks to shift the public opinion toward fgm, with the aim to reduce societal pressure inflicted on families with girls at risk. The campaign is based on the following five cornerstones: first, supporting the legal community to implement the anti-fgm laws; second, breaking media silence by introducing an anti-fgm message; third, promoting a religious discourse spreading the message that fgm was a non-religious 155 See Moushira Khattab, “Egypt’s Legal Reform to Combat Female Genital Mutilation” (Geneva: Expert Group Meeting on legal reform to prohibit, prevent and respond to all forms of violence against children, July 7, 2011), available at http://srsg.violenceagainst children.org/sites/default/files/consultations/law_reform/presentations/moushira _khattab_fgm_vac_legal-reform6-7_july_2011.pdf (last accessed 16 August 2017). 156 Article 242-bis of the epc reads: “Taking into consideration the provision of Article 61 of the Penal Code, and without prejudice to any stronger penalty prescribed by another law, shall be liable to punishment with imprisonment for not less than three (3) months and not exceeding two (2) years, or with a fine of not less than one thousand (1000) Egyptian pounds, and not exceeding five thousand (5000) Egyptian pounds, anyone who caused the injury which is punishable by Articles 241, 242 of the Penal Code, through performing female genital mutilation.” 157 See Khattab, “Egypt’s Legal Reform to Combat Female Genital Mutilation.” 158 See Ghada Barsoum et al., “Poverty, Gender, and Youth: National Efforts toward fgm-Free Villages in Egypt – The Evidence of Impact” (New York: Population Council, West Asia and North Africa Office, Working Paper 22, 2011), 3, available at http://www.popcouncil .org/uploads/pdfs/wp/pgy/022.pdf (last accessed 16 August 2017).

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act; fourth, engaging doctors in the anti-fgm movement and thereby combating the medicalization of fgm and fifth, creating youth groups against fgm with the aim to establish pressure against fgm in universities, schools or youth centers.159 Thus, Egypt complied with its international obligation resulting from Article 5 cedaw, by reforming the Child’s Act and launching the national initiative aimed at modifying the social and cultural patterns in favor of fgm. In addition, Egypt’s Ministry of Health and Population has issued a decree prohibiting physicians and nurses from conducting fgm,160 and the Egypt’s Medical Syndicate issued a statement establishing that any practitioner, who performs fgm, violates the medical code of ethics.161 Furthermore, Egypt has established a child helpline, which provides counseling to families with girls at risk of having fgm performed on them, as well as the possibility to report physicians conducting fgm (Article 97 Child’s Act).162 Both, the aforementioned national awareness campaign – which inter alia provides information about the medical risks of fgm – and the legal reforms – which outlaw fgm – lead to the conclusion that Egypt meets its international obligation, resulting from Article 12 cedaw, to take action to prevent fgm as a state of “ill-health” and impose sanctions for health care personnel conducting fgm. 4.2.1.4 De jure vs. de facto Considerations As a result of Egypt’s comprehensive childcare reform and its awareness initiative the fgm-free village project, Egypt de jure complies with its cedaw obligations outlined in the aforementioned section. However, these legal reforms are de facto not yet fully implemented, due to entrenched societal norms and a lack of effective enforcement mechanisms.163 159 See United Nations Development Programme (undp), “Summary Report of the MidTerm Evaluation and Documentation Report on the National Council for Childhood and Motherhood’s ‘fgm-Free Village Project’” (Egypt, 2006), 3–5, available at http://erc.undp .org/evaluationadmin/downloaddocument.html?docid=2141 (last accessed 16 August 2017). 160 See Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 78. 161 See United Nations Development Programme (undp), “Summary Report of the MidTerm Evaluation and Documentation Report on the National Council for Childhood and Motherhood’s ‘fgm-Free Village Project’,” 30. 162 See Human Rights Council (hrc), “Report of the Working Group on the Universal Periodic Review – Egypt” (un Doc A/HRC/14/17, fourteenth session 2010), para. 77. 163 See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit,” 10.

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While Egypt’s first criminal court ruling on fgm in 2015,164 in which the court sentenced the doctor and the father of a thirteen-year-old girl, who died following the procedure of fgm, to prison, is clearly a positive sign in terms of de facto implementation efforts, the practice of fgm is still highly widespread in Egypt.165 Although experts suggest that the fgm-rate among women under the age of twenty-five declined to 74 percent since 2008,166 the rate is still significantly high. The societal debate around fgm, which arose in the course of the criminal trial on fgm, as well as the Muslim Brotherhood’s attempt to revoke the criminalization of fgm,167 shows that the de facto implementation of the legal reform is still far behind. Combatting “Summer Marriages” as a Form of Trafficking in Women in Light of Article 6 cedaw This section seeks to examine Egypt’s implementation efforts regarding the elimination of so called “summer marriages” as a form of trafficking in girls and women,168 contemplated in Article 6 cedaw. While trafficking in persons takes many forms, inter alia, slavery, begging, domestic servitude, forced labor, ­temporary marriage, child marriage, sale of children for the purpose of ­adoption, prostitution, recruitment into armed forces, and trafficking of

4.2.2

164 See Massoud Hayoun, “Egypt Court Jails Doctor in ‘Historic’ fgm Prosecution,” Aljazeera America, January 26, 2015, available at http://america.aljazeera.com/articles/2015/1/26/ egypt-sentences-doctor-father-in-fgm-case-equality-now.html (last accessed 16 August 2017). 165 According to Egypt’s last Demographic and Health Survey in 2014, 92 percent of women aged 15–49 have been subjected to fgm. See Ministry of Health and Population (Egypt) and El-Zanaty and Associates, “Egypt Demographic and Health Survey 2014” (Cairo, 2015), 185, available at http://dhsprogram.com/pubs/pdf/fr302/fr302.pdf (last accessed 16 August 2017). 166 Recent evidence has shown that the practice is declining among girls aged 18–19, where the prevalence rate is 67.9 percent. See Ibid., 189. 167 Under Egypt’s former president Mohamed Morsi, ultra conservatives attempted to revoke Article 242 of the amended Penal Code, citing religious traditions to decriminalize fgm. In February 2013 Egypt’s Constitutional Court struck down the appeal. See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Country Gender Analysis: Egypt,” 10. 168 See Mohamed Mattar, “Trafficking in Women in Accordance with Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women: Guidelines on the Interpretation of the Text of Article 6 of the Convention” (Washington dc: The Protection Project of the Paul H. Nitze School of Advanced International Studies, Johns Hopkins University, 2012), 6 f., available at http://www.protectionproject.org/wp-content/ uploads/2012/07/Guidelines-Art-6-CEDAW_Final1.pdf (last accessed 16 August 2017).

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organs,169 this section will primarily focus on the increasing issue of summer marriages. The concept of “summer,” “tourist,” or “temporary” marriages refers to wealthy Arab tourists, who pay a dowry (mahr) to marry Egyptian under-aged girls, from poor families during their summer vacation in Egypt, for sexual gratification and abandon them upon their departure.170 The cedaw Committee had expressed its concern in its last Concluding Observation to Egypt’s State Report in 2010, that this constitutes “a new type of trafficking in girls under the cover of marriage” pursuant to Article 6 cedaw, which outlines the obligation of States parties to suppress trafficking in women and exploitation of prostitution of women. The next sections will first provide relevant background information on the issue of summer marriages (4.2.2.1), followed by an analysis of the respective international obligation in light of Article 6 cedaw (4.2.2.2). Hereinafter, Egypt’s legislative response to the issue of trafficking in women and girls will be looked at in detail, to evaluate the adequacy of this response in light of Article 6 cedaw, as well as its application to the perpetrators and victims of summer marriages (4.2.2.3). This will be followed by a summary of the findings and brief notes on the de facto implementation of Egypt’s legislation (4.2.2.4). Suggestions on what may be required to fully comply with Article 6 cedaw de jure and de facto will be provided at the end of Chapter 4 (4.3). 4.2.2.1 Background Information on the Problem of Summer Marriages As mentioned above, the occurrence of summer marriages – in which wealthy men from the Gulf States171 marry young Egyptian girls from poor families, for the sole purpose of male’s gratification throughout their temporary stay in Egypt, in order to circumvent Shariʾa rules on pre-marital sex (zawaj al-misyar) – are 169 The phenomenon of summer marriages is well reported not only by ngo’s, but also by different un institutions such as, the un Human Rights treaty monitoring bodies and the Egyptian government, which stated, “[s]ome families in poor, rural areas marry off their daughters to wealthy persons from the wealthy oil countries. These marriages are largely driven by materialism and generally fail. They constitute a new type of trafficking in girls under the cover of marriage.” See Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 25. 170 See Pinar Ilkkaracan, Deconstructing Sexuality in the Middle East: Challenges and Discourses (Aldershot: Routledge, 2012), 36. 171 Particularly, Saudi Arabia, United Arab Emirates and Kuwait, see Gary Youinou, “Egypt: Risk and Compliance Report” (Know your Contry, 2015), 10, available at http://www .knowyourcountry.com/files/egyptamlreportaug2014_3_.pdf (last accessed 16 August 2017).

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increasing.172 This derives from the poor economic situation in the aftermath of the 2011 revolution.173 It is estimated that between two hundred thousand to one million homeless children in Egypt, are vulnerable to be recruited into forced begging and prostitution.174 The Ministry for Family and Population has estimated that over 70 percent of girls in some areas of Egypt were forced into summer marriages.175 These “marriages” are executed without any or with forged documentation,176 entered into either orally without witnesses and registration,177 or based on a customary marriage contract (ʿurfi) to which the epsl applies only in a very limited scope.178 Hence, neither the minimum legal age for marriage of

172 The National Council for Childhood and Motherhood has reported to have received 50,000 calls on the hotline in 2009 regarding the occurrence of summer marriages. See Committee for the Rights of the Child crc, “Consideration of Reports Submitted by States Parties under Article 8, Paragraph 1 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict: Concluding Observations: Egypt” (crc/C/opac/egy/CO/1, fifty-seventh session 2011). 173 See International Center for Missing and Exploited Children, “Child Marriage in the Middle East and North Africa” (usa, 2013), available at http://www.icmec.org/wp-content/ uploads/2015/10/Child_Marriage_in_the_mena_Region.pdf (last accessed 16 August 2017); Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition”; Youinou, “Egypt: Risk and Compliance Report,” 10. 174 See Mohamed Mattar, “Human Rights Legislation in the Arab World: The Case of Human Trafficking,” Michigan Journal of International Law 33, no. 1 (2011): 101–31; United States Department of State – Bureau of Public Affairs, “Trafficking in Persons Report 2015” (Washington dc, 2015), available at http://www.state.gov/j/tip/rls/tiprpt/2015/ (last accessed 16 August 2017). 175 See Center for Reproductive Rights and Egyptian Initiative for Personal Rights, “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women,” 21. 176 See Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 25; L.L. Wynn, Pyramids and Nightclubs: A Travel Ethnography of Arab and Western Imaginations of Egypt, from King Tut and a Colony of Atlantis to Rumors of Sex Orgies, Urban Legends about a Marauding Prince, and Blonde Belly Dancers (Austin: University of Texas Press, 2007), 290. 177 Mohamed Mattar, “Trafficking in Persons, Especially Women and Children, in Countries of the Middle East: The Scope of the Problem and the Appropriate Legislative Responses,” Fordham International Law Journal 26, no. 3 (2002): 732. 178 In the course of the family law reform in 2008, customary marriage was legally recognized, meaning that wives from such marriages are ever since permitted to file for divorce and their children are eligible for official registration. See Chapter 3.2.2.2.

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eighteen years,179 nor marital rights or post-divorce rights apply to protect these women or their potential children.180 Thus, these “wives” are neither entitled to inheritance, nor to have a right to divorce, to maintenance, to remain in the matrimonial home, to child support or to child custody181 upon the husbands departure.182 Many of these girls never become fully reintegrated into society as respected citizens, due to the fact that they have lost their virginity, and are often pregnant and ashamed for being abandoned.183 As a result, many girls either live on the street, or in the hands of panderers.184 The sheer poverty of the girls’ families,185 the lack of information, education, economic or social security as well as future opportunities to escape poverty, has led to a well-established market, in which marriage brokers arrange all necessities for such marriages. Examples of those arrangements include locating 179 An overview of the legal regulations pertaining to marriage are provided for in Chapter 3.2.2.2. 180 See Mattar, “Trafficking in Persons, Especially Women and Children, in Countries of the Middle East,” 732. 181 What is known as “post-divorce rights” include the entitlement to maintenance during the iddah; to a compensation equivalent to the maintenance of no less than two years; to the remaining payment of her deferred dowry; to obtain custody for common children until the age of 15; to receive child support; and to remain in the matrimonial home for the duration of the custody for the common children or until her remarriage if the husband fails to provide equivalent accommodation within the three month waiting period (“iddah”), see Chapter 4.2.2.2. 182 See Sherifa Zuhur, “Considerations of Honor Crimes, fgm, Kidnapping / Rape and Early Marriage in Selected Arab Nations,” in Expert Paper Prepared for the United Nations Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices against Women (Addis Ababa, 2009), 32, available at http://www.un.org/womenwatch/daw/egm/vaw _legislation_2009/Expert%20Paper%20EGMGPLHP%20_Sherifa%20Zuhur%20-%20II _.pdf (last accessed 16 August 2017); Mattar, “Trafficking in Persons, Especially Women and Children, in Countries of the Middle East,” 732. 183 See Wynn, Pyramids and Nightclubs, 290. 184 See The Inside Story on Emergencies (irin), “egypt: Minors Sold for Prostitution under Guise of Marriage,” November 16, 2006, available at http://www.irinnews.org/ report/61947/egypt-minors-sold-prostitution-under-guise-marriage (last accessed 16 August 2017). 185 See Egypt’s Central Agency for Public Mobilization and Statistics (campas), which carries out population and economic censuses and produces current statistics in various social and economic fields, estimated that one fourth of Egypt’s 90 million citizens in 2014 live on or under the un poverty line of 2 usd a day, see http://www.capmas.gov .eg/ recited in Egyptian Streets, “More than 22 Million Egyptians Live in Poverty: Report,” July 13, 2014, available at http://egyptianstreets.com/2014/07/13/more-than-22-million -egyptians-live-in-poverty-report/ (last accessed 16 August 2017).

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poor families with under-aged girls, negotiating the marriage conditions with the parents, and – if necessary – colluding with physicians to issue false certificates asserting the girl’s legal age for marriage.186 While the parents receive a one-time payment in form of a dowry (mahr), of up to an amount of usd 9,000,187 the marriage broker is paid a commission to seal the transaction.188 It should be mentioned that the concept of “temporary marriage” itself is accepted among the Shiʾa school of thought, while the Sunni schools of thought only recognize permanent marriages.189 However, neither sect of Islam accepts temporary marriages in the described manner because according to Shariʾa Law the payment of a dowry must be paid to the bride herself, as opposed to her family, which is typically not the case in summer marriages.190 4.2.2.2 Scope of States Parties Obligation under Article 6 cedaw The scope of the current section is to assess the specific States parties obligation resulting from Article 6 cedaw. Pursuant to Article 6 cedaw: States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.191 Article 6 cedaw addresses two alternative constellations namely, trafficking in women and exploitation of prostitution of women. In regards to women trafficking,192 it must be noted that the understanding of “all forms of trafficking” has evolved significantly since the Women’s

186 See Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition,” 7; International Center for Missing and Exploited Children, “Child Marriage in the Middle East and North Africa.” 187 See Zuhur, “Considerations of Honor Crimes, fgm, Kidnapping / Rape and Early Marriage in Selected Arab Nations”; Maggie Michael, “In Egypt, Marriages or Prostitution? Law: Foreigners Pay Dowries to Families in Exchange for Their Daughters, Who Are Later Abandoned,” Los Angeles Times, August 29, 1999, available at http://articles.latimes.com/1999/ aug/29/business/fi-4706 (last accessed 16 August 2017). 188 See Youinou, “Egypt: Risk and Compliance Report.” 189 See Mattar, “Trafficking in Persons, Especially Women and Children, in Countries of the Middle East,” 731. 190 See Ibid. 191 ohchr, “Text to Women’s Convention.” 192 Often refered to as “a contemporary form of slavery,” see Office of the High Commissioner for Human Rights (ohchr). “Fact Sheet No. 14: Contemporary Forms of Slavery,” 1991.

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Convention­was first drafted in 1979.193 While the drafters intended trafficking to refer only to the sex sector,194 the cedaw Committee expanded its interpretation in 1992 in General Recommendation No. 19 to include: […] new forms of sexual exploitation, such as sex tourism, the recruitment of domestic Labor from developing countries to work in developed countries and organized marriages between women from developing countries and foreign nationals.195 Hence, the cedaw Committee expanded the term “all forms of trafficking” to include trafficking for non-sexual purposes.196 This development was taken even further in 2000 when the cedaw Committee called upon States parties197 to adopt the legal definition provided by Article 3 (a) of the un Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter “Trafficking Protocol”)198 stating: Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving

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Available at http://www.ohchr.org/Documents/Publications/FactSheet14en.pdf (last accessed 16 August 2017). See Janie Chuang, “Article 6 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 170. See Ibid. cedaw Committee, “gr No. 19,” para. 14. See Brink and Wijers, “‘Because to Me, a Woman Who Speaks in Public Is a Public Woman’,” 145. See, for instance, cedaw Committee, “Concluding Observations Poland” (un Doc cedaw/ C/POL/CO/6, fifty-fourth session 2013), para. 22; cedaw Committee, “Concluding Observations Guinea-Bissau,” para. 30. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the un Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 unts 319. To view the complete text of the Trafficking Protocol, visit Office of the United Nations High Commissioner for Human Rights ohchr, “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the un Convention against Transnational Organized Crime,” available at https://treaties.un.org/Pages/ ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-a&chapter=18&lang=en (last accessed 16 August 2017).

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or receiving­of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. ­Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced Labor or services, slavery or practices similar to slavery, servitude or the removal of organs.199 This definition will therefore serve as the basis for the following analysis.200 The definition of “trafficking” consists of three elements, namely, the action element (which refers to various trade measures), the means element (which refers to how the trade measures are conducted), and the purpose element (which refers to the intention of exploitation).201 The action element, which is the first part of the actus reus of trafficking, includes five alternative measures that traffickers can employ, namely, (1) recruitment, (2) transportation, (3) transfer, (4) harboring, or (5) receipt of persons. These trading measures need to be conducted by one of nine alternative inappropriate means, which is the second part of the actus reus of trafficking, namely, (1) threat of force, (2) use of force, (3) other forms of coercion, (4) of abduction, (5) of fraud, (6) of deception, (7) of the abuse of power, (8) of the abuse of a position of vulnerability, (9) or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. Finally, the purpose element, which is the mens rea or dolus specialis of trafficking, ties the first two elements to the context of exploitation by requiring that action and means elements have to serve the purpose of exploitation.202 It is important to note, that the intention to exploit a person is sufficient to establish the offense of trafficking, meaning the trade measure and specific means do not necessarily have to materialize into exploitation.203 While the

199 Ibid. 200 Domestic legislation is required to reflect “to give effect to the meaning and concept of this definition, but must not follow the precise wording,” see United Nations Office on Drugs and Crime (unodc), Anti-Human Trafficking Manual for Criminal Justice Practioners, (New York, 2009), 2 f. 201 See Anne T. Gallagher, The International Law of Human Trafficking (New York: Cambridge University Press, 2010), 81–85. 202 See James C. Hathaway, “Human Rights Quagmire of Human Trafficking,” Virginia Journal of International Law 49 (2009 2008): 9. 203 See Dominika Borg Jansson, Modern Slavery: A Comparative Study of the Definition of Trafficking in Persons (Leiden: Brill Nijhoff, 2015), 85, 94.

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States parties could not agree on a common definition of exploitation,204 they identified in Article 3 (a) of the Trafficking Protocol eight sample contexts in which exploitation is at minimum assumed, namely, (1) the exploitation of the prostitution of others, (2) or other forms of sexual exploitation, (3) forced labor, (4) or services, (5) slavery, (6) or practices similar to slavery, (7) servitude, (8) or the removal of organs. The word “at minimum” in Article 3 (a) of the Trafficking Protocol indicates that this list is not conclusive.205 The aforementioned cedaw Committee’s General Recommendation No. 19 can thus be seen in light of further expanding the forms of exploitation. Subsequently, it has been established that exploitation refers to the context of sexual, as well as labor exploitation.206 Some aspects should be considered in the context of trafficking in persons. According to Article 3 (b) of the Trafficking Protocol, the consent of victims to exploitation is irrelevant when any of the abovementioned means have been used.207 In the context of trafficking of children,208 the means element is waived pursuant to Article 3 (c) of the Trafficking Protocol. That means children are considered trafficked, when a trading measure is carried out with the intention of exploitation even if none of the means have been actually employed.209 Finally, trafficking may occur within a State, or between different

204 Bhabha points out that the term exploitation was intentionally not defined in the Trafficking Protocol, because the drafters could not reach agreement, see Bhala, Understanding Islamic Law, 151. 205 Mattar points out other forms of exploitation, such as “Giving birth and taking the child away or trafficking in women for the purpose of child; Bearing; Sex Tourism; Forced Marriage; Temporary Marriage; Seasonal Marriage; Transactional Marriage; Compensational Marriage; Marriage by Catalogue; and Child Marriage; Trafficking in children for the purpose of inter-country or domestic adoption; Pornography; Trafficking in women for the purpose of Labor may include: Domestic Servitude, Construction Work, Agricultural Labor, Sweatshops, Forced Begging, Criminal Activities, Drug Distribution, Service Industry, Textile Labor, Entertainment Industry, Armed Conflicts.” See Mattar, “Trafficking in Women in Accordance with Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women: Guidelines on the Interpretation of the Text of Article 6 of the Convention,” 7. 206 See Bhala, Understanding Islamic Law, 151. 207 For a comprehensive discussion on consent to trafficking, see Jansson, Modern Slavery, 86–90. 208 Article 3 (d) of the Trafficking Protocol states that a “child” shall mean any person under eighteen years of age. 209 See Bhala, Understanding Islamic Law, 151.

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States and thus, does not necessarily require border crossing.210 The essence of trafficking is not constituted by movement, contrary to what the term trafficking itself may imply, but rather by the abuse of a person’s human rights.211 Regarding the second alternative of Article 6 cedaw “exploitation of prostitution of women” it seems necessary to clarify the terminology first. Prostitution can be defined as the exchange of sexual services for money, and entails usually three parties, namely, the john (who solicits sexual services), the prostitute (who receives money in exchange for sexual services), and the panderers (who arranges for the exchange while deducting a “commission” from the prostitute’s earnings).212 In the absence of a common definition of “exploitation of prostitution,” the term has been interpreted to include “any acts to obtain profit from prostitution such as pimping.”213 It should be noted that throughout the drafting period, States parties fundamentally disagreed on whether prostitution should be criminalized, decriminalized, or legalized and regulated.214 The drafters therefore agreed to limit the States parties obligation to suppressing the exploitation of prostitution, as opposed to suppressing prostitution per se.215 This ambiguity is also reflected in the cedaw Committee’s Concluding Observations regarding the legal treatment of prostitution by States parties.216 While the Committee expressed its concerns regarding the effects of criminalization of prostitution, such as “increasing clandestine prostitution [and] rendering prostitutes more vulnerable,”217 the Committee simultaneously urged for instance the Dutch government to assess the unintended effects of the law legalizing brothels, 210 See Venla Roth, Defining Human Trafficking and Identifying Its Victims: A Study on the Impact and Future Challenges of International, European and Finnish Legal Responses to Prostitution-Related Trafficking in Human Beings (Leiden: Martinus Nijhoff Publishers, 2012), 68. 211 See Jansson, Modern Slavery, 92. 212 See Chuang, “Article 6 cedaw,” 179. 213 See Ibid. 214 For a detailed presentation of the different paradigms, see Brink and Wijers, “‘Because to Me, a Woman Who Speaks in Public Is a Public Woman’,” 137 f.; Roth, Defining Human Trafficking and Identifying Its Victims, 30; Chuang, “Article 6 cedaw,” 178 f. The underlying opposing views on the nature of prostitution are reflected in one view, which regard prostitution as “sexual slavery and incompatible with human dignity,” whereas the other view distinguishes voluntary prostitution from forced prostitution. See Roth, Defining Human Trafficking and Identifying Its Victims, 19. 215 See Roth, Defining Human Trafficking and Identifying Its Victims, 56. 216 See Ibid., 57. 217 cedaw Committee, “Concluding Observations Sweden” (un Doc A/56/38, twenty-fifth session 2001), para. 354 f.

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particularly­the negative effects on migrant prostitutes.218 This inconsistency of the cedaw Committee can be understood in a way that neither criminalization nor decriminalization of prostitution could prevent the sex industry from abusive practices.219 In conclusion, it follows that the wording suppressing the “exploitation of prostitution of women” merely refers to forced prostitution. This inevitably includes an exploitative element, whereas voluntary prostitution does not necessarily include such element. The States parties obligation under Article 6 cedaw is to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” While the language of Article 6 cedaw clearly points out the ultimate aim “suppressing trafficking and exploitation of prostitution,” it remains uncertain as to which measures should be employed to reach this aim. Whenever such uncertainty regarding the extend of States parties’ obligations occurs, the model of multilayered State obligations220 can be applied to help specify the relevant obligations, namely the obligation to respect, protect and fulfill the rights outlined in the Women’s Convention. The “obligation to respect” requires States parties to refrain from any act that directly or indirectly interferes with the enjoyment of human rights. With regard to Article 6 cedaw, the obligation to respect requires States parties to take action, to ensure that the victims of trafficking and exploitation of prostitution do not suffer any further denial of their human rights.221 That includes the employment of comprehensive measures to protect victims, such as refraining­ from prosecuting trafficked women, or exploited prostitutes for violations of immigration or anti-prostitution laws,222 routinely detaining trafficked women or exploited prostitutes for illegal migrant pending deportation,223 ensuring­ that the country of origin provides full protection to trafficked women, or exploited prostitutes or granting them asylum or refugee status,224 ensuring 218 cedaw Committee, “Concluding Observations Netherlands” (un Doc cedaw/ C/NLD/CO/5, forty-fifth session 2010), para. 210. 219 See Roth, Defining Human Trafficking and Identifying Its Victims, 57. 220 See Chapter 1.1. 221 See Chuang, “Article 6 cedaw,” 186. 222 See, inter alia, cedaw Committee, “Concluding Observations Singapore” (un Doc CEDAW/C/SGP/CO/3, thirty-nineth session 2007), para. 21. 223 See, inter alia, cedaw Committee, “Concluding Observations Netherlands,” forty-fifth session 2010, para. 29; cedaw Committee, “Concluding Observations Syrian Arab Republic” (un Doc CEDAW/C/SYR/CO/1, thirty-eighth session 2007), para. 24. 224 See, inter alia, cedaw Committee, “Concluding Observations Netherlands” (un Doc A/56/38, twenty-fifth session 2001), para. 212.

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that trafficked women or exploited prostitutes do not lose their nationality,225 ensuring that laws criminalizing prostitution do not penalize prostitutes disproportionately but also penalize panderers and johns,226 and provide border police and law enforcement officials with special training enabling them to recognize victims of trafficking and provide them with support.227 The “obligation to protect” requires States parties to take active measures to stop human rights violations. With regard to Article 6 cedaw, the human rights violation of “trafficking and exploitation of prostitution” is predominantly committed by non-State actors, which States parties are only held legally accountable “if they fail to act with due diligence to prevent violations of rights, to investigate and punish acts of violations.”228 Thus, States parties are required to criminalize the act of trafficking and exploitation of prostitution,229 prosecute the perpetrators,230 as well as protect and support victims.231 The “obligation to fulfill” is a forward-looking obligation, and requires States parties to adopt measures towards the full realization of human rights.232 With regard to Article 6 cedaw, the obligation to fulfill includes providing trafficked women and exploited prostitutes access to remedies;233 collecting data regarding the impact of measures taken to address the phenomenon, the causes of trafficking, the trends, the court cases and victims assistance;234 discouraging the demand for prostitution;235 addressing the root causes of trafficking and exploitation, namely poverty alleviation, lack of education and women’s 225 See, inter alia, cedaw Committee, “Concluding Observations Indonesia” (un Doc cedaw/ C/IDN/CO/3, thirty-ninth session 2007), para. 28. 226 See, inter alia, cedaw Committee, “Concluding Observations Singapore,” thirty-nineth session 2007, para. 21. 227 See, inter alia, cedaw Committee, “Concluding Observations Singapore” (un Doc cedaw/ C/SGP/CO/4, forty-nineth session 2012), para. 26. 228 cedaw Committee, “gr No. 28,” para. 13, 19. 229 See, inter alia, cedaw Committee, “Concluding Observations Netherlands,” forty-fifth session 2010, para. 29. 230 See, inter alia, cedaw Committee, “Concluding Observations Syrian Arab Republic,” para. 24. 231 See, inter alia, Cedaw Committee, “Concluding Observations Netherlands,” forty-fifth session 2010, para. 29. 232 See Freeman and Chinkin, “Introduction,” 20. 233 See, inter alia, cedaw Committee, “Concluding Observations Singapore,” thirty-nineth session 2007, para. 22. 234 See, inter alia, cedaw Committee, “Concluding Observations Syrian Arab Republic,” para. 24. 235 See, inter alia, Ibid.

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economic empowerment;236 promoting trafficking awareness in all sectors;237 engaging in bilateral and multilateral collaboration to combat trafficking;238 and cooperating with civil society in the implementation of anti-trafficking plans.239 The minimum standards to comply with Article 6 cedaw include, the criminalization of trafficking, the protection and assistance of victims of trafficking, and the adoption of preventive measures to deter trafficking. The above mentioned States parties’ obligations are solely based on the cedaw Committee’s Concluding Observations, and do not include any further obligations resulting from other human rights frameworks,240 due to the fact that not all States parties ratified additional conventions. .

4.2.2.3 Egypt’s Compliance with Its Obligation under Article 6 cedaw Egypt started to actively engage in combatting human trafficking in 2007. This engagement included forming the National Coordinating Committee on Preventing and Combatting Human Trafficking composed of representatives of all competent ministries, collaborating with non-governmental agencies, passing a comprehensive Anti-Human Trafficking Law, and issuing a National Plan of Action Against Human Trafficking.241 The forthcoming analysis will first outline Egypt’s legislative measures to combat human trafficking, in response to its international obligations under Article 6 cedaw. More specifically, the obligation to criminalize trafficking, protect victims of trafficking, and adopt preventive measures, in order to assess the adequacy of these measures (4.2.2.3.1). Hereinafter, it will be assessed 236 See, inter alia, cedaw Committee, “Concluding Observations Indonesia,” para. 30. 237 See, inter alia, Ibid. 238 See, inter alia, cedaw Committee, “Concluding Observations Syrian Arab Republic,” para. 24. 239 See, inter alia, cedaw Committee, “Concluding Observations Netherlands,” forty-fifth session 2010, para. 29. 240 Other un Human Rights frameworks dealing with trafficking in persons, besides the Trafficking Protocol, include: the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature 21 March 1950, entered into force 25 July 1951, 96 unts 271; Rome Statute of the International Criminal Court, opened for signature 17 July 1998, entered into force 1 July 2002, 2187 unts 3; Convention on the Rights of the Child Convention on the Rights of the Child. 241 See Arab Republic of Egypt, National Coordinating Committee on Preventing and Combatting Human Trafficking, National Plan of Action Against Human Trafficking ( January 2010–January 2013), 2010, “Introduction,” available at http://www.ungift.org/doc/ knowledgehub/resource-centre/Governments/Egypt_National_Action_Plan_2011-2013 -en.pdf (last accessed 16 August 2017).

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whether those legislative and political measures can be applied to the perpetrators, and victims of summer marriages as a form of trafficking in girls (2.2.3.2). 4.2.2.3.1

Egypt’s Domestic Measures in Response to the Overall Obligation to Combat Human Trafficking Egypt addressed its obligation to criminalize human trafficking in the course of Article 80 and 89 of the 2014 Constitution,242 the Anti-Human Trafficking Law (Law No. 64 of 2010), as well as the Child’s Act (Law No. 126 of 2008). Egypt’s Anti-Human Trafficking Law243 (hereinafter “ahtl”) defines in Article 2 human trafficking as: [some]one who deals in any manner in a natural person, including: the sale, offer for sale, purchase, or promise thereof; or the use, transport, delivery, harboring, reception, or receipt, whether within the country or across its national borders; if this occurred through the use of force, violence, or threat thereof; or through abduction, fraud, deception, abuse of power, or exploitation of a position of vulnerability or need; or through a promise to give or receive payments or benefits in exchange for obtaining the consent of a person to traffic another having control over him; [and]244 if the purpose of the transaction was exploitation in any of its forms, including: exploitation of acts of prostitution and all forms of ­sexual exploitation, exploitation of children in such acts and in pornography, forced labor or services, slavery or practices similar to slavery or servitude, or begging or removal of human organs, tissues or a part thereof. The ahtl further establishes the irrelevance of conducting trafficking measures by an inappropriate means (means element), as well as the irrelevance of the victim’s consent provided the victim is a child (Article 3 ahtl). Thus, the ahtl mirrors the definition of “international trafficking” stipulated in the Trafficking Protocol. 242 Article 80 and 89 of the 2014 Constitution prohibits, among other forms of exploitation, sex trafficking. 243 The People’s Assembly of the Arab Republic of Egypt, “Anti-Human Trafficking Law, Promulgated by Law No. 64 of 2010,” available at http://www.protectionproject.org/wp -content/uploads/2010/09/Law_regarding_Combating_Human_Trafficking_FINAL.pdf (last accessed 16 August 2017). 244 Note, the English translation of Article 2 is incorrect: It states “or,” while the Arabic original text states “and” instead.

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This definition of “trafficking” consists of three elements, namely, the action element (which refers to various trade measures), the means element (which refers to how the trade measures are conducted), and the purpose element (which refers to the intention of exploitation).245 The action element, which is the first part of the actus reus of trafficking, includes five alternative measures that traffickers can employ, namely, (1) recruitment, (2) transportation, (3) transfer, (4) harboring or (5) receipt of persons. These trading measures need to be conducted by one of nine alternative inappropriate means, which is the second part of the actus reus of trafficking, namely, (1) use of force, (2) violence, (3) threat of violence, (4) abduction, (5) fraud, (6) deception, (7) abuse of power, (8) exploitation of a position of vulnerability or need, (9) or a promise to give or receive payments or benefits in exchange for obtaining the consent of a person to traffic another having control over him. Finally, the purpose element, which is the mens rea or dolus specialis of trafficking, requires perpetrators to carry out the action and means element with the intention of any form of exploitation, including, exploitation of (1) of acts of prostitution, (2) all forms of sexual exploitation, (3) children in such acts and in pornography, (4) forced labor or services, (5) slavery, (6) practices similar to slavery, (6) servitude, (7) begging (8) or removal of human organs, tissues or a part thereof. Committing the act of human trafficking is punishable with a prison sentence, in addition to a fine ranging between egp 50,000 and 200,000 (equivalent to usd 2,941 and 11,764) (Article 5 ahtl),246 and in the instance of aggravated circumstances, results in an increased sentence of life imprisonment, in addition to a fine ranging between egp 100,000 to 500,000 (equivalent to usd 5,882 and 29,412) (Article 6 ahtl). Those aggravated circumstances include, inter alia, the victim being a child (Article 6 (6) ahtl), the perpetrator being the legal guardian of the minor (Article 6 (3) ahtl) or a member of an organized group (Article 6 (7) ahtl).247 In addition, the inducement to human trafficking 245 See Gallagher, The International Law of Human Trafficking, 81–85. 246 Article 5 ahtl states: “Aggravated imprisonment and a fine not less than 50,000 pounds and not to exceed 200,000 pounds or a fine equal to the value of the benefit gained, whichever is greater, shall be imposed on anyone who committed the crime of human trafficking.” 247 Article 6 ahtl states: “Life imprisonment and a fine not less than 100,000 pounds and not to exceed 500,000 pounds shall be imposed on anyone who committed the crime of human trafficking in the following cases: (1) If the perpetrator established, organized, or managed an organized criminal group for the purposes of human trafficking, if he was a leader thereof, if he was one of its members or belonged thereto, or if the crime was of a transnational nature;

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(Article 10 ahtl), as well as the omission of notifying competent authorities in case of positive knowledge of the crime (Article 12 ahtl) is penalized. Moreover, the Child’s Act (Law No. 126 of 2008) prescribes a minimum prison sentence of six months, along with a fine ranging from egp 2,000 to 5,000 (equivalent to usd 118 to 294) for anyone putting a child at risk of being trafficked, which includes the child’s exposure to commercial or sexual exploitation (Article 96 Child’s Act). The fine can be doubled provided the crime is committed by a parent or a legal guardian (Article 116 bis Child’s Act). The epsl (Law No. 143 of 1994) has been amended in accordance with the Child’s Act setting the marriage age to eighteen years (Article 31 bis epsl). In the same vain, Article 291 epc248 was amended as a result of the new Child’s Act. It (2) If the act was committed by way of threats of death, serious harm or physical or psychological torture; or if the act was committed by a person carrying a weapon; (3) If the perpetrator was the spouse, one of the ascendants or descendants, or custodian or guardian of the victim, or was responsible for the supervision or care or had authority over the victim; (4) If the perpetrator was a public official or was assigned to carry out a public service and committed the crime by exploiting the office or public service; (5) If the crime resulted in the death of the victim or caused him to suffer a permanent disability or an incurable disease; (6) If the victim was a child, was incapacitated or was a person with disabilities; (7) If the crime was committed by an organized criminal group.” 248 Article 291 Penal Code states: “It is prohibited to violate the right of a child to protection from trafficking or from sexual, commercial or economic exploitation, or from being used in research and scientific experiments; the child shall have the right to awareness and be empowered to address those risks. Without prejudice to any stronger penalty prescribed by another law, shall be penalized with forced labor for a period not less than five (5) years and a fine of not less than fifty thousand (50,000) pounds, and not exceeding two hundred thousand (200,000) pounds, anyone who buys or sells a child, or offers a child for sale, or anyone who delivers or accepts or transfers a child as a slave, or exploits the child sexually or commercially, or exploits the child in forced labor, or other illegal purposes, even if the crime is committed transnationally. Shall also be subject to the same punishment anyone who engages or induces in the said acts aforementioned in the preceding paragraph, even if the crime was not committed as a result of said acts. Without prejudice to the provisions of Article 116 bis of the Child’s Act, the penalty shall be doubled if committed transnationally by an organized criminal group. Taking into account the provisions of Article 116 bis of the Child’s Act, shall be punished by imprisonment anyone who has transferred from a child one of his organs or part thereof. The child consent or the consent of the person in charge of the child shall not be recognized.”

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acknowledges­the child’s right “to protection from trafficking or from sexual, commercial or economic exploitation,” and prescribes a minimum of five years forced labor along with a fine ranging from egp 50,000 to 200,000 (equivalent to usd 2,941 to 11,765), for “anyone who buys or sells a child, or offers a child for sale, or anyone who delivers or accepts or transfers a child as a slave, or exploits the child sexually or commercially, or exploits the child in forced labor, or other illegal purposes, even if the crime is committed transnationally.” The same criminal punishment is applicable for accomplices to human trafficking. The penalty can be doubled in case the crime is committed transnationally by an organized criminal group (Article 291 epc). The ahtl establishes Egypt’s exclusive jurisdiction for nationals and nonnationals alike, for human trafficking offenses committed inside and outside its territory, provided that “at least one victim being an Egyptian national” (Article 16 ahtl). The obligation to protect and assist victims of trafficking is addressed by the ahtl as well as the National Plan of Action Against Human Trafficking. The ahtl defines the term victim in Article 9 as “a natural person who suffered any material or moral harm, in particular bodily, psychological or mental harm; or economic loss if the harm or loss was caused directly by one of the crimes stipulated in this law.” Article 1 (3) ahtl criminalizes the disclosure of the identity of a victim and Articles 21–27 establish measures to protect victims of trafficking. The latter include, the non-liability of victims for criminal or civil charges (Article 21), protection services, such as health, psychological, educational and social care as well as rehabilitation measures and financial assistance (Articles 22, 26 and 27), the identification of victims in order to guarantee their separation from perpetrators, their criminal procedural rights as well as their right to consular assistance (Articles 23 and 25), and providing appropriate premises to accommodate victims (Article 24 ahtl). The Child’s Act emphasizes that children cannot be detained in the same facilities as adults (Article 112 Child’s Act). The ahtl further determined the establishment of the National Committee to Combat Human Trafficking for the purpose of coordinating policies, plans and programs on human trafficking at the national level (Article 28 ahtl), which resumed its duties in the same year and adopted as its first act the National Plan of Action Against Human Trafficking (hereinafter “npa-ht”).249 The npa-ht deals in Chapter ii with the practical implementation of protection­ 249 See International Organization for Migration – Country Office Egypt, “2012 Fact Sheet: Combating Human Trafficking in Egypt” available at (Cairo, 2012), available at http:// www.egypt.iom.int/Doc/Counter%20Trafficking%20Fact%20Sheet%20Egypt%20(2012) .pdf (last accessed 16 August 2017).

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measures as outlined by the ahtl. Those include, setting up a National Referral Mechanisms (No. 2 of Chapter ii), according to which victims must promptly be identified as such, and provided with tailored assistance, by referring them to relevant protection services. This also includes the training of law enforcement officials and medical personnel on victim identification (No. 2 and 3 of Chapter ii), establishing a telephone hotline to refer and advise victims to the relevant authorities and service responders (No. 4 of Chapter ii), providing shelters and legal, medical, psychological and financial assistance to victims (No. 7, 8, 9, 10 and 13 of Chapter ii), as well as establishing reintegration programs particularly for child victims (No. 15 of Chapter ii). The obligation to adopt preventive measures to deter trafficking was also addressed by the ahtl, as well as the npa-ht. While the ahtl determines the obligation of international judicial cooperation between Egyptian and foreign authorities (Article 18 ahtl),250 the npa-ht deals in Chapters i and iii with the implementation of practical preventive measures.251 Those include, establishing micro-credit and micro-finance programs aiming at the empowerment of potential victims (No. 1 of Chapter i), publishing studies on various aspects of trafficking, such as summer marriages, and their appropriate responses (No. 7 and 8 of Chapter i), incorporating human trafficking into school curricula (No. 9 of Chapter i), conducting capacity building of law enforcement officers, consular officials, and border police on the implementation of ahtl (No. 10 of Chapter i, No. 1, 4 and 6 of Chapter iii), allocating funds for the improvement of technology, coordination and inter-agency cooperation (No. 7 of Chapter iii), providing training to ngo’s and media professionals on the ahtl (No. 11 and 12 of Chapter i), developing public trafficking awareness materials (No. 13 of Chapter i and No. 2 of Chapter ii), establishing a data documentation unit responsible for a statistical data management system (No. 2 and 3 of Chapter iv), and conducting visits to destination countries to exchange surveillance information (No. 8 of Chapter iv). It can thus be concluded that Egypt de jure complies with its overall obligation to combat human trafficking offenses, more specifically to criminalize 250 Article 18 ahtl states: “The Egyptian judicial authorities and police shall cooperate with respective foreign authorities to combat and prosecute crimes of human trafficking, including: exchange of information, conducting investigations, judicial assistance and rogatory, extradition of perpetrators and objects, asset recovery, transfer of sentenced persons, and other forms of judicial and police cooperation, all under the rules decided by bilateral and multilateral agreements in force in the Arab Republic of Egypt or in accordance with the principle of reciprocity.” 251 See International Organization for Migration – Country Office Egypt, “2012 Fact Sheet: Combating Human Trafficking in Egypt.”

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trafficking, protect victims of trafficking, and adopt preventive measures to deter trafficking.252 4.2.2.3.2 Application of Legislation to Summer Marriages The upcoming analysis will assess whether the above outlined legislative measures apply to perpetrators and victims of summer marriages, as a form of trafficking in girls. In this context, the following three considerations must be taken into account. First, whether the perpetrators, who engage in the establishment of a summer marriage (the “husband,” the parents and the marriage broker), can be held criminally liable for human trafficking. Second, the protection measures applicable to minor female victims. Third, whether the government adopted preventive measures to deter summer marriages in the future. As regards the first consideration, namely the perpetrators’ criminal liability, it follows that establishing a summer marriage falls under the definition of human trafficking, as outlined in Article 2 ahtl. All three elements, namely the action, the means and the purpose element, apply to the situation of a forced marriage between a non-national elderly male, and a female minor for a period of four to eight weeks, for the purpose of sexual exploitation. Furthermore, it is an arrangement that is agreed upon between the minor’s parents and the “husband,” facilitated by a marriage broker in the exchange for a payment. The first part of the actus reus of trafficking (action element) contemplates “dealing in a natural person” by “sale, offer for sale, purchase, or promise thereof; or the use, transport, delivery, harboring, reception, or receipt, whether within the country or across its national borders.” This relates to the “husband” as he pays up to 9,000 usd to the parents in exchange for sexual services of a minor female and hence purchases a natural person; to the parents as they receive up to 9,000 usd in exchange for the sexual services of their daughter and thus sell a natural person; and to the marriage broker as s/he brings together both parties and hence offers a natural person for sale. The second part of the actus reus of trafficking (means element) contemplates the means through which dealing in a person is conducted, and includes the following means “through the use of force, violence, or threat thereof; or through abduction, fraud, deception, abuse of power, or exploitation of a position of vulnerability or need; or through a promise to give or receive payments or benefits in exchange for obtaining the consent of a person to traffic a­ nother having control over him.” This relates to the “husband” as he conducts his 252 See United States Department of State – Bureau of Public Affairs, “Trafficking in Persons Report 2015,” 149.

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purchase­of the girl by paying money to the parents through which he obtains their consent to sell their daughter over whom they exercise control; to the parents as they conduct the selling of their daughter by abusing their power over the daughter, to the marriage broker as s/he conducts his/her offer to sell the girl by exploiting the parents’ poverty, which is commonly understood as “a place of vulnerability.” Although Article 3 ahtl determines that the means element is not required in an instance in which a minor is the subject of trafficking, the means element may however be required if the minor’s age cannot be proven in court. The mens rea of trafficking (purpose element) contemplates the perpetrator’s intention to exploit a natural person throughout the transaction, and refers to “any form of exploitation including, exploitation of acts of prostitution and all forms of sexual exploitation, exploitation of children in such acts and in pornography, forced labor or services, slavery or practices similar to slavery or servitude, or begging or removal of human organs, tissues or a part thereof.” This applies to the “husband,” as he purchases the girl for the duration of four to eight weeks with the intention to exploit her sexually, as well as to the parents and the marriage broker as they sell respectively offer to sell the girl with the intention to extract profit of the girl’s sexual services. The fact that the language of Article 2 ahtl specifies the forms of exploitation, leads to the assumption that intent must refer not only to the exploitative purpose in general, but additionally specifically to any of the above mentioned forms of exploitation. The question arising in that context is the required degree of intent, meaning whether the perpetrator necessarily needs to desire the victim’s sexual exploitation (willfulness), or whether the awareness of the victim’s sexual exploitation (knowledge) is sufficient. It should be noted that neither the ahtl or Egyptian jurisprudence,253 nor the Trafficking Protocol itself or its travaux preparatoires254 define which degree of intent is required in relation to the sexual exploitative purpose of the transaction. This is commonly understood as a “weakness of the definition of human trafficking in the Trafficking Protocol.”255 On the one hand, it could be argued that the perpetrator’s knowledge related to the transaction’s exploitative purpose in general as well as to the s­ pecific

253 Egypt has not convicted any trafficking offenders since the enactment of the ahtl; the government reported it conducted 27 potential inventigations but did not provide any details oft he cases, see Ibid. 254 See Jansson, Modern Slavery, 84. 255 See Ibid.

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form of exploitation is sufficient, meaning no willfulness is required. Such understanding­of intent could be concluded from the ahtl’s objective, which aims for the conclusive criminalization of all links along the human trafficking chain.256 This objective would be defeated if the threshold of human trafficking was raised to willfulness as opposed to knowledge related to the victim’s exploitation in general and to the specific form of exploitation. Because not each person involved in the comprehensive process of trafficking (including e.g. specific personal responsible for the victim’s recruitment and transportation) necessarily acts with the desire to sexually exploit the victim, but yet deals in natural persons by employing specific means while knowing about the victim’s exploitation. When applying the intent degree of knowledge in relation to the victim’s exploitation in general and to the specific form of sexual exploitation, the parents who desire the extraction of profit of the girl’s sexual services and know about their daughter’s sexual exploitation could be held criminally liable as principal perpetrators. On the other hand, the language “if the purpose of the transaction was exploitation” suggests that willfulness to fulfill the purpose of exploitation throughout the entire trafficking chain is required; meaning intentionally committing the transaction and intending to cause the result of sexual exploitation.257 Merely knowing the result when committing the transaction would thus not be sufficient. When applying the intent degree of willfulness in relation to the victim’s exploitation in general and to the specific form of sexual exploitation, it appears questionable whether the parents in fact act with such intent regarding the special form of sexual exploitation, since they may know – but most likely not desire – their daughter’s sexual exploitation. In light of the parents’ lack of willfulness in relation to their daughter’s sexual exploitation, they are not criminally liable as principal perpetrators, but rather based on the rules of complicity (Article 10 ahtl), while the “husband” and the marriage broker can be held criminally liable as principal perpetrators (Article 5 and or 6 ahtl). Such understanding of intent appears more convincing, as it does not contravene the ahtl’s objective of criminalizing all links along the human trafficking chain, due to the fact that those who do not act with willfulness related to the victim’s sexual exploitation are still criminally liable as instigators or aiders.

256 See Arab Republic of Egypt, National Coordinating Committee on Preventing and Combatting Human Trafficking, nap, 3. 257 See Jansson, Modern Slavery, 84.

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Subsequently, the “husband” and the marriage broker are liable as principal perpetrators (Article 5 and / or 6 ahtl), while the girl’s parents are liable as instigators (Article 10 ahtl).258 As regards the second consideration, namely the victim’s protection measures, it follows that the measures outlined in Section 4.2.3.3.1 are applicable to minor female victims of summer marriages. The application of these measures depend on whether or not the girl falls under the definition of “victim” outlined in Article 1 (3) ahtl, which includes three elements, namely, (1) the victim being a natural person, (2) who suffered material, moral, physical, mental or economic harm, and (3) which was caused by the criminal act of human trafficking. A female minor who was married off to a non-national elderly male, for a period of four to eight weeks for the purpose of sexual gratification fulfills this definition, as it can be assumed that a minor who was forced into sexual intercourse with an unknown elderly men who abandons her after four to eight weeks, suffers moral, physical, mental harm as a direct result of being trafficked into such marriage. Subsequently, the victim is entitled to the comprehensive protection measures outlined in Section 4.2.3.3.1, including the victim’s non-liability for criminal or civil charges (Article 21 ahtl), protection services such as, health, psychological, educational and social care as well as rehabilitation measures and financial assistance (Articles 22, 26 and 27 ahtl); and the victim’s identification in order to guarantee her separation from perpetrators (Articles 23 ahtl). Measures also include access to shelters and legal, medical, psychological and financial assistance to victims (No. 7, 8, 9, 10 and 13 of Chapter ii).259 As of the third consideration, namely the government’s adoption of preventive measures, it follows that the measures outlined in Section  4.2.3.3.1 address the root causes of summer marriages as a form of trafficking in girls. This includes poverty, lack of economic and social security, as well as the lack of awareness regarding the problem of summer marriages within society and among media, medical and law enforcement personal.260

258 For an assessment of the ahtl’s implementation in relation to the prosecution efforts between 2010–2014, see United States Department of State – Bureau of Public Affairs, “Trafficking in Persons Report 2015,” 148–50. 259 For an assessment of the ahtl’s implementation in relation to protection measures between 2010–2014, see Ibid. 260 For an assessment of the ahtl’s implementation in relation to prevention measures between 2010–2014, see Ibid.

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4.2.2.4 De jure vs. de facto Considerations As a result of Egypt’s significant progress in combatting human trafficking since 2007, namely, the issuance of the ahtl as well as the npa-ht, the State de jure fully complies with its cedaw obligations outlined in the aforementioned Section 4.2.2. However, it should be noted that both instruments are de facto not fully implemented261 for multiple reasons, among others, a shift of priorities after the 2011 revolution and the counter-revolution in 2013. While the Egyptian government reported the first five convictions based on the ahtl in 2012,262 no convictions were reported in 2013 and in 2014, with the exception of five prosecution cases for sex trafficking in 2013, and fifteen prosecution cases for sex trafficking in 2014.263 The low conviction rate can be attributed to the settlement of trafficking cases outside the courtroom, as well as a lack of understanding of the ahtl and of investigation techniques among law enforcement officers.264 When considering Egypt’s efforts to identify and protect trafficking victims, it can be noted that these efforts also decreased since 2012, from 277 identified victims in 2012, over 173 in 2013, to 68 in 2014.265 The lack of victim identification results in a lack of referral to protection services, and the prosecution of victims for committing the criminal offense of prostitution.266 The low victim identification rate can be attributed to a lack of trafficking awareness among police, security and judicial officials.267 However, in this context it should also be noted that the National Council for Childhood and Motherhood successfully established several shelters, such as the Regional 261 As a result of the governement’s failure to fully implement its legal and political measures de facto, Egypt was placed on Tier 2 Watch List, which indicates that the government does not fully comply with the tvpa’s minimum standards, but is making significant efforts to bring itself into compliance with those standards and one of the following three options: (1) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; (2) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or (3) the determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year. See Ibid. 262 See Ibid. 263 See Ibid. 264 See Ibid. 265 See Ibid. 266 See Ibid. 267 See Ibid.

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Shelter for Recovery and Integration of Women and Girls for female trafficking victims, which provides secure, transitional accommodation, as well as medical­assistance, counseling and legal aid.268 The National Council for Childhood and Motherhood has also established a national toll-free twenty-four hour hotline for trafficked persons, which can be contacted for referrals by victims, family members or government officials.269 Although the Egyptian government provided anti-trafficking training for over one thousand judicial and law enforcement officials in 2014, conducted a series of research studies on trafficking in Egypt and held online awareness campaigns, it failed to reduce the demand for commercial sex acts and to raise awareness of the issue of summer marriages.270 Moreover, it did not yet establish a trafficking database, although the government proposed such efforts.271 However, President El-Sisi publicly announced to allocate egp 100 million (equivalent to usd 5,8 million) to combat the issue of street children in February 2015,272 which would address one of the root causes of summer marriages. The government’s nationwide call to all district courts to gather information on trafficking cases from the past five years,273 can be seen as another promising step towards analyzing the reasons for the lack of the ahtl’s implementation and contribute to the de facto implementation of Egypt’s legal and political measures regarding combatting human trafficking. Egypt’s Legislative Efforts on Combatting Gender-discriminatory Nationality Laws in Light of Article 9 cedaw This section seeks to examine Egypt’s implementation efforts regarding equal nationality rights set out in Article 9 cedaw, which entrenches women’s equality in nationality law. More specifically, Article 9 (1) cedaw grants equally both, women and men, rights to acquire, change, or retain their nationality; and Article 9 (2) cedaw contemplates equal rights with respect to transfer nationality to children.274 While Egypt had originally entered a reservation

4.2.3

268 See International Organization for Migration – Country Office Egypt, “2012 Fact Sheet: Combating Human Trafficking in Egypt.” 269 See Ibid. 270 See United States Department of State – Bureau of Public Affairs, “Trafficking in Persons Report 2015,” 148–50. 271 See Ibid. 272 See Ibid. 273 See Ibid. 274 Women’s equal right to transmission of nationality to children is specifically mentioned in Article 9 (2) cedaw, but also touches upon the concept of stereotypical attitudes based

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to Article 9 (2) cedaw upon ratification of the Women’s Convention in 1982, it withdrew this reservation in 2008, after the amendment of Egypt’s domestic Nationality Act in 2004.275 As a consequence, the Egyptian government is now internationally bound to grant women the right of passing nationality to children. The next sections will first provide relevant background information on what the right to nationality entails, in a national and international context (4.2.3.1). This will next be followed by an analysis of the respective international obligation under Article 9 cedaw (4.2.3.2). Hereinafter, Egypt’s domestic nationality provisions will be looked at in detail, to evaluate whether Egypt complied with its obligation set out in Article 9 cedaw (4.2.3.3). Finally, this section will conclude by a summary of the findings and brief notes on the de facto implementation of Egypt’s legislation (4.2.3.4). Suggestions on what may be required to fully comply with Article 9 cedaw de jure and de facto will be provided at the end of Chapter 4 (4.3). 4.2.3.1 Background Information on Nationality Rights The term “nationality” is a concept in international law, which links a State to the people in its territory more closely than to any other.276 It was described by the icj as “a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”277 While “it is for each [State] to determine under its own law who are its nationals,”278 States are limited in their discretion by international treaties, particularly by human rights treaties such

275 276 277 278

on the idea of superiority (Article 5 cedaw); as well as equal roles in the family (Article 16 cedaw), see Savitri W.E. Goonesekere, “Article 9 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Beate Rudolf, Marsha A. Freeman, and Christine M. Chinkin (Oxford: Oxford University Press, 2012), 237. untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” See Shaw, International Law, 479. Nottebohm case (Lichtenstein v. Guatemala), International Court of Justice, Preliminary Objection, icj Reports 1955, p. 4. As stated by Article 1 of the Hague Convention on the Conflict of Nationality Law, opened for signature 13 April 1930, entered into force 1 July 1937, 179 lnts 89.

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as the Women’s Convention,279 to provide safeguards in their domestic nationality laws.280 The function of nationality becomes apparent in Lauterpacht’s definition of nationality, as “an instrument of securing the rights of an individual in the national and international spheres.”281 On the one hand, nationality in the context of international law contemplates a duty of diplomatic protection provided by the State of nationality on behalf of its nationals in the event another State interferes with a non-national.282 On the other hand, nationality in the context of domestic law is the ground for a range of rights and duties of a national, such as, the right to vote, to freely move within the territory or the requirement of military services.283 The cedaw Committee acknowledged in this regard that “[n]ationality is critical to full participation in society [and without such status] women are deprived of the right to vote or to stand for public office and may be denied access to public benefits and a choice of residence.”284 The denial of a woman’s right to pass her nationality to her husband and / or children, leads to a variety of practical difficulties, due to the fact that the spouse and children will be treated as foreigners in the woman’s home country. This may possibly affect the “right to residence, education, employment, health care, property ownership and inheritance, access to State aid, as well as the ability to obtain identity documents, passports and permission to 279 Despite the Women’s Convention, the following international conventions deal with nondiscrimination and rights of non-citizens: International Covenant on Civil and Political Rights (iccpr); International Covenant on Economic, Social and Cultural Rights (icescr); International Convention on the Elimination of Racial Discrimination (icerd); Convention on the Rights of the Child (crc); 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol; 2003 Convention on Migrant Workers; 1981 African [Banjul] Charter on Human and Peoples’ Rights. 280 For instance, the duty of admission and non-expulsion of nationals, outlined in Article 12 (4) iccpr, as well as in Article 5 (d) ii icerd. 281 See Hersch Lauterpacht, “Foreword to the First Edition,” in Nationality and Statelessness in International Law, ed. Paul Weis (London: Stevens and sons, 1956), xi. 282 See Karen Knop and Christine Chinkin, “Remembering Chrystal MacMillan: Women’s Equality and Nationality in International Law,” Michigan Journal of International Law 22 (2001): 537, 540. 283 See International Law Association, Committee on Feminism and International Law, “Final Report on Women’s Equality and Nationality in International Law – London Conference” (London, 2000), 265, available at http://www.unhcr.org/en-us/protection/ statelessness/3dc7cccf4/london-conference-2000-committee-feminism-international -law-final-report.html (last accessed 16 August 2017). 284 cedaw Committee, “gr No. 21,” para. 6.

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travel.”285 Particularly developing countries with a vast population make public services, like education and health care, only available to nationals, leaving non-national children with the obligation to pay school and university fees, and being denied health care services at public hospitals.286 Upon graduation, these children may be subjected to employment restrictions, meaning they would be required to apply for work and residency permits, with the constant fear of denial.287 This may have a psychological impact on the whole family. While the mother – as a national – may feel responsible for the legal obstacles caused by her country, the father and the children – as foreigners – may suffer from the “second-class status.”288 Moreover, gender-discriminatory nationality laws have the connotation “that women do not enjoy a direct relationship with the State, but must access their citizenship rights through mediation of a male family member, such as a father or a husband.”289 4.2.3.2 Scope of States Parties Obligation under Article 9 cedaw The scope of the current section is to assess the specific States parties’ obligations resulting from Article 9 cedaw. Pursuant to Article 9 cedaw, States parties are required to eliminate gender discrimination in matters of nationality.290 Article 9 cedaw states: (1) States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

285 Catherine E. MacKay, Strategies for Change: Exploring the Impact of the 2004 Nationality Law Reform Campaign on Gender Equality in Egypt (Master thesis, American University in Cairo, School of Global Affairs and Public Policy, Cairo, 2012), 50, available at http://dar .aucegypt.edu/bitstream/handle/10526/3087/C.MacKay%20Thesis%20Final%20Draft .pdf?sequence=3 (last accessed 16 August 2017). 286 See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit,” 11. 287 See MacKay, Strategies for Change, 50. 288 See Women’s Learning Partnership for Rights, Development and Peace, “Claiming Equal Citizenship,” October 29, 2010, available at http://www.learningpartnership.org/­ citizenship (last accessed 16 August 2017). 289 See Ibid. 290 The term “nationality” includes “citizenship” and is used synonymously, see Goonesekere, “Article 9 cedaw,” 234.

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(2) States Parties shall grant women equal rights with men with respect to the nationality of their children.291 While Article 9 (1) cedaw relates to the establishment of gender equality as to transmission of nationality to a spouse, Article 9 (2) cedaw relates to the transmission of nationality to children. Thus, subject of Article 9 (1) cedaw are women in their role as a spouse, while subject of Article 9 (2) cedaw are women in their role as mothers. As mentioned before, Article 9 (1) cedaw relates to the acquisition, change and retention of nationality. The legal act practically most relevant in the ­context of nationality law is the acquisition of nationality, which is either conferred by birth or by naturalization procedure.292 International law provides for two basic principles, based on which nationality can be obtained: namely, by virtue of being born within State territory, ius soli, or by descent from a national, ius sanguinis.293 Both principles are not mutually exclusive, but can rather complement one another, which is demonstrated by the nationality laws of many States.294 As ius sanguinis is based on descent from the parents’ nationality, this principle may potentially serve as grounds for gender discrimination, provided that the domestic nationality law determines exclusively the father as the relevant parent for transmission of nationality. Hence, the cedaw Committee noted in its Concluding Observations295 that a gender-biased interpretation of obtaining nationality by descent amounts to an infringement upon Article 9 (1) cedaw.296 Subject to particular criticism in the course of acquiring nationality through naturalization procedure is the concept of a “women’s dependent nationality,”297 in which a woman, who marries an alien, loses her own nationality, and is absorbed into her husband’s nationality.298 This concept can 291 ohchr, “Text to Women’s Convention.” 292 See Goonesekere, “Article 9 cedaw”; Knop and Chinkin, “Remembering Chrystal MacMillan,” 543. 293 See James Crawford, Brownlie’s Principles of Public International Law, 8 edition (Oxford, United Kingdom: Oxford University Press, 2012), 511. 294 See Ibid.; Knop and Chinkin, “Remembering Chrystal MacMillan,” 543. 295 See, inter alia, cedaw Committee, “Concluding Observations Guinea-Bissau,” para. 265 f.; cedaw Committee, “Concluding Observations Morocco” (un Doc A/63/38, fortieth session 2008), 252. 296 See Goonesekere, “Article 9 cedaw,” 239. 297 Also referred to as “first generation of equality issues,” see Knop and Chinkin, “Remembering Chrystal MacMillan,” 545. 298 See Goonesekere, “Article 9 cedaw,” 241.

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affect a woman’s nationality particularly in two instances. First, the husband’s change of nationality may alter hers accordingly and second, the spouses’ divorce may render her stateless.299 The concept of “women’s dependent nationality“ is rooted in a patriarchal notion of family, and spread throughout many legal systems after adapting colonial common or civil law.300 Therefore, Article 9 (1) cedaw replaced this patriarchal concept with a woman’s “right to autonomy and independence“ from her husband’s nationality, and promotes the concept of dual nationality.301 The cedaw Committee has noted in many of its Concluding Observations that domestic nationality laws, which are based on the concept of “women’s dependent nationality,” amount to gender-based discrimination against a national’s spouse.302 Article 9 (2) cedaw relates to the transmission of nationality to a child.303 Many States consider merely the father’s nationality when applying ius sanguinis, and thereby deny a mother the transmission of her nationality to her child. Such nationality provisions are particularly problematic as they can result in a child’s statelessness, if the father is either unknown or stateless himself, or his country applies ius soli.304 Some States grant children from non-marital relationships the mother’s nationality, with the understanding that a father can only transmit his nationality to children born inside a marriage.305 This puts children from unmarried parents, lesbian couples, or single mothers at an additional risk of statelessness, in the event that the mother comes from a State in which women cannot transfer their nationality to children.306 As nationality is the precondition for many civil, political, economic and social rights, statelessness may lead to the denial of a range of human rights of children, including the right to health, to education, to child support and to residency.307 At the same time, it precludes the enjoyment of a range of human­ 299 See cedaw Committee, “Gr No. 21,” para. 6. 300 See Goonesekere, “Article 9 cedaw,” 241. 301 See Ibid. 302 See, inter alia, cedaw Committee, “Concluding Observations Thailand” (un Doc cedaw/ C/THA/CO/5, thirty-fourth session 2006), para. 31; cedaw Committee, “Concluding Observations Morocco,” fortieth session 2008, para. 252. 303 Also referred to as “second generation of equality issues,” see Knop and Chinkin, “Remembering Chrystal MacMillan,” 546 ff. 304 See Ibid., 548. 305 See Goonesekere, “Article 9 cedaw,” 243. 306 See International Law Association, Committee on Feminism and International Law, “Final Report on Women’s Equality and Nationality in International Law – London Conference,” 270. 307 See Goonesekere, “Article 9 cedaw,” 243.

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rights related to maternal functions, such as, the mother’s rights to child custody, residency, mobility and State benefits.308 A difference in nationality between a mother and her child is also problematic from an international law perspective, as it may lead to the inability of the mother’s State to exercise consular representation, in the event of the father’s State’s interference with the child and thereby may give rise to conflicts between States.309 For the reasons listed above, the cedaw Committee concluded that ius sanguinis must be interpreted as “descent from either parent.”310 Failure to do so, can neither be justified on grounds of the prospect of dual nationality,311 nor on the grounds of diversity in culture or religion.312 The specific States parties obligation under Article 9 cedaw is to grant women equal rights in nationality law, and rights associated with nationality, which is specified by the obligation to respect, protect and fulfill. The “obligation to respect” includes providing for enforcement measures in order “to ensure remedies for infringement by State actors.”313 The “obligation to protect,” refers to States parties “liability for the acts of non-State actors based on inaction.”314 Lastly, the “obligation to fulfill” requires States parties to “create a supportive context for the exercise of the rights contemplated in Article 9 cedaw,”315 namely, to ensure women’s equality in nationality law. States parties need to particularly ensure that any incentives for a woman to acquire the nationality of her husband, do not effectively deny her right to choose her 308 309 310 311

See Ibid. See Knop and Chinkin, “Remembering Chrystal MacMillan,” 548. See Goonesekere, “Article 9 cedaw,” 243. cedaw Committee, “Concluding Observations Singapore,” forty-nineth session 2012, para. 75. 312 cedaw Committee, “Concluding Observations Egypt,” para. 319, 326; cedaw Committee, “Concluding Observations Singapore,” forty-nineth session 2012, para. 74. Knop and Chinkin proposed “to address [issues of women’s nationality on the basis of gender equality], States need to allow all members of mixed nationality families to choose dual nationality or otherwise to guarantee sufficient rights and benefits to the non-national family members, including most especially security of residency. Part iii ended by proposing various justifications for this result.” For comprehensive reform proposals in nationality law that would consider gender equality, see Knop and Chinkin, “Remembering Chrystal MacMillan,” 550–56. 313 International Law Association, Committee on Feminism and International Law, “Final Report on Women’s Equality and Nationality in International Law – London Conference,” 304. 314 Goonesekere, “Article 9 cedaw,” 243. 315 Ibid.

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nationality.316 Moreover, in a case where a child’s parents are of different nationalities, each parent should have the right to transmit her or his nationality to the child, even if this would result in the child holding dual nationality.317 4.2.3.3 Egypt’s Compliance with Its Obligation under Article 9 cedaw The current section will aim to analyze whether Egypt’s Nationality Act complies with Article 9 cedaw. In this regard the amendment of Egypt’s Nationality Act in 2004318 (hereinafter “na”) and the subsequent withdrawal of its reservation to Article 9 (2) cedaw in 2008 will be discussed. In regards to Article 9 (1) cedaw, the “equal right to acquisition, change and retention of nationality” the Egyptian na319 differentiates between obtaining the Egyptian nationality320 through primary (by means of birth), and derivative (by means of naturalization) acquisition. Article 3 of the na 2004, bases primary acquisition on ius sanguinis and grants all people born to Egyptian nationals the Egyptian nationality. Ius soli applies merely subsidiary in the event that the parents of a child are unknown and the child was born in Egypt.321 The gender-implications of primary acquisition will be discussed in the course of Article 9 (2) cedaw below. Obtaining the Egyptian nationality through derivate acquisition, by means of naturalization, is “generally a complex and lengthy process,”322 which presumes proving various requirements outlined in Article 4 (4), (5) na 1975, including the legal residence in Egypt for ten consecutive years, while the

316 See Knop and Chinkin, “Remembering Chrystal MacMillan,” 583. 317 See Ibid. 318 The People’s Assembly of the Arab Republic of Egypt, “Nationality Act of the Arab Republic of Egypt, Promulgated by Law No. 26 of 1975, Amended by Law No. 154 of 2004,” available at https://www.justice.gov/sites/default/files/eoir/legacy/2013/11/08/UNHCR% 20%20Refworld%20%20Law%20No_%2026%20of%201975%20Concerning%20 Egyptian%20Nationality.pdf (last accessed 16 August 2017). 319 Ibid. 320 Privileges that result from the Egyptian nationality are in the areas of residence, employment, property ownership [while Egyptians are generally free to work in any profession and own all types of property, foreign nationals are subject to restrictions], education, adjudication, and family law. See Tarek Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” Middle East Law and Governance 6, no. 3 (2014): 294. 321 See Khalil and Badawy, “Rights of Foreigners and Access to Citizenship,” 8. 322 See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 274.

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decision­ultimately remains subject to the Minister of Interior’s discretion.323 The naturalization regulations, however, provide for expedited naturalization schemes to certain categories of individuals, based on their national or ethnic origin and/or place of birth.324 Such expedited naturalization process is also granted to alien women married to Egyptian men pursuant to Article 7 na 1975.325 Based on this, alien women can apply for the Egyptian nationality after a period of two years marriage, provided that the Minister of Interior does not object. It must be noted that alien men married to Egyptian women are not included in Article 7 na 1975 and hence are not subject to the privilege of an expedited naturalization based on marriage to a national.326 Article 10 of Egypt’s na 1975 provides Egyptian men and women with the option to change nationalities, while retaining the Egyptian one.327 Subsequently, dual citizenship is allowed for but presumes the official permission of the Minister of Interior.328 Article 11 na 1975 notes specifically that any change in nationality will not forfeit the spouse’s nationality, unless the spouse applies for such change. In addition, the na does not impose the Egyptian nationality on any alien living in Egypt.329 Thus, in light of the obligations outlined by Article 9 (1) cedaw namely, equal rights to acquisition, change and retention of nationality, it follows that Article 7 na 1975 discriminates against Egyptian women regarding the right to transfer their nationality to their alien husbands. As of the right to change and retention of nationality, no gender-specific discrimination could be determined. In regards to Article 9 (2) cedaw namely, the obligation to grant women equal rights regarding the transmission of nationality to children, Egypt’s amended na 323 For more information about specific requirements in Egypt’s naturalization process, see Khalil and Badawy, “Rights of Foreigners and Access to Citizenship,” 9 ff. 324 See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 277. 325 Article 7 na 1975 states: “A foreign woman who gets married to an Egyptian does not acquire his nationality through marriage unless she notifies her wish to acquire his nationality to the minister of Interior, and the marriage has not been terminated before the lapse of two years from the date she announces her wish, by another reason than his decease. The minister of Interior may issue a justified decree depriving the wife from acquiring the Egyptian nationality, before the lapse of the two years.” 326 See Open Society Foundations, “Citizenship Law in Africa: A Comparative Study,” 2012, 51, available at http://www.refworld.org/docid/4cf76b192.html (last accessed 16 August 2017). 327 See Khalil and Badawy, “Rights of Foreigners and Access to Citizenship,” 7. 328 See Open Society Foundations, “Citizenship Law in Africa,” 74 ff. 329 See Khalil and Badawy, “Rights of Foreigners and Access to Citizenship,” 7.

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2004 provisions must be looked at. Prior to the amended na 2004, Article 2 na 1975 primarily considered the father’s nationality in the application of ius sanguinis, except for rare occasions such as, the father being stateless or his nationality unknown, or in cases in which the paternity was not established.330 As a result, the majority of Egyptian women were denied the right to transfer their nationality to children, who were born to an alien father, by birth.331 However, those children could apply for the Egyptian nationality by means of naturalization pursuant to Article 3 na 1975.332 After being subjected to heavy criticism by the cedaw Committee, civil society, and an increasing litigation wave before the Supreme Constitutional Court, Egypt’s National Council for Women in cooperation with other ministries and civil society have determined that such inequality was in violation of the gender equality section of Egypt’s Constitution (Articles 11 and 40).333 Subsequently, the Egyptian parliament passed the na 2004, which amended the na 1975 by replacing Article 2 and cancelling Article 3 of the na 1975.334 This was accompanied by the issuance of a Ministerial Decree by the Minister of Interior,335 which explains the process of application for children born to Egyptian mothers and alien fathers.336 Article 2 of the na 2004 reads, “[a]ny child born to an Egyptian father or mother shall be an Egyptian national. This applies to all children of an Egyptian mother born after the enforcement of the law.”337 Thus, Article 2 na 2004 expands ius sanguinis along the maternal line and grants mothers the same right to transfer the Egyptian nationality to their children, as Egyptian 330 See Amal Abdel Hadi, “Engendering the Egyptian Law on Nationality,” in Africa Citizenship and Discrimination Audit: The Case Study of Egypt (Cairo: The Center for Migration and Refugee Studies of the American University in Cairo, Open Society Justice Initiative, 2005), 41, available at http://schools.aucegypt.edu/GAPP/cmrs/reports/Documents/­ Citizenship_Report.pdf (last accessed 16 August 2017). 331 See Khalil and Badawy, “Rights of Foreigners and Access to Citizenship,” 13. 332 See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 276 f. 333 See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 273–76. For more information about the role of civil society in amending the Nationality Act, see Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 42–49. 334 See Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 41. 335 Ministerial Decree No. 1231 of 2 May 2011 (published in: Al-Waqaʾeʾ Al-Masreya / Government Bulletin, Issue No. 166, 24 July 2004, p. 2), explains the process of application for citizenship for those born to Egyptian mothers and non-Egyptian fathers. 336 See Khalil and Badawy, “Rights of Foreigners and Access to Citizenship,” 13. 337 The People’s Assembly of the Arab Republic of Egypt, “Egyptian Nationality Act 2004.”

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fathers.338 This right is also contemplated in Article 6 of the 2014 Constitution, which states that nationality “is a right to anyone born to an Egyptian father or an Egyptian mother.”339 The new na 2004, however, excludes two categories of children from its application, firstly, children born before the amended law came into effect (in November 2005)340 pursuant to Article 2 na 2004 and secondly, children born to Palestinian fathers341 and Egyptian mothers, pursuant to a Decree by the League of Arab States.342 This Decree was intended to preserve the Palestinian identity and their right to return by refraining from granting nationality to Palestinians in any Arab State.343 It should be noted, that the Arab League Decree of 1959 had no basis in domestic written law due to strong opposition by Egyptian society,344 but was yet applied in practice.345 With regard to the first exception, namely, children born before the enforcement of the amended law, it follows the hierarchical order of constitutional commands, that Article 6 of the 2014 Constitution, stating the right of any child to obtain the nationality born to an Egyptian father or mother, supersedes­ 338 See Gianluca P. Parolin, Citizenship in the Arab World: Kin, Religion and Nation-State (Amsterdam: Amsterdam University Press, 2009), 82. 339 See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 276 f. 340 See Open Society Foundations, “Citizenship Law in Africa,” 51. 341 According to the 1964 Palestinian National Charter, adopted by the first Palestinian Conference, “Palestinians are Arab nationals who, until 1947, normally resided in Palestine regardless of whether they were evicted from it or have stayed there. Anyone born after that date of a Palestinian father – whether inside Palestine or outside it – is also a Palestinian.” See Parolin, Citizenship in the Arab World, 85. 342 See Anis F. Kassim, “Legal Systems and Developments in Palestine,” The Palestine Yearbook of International Law Online 1, no. 1 (1984): 33. 343 While the rationale of this decree seems relatable, the question arises why these concerns are only discussed in regards to children of national mothers and Palestinian fathers and not the other way around. In this context, Abdel Hady points out “[…] that this situation is now one of ‘discrimination between Egyptian mothers simply due to the husband’s nationality’ and that this inequality is ‘unacceptable, regardless of the political context of this case’,” see Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 42. She further refers to a statement by the Palestinian Ambassador to Egypt, Mohamed Sobieh, who noted that preserving the Palestinian identity “could not be a reason not to grant children of Egyptian women married to Palestinians the Egyptian nationality because they can keep both nationalities, or decide otherwise when there is a Palestinian state […and…] clarified that the ‘resolution’ referred to is not a resolution, but a mere recommendation,” see Ibid., 46. 344 See Women’s Learning Partnership for Rights, Development and Peace, “Claiming Equal Citizenship.” 345 See MacKay, Strategies for Change, 58.

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Article 2 na 2004.346 Subsequently, any restrictions to the application of the maternal ius sanguinis rule on the statutory law level are expected to be deemed unconstitutional and thus invalid.347 With regard to the second exception namely, children born to Palestinian fathers and Egyptian mothers, it should be noted that the Ministry of Interior Affairs and the Ministry of Foreign Affairs have issued a decree348 in the aftermath of the 2011 Revolution, pursuant to which Egyptian women married to Palestinian men are permitted to transmit their nationality to their children.349 Hence, the application of the Arab League decree, which constituted an exception to the maternal ius sanguinis rule, has successfully been eliminated.350 It occurs, however, that even prior to the issuance of Egypt’s ministerial decree in 2011, the application of the Arab League Decree was contra legem, as Article 2 na 1975 had already contemplated maternal ius sanguinis in case the father was unknown or stateless; the latter of which applies to Palestinians.351 Subsequently, Egypt fully implemented the obligation to grant women equal rights regarding the transmission of nationality to children, as stipulated in Article 9 (2) cedaw, presumed that Article 2 na 2004 (exempting children born before the enforcement of the amended law in 2004) will be declared void due to its unconstitutionality.

346 See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 276 f. 347 While this assessment follows the logic of legal hierarchy, in which the constitution of a country is the superior law and supersedes all statutory law, Abdel Hady notes that the na of 1975 “did not apply any of the guaranties stipulated by the [1971] Constitution.” See Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 40. Hence, it can only be hoped for that Egypt’s Supreme Court, respectively the Parliament, shares the here provided assessment. 348 Ministerial Decree No. 1231 of 2 May 2 2011. 349 See Women’s Learning Partnership for Rights, Development and Peace, “Post-Revolution, Egypt Establishes Right of Women Married to Palestinians to Pass Nationality to Children,” May 13, 2011, available at http://www.learningpartnership.org/lib/post-revolution -egypt-establishes-right-women-married-palestinians-pass-nationality-children-1 (last accessed 16 August 2017). 350 For a compilation of arguments used against the establishment of maternal ius sanguinis prevalent in Egyptian society before the issuance of na 2004, see Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 43 f. 351 See Gianluca P. Parolin, “New Policy on Egyptian Citizenship for Children of Palestinian Fathers,” European Union Observatory on Democracy Citizenship, 2011, available at http:// eudo-citizenship.eu/citizenship-news/530-new-policy-on-egyptian-citizenship-for -children-of-palestinian-fathers (last accessed 16 August 2017).

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4.2.3.4 De jure vs. de facto Considerations In light of Article 7 na 1975, which denies Egyptian women the right to transfer their nationality to their alien husbands, it follows that Egypt does not yet fully comply with the obligation outlined in Article 9 (1) cedaw, namely, equal rights regarding the acquisition of nationality. As a result of Egypt’s na reform in 2004, the ministerial decree No. 1231 in 2011, as well as Article 6 of the 2014 Constitution, Egypt de jure complies with its international obligation outlined in Article 9 (2) cedaw namely, equal rights regarding the transmission of nationality to children. This conclusion is subject to the assumption that Article 2 na 2004 will be declared void. Elsewise, the exemption of children, born to an Egyptian mother and an alien father prior to the enforcement of the amended law, from the maternal ius sanguinis rule resulting in the denial of acquiring the Egyptian nationality by birth as opposed to by means of naturalization (Article 2 na 2004), constitutes a violation of Article 9 (2) cedaw. This becomes particularly obvious when regarding the considerable constraints placed by the Egyptian regulations regarding the naturalization procedure on applicants. These include an application fee of egp 1,200 (equivalent to usd 70,8),352 long waiting times at multiple governmental offices distributed across the whole governorate, the production of documentation such as, the birth certificates of both parents and of the maternal grandfather, the mother’s identity card, the marriage contract, the applicant’s birth certificate, foreign passport, proof of educational qualifications and photos, as well as a clean criminal record, and finally a discretionary decision of the Minister of Interior over the application.353 This outlined procedure discriminates particularly against poor and rural women, due to the fact that many do not possess birth certificates or identification cards and thus can neither provide for the required documents, nor for the application fee.354 Moreover, governmental offices in rural areas may be far and difficult to reach for women, whose societal role is perceived as the caretakers of children and home.355 Yet, it will be upon the mother to apply for her children’s nationality, because neither the minor children nor the alien husband are permitted to do so. Thus, the obligation to acquire the Egyptian 352 According to Leila, this requirement has been lifted, see Reem Leila, “Citizenship Costs Less,” Al Ahram Weekly Online, September 8, 2006, Issue 806 edition, available at http:// weekly.ahram.org.eg/Archive/2006/806/eg4.htm (last accessed 16 August 2017). 353 See MacKay, Strategies for Change, 49 ff.; Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 46; Open Society Foundations, “Citizenship Law in Africa,” 51. 354 See Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 46. 355 See Ibid.

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nationality by naturalization procedure discriminates against Egyptian women de jure and de facto, because Egyptian fathers do not face the same obstacles when transferring nationality to children.356 Egypt’s Legislative Efforts on Combatting Gender Discrimination in Employment in Light of Article 11 cedaw This section seeks to examine Egypt’s implementation efforts regarding the elimination of gender discrimination in employment and occupation, as set out in Article 11 cedaw. The overall obligation to eliminate discrimination against women in employment and occupation is of particular relevance for a woman’s economic independence as well as the development of her personality, and is thus considered an “inseparable and inherent part of her dignity.”357 It is also particularly important for a country’s sustainable development, as well as its Gross Domestic Product (hereinafter “gdp”).358 Against this background, Article 11 cedaw creates holistic standards for women’s rights in the labor market, while recognizing women’s economic, family and employment realities.359 Article 11 cedaw addresses three main issues, namely, ensuring women’s employment rights, prohibiting discrimination on the grounds of marriage or maternity, and adopting legislative measures.360 The Egyptian parliament unified the labor provisions in 2003, when it promulgated Labor Law No. 12 of 2003 (hereinafter “ll”), which contains a specific section dealing with women in employment. In this context, the cedaw Committee expressed its concern regarding the “persistence of discrimination against women in the [Egyptian] Labor market”361 and urged Egypt to consider 4.2.4

356 Badawy points out four main arguments against the application of ius sanguinis along the paternal line outlined in Article 2 na 1975: First, it discriminated against women; second, it discriminated amongst children; third, it assumed that children from non-Egyptian men lacked loyalty; and fourth, the decision depended on the discretion of the Minister of Interior, which makes successful complains impossible. See Badawy, “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights,” 275. 357 Committee on Economic, Social and Cultural Rights, “General Comment No. 18” (un Doc E/C.12/GC/18, thirty-fifth session 2005), para. 1. 358 See Jeni Klugman, Henriette Kolb, and Matthew Morton, “Persistent Gender Inequality in the World of Work,” The Fletcher Forum of World Affairs 38 (2014): 136. 359 See Frances Raday, “Article 11 cedaw,” in The un Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, ed. Freeman Marsha A., Christine M. Chinkin, and Beate Rudolf (Oxford: Oxford University Press, 2012), 281. 360 See Wiesbrock, “Equal Employment Opportunities and Equal Pay,” 229. 361 See cedaw Committee, “Concluding Observations Egypt,” para. 33.

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amending its ll so as to include a “general prohibition of discrimination that would explicitly prohibit discrimination in all aspects of employment.”362 Subject of the forthcoming analysis is therefore the question whether Egypt’s ll complies with the State party’s obligation to combat gender discrimination in employment, in light of Article 11 cedaw. The next sections will first provide relevant background information regarding women’s engagement in the labor market in Egypt (4.2.4.1), followed by an analysis of the respective international obligation under Article 11 cedaw (4.2.4.2). Hereinafter, Egypt’s domestic Labor Law will be looked at in detail to evaluate whether Egypt complied with its obligation set out in Article 11 cedaw (4.2.4.3), followed by a summery of the findings and brief notes on the de facto implementation of Egypt’s legislation (4.2.4.4). Suggestions related to Egypt’s full compliance with Article 11 cedaw de jure and de facto will be provided at the end of Chapter 4 (4.3). 4.2.4.1

Background Information on Women’s Engagement in Egypt’s Labor Market Subsequent to Abdel Nasser’s policy of public sector expansion, nationalization of foreign and domestic assets, and subsidies for basic consumption goods between 1952–1970, the Egyptian government implemented significant structural economic reforms, which were initiated by the Sadat-regime (between 1970–1981) and continued by the Mubarak-regime (1981–2011).363 Those reforms included, inter alia, the Open-Door Economic Policy as well as the Structural Adjustment Program, which led to a shrinking of the public sector, large privatization and the decline of public services.364 The reforms did not have the desired effect of an improving economy, but rather led to corruption, concentration of economic and political power, increasing inequality, poverty and unemployment.365 Egypt’s fragile economy further shrunk, leading to a sharp fall of its gdp, and more severe unemployment in the course of the international financial crises in 2008, as well as the prolonged period of political turmoil between 2011 and 2014.366 In order to

362 See Ibid. 363 See Karatholuvu V. Nagarajan, “Egypt’s Political Economy and the Downfall of the Mubarak Regime,” International Journal of Humanities and Social Science – Special Issue 3, no. 10 (2010): 1. 364 See Ibid. 365 See Ibid. 366 See Gianluca Salsecci, Emil Eskander, and Giancarlo Frigoli, “Egypt’s Economic Reform Agenda. A New Path for Growth,” Med&Gulf Initiative Bullettin – Special Edition, Med&Gulf Initiative Bulletin, 5 (2015): 3.

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prevent further poverty, Egypt’s – mostly traditional – society could no longer afford excluding women from the labor market. As a result, the female labor force participation rate increased over the past twenty years by 7.5 percent367 and more women are now employed than ever before.368 Despite these advances, women still face significant de jure and de facto inequalities in the workplace. Egypt’s labor market is characterized by one of the lowest female labor participation rates,369 a gender-segregated labor sector,370 a considerable gender pay gap,371 unequal working conditions,372 such as the exclusion of women’s employment from many labor sectors, discriminatory recruitment practices, as well as sexual harassment at the workplace. These inequalities are rooted in a deep cultural understanding of gender roles, identifying men as breadwinners and women as housekeepers.373 While some of these issues may be resolved through legal reforms, the majority 367 According to the Global Gender Gap Report 2015, the women’s economic participation rate has risen from 18.48 percent in 1994 to 26 percent in 2015, World Economic Forum, “The Global Gender Gap Report 2015” (Switzerland, 2015), 162, available at http://www3 .weforum.org/docs/GGGR2015/cover.pdf (last accessed 16 August 2017). 368 See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Country Gender Analysis: Egypt,” 21. 369 For a comprehensive analysis of the reasons for the persistently low participation of women in the Egyptian labor market, see Rana Hendy, “Women’s Participation in the Egyptian Labor Market: 1998–2012,” Working Papers Series of the Economic Research ­Forum, American University Cairo Working Paper 907 (2015): 16. 370 For a detailed analysis of the gender dimension of Egypt’s labor market, with a focus on identifying the scope for policies to improve female labor force participation, see The World Bank, “Gender Assessment 2010 – Arab Republic of Egypt: Narrowing the Gap – ­Improving Labor Market Opportunities for Women in Egypt” (Washington dc, 2010), available at http://siteresources.worldbank.org/INTMENA/Resources/Gender-pub.pdf (last accessed 16 August 2017). 371 For a detailed analysis of evolution of wage and job quality for men and women in the Egyptian labor market, see Amirah El-Haddad, “Labor Market Gender Discrimination under Structural Adjustment: The Case of Egypt,” Working Papers Series of the Research Program on Gender and Work, Social Research Center, American University in Cairo Working Paper 003 (2009): 27. 372 See Janna Besamusca and Kea Tijdens, “National Labour Rights for Women: Inventory of National Labour Legislation Regarding Women’s Labour Rights in Egypt, Guatemala, ­India, Indonesia, Kenya, Mozambique, Pakistan, Paraguay, Peru, South Africa, Tanzania and Uganda,” Universiteit van Amsterdam, Amsterdam Institute for Advanced Labour Studies Working Paper 146 (2014): 14 ff. 373 See Rana Hendy, “Women’s Participation in the Egyptian Labor Market: 1998–2012,” Working Papers Series of the Economic Research Forum, American University Cairo Working ­Paper 907 (2015): 2.

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r­ equires political and social measures to address prevailing gender stereotypes regarding women’s economic participation. 4.2.4.2 Scope of States Parties Obligation under Article 11 cedaw The scope of the current section is to assess the specific States parties’ ­obligations resulting from Article 11 cedaw. Article 11 cedaw is one of the most ­comprehensive articles within the Women’s Convention, as it addresses the entire range of measures required to eliminate gender discrimination in the complex field of employment. Article 11 cedaw states: (1) States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. (2) In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

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(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. (3) Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.374 The conceptualization of Article 11 cedaw into two paragraphs reflects the duality of ensuring equal right on the one hand, and adopting measures for preventing gender discrimination, on the other hand.375 Article 11 (1) cedaw entails six employment rights, which aim at ensuring gender equality, namely, (a) the right to work, (b) the right to equal employment opportunities, (c) the right to equal employment conditions, (d) the right to equal remuneration, (e) the right to equal social security, (f) as well as the right to equal health and safety. The “right to work” (Article 11 (1) (a) cedaw) is characterized as an “inalienable right,”376 which by its very nature cannot be compromised. ­Women’s ­exclusion from any segment of the labor market, based on gender-related ­stereotypes or cultural or religious practices, thus adversely impacts a ­woman’s right to work.377 It should be noted, that the right to work refers to paid ­employment in the formal sector, as opposed to the informal sector of economy in which workers work without a regular contract and are subsequently without any legal protection.378 Moreover, the right to work, aims at women’s full employment. Therefore, States parties are obliged to take all appropriate measures to facilitate the economic participation of women while reducing women’s higher unemployment rate.379 The “right to equal employment opportunities” (Article 11 (1) (b) cedaw) aims at ensuring gender equality prior to the actual employment by highlighting the recruitment process, including the application of identical selection criteria, and the subsequent access to employment. As a result of the right to 374 375 376 377 378 379

ohchr, “Text to Women’s Convention.” See Raday, “Article 11 cedaw,” 284. Committee on Economic, Social and Cultural Rights, “gc No. 18,” para. 3. See Raday, “Article 11 cedaw,” 286. See Ibid. See Ibid.

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equal employment opportunities, States parties have to take all appropriate measures to eliminate a gender-segregated labor market, in which women are under-represented in qualified positions.380 According to the cedaw Committee, such under-representation is due to horizontal segregation, meaning “female employees dominate in sectors that are characterized by low pay, long hours and informal working arrangements.”381 Its is also due to vertical segregation, meaning female employees often do not get promoted as vastly as their male counterparts, and thus remain in lower paid positions.382 States parties are therefore obliged to implement regulations that oblige employers to base their recruitment policies on non-discrimination and combat societal stereotypes based on which women “chose” to pick certain jobs over male dominated jobs.383 The “right to equal employment conditions” (Article 11 (1) (c) cedaw) is a continuation of the right to equal employment opportunities and entails the “right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training.” With regard to the right to promotion, the cedaw Committee has urged States parties to adopt quotas “to encourage qualified women to apply for high-ranking posts.”384 In order to guarantee equal employment conditions, the cedaw Committee has addressed the issue of sexual harassment at the workplace, which is discriminatory in nature, and impact because a “worker victimized by sexual harassment will frequently be affected in wages, promotion, or dismissal [and] will be unable to fulfill her professional potential in the workplace.”385 Moreover, sexual harassment places a constraint to the “right to protection of health and to safety in working conditions,” addressed by Article 11 (1) (f) cedaw. The cedaw Committee defined sexual harassment in General Recommendation No. 19 to include “such unwelcome sexually determined behavior as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions”386 and noted that such conduct was considered 380 See Ibid., 289. 381 Wiesbrock, “Equal Employment Opportunities and Equal Pay,” 234. 382 cedaw Committee, “Concluding Observation Switzerland” (un Doc A/58/38, twentyeightth session 2003), para. 124, 370. 383 See Raday, “Article 11 cedaw,” 289. 384 cedaw Committee, “Conclusing Observations Greece,” (un Doc A/57/38 2002, Exceptional Session), para. 124, 288. 385 Raday, “Article 11 cedaw,” 290. 386 cedaw Committee, “gr No. 19,” para. 18.

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sexual violence, which can not only impair equality in employment but also constitute a safety and health problem.387 Thus, States parties are required to take all appropriate measures to prevent sexual harassment specifically at the workplace.388 The “right to equal remuneration” (Article 11 (1) (d) cedaw), is based on the principle “equal pay for work of equal value.” The cedaw Committee has noted in General Recommendation No. 13 that this principle has been widely incorporated into national legislations, but more action was needed to implement it in practice.389 To that end, the Committee proposed the adoption of a job evaluation system, which compares the value of jobs in which women are predominant with those in which men predominate, based on gender-neutral criteria, such as skill, effort and responsibility.390 The Committee further called upon States parties to create an effective enforcement and monitoring mechanism, as well as establish sanctions for the private and public sector for the violation of women’s employment rights.391 The “right to equal social security” (Article 11 (1) (e) cedaw) refers to ­social insurance programs, which should protect a female employee from any incapacity to work, such as “retirement, unemployment, sickness, invalidity, old age and other incapacity to work.” Such programs are provided by either a public or private entity, and funded through contributions made by the employer and / or employee, or directly by the State.392 As the women’s labor market participation rate is significantly lower than men’s,393 and considering that many women work part-time, in the informal sector or hold temporary employments, women will often not be eligible for social security.394 The cedaw Committee has therefore expressed concern about feminization of poverty and called upon States parties to ensure women’s access to social security schemes. 387 See Ibid. 388 See Raday, “Article 11 cedaw,” 297. 389 cedaw Committee, “General Recommendation No. 13” (un Doc cedaw/C/GC/13, eighth session 1989), para. 13. 390 See Wiesbrock, “Equal Employment Opportunities and Equal Pay,” 231. 391 cedaw Committee, “Concluding Observation Cambodia” (un Doc CEDAW/C/KHM/CO/3, thirty-fourth session 2006), para. 27 f. 392 See Raday, “Article 11 cedaw,” 294. 393 In 2009, the global gender differentials in labor force participation were 26 percent, meaning the female labor force participation was at 51.8 percent, while the male’s was at 77.7 percent, see The Word Bank, “World Development Report 2012” (Washington dc, 2011), 199, available at http://elibrary.worldbank.org/doi/book/10.1596/978-0-8213-8810-5 (last accessed 16 August 2017). 394 See Raday, “Article 11 cedaw,” 294.

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The “right to equal health and safety in working conditions” (Article 11 (1) (f) cedaw) is of particular importance due to women’s dominance in lower-paid and precarious work, which may lead to a higher risk of unhealthy and unsafe working conditions.395 This right includes the equal protection of reproductive functions, which may require placing restrictions to expose pregnant or breastfeeding women to industrial processes or chemicals.396 States parties are thus required to provide equal protective measures, to ensure equal health and safety working conditions as well as safeguard the reproductive functions of men and women.397 Article 11 (2) cedaw entails four measures that States parties should adopt in order to prevent gender discrimination on the grounds of marriage or ­maternity and ensure their right to work. Those include the prohibition of dismissal, the introduction of maternity leave, the development of childcare facilities and the provision of special protection measures for pregnant women from harmful types of employment. Article 11 (3) cedaw requires States parties to periodically review its protective legislation in light of scientific and technological knowledge. As regards the resulting States parties obligation, it should be noted that the nature of the rights contemplated in Article 11 (1) and Article 11 (2) (a) cedaw correspond to States parties obligation to respect, while the nature of the rights contemplated in Article 11 (2) (b), (c) and (d) correspond to States parties ­obligation to protect.398 The latter is implemented by States parties exercising due diligence regarding the public and the private sector in accordance with Article 2 (e) cedaw.399 4.2.4.3 Egypt’s Compliance with Its Obligation under Article 11 cedaw Some provisions in Egypt’s Labor Law explicitly discriminate against women, while in other instances the lack of regulations lead to implicit gender discrimination. 4.2.4.3.1 Explicit Discriminatory Provisions in Egypt’s Labor Law Particularly, three provisions in Egypt’s ll constitute gender discrimination in employment, as outlined in Article 11 cedaw. Those are namely the prohibition of women’s employment during nighttime, women’s exclusion from 395 396 397 398 399

See Ibid., 296. See Ibid. See Ibid. See Ibid., 307. See Ibid., 284, 308.

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c­ ertain areas of work as well as the exclusion of domestic service workers from the ll’s application. Article 89 ll enables concerned ministries to issue decrees determining condition, jobs and circumstances, in which women shall not be employed during 7 pm and 7 am.400 Within this scope, the Ministry of Manpower and Emigration issued decree No. 183 of 2003,401 prohibiting women’s employment during nightshifts at any industrial establishment or any of its branches (­Article 1 Decree 183 of 2003), such as any sort of work related to manufacturing or construction (Article 2 Decree 183 of 2003). Women may, however, be employed during nightshifts in other industries, such as the health care, cultural and tourism sector, as well as occupy administrative advisory or technical positions during nightshifts (Article 5 Decree 183 of 2003). In the latter mentioned industries, the employer is obliged to provide all guarantees of protection, care, transportation and security for female employees (Article 4 Decree 183 of 2003). Article 90 ll goes even further by enabling the competent ministry to determine by decree whole areas of work considered “unwholesome and morally harmful,” from which women are barred to work at all. The Ministry of Manpower and Emigration took on the responsibility and issued Ministerial Decree No. 155 of 2003,402 prohibiting women to work in thirty different areas of work, including, in the production of alcohol, explosives, mineral components, asphalt, coal, insecticides, radio active materials, fertilizers, as well as in bars, gambling and night-clubs, mines, ports, and animal processing (Article 1 ­Decree 155 of 2003).403 400 The People’s Assembly of the Arab Republic of Egypt, “Labor Law of the Arab Republic of Egypt, Promulgated by Law No. 12 of 2003,” April 7, 2003, available at http://www.egypt .gov.eg/english/laws/default.aspx (last accessed 16 August 2017). 401 Ministerial Decree No. 183 of 2003, regarding “The employment of women at Night Work Shifts,” issued on 6 September 2003, by the Ministery of Manpower and Emigration, Ahmed Ahmed El Amawy, (published in: Egyptian Wakayeh / Government Bulletin, Issue No. 220, 27 September 2003). 402 Decree No. 155 of 2003, regarding “The works for which Women may not be employed,” issued on 11 August 2003, by the Ministery of Manpower and Emigration, Ahmed Ahmed El Amawy, (published in Egyptian Wakayeh / Government Bulletin, Issue No. 187, 19 August 2003). 403 It is noteworthy that women had further been prohibited from serving as judges until the ban on female judges was lifted on 14 March 2007, see Mariz Tadros, “Egypt Country Report,” in Women’s Rights in the Middle East and North Africa: Progress Amid Resistance, ed. Sanja Kelly and Julia Breslin (New York: Rowman & Littlefield Publishers, 2010), 109 f.

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Both provisions in Egypt’s ll violate several equal employment rights, contemplated in Article 11 (1) cedaw, and constitute an unjustified “form of direct discrimination,” as the difference in treatment disadvantages women as such.404 The prohibition of women’s employment throughout nightshifts (Article 89 ll) violates their “right to work” contemplated in Article 11 (1) (a) cedaw, as it restricts women’s employment to day-work. Barring women from certain labor sectors (Article 90 ll) violates the “right to equal ­employment opportunities” (Article 11 (1) (b) cedaw), as it aims at creating a gender-­ segregated labor market, by restricting women from certain areas of employment and thereby placing gender-based selection criteria. Moreover, it denies women to work in their desired labor sector and thus limits women’s “right to free choice of profession” (Article 11 (1) (c) cedaw). Such violations cannot be justified as attempted by Egypt’s National ­Council for Women that “these laws provide for a morally sound environment for ­women [and] protect women from any practices that could harm them and go far in preventing the harassment of women […].”405 The argument that the prohibition to work during nightshifts are necessary to protect women’s safety at work from sexual harassment, is not convincing. Although States parties are required by Article 11 (1) (f) cedaw to protect women’s safety at work, restricting women’s employment from certain occupation and timeframes, is not an appropriate measure to achieve such aim. The right to work is an inalienable human right and thus cannot be restricted, particularly if the aim of the restriction can be achieved through alternative means.406 Protecting women’s safety at work should first and foremost be achieved by improving security in the workplace. Such improvement could include the establishment and implementation of an anti-harassment law, having additional security personnel or cameras at the workplace, as well as transportation services to and from the workplace. The argument that the prohibition of women’s employment in certain areas of work “intends to protect women’s physical well-being by preventing them to work in intense physical work or physical hazardous conditions,” does not hold either. Many women in Egypt carry out physically demanding work, for instance at home, in domestic services, or in agriculture, without 404 See Raday differentiates in the scope of Article 11 cedaw between “direct” and “indirect” discrimination and provides for examples of both. While direct discrimination “occurs where the difference of treatment disadvantages women as such”; indirect discrimination “appears to be neutral at face value, but have a disproportionate impact on women,” see Raday, “Article 11 cedaw,” 303. 405 Government of Egypt, “Egypt’s Combined Sixth and Seventh Periodic Report to the cedaw Committee,” 50. 406 See Raday, “Article 11 cedaw,” 296.

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any legal protection, due to the exclusion of those areas of work from the ll’s ­application.407 The argument that these laws “provide for a morally sound environment for women” in fact patronize women by questioning their ability to make responsible decisions regarding their own safety.408 Beyond the patronizing nature of this argument, it reveals deep-enrooted gender stereotypes within Egypt’s lawmaking organ, as well as the National Council for Women, which is the central entity in the Egyptian government responsible for eliminating gender discrimination. Furthermore, Article 4 ll excludes domestic service workers from its application, rendering those workers without any legal protection regarding maternity, social security, minimum wage or maximum working hours.409 The term “domestic services” relates to “work performed in or for a household or households,”410 such as cleaning services, which in Egypt is almost exclusively carried out by women411 under “poor [work] conditions and without regular cash compensation.”412 To this end, the cedaw Committee expressed its concern about the “concentration of women in [Egypt’s] informal sector,”413 and encouraged the Egyptian government “to regulate the informal sector to ensure that women in this sector are not exploited and are provided social security and other benefits.”414 As of July 2017, Egypt did not consider including domestic service workers in the scope of the ll and thus continues to perpetuate the existence of the informal sector. This legal exclusion amounts to “a form 407 See United Nations Development Programme (undp) – Regional Bureau for Arab States, “Arab Human Development Report – Towards the Rise of Women in the Arab World” (Amman, 2005), 186, available at http://www.arab-hdr.org/publications/other/ahdr/­ ahdr2005e.pdf (last accessed 16 August 2017). 408 See Tadros notes that this argument “treats women as if they are unable to make sound decisions regarding their own safety and well-being,” see Tadros, “Egypt Country Report,” 104. 409 See Besamusca and Tijdens, “National Labour Rights for Women,” 14. 410 Article 1 (a) Convention concerning decent work for domestic workers (Domestic Workers Convention) adopted 16 June 2011, ilo C189, entered into force 5 September 2013. 411 According to the eacpe’s shadow report to the cedaw Committee, 98 percent of domestic servants are female workers, see Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition,” 43. 412 Tadros, “Egypt Country Report,” 105. 413 cedaw Committee, “Concluding Observations Egypt,” para. 33. The cedaw Committee also notes in the same paragrapg that “[i]ndirect discrimination refers to laws, policies, or practices which appear neutral at face value, but have a disproportionate impact on women.” 414 Ibid., para. 34.

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of indirect discrimination”415 as it adversely affects a much greater number of women than men and thus results in a violation of Egypt’s obligation to eliminate gender discrimination in employment outlined in Article 11 cedaw.416 4.2.4.3.2 Implicit Gender Discrimination in Egypt’s Labor Law Moreover, the absence of specific legal provisions addressing sexual harassment in the workplace within the ll, leads to a violation of Egypt’s obligation to provide for equal and safe employment conditions. As mentioned in Section  4.2.4.2, Egypt is required to take all appropriate measures to prevent sexual harassment in the workplace, as it impairs the “right to equality employment conditions” (Article 11 (i) (c) cedaw) as well as the “right to equal health and safety conditions” (Article 11 (i) (f) cedaw). In order to combat sexual harassment effectively, sexual harassment provisions are commonly included in criminal, labor, and civil codes.417 The following considerations shed light on arguments in favor of addressing sexual harassment provisions, comprehensively in all three codes. 415 Raday, “Article 11 cedaw,” 304. 416 See Tadros, “Egypt Country Report,” 105; United Nations Development Programme (undp) – Regional Bureau for Arab States, “Arab Human Development Report – Towards the Rise of Women in the Arab World,” 187; Besamusca and Tijdens, “National Labour Rights for Women,” 18; Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition,” 43. 417 Many States provide for sexual harassment provisions in multiple codes, inter alia, France (criminal, labor and civil code); Israel (civil and criminal code); Pakistan (criminal and labor code); Panama (criminal and labor code), to name a few. Alternatively, States provide for sexual harassment legislation in comprehensive anti-discrimination or equal opportunity laws, inter alia, Germany or Australia. See United Nations Department of Economic and Social Affairs (desa) – Division for the Advancement of Women (daw), Handbook for Legislation on Violence Against Women (New York: United Nations Publications, 2010), 28, available at http://www.un.org/womenwatch/daw/vaw/handbook/ Handbook%20for%20legislation%20on%20violence%20against%20women.pdf (last accessed 16 August 2017); The Advocates for Human Rights, “Developing Legislation on Violence against Women and Girls,” 148; Indira Jaising, “Eliminating Sexual Harassment at the Workplace: Broadening the Discourse on Gender Equality,” Commonwealth Law Bulletin 40, no. 2 (2014): 380; Daphne Barak-Erez and Jayna Kothari, “When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change,” Stanford Journal of International Law 47 (2011): 178 ff.; Gesine Fuchs, “Strategic Litigation for Gender Equality in the Workplace and Legal Opportunity Structures in Four European Countries,” Canadian Journal of Law & Society 28 (2013): 195; Diane Kirkby, “Sex Discrimination, Workplace Opportunities and Law’s Transformative Promise,” Australian Feminist Law Journal 34 (2011): 135.

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First and foremost, recognizing sexual harassment in the workplace as a criminal offense sends a strong message that the State considers such conduct not only an “immoral private matter,” but rather a publicly inacceptable and genuinely criminal conduct, which the government is willing to encounter with its entire law enforcement authorities. Moreover, including a ­sexual harassment provision within the penal code is essential, as it a­ ddresses more severe forms of sexual harassment and provides for a different set of ­sanctions – ­including fines, prison sentences and criminal records for convicted perpetrators – compared to labor law sanctions. However, considering the victim’s mental strain during a criminal trial, such as filing a police report and testifying in court, it seems as if different legal alternatives should be available for the victim. The following considerations speak in favor of approaching sexual harassment additionally from labor law perspective. Those include firstly, that sexually harassing conduct, which does not amount to criminal sexual harassment,418 still affects an individual’s work performance and creates a hostile work environment, which impairs the victim’s right to equal and healthy work conditions. The definition of sexual harassment in labor law is therefore broader, and commonly complies with the definition provided for in international law.419 Secondly, a labor-law-related sexual harassment provision, which enables the employee to file a lawsuit for damages against the employer, for non-­ compliance with the duty to provide a non-discriminatory workplace by keeping it free from sexual harassment, will generate an incentive for the employer to adopt sexual harassment policies and procedures.420 Thus, the employer can best be shielded from liability claims by implementing a system in which sexual harassment cases are dealt with appropriately.421 Such policy requires the employer to addresses sexual harassment not only through the adoption 418 Such as sexual jokes and banter, see Alona Hagay-Frey, Sex and Gender Crimes in the New International Law: Past, Present, Future (Leiden: Brill, 2011), 45. 419 “Sexual harassment” is defined as “unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions,” see cedaw Committee, “gr No. 19,” para. 18. 420 Prohibiting sexual harassment on the grounds of “quid pro quo” as well as “hostile working environment” situations has made the adoption of sexual harassment policies and procedures virtually mandatory for u.s. employers, see Anna-Maria Marshall, Confronting Sexual Harassment: The Law and Politics of Everyday Life (Aldershot: Ashgate, 2005), 34. 421 See William N. Eskridge and Nan D. Hunter, Sexuality, Gender and the Law, 3rd ed. (New York: Foundation Press, 2011), 45.

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of grievance procedures and internal disciplinary measures, but also through establishing preventive and redress mechanisms at the enterprise level in order to avoid sexual harassment from occurring.422 Due to the employer’s close proximity to the potential victim and perpetrator, such policy addresses sexual harassment in the workplace more effectively than criminal provisions can, because it has the potential to modify the work culture by adopting a zero tolerance attitude towards sexual harassment.423 Thirdly, if the labor law includes a sexual harassment provision, victims could – in addition to suing the employer – directly sue the perpetrator for damages. Considering that the legal requirements as well as the sanctions of sexual harassment in labor law are not as high as in criminal law, potential personal obstacles for pursuing legal measures are easier to overcome for the harassed employee and therefore more likely to be taken. Approaching sexual harassment additionally from a private law perspective, allows for monetary claims in the event the victim does not fall under the labor law’s application, for instance if s/he holds a temporary contract, is a worker in specific non-regulated / informal employment or an external contractor. In Egypt, sexual harassment is merely addressed in the epc. That, ­however, is in itself a remarkable achievement and the result of a long process of civil society lobbying.424 The epc was amended in 2014 to criminalize sexual harassment in the public as well as in the workplace.425 A sexual h ­ arassment 422 See Mane Hajdin, The Law of Sexual Harassment: A Critique (Selinsgrove: Susquehanna University Press, 2002), 157–61. 423 As expressed in the foreword of the Malaysian Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace from 1999, available at http://www .ilo.org/dyn/travail/docs/1627/CODE%20OF%20PRACTICE%20ON%20THE%20 PREVENTION%20AND%20ERADICATION%20OF%20SEXUAL%20HARASSMENT%20 IN%20THE%20WORKPLACE.pdf (last accessed 16 August 2017). 424 See un Women, “un Egypt Calls for Firm Stand on Violence against Women,” November 6, 2014, available at http://www.unwomen.org/en/news/stories/2014/6/new-anti-sexual -harassment-law-in-egypt (last accessed 16 August 2017). 425 The interim parliament issued on 5 July 2014 Law No. 50 of 2014, amending Law No. 58 of 1937, stating in Article 306(bis): “(a) Individuals who carry out sexual or obscene gestures in any manner, including by modern means of communication, will be punished with a term of imprisonment of not less than six months or a fine of egp 3000. It also states that if the act of sexual harassment is repeated by the same individual, the punishment of imprisonment will be increased to one year and the fine to egp 5,000–10,000. (b) If the harassment is done with the intent of receiving sexual gratification from the victim, the punishment will be a term of imprisonment of not less than one year and a fine of egp 10,000–20,000. Moreover, any individual who uses duress to receive sexual

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conviction, however, presumes the perpetrator’s stalking or following, and requires the victim to bring the harasser to the police station or to wait with the harasser for the police’s arrival in order to be able to press criminal charges for sexual harassment.426 Considering the narrow legal definition of sexual harassment as well as the obligation to assist in delivering evidence, Article 306 (bis) epc cannot substitute a sexual harassment provision in the labor code with a broader definition of sexual harassment and no obligation to assist.427 For these reasons, the absence of a sexual harassment provision in Egypt’s ll and private law impairs women’s right to equal and healthy work conditions.428 4.2.4.4 De jure vs. de facto Considerations In light of Articles 89, 90 and 4 ll, which prohibit women’s employment during nighttime as well as in certain areas of work, and exclude domestic service workers from their application, it follows that Egypt does not yet fully comply with the obligation outlined in Article 11 (1) cedaw namely, equal rights in employment. In addition, the absence of a comprehensive legal strategy to address sexual harassment in the workplace, leads to a violation of Egypt’s responsibility to protect. However, the ll also establishes some degree of legal protection for working women. Such protection is not only stipulated in Article 11 of 2014 Constitution, but provided for in Article 88 ll, which explicitly extends all rights included in the ll to women. In addition, the ll establishes the right to equal remuneration (Article 35 ll), equal working hours (Article 80 ll), maternity leave of ninety days (Article 91 ll), two paid thirty minutes nursing break per day (Article 93 ll), two years additional leave without pay, following the maternity leave (Article 94 ll), obliges an employer with five female employees to inform them about their rights (Article 95 ll), and with one hundred employees to provide for nursing facilities (Article 96 ll) as well as prohibits the dismissal of pregnant women (Article 92 ll).

gratification will be punished with a term of imprisonment of between two and five years and a fine of egp 20,000–50,000.” 426 See Holly Kearl, Stop Global Street Harassment: Growing Activism around the World (Santa Barbara: Praeger, 2015), 120. 427 See Ibid. 428 See Egyptian Association for Community Participation Enhancement (eacpe), “Second Shadow Report for the cedaw Coalition,” 45; cedaw Committee, “Concluding Observations Egypt,” para. 33 f.

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Despite these de jure advances, many of these laws are de facto not implemented.429 Although, for instance, Article 35 ll prohibits gender discrimination regarding remuneration, the median wage of women is 23 percent less than that of men.430 Another example can be found when examining the practical application of the ninety days maternity leave provision, which was only granted to 47 percent of women in the private formal sector.431 Employers circumvent other legal protections, such as the provision of nursing facilities by not exceeding the limit of one hundred employees, or – even worse – not hiring women at all in order to avoid granting them their legal rights.432 It must be noted, that many States parties show large discrepancies between the legislative and the practical application of women’s employment rights,433 due to the fact that it is mainly private employers who are bound to abide by and implement these employees’ rights, and the oversight of their often intransparent decision making process appears difficult. However, in Egypt the scale of discrepancy is particularly high, which becomes apparent when considering, for instance, Egypt’s low female labor participation rate,434 the highly gender-segregated labor market,435 or the considerable gender pay gap.436 These occurrences are the result of prevalent gender stereotypes that regard “women as homemakers and their role in the public sphere in general and in the Labor market in particular [as] subordinate to that of men.”437 In order to eliminate these de facto forms of gender discrimination in employment, it is necessary to address prevalent gender stereotypes. The cedaw committee therefore reads Article 11 cedaw in conjunction with Article  5 cedaw and called upon the Egyptian government to modify “existing social, 429 The cedaw Committee expressed its concern about the “poor implementation of [Egypt’s] Labor Code, coupled with the weak enforcement by the Labor Inspectorate,” see cedaw Committee, “Concluding Observations Egypt,” para. 33. 430 See World Economic Forum, “The Global Gender Gap Report 2015.” 431 See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Country Gender Analysis: Egypt,” 24 f. 432 See Ibid. 433 See Wiesbrock, “Equal Employment Opportunities and Equal Pay,” 228. 434 Egypt’s female labor force participation rate is at 26 percent, while the male’s labor force participation rate is at 79 percent, see World Economic Forum, “The Global Gender Gap Report 2015.” 435 More than half of employed Egyptian women work in health and social work, education or public administration, while only 2.27 percent work in production, 3.91 percent in legislature, administration and managerial occupation, see Ibid. 436 The median wage gap between man and women is at 23 percent in favor of men, see Ibid. 437 See Raday, “Article 11 cedaw,” 304.

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religious and cultural norms that recognize men as the head of the family and breadwinners and confine women to the role of mother and wife” in order to prevent that women’s family roles create barriers to their right to work.438 Such modification of prevalent cultural gender stereotypes requires rather a comprehensive social and political approach than a legal one, as laws, which do not represent society’s cultural norms, are prone to poor implementation. 4.2.5 Summary With regard to Egypt’s obligation to combat the occurrence of fgm, as a state of ill-health (contemplated in Article 12 cedaw), a form of violence against women (contemplated in Article 2 cedaw) and a manifestation of stereotyped gender roles (contemplated in Article 5 cedaw), it follows that Egypt de jure fully meets its obligation. This positive assessment is the result of Egypt’s comprehensive childcare reform in 2008, as well as its awareness initiative called the fgm-free village project. However, these legal reforms are de facto not yet implemented, due to entrenched societal norms and a lack of effective enforcement mechanisms. With regard to Egypt’s obligation to combat the occurrence of “summer ­marriages,” as a form of trafficking in women and girls, contemplated in ­Article 6 cedaw, it follows that Egypt de jure fully complies with its obligation. This positive assessment is due to Egypt’s increased engagement in combatting human trafficking in 2007, namely the issuance of the ahtl, as well as the npa-ht. Both instruments are, similar to Egypt’s legislative reforms on fgm, de facto not fully implemented439 for multiple reasons, among others, a shift of priorities after the 2011 revolution and the counter-revolution in 2013. With regard to Egypt’s obligation to eliminate gender discrimination in matters of nationality, resulting from Article 9 cedaw, it follows that Egypt does not yet fully comply with its obligation. While Egypt’s na reform in 2004, the 438 See Ibid. 439 The us assessed that “[a]s a result of the governement’s failure to fully implement its legal and political measures de facto, Egypt was placed on Tier 2 Watch List, which indicates that the government does not fully comply with the tvpa’s minimum standards, but is making significant efforts to bring itself into compliance with those standards and one of the following three options: (1) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; (2) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or (3) the determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.” See United States Department of State – Bureau of Public Affairs, “Trafficking in Persons Report 2015,” 149.

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ministerial decree No. 1231 in 2011, as well as Article 6 of the 2014 Constitution have strengthened women’s nationality rights in terms of having equal rights regarding the transmission of nationality to children (contemplated in Article 9 (2) cedaw); Egypt’s legislative efforts have not established equal rights concerning the acquisition of nationality (contemplated in Article 9 (1) cedaw). Article 7 na 1975 denies Egyptian women the right to transfer their nationality to alien husbands, which violates Article 9 (1) cedaw. With regard to Egypt’s obligation to eliminate gender discrimination in employment, resulting from Article 11 cedaw, it follows that Egypt does not yet fully comply with its obligation either. Egypt’s ll includes three genderdiscriminatory provisions, namely the prohibition of women’s employment during nighttime (Article 89 ll), as well as in certain areas of work (Article 90 ll), and the exclusion of domestic service workers from the ll’s application (Article 4 ll). In addition, the absence of a comprehensive legal strategy to address sexual harassment in the workplace, further impairs Egypt’s responsibility to provide for equal employment opportunities and safe working conditions. Beyond these gender-discriminatory provisions, some of the women’s employment rights protecting provisions in Egypt’s ll lack de facto implementation, such as, the prohibition of gender-discriminatory remuneration. Again, the lack of de facto implementation can be attributed to entrenched societal norms and the absence of effective enforcement mechanisms. 4.3

The Way Forward: How to Improve Egypt’s Implementation Efforts?

The scope of this chapter was to analyze the extent to which Egypt implemented the substance of the Women’s Convention, in its domestic legislation thirtyseven years after Egypt’s ratification thereof. With regard to Egypt’s 2014 Constitution it follows that Egypt satisfies its international obligation to embody the principle of the gender equality in its ­national constitution, as outlined in Article 2 (a) cedaw. This assessment evidently does not apply to the 2012 Constitution; while the 1971 ­Constitution – although not formally, but in its practical application – entailed the principle of non-discrimination and thus complied with the States parties obligation under Article 2 (a) cedaw. With regard to Egypt’s statutory laws it follows that Egypt only partially satisfies its international obligations resulting from the Women’s Convention. While the country issued legislation to combat two manifestations of gender-discriminatory social practices, namely fgm and summer marriages,

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­gender-discriminatory provisions in Egypt’s Nationality and Labor Law continue to exist. These findings raise the question as to how Egypt could improve its implementation efforts. Egypt’s significant legal reforms to combat fgm – i.e. its Childcare and Penal Code reform, as well as the government’s awareness initiative fgm-free village project – have de facto not yet led to an eradication of the harmful practice. In order to strengthen Egypt’s enforcement efforts, the country should adopt the following measures: First, increase the relatively moderate penal sentence for conducting fgm, which ranges from three months to two years imprisonment in conjunction with the payment of a fine. Second, enhance the number of law enforcement personnel responsible for reporting, prosecuting and ruling on crimes related to fgm and provide such personnel with specialized training. Presuming the aforementioned statistics on fgm are correct, fgm continues to be conducted. Thus, enhancing the number of law enforcement personnel would result in a growing number of legal cases before penal courts and subsequently increase the conviction rate, which may have a deterring effect. Third, providing for alternative sources of income for physicians and midwives, who have previously practiced fgm, should tackle the conclusion that “the risk of criminalization does not appear to have offset the financial gains of physicians for undertaking fgm procedures.”440 Fourth, further strengthen society’s awareness of the medical risks for women who have undergone fgm and address the misconception of religious implications of fgm. Since fgm is a practice deeply enrooted in Egypt’s society the country should tackle society’s perception about fgm at all possible levels, for instance, by training community leaders and health care providers, by improving media campaigns and by including education on fgm in school curricula. Despite Egypt’s significant legislative accomplishments in combatting ­human trafficking – i.e. the issuance of the ahtl and the adoption of the ­n pahat – it must be conceded that both instruments are de facto not fully implemented. In order to strengthen Egypt’s enforcement efforts, the country should adopt the following measures to effectively combat the problem of summer marriages: First, raising community awareness of the negative physical, psychological and social consequences of victims of summer marriages. Including religious and community leaders into these efforts could further the success in terms of raising awareness and deconstructing religious arguments

440 See Center for Reproductive Rights and Egyptian Initiative for Personal Rights, “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women,” 28.

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that could be raised by perpetrators.441 Second, providing training to law enforcement officers, prosecutors and judges on the criminal liability of human trafficking offenses as well as victim protection mechanisms. In addition, a special law enforcement unit442 and court chamber for trafficking offenses could be established, which should receive specific training to deal with offenders and victims in order to prevent settlements outside the courtroom. This would not only function as deterrence for other potential offenders but also prevent victims from being persecuted for prostitution and ensure their proper referral into protection services. Such unit could ultimately increase the persecution and conviction rate. Third, providing alternative economic opportunities for poor families, by ensuring nationwide access to education for all children443 as well as poverty alleviation programs. Fourth, requiring all births and marriages to be officially registered and establishing criminal liability for misconduct.444 With regard to Egypt’s Nationality Law, it must be acknowledged that the country did achieve some significant legislative accomplishments by reforming the na in 2004, and adopting ministerial decree No. 1231 in 2011 as well as Article 6 of the 2014 Constitution. Despite these legal reforms, the following amendments must be implemented at the legislative level to fully meet the obligations resulting from Article 9 cedaw: First, amending Article 7 na 1975 and thereby allowing Egyptian women to transmit their nationality to their alien husbands. Second, deeming Article 2 na 2004 unconstitutional and thereby expanding the maternal ius sanguinis rule also to children born before the enforcement of the amended law. With regard to Egypt’s Labor Law, the country could improve its implementation efforts by adopting the following measures: As of the prevailing de jure forms of gender discrimination contained in Egypt’s ll, the parliament should amend the ll to include domestic service workers in the application of the ll (Article 4 ll), to suspend the prohibition of women’s employment during nighttime (Article 89 ll), as well as women’s exclusion from certain areas 441 See International Center for Missing and Exploited Children, “Child Marriage in the Middle East and North Africa,” 16 f. 442 The uk has established a special “Forced Marriage Unit,” which utilizes existing legal mechanisms, such as civil protection orders and injunctions, to prevent child marriages, protect victims from trafficking, and provide support services for at-risk children to prevent future attempts at early marriage, see Ibid. 443 The correlation between education and falling victim to trafficking is evident when regarding the statistics on child marriages in relation to the enrollment rate for girls in primary school in the mena region, see Ibid. 444 Qatar and the uae have penalized the omission to register births and marriages in order to enforce their minimum age laws, see Ibid.

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of work (Article 90 ll). In order to serve the purpose of the aforementioned ­provisions – the protection of women’s safety – the Egyptian parliament should address sexual harassment in the workplace by including a sexual harassment provision within the ll445 and oblige employers to provide for women’s transportation to and from the workplace. As of the de facto forms of gender discrimination, the Egyptian government should address the low female labor participation rate, the highly gender-­ segregated labor market, as well as the gender pay gap by initiating a comprehensive social and political strategy aimed at modifying gender stereotypes regarding women’s subordinate employment role and encourage women’s economic participation. In addition, the government should improve the poor implementation of the ll by ensuring the dissemination of information regarding women’s employment rights; including employers in the oversight of women’s employment rights and establish a sanctions mechanism for employers in the event of the employer’s violation of its oversight obligation. Furthermore, the ombudsman’s office, which was established by the National Council for Women and is responsible for receiving women’s complaints, should be given an enhanced mandate to investigate and resolve economic grievances.446 In addition, the National Council for Women should be given a more active monitoring role.447 445 Experiences from labor laws in other countries have shown that a sexual harassment provision in the labor law adds to women’s comfort at work and thus results in higher employment rate among women. 446 See Tadros, “Egypt Country Report,” 107. 447 See Ibid.

Conclusion The main objective of this book was, to seek an answer to the question as to the extent to which Egypt implemented the obligation to eliminate gender-based discrimination in its domestic legislation thirty-seven years, after ratifying the Women’s Convention. To that end, Chapter 2 first assessed whether Egypt’s Shariʾa-based reservations to the Women’s Convention, effectively modify the Convention’s scope in relation to Egypt’s obligations as a State party. Egypt entered two substantive reservations to the Women’s Convention, namely to Articles 2 and 16 cedaw, whereby it abstains from implementing any obligations arising out of the Convention, where these run counter to Shariʾa Law in penal and family law related matters. It was concluded that both reservations are incompatible with the Women’s Convention’s object and purpose, and thus violate the general principles of Public International Law. However, the Women’s Convention’s monitoring body, the cedaw Committee, refrains from attributing any legal effects to invalid reservations. As a result, albeit the fact that Egypt’s reservations are invalid, the country remains a State party to the Women’s Convention, with the added benefit of its reservations. Thus, Egypt is exempted from implementing the Women’s Convention in penal and family law related matters where the Convention runs counter to Shariʾa Law. Hereinafter, Chapter 3 turned to the content of Egypt’s modified obligations resulting from the Women’s Convention, in conjunction with its Shariʾa-based reservations, and analyzed whether Egypt fulfilled its modified obligation. The purpose of this examination was to identify discrepancies between Shariʾa and Egyptian national laws concerning gender-discriminatory legislation. It was argued that the exemption to implement the Women’s Convention in penal and family law-related matters, where the Convention runs counter to Shariʾa Law, in turn means that Egypt is bound to implement its reserved articles (­Articles 2 and 16), to the extent where no such contradiction occurs. To this end, this chapter examined penal law provisions regarding domestic violence offenses (as gender-specific examples in the context of penal law provisions), as well as family law provisions regarding the establishment of divorce rights, (as gender-specific examples in the context of family law regulations) in both Shariʾa and Egyptian Law. When comparing the criminal construction of three forms of exemplary domestic violence offenses – honor killings, wife battery and marital rape – in Shariʾa Law to their composition in Egyptian Law, one inconsistency was found. Egypt’s Penal Code provides grounds for mitigation for male relatives

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004346840_007

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committing honor killings, which Shariʾa Law provisions do not provide for. As no similar gender-related grounds for mitigation could be identified in Shariʾa Law, it was argued that Egypt – by virtue of its reservation to Article 2 cedaw – is bound to amend its domestic Penal Code, to the standards of the gender-neutral penal provision regarding the criminal offense of honor killings in Shariʾa Law. Thus, Egypt did not satisfy its modified obligation resulting from its reservation to Article 2 cedaw, according to which the State party is required to repeal its gender-discriminatory penal provisions, where no contradiction between the Women’s Convention and Shariʾa Law occur. Comparing the construction of divorce rights in Shariʾa Law to Egypt’s Family Law, no inconsistency could be identified. The current epsl grants women at minimum those rights provided for by all four Sunni schools of thought (khulʾ, ʿismah, tatliq) (3.2). Thus, Egypt complied with its modified obligation resulting from its reservation to Article 16 cedaw, according to which the State party is required to repeal its gender-discriminatory family provisions, where no contradiction between the Women’s Convention and Shariʾa Law occurs. Finally, Chapter 4 conducted an assessment as to whether Egypt implemented the Women’s Convention’s obligation to eliminate gender-discriminatory legislation in the non-reserved areas of law in its domestic legislation. With regard to Egypt’s 2014 Constitution, it was concluded that Egypt satisfies its international obligation to embody the principle of gender equality in its national constitution, as outlined in Article 2 (a) cedaw. With regard to Egypt’s statutory laws, it was concluded that Egypt only partially satisfies its international obligations resulting from the Women’s Convention. While Egypt issued legislation to combat two manifestations of gender-discriminatory social practices, namely fgm and summer marriages, gender-discriminatory provisions in Egypt’s Nationality and Labor Law continue to exist. These results lead to the conclusion that Egypt only partially satisfies its obligation to eliminate gender-based discrimination from its domestic legislation, thirty-seven years after ratifying the Women’s Convention. That conclusion bears the assumption that the Women’s Convention’s legal effect is ­relatively limited. Several questions emerge from such assumption. Firstly, what is the rationale for the Women’s Convention’s limited legal effect? Secondly, what impact does the Women’s Convention have, if States parties do not consider themselves legally committed to comply with the Convention’s obligations? Thirdly, if Egypt’s international commitment to revise the country’s gender-­ discriminatory legislation does not encourage complying with its obligations, what are other determining factors that have led to Egypt’s gender-related legal

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reforms in the past? Finally, even where gender-related legislative reforms have been passed on a de jure level, de facto these laws are not effectively enforced. What are the prevailing obstacles to law enforcement?

Effectiveness of the Women’s Convention

The answer to the first question – what is the reason for the Women’s Convention’s limited legal effect – seems relatively straightforward and relates to the weaknesses of the Convention: The drafters did not design the Convention as a powerful instrument. The weaknesses of the Women’s Convention are mainly twofold. On the one hand, the Women’s Convention provides for only two means of enforcing the Women’s Convention’s obligations upon States Parties, namely the interstate procedure (in which disputes between States parties over conflicting interpretations and application of the Convention can be brought to arbitration and ultimately to the icj) and the reporting procedure (in which States parties are required to submit periodic reports about their implementation efforts to the cedaw Committee, which then issues corresponding concluding observations to each State party). The interstate procedure seems de facto ineffective, given that in thirty-seven years it has not been invoked by a single State (arguably due to States’ fear of retaliation as most States could be criticized for their policies towards women).1 The reporting procedure is weak because the cedaw Committee was not equipped with the authority to sanction States parties for non-compliance and thus can only resort to calling upon States parties to comply with the Women’s Convention.2 The cedaw Committee was only equipped twenty years later with two further enforcement measures, namely the complaint procedure (in which affected individuals can pinpoint violations of the Women’s Convention by States parties) and the inquiry procedure (in which the cedaw Committee can intervene in cases of systematic and widespread violations of the Women’s Convention) established by the op-cedaw to compensate these weak enforcement measures.3 The opcedaw is, however, only ratified by 109 States parties as of July 2017,4 while 1 See Hoq, “The Women’s Convention and Its Optional Protocol,” 684. 2 See Julie A. Minor, “An Analysis of Structural Weaknesses in the Convention on the Elimination of All Forms of Discrimination Against Women,” Georgia Journal of International and Comparative Law 24 (1994): 150. 3 See Byrnes, “The Committee on the Elimination of Discrimination against Women,” 28. 4 untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.”

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the Women’s Convention is ratified by 189 States, resulting in 69 State parties which are merely bound to cedaw’s weaker enforcement measures. On the other hand, the weak composition of the Women’s Convention’s reservation regime resulted in expansive reservations, both quantitatively and qualitatively. Due to these broad reservations, in number and substance, many States evaded an obligation to implement core provisions of the Women’s Convention. These main two weaknesses of the Women’s Convention are a result of the drafters’ limited ability to generate common State consent, regarding stronger enforcement mechanisms, as well as a more restrictive reservation regime. This becomes more understandable when considering the context in which the Women’s Convention was drafted. In the late seventies, the principle of gender equality was not as widely acknowledged as it is today. Therefore, when the founding mothers and fathers of the Women’s Convention drafted the Convention, their primary objective was to maximize States’ participation, in exchange of weak enforcement mechanisms and a broad reservation regime. The fact that such State consent is required for the establishment of international obligations to begin with, is due to the horizontal structure of Public International Law, which is a result of the absence of any superior authority. Subsequently all States are regarded as equal, which is the fundamental premise of Public International Law. This principle of sovereign equality is often described as “the Grundnorm (basic principle) of the present-day international legal order.”5 It follows that no State can be subjected to any obligation or enforcement measure it did not consent to prior.

International Impact of the Women’s Convention

The answer to the second question – what is the remaining impact of the ­Women’s Convention – builds upon the aforesaid. While the Women’s Convention as previously outlined has merely limited legal effect, the impact of the Women’s Convention on the international level in pursuit of advancing women’s human rights should not be underestimated. The Women’s Convention’s materialized value in the past three decades relates to its function as a catalyst for legal and policy reform; providing a defined catalogue of women’s 5 See Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law (Cambridge: Martinus Nijhoff Publishers, 1999), 161.

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human rights; a means to hold States parties politically accountable for violations; as well as a tool in domestic litigation; advocacy; and activism.6 At the time when the drafters agreed on a common definition of gender discrimination and on its general prohibition, and when they defined certain areas of law in which this prohibition must be considered particularly, they provided for the very first time, a normative catalogue against which State conduct could be measured and subsequently be held accountable. Although the Women’s Convention does not provide for a sanction mechanism for noncompliance, such defined catalogue is the basis on which the political process of “naming and shaming” is carried out, which – concededly – is not as effective as proper sanctions, but as much as states were willing to agree on. In the cedaw Committee’s concluding observations, the Committee publically publishes information on the status of compliance of each State party, which serves as a considerable contribution in the process of “naming and shaming” of non-complying States parties. In addition, many donor States use this defined catalogue in their development work to link development aid to progress related to gender equality. Finally, the fact that States committed themselves to eliminate gender discrimination (even if just on paper) creates some sort of moral commitment, which civil society utilizes to hold governments accountable in the event of non-compliance. Due to these positive effects, the Women’s Convention must be considered an important tool to further the struggle for gender equality. However, the Women’s Convention’s full potential has not yet been fully utilized.7 To this end, Article 5 cedaw for instance entails an obligation for States parties to modify gender stereotypes, which is often the underlying reason for resisting gender equality. The Women’s Convention dedicates an entire provision to this cause, which has been both criticized for being too broad and praised for permitting flexibility.8 Yet States parties have made small progress in this regard. 6 See Simone Cusack, “The cedaw as a legal framework for transnational discourses on gender stereotyping,” in Women’s Human Rights: cedaw in International, Regional and National Law, eds. Anne Hellum and Henriette S. Aasen (Oxford: Oxford University Press, 2013), 125. 7 For a comprehensive analysis of States parties’ obligation to modify gender stereotypes, including the concept of stereotypes; its limitations; a definition of the scope of application; States parties’ obligation and possible justifications, see Ibid. 8 See Celestine N. Musembi, “Pulling apart? Treatment of pluralism in the cedaw and the Maputo Protocol,” in Women’s Human Rights: cedaw in International, Regional and National Law, eds. Anne Hellum and Henriette S. Aasen (Oxford: Oxford University Press, 2013), 184.

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Domestic Impact of the Women’s Convention

The answer to the third question – what led Egypt to pass any gender-related legal reforms in the past, if the Women’s Convention has only limited legal effect – once again relates to the aforesaid. While the Women’s Convention as such has limited legal effect, its moral commitment is frequently used by Egypt’s domestic women’s rights groups, to argue for gender-related legal reforms. Looking at the historic background of all gender-related legal reforms Egypt has passed so far, it seems they were the result of excessive political pressure by Egypt’s local civil society on the government, using the Women’s Convention to substantiate their equality demands. Taking for example the process of Egypt’s Nationality Act reform in 2004, women’s rights groups based their demands for reforming the gender-discriminatory law, according to which women were denied the right to transmit their nationality to their children, on Article 9 cedaw, which entails an obligation to establish equal rights regarding the transmission of nationality.9 The same goes for the reform process regarding Egypt’s anti-fgm law, the anti-harassment law and the non-fault-based divorce law, which self-evidently preceded a broader socialization process.10 Thus, the common determining factor in Egypt’s legal reform process is civil society’s political pressure, which is to a great extent based on the country’s international commitment to eliminate gender discrimination, resulting from the Women’s Convention. Contrary to the domestic jurisprudence in other countries,11 no reference to the Women’s Convention could be found in Egyptian Court rulings, indicating that the impact of the Women’s Convention on judges in Egypt is insignificant. This result is surprising given the lost opportunity for Egypt to shape international legal interpretations in a manner that would serve its national interests.

9 10

11

See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit,” 14 ff. For a comprehensive analysis of mechanisms of social influence, see Ryan Goodman and Derek Jinks, “How to Influence States: Socialization and International Human Rights Law,” Duke Law Journal 54, no. 3 (2004): 621. McCrudden has conducted a comprehensive study of 325 national judicial decisions across fifty-five jurisdictions to assess the extent to which the Women’s Convention was referred to, see Christopher McCrudden, “Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of cedaw,” American Journal of International Law 109, no. 3 (2015): 534.

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In view of the rising authoritarian nature of the current regime,12 serious doubts must be raised as to the continuance of political activism on women’s equality issues in Egypt. The Egyptian parliament has recently issued a new, even more restrictive, ngo Law (Law No. 70/2017)13 than the previous one (Law No. 84/2002), indicating that civil society activism will be severely repressed in the near future. According to the new ngo Law, civil society organizations require governmental permission to operate, which may only be granted if the organization’s scope falls within the government’s development and social welfare plans. It bans organizations from engaging in political activities or anything that harms ­national security, public order, morals or health. All activities, including conducting surveys, and funding require additional preapproval, which is deemed denied if not granted within sixty days. Non-compliance can result in ­closing the organization at best and in criminal prosecution subject to a maximum of five years imprisonment and a fine of up to 1 million egp (equivalent to USD 58,823) at worst. The ­restrictions are even harsher if the relevant organization receives funding from foreign sources. This is particularly troublesome in light of Egypt’s serious economic crisis, which peaked with the government’s decision to devaluate the currency in November 2016, to cut subsidy and to increase taxes, rendering an increased number of people in need of essential services,14 i.e. nutrition, health care and education, provided by charity organizations collaborating with international partners. The provisions of the new ngo Law effectively result in banning civic engagement from the country. The new ngo Law was issued in the context of the ongoing crackdown by Egyptian authorities against civil society organizations engaging in human rights matters. Since 2011, the Egyptian government has been shuttingdown hundreds of civil society organizations, freezing their assets, imposing travel bans on their members, and prosecuting their leaders for “illegal receipt of foreign funding to harm national security” or “working without legal permission.”15 The crackdown started in December 2011 with the Case 173 of 12

13

14 15

For a comprehensive portray of President Abdel Fattah El-Sisi including the political events following his election, see Peter Hessler, “Egypt’s failed revolution,” The New Yorker, 02.01.2017, available at http://www.newyorker.com/magazine/2017/01/02/egypts-failed -revolution (last accessed 16 August 2017). See, The People’s Assembly of the Arab Republic of Egypt, “Law of Associations and other foundations working in the field of civil work, Promulgated by Law No. 70 of 2017,” available at http://www.icnl.org/research/library/files/Egypt/law70english.pdf (last accessed 16 August 2017). Hessler, “Egypt’s failed revolution.” See Amnesty International, Cairo Institute for Human Rights Studies, World Alliance for Citizen Participation, Committee to Protect Journalists, Human Rights Watch,

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2011, referred to by the media as the “foreign funding case.”16 While the focus in the first phase of Case 173 of 2011 (between 2011–2013) was rather on international ngo’s and ended with forty-three ngo employees being sentenced to 1–5 years prison as well as the shut down of various credible international ngo’s,17 it shifted in its second phase (since 2016) to national ngo’s and targets the most reputable ones.18 The massive waive of ngo’s shut-down as well as the issuance of the new ngo Law are officially justified by the government as necessary measures to protect national security in light of increased terrorist attacks as well as a general foreign agenda intending to destabilize the country.19 Civil society organizations perceive the government’s current course of action as an attempt to eliminate all forms of dissent against President El-Sisi worse than any

16

17

18

19

­International Federation for Human Rights, International Service for Human Rights, International Commission of Jurists, Tahrir Institute for Middle East Policy, World Organization Against Torture, “Joint ngo Letter: Call for Strong Action on Egypt at the un Human Rights Council,” 16.06.2017, available at https://www.ishr.ch/sites/default/files/ documents/joint.egypt_.letter.hrc36.final_.pdf (last accessed 16 August 2017). For further information, see Egyptian Initiative for Personal Rights, “Background on Case No. 173 – the ‘foreign funding case’ Imminient Risk of Persecution and Closure,” 21.03.2016, available at https://eipr.org/en/press/2016/03/background-case-no-173 -%E2%80%9Cforeign-funding-case%E2%80%9D (last accessed 16 August 2017). Those international ngo’s include, Freedom House, Konrad Adenauer Foundation; International Republican Institute; International Center for Journalists and the National Democratic Institute. Those national ngo’s include, Center for Egyptian Women’s Legal Assistance (travel ban and asset freeze against founder and director Azza Soliman); Nazra for Feminist Studies: (official summons to three of their staff to the investigation office); Nadeem Center for Rehabilitation of Victims of Violence (served with a closure order by the Ministry of Health for “breach of licence conditions.”); Arab Network for Human Rights Information (travel ban and asset freeze against director Gamal Eid); Cairo Institute for Human Rights Studies (summons to three of their staff, previous inspection attempt of premises on order of investigative judge.); Egyptian Initiative for Personal Rights (travel ban and asset freeze against founder and board member Hossam Bahgat); United Group- Attorneys-atlaw (director Negad al-Borei was interrogated by prosecutors on charges of “establishing an unlicensed entity for the intent of inciting resistance to the authorities, implementing human rights activities without a license, receiving funds from the National Center for State Courts, deliberately spreading false information with the purpose of harming public order or public interest.”). See Ahmed Aboulenein, “Egypt issues ngo law, cracking down on dissent,” Reuters, 29.05.2017, available at http://news.trust.org/item/20170529161110-pbb0o (last accessed 16 August 2017).

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­ easure taken under Mubarak’s thirty-year presidency and Maina Kiai, Special m ­Rapporteur on the Rights of Peaceful Assembly and of Association, described the new ngo Law as aiming “to destroy Egypt’s foundation for peaceful, civic engagement at its very roots, [which will] devastate civil society not only in the short term, but possibly for generations to come.”20

Obstacles to the Women’s Convention’s Effective Implementation

The answer to the fourth and final question – why are these gender-related legal reforms de facto not effectively enforced – requires some more intricacy. One of the main obstacles to the effective enforcement of legal reforms in Egypt is the country’s moderate rule of law adherence.21 Egypt’s widespread corruption,22 massive bureaucracy,23 insufficient dissemination of information regarding reformed legislation,24 lengthy court procedures,25 as well as 20

21

22

23 24

25

See Office of the High Commissioner for Human Rights, “The Egyptian ngo bill threatens to ‘devastate’ civil society, un expert warns,” Geneva, 23.11.2016, available at http://www .ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20920 (last accessed 16 August 2017). Egypt ranks 110 on the Rule of Law Index 2016 out of 113 countries. The World Justice Project Rule of Law Index 2016 presents a portrait of the rule of law in each country by providing scores and rankings organized around nine factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, criminal justice, and informal justice. See The World Justice Project, “Rule of Law Index 2016 Report” (Washington dc, 2016), 79, available at https://worldjusticeproject.org/sites/default/files/documents/RoLI_Final-Digital_0.pdf (last accessed 16 August 2017). See Ibid. Factor 2 of the Rule of Law Index measures the absence of corruption in government. The factor considers three forms of corruption: bribery, improper influence by public or private interests, and misappropriation of public funds or other resources. These three forms of corruption are examined with respect to government officers in the executive branch, the judiciary, the military, police, and the legislature. See Aziz, “Egypt’s Protracted Revolution,” 2. See The World Justice Project, “Rule of Law Index 2016 Report,” 79. Fator 3.1 of the Rule of Law Index measures whether basic laws and information on legal rights are publicized, and evaluates the quality of information published by the government. See Ibid. Factor 6.4 of the Rule of Law Index measures whether administrative proceedings are conducted timely, without unreasonable delays.

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the overall arbitrary law enforcement26 are all factors that hamper effective law enforcement on an institutional level. In addition, the number of potential plaintiffs, who could challenge unenforced laws in court, is relatively small due to vast poverty,27 the widespread believe in traditional arbitration procedures outside the courtroom,28 as well as the effect of a population of which 52.1 percent only received at least some secondary education.29 While these factors are primarily related to poverty and corruption, rather than to gender as such, they do exacerbate in relation to women, because 26

27

28

29

See Ibid. Factor 6.2 of the Rule of Law Index measures whether legal and administrative regulations and administrative provisions are applied and enforced without improper influence by public officials or private interests. Factor 6.3 measures whether due process is respected in administrative proceedings. Factor 7 measures the overall delivery of effective civil justice, while specifically assessing whether the civil justice system is free of corruption (7.3) and without improper influence by public officials (7.4). Similarily factor 8 measures the overall criminal justice system, while specifically evaluating whether investigations and adjudications of criminal offenses are effective (8.1) and speedily (8.2) through a system that is impartial and non-discriminatory (8.4), and is free of corruption and improper government influence (8.5 and 8.6). This assessment of the delivery of criminal justice takes into consideration the entire system, including the police, the lawyers, prosecutors, judges, and prison officers. Egypt’s Central Agency for Public Mobilization and Statistics (campas), which carries out population and economic censuses and produces current statistics in various social and economic fields, estimated that one fourth of Egypt’s 90 million citizens in 2014 live on or under the un poverty line of 2 usd a day, see http://www.capmas.gov.eg/ recited in Egyptian Streets, “More than 22 Million Egyptians Live in Poverty: Report.” Many countries in the region have traditional methods of arbitration such as sulh (settlement) or musalaha (reconciliation), with musalaha being applied especially in village and tribal contexts. See United Nations Development Programme (undp) – Regional Bureau for Arab States, “Arab Human Development Report – Towards the Rise of Women in the Arab World,” 243. While the school enrollment rate has risen, two major challenges remain: First, a significant part of Egypt’s older generations did not receive any formal education. Second, the quality of education received in Egypt’s public schools is poor due to overpopulated class rooms and “rigid conventional teaching techniques in which participation is not encouraged and corporal punishment is commonly applied. Until 2012, less than 10% of the total number of schools met the national standards for quality education.” See Nadine Sika, “The Millennium Development Goals: Prospects for Gender Equality in the Arab World,” Journal of International Women’s Studies 12, no. 3 (March 2011): 38; United Nations Children’s Emergency Fund (unicef), “Egypt Programme Profile: Education,” 2012, available at http://www.unicef.org/egypt/education.html (last accessed 16 August 2017).

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women are more vulnerable to poverty,30 and do not have the same means to participate equally to men, in a corrupted governmental and judicial system. The latter is due to society’s perception of women’s societal role as caretakers of the family,31 which results in less exposure to economic life32 and consequently in less interaction with people in abetting positions. Due to that same patriarchal perception of women’s societal role, impoverished women are less likely to be literate33 or to possess identification cards.34 This de facto results in a compounded access to the justice system,35 as legal proceedings in court require a written petition as well as prove of the petitioner’s identity,36 each of which is almost impossible to be provided by illiterate women without personal identification documents. In addition to Egypt’s moderate rule of law adherence, corruption and poverty, the lack of social approval for gender-sensitive legislation places another major obstacle to the effective enforcement of legal reforms in Egypt. As Moushira Khattab noted “[…] the effectiveness of laws is constraint by culture and as such laws can only reflect what society is willing to approve.”37 For laws to actually be acknowledged by society and enforced by law enforcement personnel, they must – at least to some extent – represent society’s values. If neither society nor law enforcement officers agree with the moral value represented by this law, its application is doomed to fail, which again is reinforced by an insufficient rule of law structure. The reason of social disapproval for legislative reforms in the context of gender equality is a patriarchal system fueled by a widespread perception of gender equality being a “western idea,” which infringes on Egypt’s cultural and religious values.38 Women are 30 31 32 33 34

35 36 37 38

The female’s unemployment rate is at 74 percent, while the male’s unemploymnt rate is at 21 percent, see World Economic Forum, “The Global Gender Gap Report 2015,” 162. See Abdel Hadi, “Engendering the Egyptian Law on Nationality,” 46. The female’s Labor force participation rate is 26 percent compared to male’s being 79 percent, see World Economic Forum, “The Global Gender Gap Report 2015,” 162. The ratio of the female literacy rate to the male literacy rate is 65 to 82 in Egypt, see Ibid. It is estimated that around 40 percent of Egyptian women possess neither a birth certificate nor an identification card, see Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit,” 14 ff. See MacKay, Strategies for Change, 50. See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit,” 26 f. See Khattab, “Egypt’s Legal Reform to Combat Female Genital Mutilation,” 1. See Moussa, “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate,” 1; Rohe, “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen Islamischen Recht,” 2.

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confronted with such patriarchal structures not only in society, but also in the entire justice apparatus,39 for instance, when filing sexual harassment reports in police stations,40 when finding notary officials willing to incorporate ʿismah (a wife’s non-judicial right to divorce) into marriage contracts,41 or during khulʾ (non-fault based divorce) proceedings in court. Shortly after the legislative introduction of khulʾ, it was repeatedly reported that judges did not grant khulʾ petitions due to either a lack of knowledge or a lack of willingness to apply the legislative reform.42 The perception of gender equality being a “western idea,” which infringes on Egypt’s cultural and religious values also forms the basis of Egypt’s Shariʾabased reservations to the Women’s Convention. However, in the context of ­international relations, society’s perception must be carefully distinguished from the government’s employment of the “cultural defense”43 for its own political purpose.44 Such endeavors are not unique to Egypt. On the contrary, many heads of Muslim-majority States often invoke the cultural defense when justifying a limited application of international women’s rights standards. For instance, fourteen out of sixteen Arab League member States, which ratified the Women’s Convention, have placed Shariʾa-based reservations to the 39 40

41 42 43

44

See Sika, “The Millennium Development Goals,” 31; MacKay, Strategies for Change, 50. Allam notes, “[t]he case now, as reported by many women, is that when they file a complaint in the police station against their abusive husbands, the police officer contacts the abuser to ‘come get his wife’, and in many cases punish the women for such a ‘transgression’ against the ‘man of the house’. Similar scenarios happen in courtrooms, where chauvinistic judges are a norm and women rarely win cases against their husbands or ex-husbands. Physical abuse is usually treated as ‘normal’ by most men (be they lawmen or not), and beating up one’s wife is part of an unspoken social contract.” See Rana Allam, “On Women in Egypt: Equality Doesn’t Mean Justice,” Daily News Egypt, February 24, 2014, available at http://www.dailynewsegypt.com/2014/02/24/women-egypt-equality-doesnt -mean-justice/ (last accessed 16 August 2017). See Deutsche Gesellschaft für Internationale Zusammenarbeit (giz), “Auf dem Weg zu einer verbesserten Rechtswirklichkeit,” 26 f. See Ibid. See Katie L. Zaunbrecher, “When Culture Hurts: Dispelling the Myth of Cultural Justification for Gender-Based Human Rights Violations,” Houston Journal of International Law 33, no. 3 (2011): 688. For that purpose Israel-Vleeschhouwer suggests the creation of a database entailing ­systematic documentation of religious laws and jurisprudence in order to avoid the ­confusion between political and truly religious justifications. See Amos Israel-­ Vleeschhouwer, “Engaging Religious Laws, Players and Communities: Confronting ­Religious Dis-Empowerment,” in Religion as Empowerment: Global and Legal Perspectives, eds. Kyriaki Topidi and Lauren Fiedler (Abingdon: Routledge, 2016), 160.

Conclusion

197

­Women’ Convention’s core provisions, namely Article 2 and 16.45 This aims at an a priori exclusion of certain aspects of domestic legislation, from international scrutiny by invoking the prevalence of cultural or religious traditions over human rights.46 Ironically such claims are often made by economic and political elites of repressive regimes, which internationally advocate for cultural or religious traditions, while domestically exercising arbitrary power or pursuing a sheer capitalistic economy, contrary to any traditional or religious values.47 The cultural defense is most notably raised by patriarchal States – primarily in the Middle East and Africa – which often respond particularly defensive when it comes to gender equality.48 The fact that the Women’s Convention is the most reserved international human rights instrument justified on the prevalence of culture or religion over women’s human rights, serves as proof for the alleged conflict between culture and the notion of gender equality. It is this light in which Egypt’s Shariʾa-based reservations to the Women’s Convention must be considered. Under the guise of adhering to Shariʾa Law, Egypt – along with many other Muslim-majority States – willingly compromises the notion of gender equality, inter alia, in its penal and family code.49 Yet Shariʾa provisions are widely disregarded in other legal areas, such as Egypt’s commercial and business law, which for instance neglects the prohibition to

45

46

47

48 49

Out of all 22 members States of the Arab League, 16 have ratified the Women’s Convention. 14 of these 16 member States have entered reservations to either Article 2 or 16 cedaw, while 9 member State explicitly referred to the prevalence of Shariʾa Law, namely Bahrain, Egypt, Kuwait, Libya, Morocco, Oman, Saudi Arabia, Syria, and United Arab Emirates. See untc, “Enumeration of States Parties to the Women’s Convention Including Text of Reservations.” Howse and Teitel question the concept of compliance in International Law all together and argue that “States tend to want to justify their actions in universalist terms, and the language of law is particularily amendable to this, given its formal character. States need to water down their rhetoric to appeal to more and more audience and law that does not have such a content tied to particular religious, moral or civilizational outlooks serves this purpose well,” see Robert Howse and Ruti Teitel, “Beyond Compliance: Rethinking why International Law really matters” Global Policy 1, no. 2 (2010): 133. Donnelly points out severeal examples, which illustrate how African leaders misuse the cultural defense for their own agenda, see Donnelly, “Cultural Relativism and Universal Human Rights,” 411–13. See Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and beyond (Leiden: Martinus Nijhoff Publishers, 2007), 23 f. For instance, by providing for grounds for justification or mitigation for honor killings, domestic violence, marital rape, (as discussed in Chapter 3.1) or for limited divorce and post-divorce rights (as discussed in Chapter 3.2).

198

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conduct ­business during the Friday prayer.50 This shows the selectivity with which the State seemingly employs the defense of religion.51 Therefore, the aforementioned “conflict” must be seen for what it is: “A cynical manipulation of tradition,”52 rather than a genuine interest in culture or religion. The particular danger of the cultural defense, employed by States, is that it blurs the boundaries between valid cultural or religious considerations within the application of human rights standards on the one hand, and an absolute concept of cultural superiority over human rights for the purpose of maintaining an oppressive system without international scrutiny on the other hand, which ultimately jeopardizes the legitimacy of the entire human rights concept. 50

51 52

Quranic verse 62:9 stating, “O ye who believe! When the call is proclaimed to prayer on Friday (the Day of Assembly), hasten earnestly to the Remembrance of Allah, and leave off business (and traffic): That is best for you if ye but knew!” See Ali, The Meaning of the Holy Qurʾan. See Rohe, Das islamische Recht, 11 f.; Abdullahi Ahmad An-Naʾim, Islam and the Secular State: Negotiating the Future of Shariʾa (Cambridge: Harvard University Press, 2008), 50. See Donnelly, “Cultural Relativism and Universal Human Rights,” 412.

Appendix 1

Documents Issued by the United Nations CEDAW Committee. “Annual Report of the Committee on the Elimination of Discrimination against Women to the General Assembly on the Committee’s Eighteenth and Nineteenth Sessions.” UN Doc A/53/38/Rev.1, GA fifty-third session 1998. CEDAW Committee. “Annual Report of the Committee on the Elimination of Discrimination against Women to the General Assembly on the Committee’s Third Sessions.” UN Doc A/39/45, thirty-ninth session 1983. CEDAW Committee. “Concluding Observation Cambodia.” UN Doc CEDAW/ C/KHM/CO/3, thirty-fourth session 2006. CEDAW Committee. “Concluding Observation El Salvador.” UN Doc CEDAW/ C/SLV/CO/7, 2008. CEDAW Committee. “Concluding Observation Finland.” UN Doc A/63/38, forty-first session 2008. CEDAW Committee. “Concluding Observation Mauritania.” UN Doc CEDAW/ C/MRT/CO/1, 2007. CEDAW Committee. “Concluding Observations Bahrain.” UN Doc CEDAW/ C/BHR/CO/2, forty-second session 2008. CEDAW Committee. “Concluding Observations Egypt.” UN Doc CEDAW/ C/EGY/CO/7, forty-fifth session 2010. CEDAW Committee. “Concluding Observations Guinea-Bissau.” UN Doc CEDAW/ C/GNB/CO/6, forty-fourth session 2009. CEDAW Committee. “Concluding Observations Indonesia.” UN Doc CEDAW/ C/IDN/CO/3, thirty-ninth session 2007. CEDAW Committee. “Concluding Observations Libyan Arab Jamahiriya.” UN Doc A/49/38, thirteenth session 1994. CEDAW Committee. “Concluding Observations Morocco.” UN Doc A/52/38, sixteenth session 1997. CEDAW Committee. “Concluding Observations Morocco.” UN Doc A/63/38, fortieth session 2008. CEDAW Committee. “Concluding Observations Netherlands.” UN Doc A/56/38, ­twenty-fifth session 2001. CEDAW Committee. “Concluding Observations Netherlands.” UN Doc CEDAW/ C/NLD/CO/5, forty-fifth session 2010. CEDAW Committee. “Concluding Observations Niger.” UN Doc CEDAW/C/NER/ CO/2, thirty-eighth session 2007. CEDAW Committee. “Concluding Observations Poland.” UN Doc CEDAW/ C/POL/CO/6, fifty-fourth session 2013.

200

Appendix 1

CEDAW Committee. “Concluding Observations Singapore.” UN Doc CEDAW/ C/SGP/CO/3, thirty-nineth session 2007. CEDAW Committee. “Concluding Observations Singapore.” UN Doc CEDAW/ C/SGP/CO/4, forty-nineth session 2012. CEDAW Committee. “Concluding Observations Sweden.” UN Doc A/56/38, twentyfifth session 2001. CEDAW Committee. “Concluding Observations Syrian Arab Republic.” UN Doc CEDAW/C/SYR/CO/1, thirty-eighth session 2007. CEDAW Committee. “Concluding Observations Thailand.” UN Doc CEDAW/ C/THA/CO/5, thirty-fourth session 2006. CEDAW Committee. “Concluding Observations Tunesia.” UN Doc CEDAW/ C/TUN/CO/6, forty-seventh session 2010. CEDAW Committee. “Concluding Observation Switzerland.” UN Doc A/58/38, twentyeightth session 2003. CEDAW Committee. “Concluding Observation Togo.” UN Doc CEDAW/C/TGO/CO/5, 2006. CEDAW Committee. “Conclusing Observations Greece,” UN Doc A/57/38, exceptional session 2002. CEDAW Committee. “Decision 40/III.” UN Doc A/63/38, fourtieth session 2008. CEDAW Committee. “General Recommendation No. 3.” UN Doc CEDAW/C/GC/3, sixth session 1987. CEDAW Committee. “General Recommendation No. 4.” UN Doc CEDAW/C/GC/4, sixth session 1987. CEDAW Committee. “General Recommendation No. 13.” UN Doc CEDAW/C/GC/13, eighth session 1989. CEDAW Committee. “General Recommendation No. 14.” UN Doc CEDAW/C/GC/14, nineth session 1990. CEDAW Committee. “General Recommendation No. 19.” UN Doc CEDAW/C/GC/19, eleventh session 1992. CEDAW Committee. “General Recommendation No 20.” UN Doc CEDAW/C/GC/20, eleventh session 1992. CEDAW Committee. “General Recommendation No. 21.” UN Doc CEDAW/C/GC/21, thirteenth session 1994. CEDAW Committee. “General Recommendation No. 23.” UN Doc CEDAW/C/GC/23, sixteenth session 1997. CEDAW Committee. “General Recommendation No. 24.” UN Doc CEDAW/C/GC/24, twentieth session 1999. CEDAW Committee. “General Recommendation No. 25.” UN Doc CEDAW/C/GC/25, thirtieth session 2004.

Documents Issued by the United Nations

201

CEDAW Committee. “General Recommendation No. 28.” UN Doc CEDAW/C/GC/28, fourty-seventh session 2010. CEDAW Committee. “General Recommendation No. 29.” UN Doc CEDAW/C/GC/29, fifty-fourth session 2013. CEDAW Committee. “General Recommendation No. 30.” UN Doc CEDAW/C/GC/30, 2010. CEDAW Committee. “General Recommendation No. 31.” UN Doc CEDAW/C/GC/31, 2014. CEDAW Committee. “Guidelines Regarding the Form and Content of Initial Reports of States Parties.” UN Doc A/50/38, fourteenth session 1995. CEDAW Committee. “Rules of Procedure.” UN Doc A/56/38 (SUPP), amended by A/62/38 (SUPP). CEDAW Committee. “Egypt’s Combined Sixth and Seventh Periodic Report to the CEDAW Committee.” UN Doc CEDAW/C/EGY/7, 2008. Commission on Human Rights (CHR). “Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions 1999.” UN Doc E/CN.4/2000/3, fifty-sixth session 2000. Commission on Human Rights (CHR). “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” UN Doc E/HRC/13/39/Add.5, thirteenth session 2010. Commission on Human Rights (CHR). “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences.” UN Doc E/CN.4/1995/42, fifty-first session 1995. Commission on Human Rights (CHR). “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences.” E/CN.4/1996/53, fifty-second session 1996. Commission on Human Rights (CHR). “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences.” UN Doc E/CN.4/1999/68, fifty-fifth session 1999. Commission on Human Rights (CHR). “Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences.” UN Doc E/CN.4/2000/3, fifty-sixth session 2000. Commission on Human Rights (CHR). “ Resolution on Integrating the Rights of Women into the Human Rights Mechanisms of the United Nations.” UN Doc E/CN.4/RES/1994/45, fiftieth session 1994. Committee on Economic, Social and Cultural Rights. “General Comment No. 12.” UN Doc E/C.12/1999/5, twentieth session 1999. Committee on Economic, Social and Cultural Rights. “General Comment No. 18.” UN Doc E/C.12/GC/18, thirty-fifth session 2005.

202

Appendix 1

General Assembly (GA). “Declaration on the Elimination of Violence against Women (DEVAW).” UN Doc A/RES/48/104, 20 December 1993. General Assembly (GA). “Resolution on the Elimination of Domestic Violence against Women.” UN Doc A/58/147, fifty-eighth session 2003. General Assembly (GA). “Resolution on the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.” UN Doc A/RES/46/119, forty-six session 1991. General Assembly (GA). “Resolution on System-Wide Coherence.” UN Doc A/RES/64/289, sixty-fourth session 2010. General Assembly (GA). “Report of the Secretary General to the Six Committee of the UNGA.” UN Doc A/1372, 20 September 1950. Committee on the Rights of the Child. “ Consideration of Reports Submitted by States Parties under Article 8, Paragraph 1 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict: Concluding Observations: Egypt.” UN Doc CRC/C/OPAC/EGY/CO/1, fifty-seventh session 2011. Committee on the Rights of the Child. “General Comment No. 18.” UN Doc CRC/ C/GC/18 2014. Human Rights Committee. “Concluding Observations to Sudan’s State Report.” UN Doc CCPR/C/79/Add.85 1997. Human Rights Committee. “General Comment No. 24.” UN Doc CCPR/C/21/Rev.1/ Add.6, fifty-second session 1994. Human Rights Committee. “Report of the Human Rights Committee, Vol. I, GAOR, Supp. No. 40, United States of America, United Kingdom, and France, ‘Annexes VI: Observations of States Parties under Article 40, Paragraph 5, of the Covenant.’” UN Doc A/50/40, fiftieth session 1995. Human Rights Council. “Report of the Working Group on the Universal Periodic ­Review – Egypt.” UN Doc A/HRC/14/17, fourteenth session 2010. Human Rights Council. “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” UN Doc E/HRC/13/39/Add.5, thirteenth session 2010. International Law Commission. “Guide to Practice on Reservations to Treaties.” UN Doc A/66/10, sixty-six session 2011.

Appendix 2

International Treaties and Declarations Documents are available at the online database of United Nations Treaty Collection https://treaties.un.org/pages/Index.aspx. Beijing Declaration and Platform of Action. Adopted at the Fourth World Conference on Women, Beijing, China, 15 September 1995, UN Doc DPI/1766/Wom. Charter of the United Nations. Opened for signature 26 June 1945, entered into force 24 October 1945. Convention on the Elimination of All Forms of Discrimination Against Women. Opened for signature 18 December 1979, entered into force 3 September 1981, 1249 UNTS 13. Convention on the Rights of the Child. Opened for signature 19 November 1989, entered into force 2 September 1990, 1577 UNTS 3. Declaration on the Elimination of Violence Agianst Women. Drafted by Commission on the Status of Women, adopted by UN General Assembly 20 December 1993, UN Doc A/RES/48/104. The Hague Convention on the Conflict of Nationality Law. Opened for signature 13 April 1930, entered into force 1 July 1937, 179 LNTS 89. International Convenant of Civil and Political Rights. Opened for signature 19 December 1966, entered into force 23 March 1976, 999 UNTS 171. International Convenant of Economic, Social and Cultural Rights. Opened for signature 19 December 1966, entered into force 3 January 1976, 993 UNTS 3. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. Opened for signature 10 December 1999, entered into force 22 December 2000, 2131 UNTS 83. Programme of Action of the International Conference on Population and Development. Adopted at the International Conference on Population and Development, Cairo, Egypt, 5–13 September 1994, Doc A/CONF.171/13/Rev.I. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime. Adopted by UN General Assembly 15 November 2000, entered into force 25 December 2003, 2237 UNTS 319. Universal Declaration of Human Rights. Adopted by UN General Assembly 12 December 1948, UN Doc A/810. Vienna Convention on the Law of Treaties. Opened for signature 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331.

Appendix 3

Egyptian Legislation A translation of Egypt’s legislation is available at the following websites: – http://www.egypt.gov.eg/english/laws/ (Government of Egypt) – http://hrlibrary.umn.edu/ (Human Rights Library of the University of Minnesota) – http://www.loc.gov/law/ (Library of the U.S. Congress) – http://www.refworld.org/ (UN High Commissioner for Refugees’ Refworld) Anti Human Trafficking Law, promulgated by Law No. 64 of 2010. Available at: http://www.protectionproject.org/wp-content/uploads/2010/09/Law_regarding_­ Combating_Human_Trafficking_FINAL.pdf (last accessed 16 August 2017) Constitution of the Arab Republic of Egypt, adopted 11 September 1971, amended 22 May 1980, 25 May 2005, 26 March 2007. Available at: http://www.constitutionnet.org/files/Egypt%20Constitution.pdf (last accessed 16 August 2017) Constitution of the Arab Republic of Egypt, adopted 1 December 2012. Available at: http://hrlibrary.umn.edu/research/Egypt/EGYPT%20CONSTITUTION%202012.pdf (last accessed 16 August 2017) Constitution of the Arab Republic of Egypt, adopted 18 January 2014. Available at: http://www.sis.gov.eg/Newvr/Dustor-en001.pdf (last accessed 16 August 2017) Child’s Act, promulgated by Law No. 12 of 1996, amended by Law 126 of 2008. Available at: https://www.unodc.org/res/cld/document/egy/2002/egypt_child_act_english _html/Egypt_Child_Act_English.pdf (last accessed 16 August 2017) Civil Code, promulgated by Law No. 131 of 1948. Available at: http://hrlibrary.umn.edu/ research/Egypt/Civil%20Law.pdf (last accessed 16 August 2017) Labor Law, promulgated by Law No. 12 of 2003 Available at: http://www.egypt.gov.eg/ english/laws/default.aspx (last accessed 16 August 2017) Ministerial Decree No. 183 of 2003, regarding “The employment of women at Night Work Shifts,” issued on 6 September 2003, by the Ministery of Manpower and Emigration, Ahmed Ahmed El Amawy, (published in: Egyptian Wakayeh / Government Bulletin, Issue No. 220, 27 September 2003) Ministerial Decree No. 155 of 2003, regarding “The works for which Women may not be employed,” issued on 11 August 2003, by the Ministery of Manpower and Emigration, Ahmed Ahmed El Amawy, (published in Egyptian Wakayeh / Government Bulletin, Issue No. 187, 19 August 2003) Law of Association and other foundations working in the field of civil work, promulgated by Law No. 70 of 2017. Available at: http://www.icnl.org/research/library/files/ Egypt/law70english.pdf

Egyptian Legislation

205

Nationality Act, promulgated by Law No. 26 of 1975, amended by Law No. 154 of 2004. Available at: https://www.justice.gov/sites/default/files/eoir/legacy/2013/11/08/ UNHCR%20%20Refworld%20%20Law%20No_%2026%20of%201975%20 ­Concerning%20Egyptian%20Nationality.pdf (last accessed 16 August 2017) National Plan of Action Against Human Trafficking (January 2010–January 2013), ­Ministerial Decree No. 12025 of 26 July 2004 concerning provisions enforcing Law No. 154 of 2004Ministerial Decree No. 1231 of 2 May 2011 (published in: Al-Waqaʾeʾ ­Al-Masreya / Government Bulletin, Issue No. 166, 24 July 2004, p. 2) Penal Code, promulgated by Law No. 5801 of 1937, amended by Law No. 126 of 2008 and amended by Law No. 50 of 2014. Available at: http://www1.umn.edu/humanrts/ research/Egypt/criminal-code.pdf (last accessed 16 August 2017) Ministerial Decree No. 261 of 8 July 1996 of the Minister of Health and Population. Available at: http://www.hsph.harvard.edu/population/fgm/Egypt.fgm.htm (last accessed 16 August 2017). Ministerial Decree No. 271 of 2007 of the Minister of Health and Population Personal Status Law Law No. 25 of 1920 Concerning Maintenance and some Provisions in Personal ­Status, Official Gazette, Issue 61 (15 July 1920) Law No. 25 of 1929 (Concerning Provisions in Personal Status) Official Gazette, Issue 27 (25 March 1929) Law No. 100 of 1985 amending certain rulings of the Laws of Personal Status, Official Gazette, Issue 27 (4 July 1985) Law No. 1 of 2000, Regarding the Promulgation of a Law to Organize certain Conditions and Procedures in matters of Personal Status, Official Gazette, Issue 4 Bis (29 January 2000) Reprinted in: Network of Women’s Rights Organizations (NWRO). “Legal Guide for Developing a More Just Integrated Family Law.” Cairo, 2011. Available at: http:// www.wmf.org.eg/library/legal-guide-for-developing-a-more-just-integrated-family -law/ (last accessed 16 August 2017) Presidential Decree No. 90 of 2000 for the establishment of the National Council for Women. Available at: http://www.niew.gov.my/contents/PDF/acts%20 &%2­0 regulations/Egypt/DECREE%20BY%20THE%20PRESIDENT_OF_THE _ARAB_REPUBLIC_OF_EGYPT.pdf (last accessed 16 August 2017)

Appendix 4

International Case Law Belilos v. Switzerland, European Court of Human Rights, (1988) 10 EHRR 466. Fisheries Jurisdiction case (United Kingdom v. Iceland), International Court of Justice, ICJ Reports, 1973, pp. 3. Hilaire vs. Trinidad and Tobago, Inter-American Court of Human Rights, Preliminary Objections, 2001, IACHR Series C no 80. Loizidou v. Turkey, European Court of Human Rights, Preliminary Objections, (1995) 20 EHRR 99. Namibia case, International Court of Justice, Advisory Opinion, ICJ Reports, 1971, pp. 16. Nottebohm case (Lichtenstein v. Guatemala), International Court of Justice, Preliminary Objection, ICJ Reports, 1955, pp. 4. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case, International Court of Justice, Advisory Opinion, ICJ Reports, 1951, pp. 3. The Effect of Reservations on Entry into force of the American Convention on Human Rights (Arts. 74 and 75), Inter-American Court of Human Rights, Advisory Opinion OC 2/82, 1982, IACHR Series A no 2.

Bibliography Books, Journal Articles, Reports and Fact Sheets Abdar-Rahman, Doi I., and Abdassamad Clarke. Shariah: Islamic Law. 2nd ed. London: Ta-Ha, 2008. Abdelaal, Mohamed. “Egypt’s Constitution: What Went Wrong?” Vienna Journal on ­International Constitutional Law 7, no. 2 (2013): 200–13. Abdel Hadi, Amal. “Engendering the Egyptian Law on Nationality.” In Africa Citizenship and Discrimination Audit: The Case Study of Egypt, 34–51. Cairo: The Center for ­Migration and Refugee Studies of the American University in Cairo, Open Society Justice Initiative, 2005. Available at: http://schools.aucegypt.edu/GAPP/cmrs/­ reports/Documents/Citizenship_Report.pdf (last accessed 16 August 2017). Abu Odeh, Lama. “Crimes of Honour and the Construction of Gender in Arab Societies.” In Feminism and Islam: Legal and Literary Perspectives, edited by Yamani Mai and Allen Andrew, 141–94. New York: New York University Press, 1996. Abu Odeh, Lama. “Modernizing Muslim Family Law: The Case of Egypt.” Vanderbilt Journal of Transnational Law 37 (2004): 1043–146. Agrama, Hussein Ali. Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt. Chicago: The University of Chicago Press, 2012. Ahmed, Leila. Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven: Yale University Press, 1993. Akida, M. “Criminal Law.” In Egypt and its Laws, edited by Bernard-Maugiron Nathalie, and Dupret Baudouin, 37–48. London: Kluwer Law International, 2002. Al-Bukhari, Muhammed Ibn-Ismail, and Khan Huhammed Muhsin. The translation of the meanings of Sahih Al-Bukhari: Arabic-English Translation. Ryad: Darussalam, 1997. Al-Humam, Mahmud ibn ʾAbd al-Wahid Ibn. Sharh Fath al-Qadir lil-ʾajiz al-faqir. ­Beirut: Dar Ihyaʾ al-Turath al-ʾArabi, 1986. Al-Karmi, Marʾi ibn Yusuf. Ghayat al-muntaha fi al-jam’ bayny al-iqna’ wa al-Muntaha. Riyadh: Al-Muʾassasa al-Saʾidiyya, 1989. Al-Nawawi, Abu Zakariya Yahya ibn Sharaf. Rawdat Al-Talibin. Beirut: Dar al-Kutub ­al-ʿIlmiyah, 1992. Al-Tirmidhi, Abu Isa Muhammad. Jamiʾal-Tirmidhi. Beirut: Dar al-Gharb al-Islami and Dar al-Jil, 2007. Al-Zamakhshari, Abu al-Qasim Jar, and Allah Mahmud Ibn ʿUmar. Al-Kashshaaf ʾan Haqaʾiq at-Tanzil wa ʾUyun al-Aqawil fi Wujuh al-Taʾwil. Beirut: 2006. Ali, Yusuf. The Meaning of the Holy Qurʾan. Seattle: Create Space Independent Publishing Platform, 2010.

208

Bibliography

American Academy of Pediatrics, Committee on Bioethics. “Female Genital Mutilation.” Pediatrics 102, no. 1 (1998): 153–56. Ammar, Nawal H. “Beyond the Shadows: Domestic Spousal Violence in a ‘Democratizing’ Egypt.” Trauma, Violence, & Abuse 7 (2006): 244–59. Ammar, Nawal H. “In the Shadow of the Pyramids: Domestic Violence In Egypt.” International Review of Victimology 7 (2000): 29–46. Amnesty International, Cairo Institute for Human Rights Studies, World Alliance for Citizen Participation, Committee to Protect Journalists, Human Rights Watch, International Federation for Human Rights, International Service for Human Rights, International Commission of Jurists, Tahrir Institute for Middle East Policy, World Organization Against Torture. “Joint NGO Letter: Call for Strong Action on Egypt at the UN Human Rights Council,” 16.06.2017, available at https://www.ishr.ch/sites/ default/files/documents/joint.egypt_.letter.hrc36.final_.pdf. An-Naʿim, Abdullahi Ahmad. Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law. Syracuse: Syracuse University Press, 1990. An-Naʿim, Abdullahi Ahmad. Islamic Family Law in a Changing World: A Global Resource Book. London: Zed Books, 2002. An-Naʿim, Abdullahi Ahmad. “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights.” In Asian Perspectives on Human Rights, edited by Welch Claude Emerson and Leary Virginia A., 72–82. Boulder: Westview Press, 1990. An-Naʿim, Abdullahi Ahmad. “Religious Minorities under Islamic Law and the Limits of Cultural Relativism.” Human Rights Quarterly 9, no. 1 (1987): 1–18. Arberry, Arthur John. The Koran Interpreted: A Translation. New York: Touchstone, 1996. Arzt, Donna E. “The Application of International Human Rights Law in Islamic States.” Human Rights Quarterly 12, no. 2 (1990): 202–30. Aziz, Sahar F. “Egypt’s Protracted Revolution.” Human Rights Brief 19, no. 2 (2012 2011): 1–9. Badawy, Tarek. “Egyptian Citizenship Legislation, Private International Law, and Their Impact on Individual Rights.” Middle East Law and Governance 6, no. 3 (2014): 272–95. Bamgbose, Oluyemisi. “Legal & Cultural Approaches to Sexual Matters in Africa: The Cry of the Adolescent Girl.” University of Miami International and Comparative Law Review 10 (2015): 127–44. Bammarny, Bawar. “The New Egyptian Constitution of 2012.” Arab Law Quarterly 27, no. 3 (2013): 281–88. Barak-Erez, Daphne, and Kothari Jayna. “When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change.” Stanford Journal of International Law 47 (2011): 177–99. Baratta, Roberto. “Should Invalid Reservations to Human Rights Treaties Be Disregarded?” European Journal of International Law 11 (2000): 413–25.

Bibliography

209

Barlas, Asma. Believing Women in Islam: Unreading Patriarchal Interpretations of the Qurʾan. Austin: University of Texas Press, 2002. Barsoum, Ghada, Rifaat Nadja, El-Gibaly Omaima, Elwan Nihal, and Forcier Natalie. “Poverty, Gender, and Youth: National Efforts toward FGM-Free Villages in Egypt – The Evidence of Impact.” New York: Population Council, West Asia and North Africa Office, Working Paper 22, 2011. Available at: http://www.popcouncil.org/uploads/ pdfs/wp/pgy/022.pdf (last accessed 16 August 2017). Bassiouni, M. Cherif. The Sharia and Islamic Public Law in Time of War and Peace. Cambridge: Cambridge University Press, 2014. Belinda Clark. “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women.” American Journal of International Law 85 (1991): 281. Bernard-Maugiron, Nathalie, and Dupret Baudouin. “From Jihan to Susanne. Twenty Years of Personal Status Law in Egypt.” Recht van de Islam 19 (2002): 1–19. Besamusca, Janna, and Tijdens Kea. “National Labour Rights for Women: Inventory of National Labour Legislation Regarding Women’s Labour Rights in Egypt, ­Guatemala, India, Indonesia, Kenya, Mozambique, Pakistan, Paraguay, Peru, South ­Africa, Tanzania and Uganda.” Amsterdam: Universiteit van Amsterdam, Amsterdam Institute for Advanced Labour Studies Working Paper 146, 2014. Available at: http://www.uva-aias.net/uploaded_files/publications/WP146-Besamusca,Tijdens. pdf (last accessed 16 August 2017). Bhabha, Jacqueline. Child Migration & Human Rights in a Global Age. Human Rights and Crimes against Humanity. Princeton: Princeton University Press, 2014. Bhala, Raj. Understanding Islamic Law: Sharīʿa. New Providence: LexisNexis, 2011. Black, E. Ann, Esmaeili Hossein, and Hosen Nadirsyah. Modern Perspectives on Islamic Law. Cheltenham: Edward Elgar Publishing, 2013. Boerefijn, Ineke. “Article 17–22 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 475–530. Oxford: Oxford University Press, 2012. Brink, Marjolein van den, and Wijers Marjan. “‘Because to me, a Woman who speaks in Public is a Public Woman’: 30 Years Women’s Convention and the Struggle to ­eliminate Discrimination against Women in the Field of Trafficking and Prostitution.” In The Women’s Convention Turned 30: Achievements, Setbacks, and Prospects, edited by Westendorp Ingrid, 135–62. Cambridge: Intersentia Publishing Ltd, 2012. Byrnes, Andrew. “Article 2 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 71–97. Oxford: Oxford University Press, 2012. Byrnes, Andrew. “The Committee on the Elimination of Discrimination against ­Women.” In Women’s Human Rights: CEDAW in International, Regional and ­National

210

Bibliography

Law, edited by Hellum Anne and Aasen Henriette S., 27–61. Oxford: Oxford University Press, 2013. Cassese, Antonio. International Law. 2nd ed. Oxford: Oxford University Press, 2005. Cassman, Rachelle. “Fighting to Make the Cut: Female Genital Cutting Studied within the Context of Cultural Relativism.” Northwestern Journal of International Human Rights 6, no. 1 (2008): 128–54. Center for Egyptian Women’s Legal Assistance (CEWLA). “‘Crimes of Honour’ as Violence against Women in Egypt.” In “Honour”: Crimes, Paradigms, and Violence Against Women, edited by Welchman Lynn and Hossain Sara, 137–59. London: Zed Books, 2005. Center for Egyptian Women’s Legal Assistance (CEWLA). “The Shadow Report ‘On the Status of Egyptian Women in Matters of Personal Status and Forms of Violence against Women according to CEDAW Convention’ Submitted to the CEDAW Committee” Cairo: 2008. Available at: http://www2.ohchr.org/english/bodies/cedaw/ docs/ngos/CEWLAEgypt_45.pdf (last accessed 16 August 2017). Center for Reproductive Rights, and Egyptian Initiative for Personal Rights. “Supplementary Information on Egypt Presented to the Committee on the Elimination of Discrimination Against Women.” Cairo: 2009. Available at: http://www2.ohchr.org/ english/bodies/cedaw/docs/ngos/EIPR_CRR_Egypt45.pdf (last accessed 16 August 2017). Charlesworth, Hilary, and Chinkin Christine M. The Boundaries of International Law: A Feminist Analysis. Manchester, Eng.: Manchester University Press, 2000. Chaudhry, Ayesha S. Domestic Violence and the Islamic Tradition: Ethics, Law and the Muslim Discourse on Gender. Oxford: Oxford University Press, 2013. Chinkin, Christine M. “Thoughts on the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).” In Without Prejudice: CEDAW and the Determination of Women’s Rights in a Legal and Cultural Context, edited by Shivdas Meena and Coleman Sarah, 5–9. London: Commonwealth Secretariat, 2010. Chinkin, Christine M. “Violence against Women.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 443–75. Oxford: Oxford University Press, 2012. Chuang, Janie. “Article 6 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 169–96. Oxford: Oxford University Press, 2012. Clark, Belinda. “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women,” American Journal of International Law 85 (1991): 281–322.

Bibliography

211

Connors, Jane. “Article 28 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 565–95. Oxford: Oxford University Press, 2012. Cook, Rebecca J. “Reservations to the Convention on the Elimination of All Forms of Discrimination against Women.” Virginia Journal of International Law 30 (1990 1989): 643–716. Cook, Rebecca J., and Cusack Simone. Gender Stereotyping: Transnational Legal Perspectives. Philadelphia: University of Pennsylvania Press, 2010. Cook, Rebecca J., and Undurrage Veronica. “Article 12 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 311–32. Oxford: Oxford University Press, 2012. Cusack, Simone. “The CEDAW as a legal framework for transnational discourses on gender stereotyping.” In Women’s Human Rights: CEDAW in International, Regional and National Law, edited by Hellum Anne and Aasen Henriette S., 124–58. Oxford: Oxford University Press, 2013. Crawford, James. Brownlie’s Principles of Public International Law. 8 edition. Oxford: Oxford University Press, 2012. Danial, Sandra. “Cultural Relativism vs. Universalism: Female Genital Mutilation, Pragmatic Remedies.” The Journal of Historical Studies 2, no. 1–10 (2013). Darby, Robert, and Svoboda J. Steven. “A Rose by any Other Name? Rethinking the Similarities and Differences between Male and Female Genital Cutting.” Edited by American Anthropological Association. Medical Anthropology Quarterly 21, no. 3 (2007): 301–23. Dede, Alper Y. “The Egyptian Spring: Continuing Challenges a Year after the Arab Spring.” USAK Yearbook of Politics and International Relations 5 (2012): 99–121. Deif, Farida. Egypt, Divorced from Justice: Women’s Unequal Access to Divorce in Egypt. New York: Human Rights Watch, 2004. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). “Rights & ­Reality – On the Legal Reality faced by Women in Arab Countries.” Eschborn: 2007. ­Available at: http://www.gender-in-german-development.net/custom/images/ content­BilderGalerie/bilderGalerie1000507/GTZ-BMZ-Rights--reality-on-the-legal -reality-faced-by-women-in-arab-countries-2007-EN.pdf (last accessed). Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). “The International Human Rights of Women: An Overview of the Most Significant International Conventions and the Instruments for their Implementation.” Eschborn: 2003. Available at: http://www.gender-in-german-development.net/custom/images/ contentBilderGalerie/bilderGalerie1000492/GTZ-BMZ-The-international-human -rights-of-­women-2003-EN.pdf (last accessed 16 August 2017).

212

Bibliography

Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). “Auf dem Weg zu einer verbesserten Rechtswirklichkeit: Strategien und Instrumente gegen ­rechtliche Diskriminierungen von Frauen in der arabischen Welt.” Eschborn: 2008. Available at: http://www.gender-in-german-development.net/custom/­images/ contentBilderGalerie/bilderGalerie1000507/GTZ-BMZ-Auf-dem-weg-zu-einer -verbesserten-rechtswirklichkeit-2008-DE.pdf (last accessed). Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). “Country Gender Analysis: Egypt,” Eschborn: 2014 (internal document). Donnelly, Jack. “Cultural Relativism and Universal Human Rights.” Human Rights Quarterly 6 (1984): 400–419. Donner, Laura A. “Gender Bias in Drafting International Discrimination Conventions: The 1979 Women’s Convention Compared with the 1965 Racial Convention.” California Western International Law Journal 24 (1994): 241–54. Edge, Inan. “Egypitian Family Law: The Jinn.” International and Comparative Law Quarterly 38 (1989): 682. Egyptian Association for Community Participation, and Enhancement (EACPE). “­Second Shadow Report for the CEDAW Coalition,” Egypt, 2009. Available at: http://www2.ohchr.org/english/bodies/cedaw/docs/EACPE_E.pdf (last accessed 16 ­August 2017). El Deeb, Bouthaina. “Study on Ways and Methods to eliminate Sexual Harassment in Egypt.” Cairo: UN Women, National Council for Women, National Planning Institute and Demographics Center in Cairo, 2013. Available at: http://web.law.columbia .edu/sites/default/files/microsites/gender-sexuality/un_womensexual-­harassment -study-egypt-final-en.pdf (last accessed 01.07.206). El-Haddad, Amirah. “Labor Market Gender Discrimination under Structural Adjustment: The Case of Egypt.” Working Papers Series of the Research Program on Gender and Work, Social Research Center, American University in Cairo, Working Paper 003 (2009): 27. Elsadda, Hoda. “Women’s Rights Activism in Post-Jan 25 Egypt: Combating the Shadow of the First Lady Syndrome in the Arab World.” Middle East Law and Governance 3 (2011): 84–93. Engineer, Asghar Ali. The Rights of Women in Islam. 2nd ed. New York: New Dawn Press, 2004. Eskridge, William N., and Hunter Nan D.. Sexuality, Gender and the Law. 3rd ed. New York: Foundation Press, 2011. Esposito, John L. Women in Muslim Family Law. 2nd ed. Syracuse: Syracuse University Press, 2001. European Union Observatory on Democracy Citizenship. “New Policy on Egyptian ­Citizenship for Children of Palestinian Fathers,” 2011. Available at: http://eudo -citizenship.eu/citizenship-news/530-new-policy-on-egyptian-citizenship-for -children-of-palestinian-fathers (last accessed 16 August 2017).

Bibliography

213

Freeman, Marsha A. “Article 16 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 409–73. Oxford: Oxford University Press, 2012. Freeman, Marsha A., and Chinkin Christine M.. “Introduction.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 1–33. Oxford : Oxford University Press, 2012. Fuchs, Gesine. “Strategic Litigation for Gender Equality in the Workplace and Legal Opportunity Structures in Four European Countries.” Canadian Journal of Law & Society 28 (2013): 189–208. Gallagher, Anne T. The International Law of Human Trafficking. New York: Cambridge University Press, 2010. Giegerich, Thomas. “Treaties, Multilateral, Reservations.” In Max Planck Encyclopedia of Public International Law, Volume IX, edited by Wolfrum Rüdiger, 1124–35. New York: Oxford University Press, 2012. Available at: http://opil.ouplaw.com/home/ EPIL (last accessed 16 August 2017). Goodman, Ryan and Jinks Derek. “How to influence States: Socialization and International Human Rights Law.” Duke Law Journal 54, no. 3 (2004): 621–703. Goonesekere, Savitri W.E. “Article 9 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf ­Beate, Freeman Marsha A., and Chinkin Christine M., 311–32. Oxford: Oxford University Press, 2012. Hagay-Frey, Alona. Sex and Gender Crimes in the New International Law: Past, Present, Future. Leiden: Brill, 2011. Hajdin, Mane. The Law of Sexual Harassment: A Critique. Selinsgrove: Susquehanna University Press, 2002. Hajjar, Lisa. “Domestic Violence and Sharia: A Comparative Study of Muslim Societies in the Middle East, Africa and Asia.” In Women’s Rights and Islamic Family Law: Perspectives on Reform, edited by Welchman Lynn, 233–72. London: Zed Books Ltd, 2004. Hajjar, Lisa. “Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis.” Law & Social Inquiry 29, no. 1 (2004): 1–38. Halm, Heinz. Der Islam: Geschichte und Gegenwart. 8th ed. München: C.H.Beck, 2011. Hassan, Farkhonda. “Egypt Violence against Women Study: Summary of Findings.” Cairo, 2009. Available at: http://pdf.usaid.gov/pdf_docs/PNADQ885.pdf (last accessed 16 August 2017). Hathaway, James C. “Human Rights Quagmire of Human Trafficking.” Virginia Journal of International Law 49 (2009 2008): 1–59. Hattab, Muhammad ibn Muhammad. Mawahib Al-Jalil Li-Sharh Mukhtasar Khalil. ­Beirut: Dar al-Kutub al-ʿIlmiyah, 1995.

214

Bibliography

Heliotis, Nicolas. “A Textual Analysis of Presidential Power under the 2014 Egyptian Constitution.” The International Lawyer 48, no. 2 (2014): 127–52. Hendy, Rana. “Women’s Participation in the Egyptian Labor Market: 1998–2012.” Working Papers Series of the Economic Research Forum, American University in Cairo, Working Paper 907 (2015): 16. Hessini, Leila. “Domestic Violence – Arab States.” In Encyclopaedia of Women and I­ slamic Cultures Vol. II: Family, Law and Politics, edited by Joseph Suad and ­Najmabadi Afsaneh, 111–12. Leiden: Brill, 2003. Holtmaat, Rikki. “Article 5 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 141–67. Oxford: Oxford University Press, 2012. Hoq, Laboni Amena. “The Women’s Convention and its Optional Protocol: Empowering Women to claim their Internationally Protected Rights.” Columbia Human Rights Law Review 32, no. 3 (2001): 677–726. Horn, Frank. Reservations and Interpretative Declarations to Multilateral Treaties. ­Amsterdam: North-Holland Publishing Company, 1988. Howse, Robert, and Teitel Ruti. “Beyond Compliance: Rethinking why International Law really matters.” Global Policy 1, no. 2 (2010): 127–36. Hulsman, Cornelius. The Sharia as the main source of legislation?: The Egyptian ­Debate on Article II of the Egyptian Constitution. Marburg: Tectum Verlag, 2014. Ibn Qudama, Mawaffaq ad-Din Abdullah Ibn Ahmad. Al-Mughni li Ibn Qudama. Cairo: Hajr, 1986. Idriss, Mohammad Mazher. “Honour, Violence, Women and Islam – an Introduction.” In Honour, Violence, Women and Islam, edited by Idriss Mohammad Mazher and Abbas Tahir, 1–15. Abingdon: Routledge, 2011. Ilkkaracan, Pinar. Deconstructing Sexuality in the Middle East: Challenges and Discourses. Aldershot: Routledge, 2012. International Center for Missing and Exploited Children. “Child Marriage in the Middle East and North Africa.” USA, 2013. Available at: http://www.icmec.org/wp -content/uploads/2015/10/Child_Marriage_in_the_MENA_Region.pdf (last accessed 16 August 2017). International Law Association, Committee on Feminism and International Law. “­Final Report on Women’s Equality and Nationality in International Law – London Conference.” London, 2000. Available at: http://www.unhcr.org/en-us/­protection/ statelessness/3dc7cccf4/london-conference-2000-committee-feminism-­ international-law-final-report.html (last accessed 16 August 2017). International Organization for Migration – Country Office Egypt. “2012 Fact Sheet: Combating Human Trafficking in Egypt.” Cairo, 2012. Available at: http://www .egypt.iom.int/Doc/Counter%20Trafficking%20Fact%20Sheet%20Egypt%20 (2012).pdf (last accessed 16 August 2017).

Bibliography

215

Israel-Vleeschhouwer, Amos. “Engaging Religious Laws, Players and Communities: Confronting Religious Dis-Empowerment.” In Religion as Empowerment: Global and Legal Perspectives, edited by Topidi Kyriaki and Fiedler Lauren, 149–181. Abingdon: Routledge, 2016. Jaising, Indira. “Eliminating Sexual Harassment at the Workplace: Broadening the Discourse on Gender Equality.” Commonwealth Law Bulletin 40, no. 2 (2014): 375–97. Jansen, Willy. “Divorce and Custody: Contemporary Practices – Arab States.” In Encyclopaedia of Women and Islamic Cultures Vol. II: Family, Law and Politics, edited by Najmabadi Afsaneh and Joseph Suad, 98–100. Leiden: Brill, 2003. Jansson, Dominika Borg. Modern Slavery: A Comparative Study of the Definition of Trafficking in Persons. Leiden: Brill Nijhoff, 2015. Jenefsky, Anna. “Permissibility of Egypt’s Reservations to the Convention on the Elimination of All Forms of Discrimination against Women.” Maryland Journal of International Law and Trade 15 (1991): 200–33. Kamaruddin, Zaleha, and Oseni Umar A. “Between Ideals and Reality: Violence against Women and the Real Image of Women in Islam.” The Journal of Oriental Studies 23 (2013): 79–93. Karmi, Ghada. “Women, Islam and Patriarchalism.” In Women and Islam: Images and Realities, edited by Moghissi Haideh, 165–79. Oxon: Taylor & Francis, 2005. Kassim, Anis F. “Legal Systems and Developments in Palestine.” The Palestine Yearbook of International Law Online 1, no. 1 (1984): 19–35. Kaukoranta, Päivi, and Lehto Manta. “Elements of Nordic Practice 1998: The Nordic Countries in Coordination.” Nordic Journal of International Law 68 (1999): 205–16. Kearl, Holly. Stop Global Street Harassment: Growing Activism around the World. Santa Barbara: Praeger, 2015. Khafagy, Fatma. “Honour Killing in Egypt – Violence against Women: Good Practices in Combating and Eliminating Violence against Women.” Vienna: UN Division for the Advancement of Women, 20.05.2005. Available at: http://www.un.org/­ womenwatch/daw/egm/vaw-gp-2005/docs/experts/khafagy.honorcrimes.pdf (last accessed 16 August 2017). Khalil, Abdallah and Badawy, Takrek. “Rights of Foreigners and Access to Citizenship.” In Africa Citizenship and Discrimination Audit: The Case Study of Egypt, 1–33. Cairo: The Center for Migration and Refugee Studies of the American University in Cairo, Open Society Justice Initiative, 2005. Available at: http://schools.aucegypt.edu/ GAPP/cmrs/reports/Documents/Citizenship_Report.pdf (last accessed 16 August 2017). Khaliq, Urfan. “Beyond the Veil: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shariʾah.” Buffalo Journal of International Law 2 (1996 1995): 1–47. Khan, Tauqir Mohammad. “Criminal Law in Islam.” In Encyclopaedia of Islamic Law, edited by Khan Arif Ali, Vol. 8. New Delhi: Pentagon Press, 2006.

216

Bibliography

Kharshi, Muhammad ibn ʾAbd Allah, Zakariya Khalil ibn Ishaq al-Jundi ʾUmayrat, and ʾAli ibn Ahmad al-Mukhtasar Saʾidi. Hashiyat al-Khurashi ʾala Mukhtasar Sidi Khalil / Muhammad ibn ʾAbd Allah Kharashi. Beirut: Dar al-Kutub al-Ilmiyah, 1997. Khattab, Moushira. “Egypt’s Legal Reform to combat Female Genital Mutilation.” ­ Geneva: Expert Group Meeting on Legal Reform to prohibit, prevent and respond to All Forms of Violence against Children, 07.07.2011. Available at: http:// srsg.­violenceagainstchildren.org/sites/default/files/consultations/law_reform/­ presentations/moushira_khattab_fgm_vac_legal-reform6-7_july_2011.pdf (last accessed 16 August 2017). Kirkby, Diane. “Sex Discrimination, Workplace Opportunities and Law’s Transformative Promise.” Australian Feminist Law Journal 34 (2011): 127–45. Klugman, Jeni, Kolb Henriette, and Morton Matthew. “Persistent Gender Inequality in the World of Work.” The Fletcher Forum of World Affairs 38 (2014): 133–52. Knop, Karen, and Chinkin Christine. “Remembering Chrystal MacMillan: Women’s Equality and Nationality in International Law.” Michigan Journal of International Law 22 (2001): 523–85. Kokott, Juliane. “States, Sovereign Equality.” Max Planck Encyclopedia of Public International Law – Online. edited by Wolfrum Rüdiger. Oxford: Oxford University Press, 2011. Available at: http://opil.ouplaw.com/home/EPIL (last accessed 16 August 2017). Koukoulis-Spiliotopoulos, Sophia. “The Limits of Cultural Traditions.” Annuaire International Des Droits de l’Homme 3 (2008): 412–43. Krivenko, Ekaterina Yahyaoui. Women, Islam and International Law: Within the Context of the Convention on the Eliminationof All Forms of Discrimination Against Women. Vol. 8. Leiden: Brill, 2009. Kruiniger, Pauline. “Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce.” In The Women’s Convention Turned 30: Achievements, Setbacks, and Prospects, edited by Westendorp Ingrid, 363–90. Cambridge: Intersentia Publishing Ltd, 2012. Lauterpacht, Hersch. “Foreword to the First Edition.” In Nationality and Statelessness in International Law, edited by Weis Paul, XI–XII. London: Stevens and sons, 1956. Lippman, Matthew Ross, McConville Seán, and Yerushalmi Mordechai. Islamic Criminal Law and Procedure: An Introduction. New York: Praeger, 1988. MacKay, Catherine E. Strategies for Change: Exploring the Impact of the 2004 Nationality Law Reform Campaign on Gender Equality in Egypt. Master thesis, American University in Cairo, School of Global Affairs and Public Policy, Cairo, 2012. Available at: http://dar.aucegypt.edu/bitstream/handle/10526/3087/C.MacKay%20Thesis%20 Final%20Draft.pdf?sequence=3 (last accessed 16 August 2017). Marshall, Anna-Maria. Confronting Sexual Harassment: The Law and Politics of Everyday Life. Law, Justice, and Power. Aldershot: Ashgate, 2005.

Bibliography

217

Mashhour, A. “Islamic Law and Gender Equality – Could There Be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt.” Human Rights Quarterly 27 (2005): 562. Martin, Francisco Forrest. International Human Rights and Humanitarian Law Treaties, Cases, and Analysis. Cambridge: Cambridge University Press, 2006. Masud, Muhammad Khalid, Messick Brinkley Morris, and Powers David Stephan. ­Islamic Legal Interpretation: Muftis and their Fatwas. Cambridge: Harvard University Press, 1996 Mattar, Mohamed. “Human Rights Legislation in the Arab World: The Case of Human Trafficking.” Michigan Journal of International Law 33, no. 1 (2011): 101–31. Mattar, Mohamed. “Trafficking in Persons, Especially Women and Children, in Countries of the Middle East: The Scope of the Problem and the Appropriate Legislative Responses.” Fordham International Law Journal 26, no. 3 (2002): 721–60. Mattar, Mohamed. “Trafficking in Women in Accordance with Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women: Guidelines on the Interpretation of the Text of Article 6 of the Convention.” Washington DC: The Protection Project of the Paul H. Nitze School of Advanced International Studies, Johns Hopkins University, 2012. Available at: http://www.protectionproject.org/ wp-content/uploads/2012/07/Guidelines-Art-6-CEDAW_Final1.pdf (last accessed 16 August 2017). McCrudden, Christopher. “Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW,” American Journal of International Law 109, no. 3 (2015): 534–50. Mehdi, Rubya, Menski Werner, and Nielsen Jørgen S.. Interpreting Divorce Laws in I­ slam. Copenhagen: DJØF Pub, 2012. Mernissi, Fatima. The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam. Translated by Lakeland Mary Jo. Cambridge: Perseus Books, 1992. Meyer-Resende, Michael. “Egypt: In-Depth Analysis of the Main Elements of the New Constitution.” Brussels: European Parliament – Directorate-General for external policies of the Union, 2014. Available at: http://www.europarl.europa.eu/RegData/ etudes/note/join/2014/433846/EXPO-AFET_NT(2014)433846_EN.pdf (last accessed 16 August 2017). Ministry of Health and Population (Egypt), and El-Zanaty and Associates. “Egypt Demographic and Health Survey 2014.” Cairo, 2015. Available at: http://dhsprogram .com/pubs/pdf/fr302/fr302.pdf (last accessed 16 August 2017). Minor, Julie A. “An Analysis of Structural Weaknesses in the Convention on the Elimination of All Forms of DiscriminationAgainst Women.” Georgia Journal of International and Comparative Law 24 (1994): 137–53.

218

Bibliography

Mir-Hosseini, Ziba, Al-Sharmani Mulki, and Rumminger Jana. Men in Charge?: ­Rethinking Authority in Muslim Legal Tradition. London: Oneworld Publications, 2015. Mir-Hosseini, Ziba, and Hamzic Vanja. Control and Sexuality: The Revival of Zina Laws in Muslim Contexts. London: Women Living Under Muslim Laws, 2010. Morgan-Foster, Jason. “A New Perspective on the Universality Debate: Reverse Moderate Relativism in the Islamic Context.” International Law Student Association ­Journal of International and Comparative Law 10 (2004 2003): 35–67. Mountis, Elene G. “Cultural Relativity and Universalism: Reevaluating Gender Rights in a Multicultural Context.” Dickinson Journal of International Law 15 (1997): 113–50. Moussa, Jasmine. Competing Fundamentalisms and Egyptian Women’s Family Rights: International Law and the Reform of Shariʾa-derived Legislation. Ph.D. thesis, Leiden: Brill, 2011. Moussa, Jasmine. “The Reform of Shariʾa-derived Divorce Legislation in Egypt: International Standards and the Cultural Debate.” Human Rights Law Commentary 1 (2005): 1–35. Musembi, Celestine N. “Pulling apart? Treatment of Pluralism in the CEDAW and the Maputo Protocol.” In Women’s Human Rights: CEDAW in International, Regional and National Law, edited by Hellum Anne and Aasen Henriette S., 183–214. Oxford: Oxford University Press, 2013. Nagarajan, Karatholuvu V. “Egypt’s Political Economy and the Downfall of the Mubarak Regime.” International Journal of Humanities and Social Science – Special Issue 3, no. 10 (2010): 22–39. Nasir, Jamal J. The Islamic Law of Personal Status. 3rd ed. Leiden: Brill, 2009. Nazir, Sameena, and Tomppert Leigh. Women’s Rights in the Middle East and North ­Africa: Citizenship and Justice. New York: Rowman & Littlefield Publishers, 2005. Network of Women’s Rights Organizations (NWRO). “Legal Guide for Developing a More Just Integrated Family Law.” Cairo, 2011. Available at: http://www.wmf.org. eg/library/legal-guide-for-developing-a-more-just-integrated-family-law/ (last accessed 16 August 2017). Nujaym, Zayn al-Dīn ibn Ibrāhīm Ibn. Al-Baḥr al-rāʾiq: sharḥ Kanz al-daqāʾiq. Cairo: Al-Maṭbaʿah al-ʿIlmīyah, 1894. Oberleitner, Gerd. Global human rights institutions: Between Remedy and Ritual. ­Cambridge: Polity, 2007. Office of the High Commissioner for Human Rights (OHCHR). “Fact Sheet No.  14: Contemporary Forms of Slavery,” 1991. Available at: http://www.ohchr.org/­ ­ Documents/Publications/FactSheet14en.pdf (last accessed 16 August 2017). Open Society Foundations. “Citizenship Law in Africa: A Comparative Study,” 2012. Available at: http://www.refworld.org/docid/4cf76b192.html (last accessed 16 ­August 2017).

Bibliography

219

ʿOudah Shaheed, ʿAbd al-Qādir. Criminal Law of Islam. Delhi: Adam Publishers & Distributors, 2005. Parolin, Gianluca P. Citizenship in the Arab World: Kin, Religion and Nation-State. ­Amsterdam: Amsterdam University Press, 2009. Pellet, Alain, and Müller David. “Reservations to Human Rights Treaties: Not an Absolute Evil…” In From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma, edited by Simma Bruno and Fastenrath Ulrich, 521–51. Oxford: ­Oxford University Press, 2011. Petersohn, Alexandra. Islamisches Menschenrechtsverständnis unter Berücksichtigung der Vorbehalte Muslimischer Staaten zu den UN-Menschenrechtsverträgen. Ph.D. thesis, University of Bonn, 1999. Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practicefrom the Sixteenth to the Twenty-First Century. Cambridge: Cambridge University, 2005. Alston Philip, Goodman Ryan, and Steiner Henry J. International Human Rights. ­Oxford: Oxford University Press, 2013. Powers, Paul R. Intent in Islamic Law: Motive and Meaning in Medieval Sunnī Fiqh. Leiden: Brill, 2006. Qassem, Y. “Law of the Familie.” In Egypt and Its Laws, edited by Bernard-Maugiron Nathalie, Dupret Baudouin, and Rady Wael, 19–36. The Hague: Kluwer Law International, 2002. Quraishi, Asifa. “Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective.” Michigan Journal of International Law 18, no. 2 (1997): 287–320. Raday, Frances. “Article 11 CEDAW.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Freeman M ­ arsha A., Chinkin Christine M., and Rudolf Beate, 279–309. Oxford: Oxford University Press, 2012. Rahman, Anika, and Toubia Nahid. Female Genital Mutilation: A Guide to Laws and Policies Worldwide. London: Zed Books, 2000. Ramadan, Hisham M. Understanding Islamic Law: From Classical to Contemporary. Lanham: AltaMira Press, 2006. Reda, Mohamed H. Shariʾa Commercial Law: “Old Wine in New Bottles?” Ph.D. thesis, University of Montreal, 2015. Available at: https://papyrus.bib.umontreal.ca/xmlui/ handle/1866/12628 (last accessed 16 August 2017). Redgwell, Catherine. “Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties.” British Yearbook of International Law 64 (1993): 245–82. Revkin, Mara. “Egypt’s Constitution in Question.” Middle East Law and Governance 5 (2013): 331–43. Rohe, Mathias. Das islamische Recht: Eine Einführung. München: C.H. Beck, 2013.

220

Bibliography

Rohe, Mathias. Das islamische Recht: Geschichte und Gegenwart. 3rd ed. München: C.H. Beck, 2011. Rohe, Mathias. “Das neue ägyptische Familienrecht: Auf dem Weg zu einem zeitgemäßen islamischen Recht.” Das Standesamt, 2001, 193–207. Roth, Venla. Defining Human Trafficking and Identifying its Victims: A Study on the Impact and Future Challenges of International, European and Finnish Legal Responses to Prostitution-Related Trafficking in Human Beings. Leiden: Martinus Nijhoff Publishers, 2012. Rudolf, Beate, and Chinkin Christine M.. “Preamble.” In The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, edited by Rudolf Beate, Freeman Marsha A., and Chinkin Christine M., 35–39. Oxford: Oxford University Press, 2012. Rushd, Ibn. The Distinguished Jurist’s Primer (Bidayat Al-Mujtahid Wa Nihayat AlMuqtasid). Translated by Nyazee Imran Ahsan Khan. Vol. 2. Reading: Garnet, 2000. Ryan Goodman. “Human Rights Treaties, Invalid Reservations, and State Consent.” American Journal of International Law 96 (2002): 531–60. Salah, Hoda. “Die Revolution in Ägypten als Bruch mit den Patriarchalischen Strukturen vom Staat bis in die Familie.” In Arabischer Frühling? Alte Und Neue ­Geschlechterpolitiken in Einer Region Im Umbruch, edited by Filter Dagmar, Reich Jana, and Fuchs Eva, 154–60. Freiburg im Breisgau: Centaurus Verlag & Media, 2015. Salsecci, Gianluca, Eskander Emil, and Frigoli Giancarlo. “Egypt’s Economic Reform Agenda. A New Path for Growth.” Med&Gulf Initiative Bullettin – Special Edition, 5 (2015): 18. Schabas, William. The European Convention on Human Rights: A Commentary. Oxford: Oxford University Press, 2015. Schacht, Joseph. An Introduction to Islamic Law. Oxford: Clarendon Press, 1964. Schmidt, Philipp Maximilian. Meinungsfreiheit und Religion im Spannungsverhältnis: Eine rechtsvergleichende Untersuchung zwischen Deutschland, Malaysia und den USA. Wiesbaden: Springer-Verlag, 2015. Schooley, Kimberly Younce. “Cultural Sovereignty, Islam, and Human Rights – Towards a Communitarian Revision.” Columbia Law Review 25 (1994): 651–704. Schöpp-Schilling, Hanna-Beate. “Das Frauenrechtsübereinkommen – Ein wirksames Instrument für die Weltweite Gleichberechtigung.” In Menschenrechtsschutz in der Praxis Der Vereinten Nationen, edited by Riedel Eibe H., Schaefer Michael, and Baum Gerhart Rudolf, 155–65. Baden-Baden: Nomos, 1998. Schöpp-Schilling, Hanna-Beate, and Flinterman Cees. The Circle of Empowerment: Twenty-Five Years of the UN Committee on the Elimination of Discrimination against Women. New York: Feminist Press at City University of New York, 2007. Shaikh, Saʾdiyya. “Exegetical Violence: Nushuz in Quranic Gender Ideology.” Journal for Islamic Studies 17 (1997): 49–73.

Bibliography

221

Shaw, Malcolm N. International Law. 7th ed. Cambridge: Cambridge University Press, 2014. Sherif, Adel Omar. “Generalities on Criminal Procedure under Islamic Shariʾa.” In ­Criminal Justice in Islam: Judicial Procedure in the Sharīʿa, edited by ʿĀdil ʿUmar Sharīf M.A. Abdel Haleem, and Daniels Kate, 3–17. London: I.B. Tauris, 2003. Sika, Nadine. “The Millennium Development Goals: Prospects for Gender Equality in the Arab World.” Journal of International Women’s Studies 12, no. 3 (March 2011): 27–42. Simma, Bruno. “Reservations to Human Rights Treaties – Some Recent Developments.” In Liber Amicorum: Professor Ignaz Seidl-Hohenveldern in Honour of His 80th B ­ irthday, edited by Loibl Gerhard, Hafner Gerhard, Rest Alfred, Zemanek Karl, and Sucharipa-Behrmann Lilly, 659–82. The Hague: Kluwer Law International, 1998. Simms, Shelley. “What’s Culture got to do with It? Excising the Harmful Tradition of Female Circumcision.” Harvard Law Review 106 (1993): 1944–61. Skaine, Rosemarie. Female Genital Mutilation: Legal, Cultural, and Medical Issues. ­Jefferson: McFarland, 2005. Sonneveld, Nadia. Khulʿ Divorce in Egypt: Public Debates, Judicial Practices, and Everyday Life. Cairo: American University in Cairo Press, 2012. Stacy, Helen. Human Rights for the 21st Century: Sovereignty, Civil Society, Culture. Stanford: Stanford University Press, 2009. Stamatopoulou, Elsa. Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and beyond. Boston: Martinus Nijhoff Publishers, 2007. Steiner, Henry J., Alston Philip, and Goodman Ryan. International Human Rights in Context: Law, Politics, Morals. 3rd ed. Oxford: Oxford University Press, 2008. Stilt, Kirsten. “‘Islam is the Solution’: Constitutional Visions of the Egyptian Muslim Brotherhood.” Texas International Law Journal 46 (2011): 73–108. Tadros, Mariz. “Egypt Country Report.” In Women’s Rights in the Middle East and North Africa: Progress amid Resistance, edited by Kelly Sanja and Breslin Julia, 89–120. New York: Rowman & Littlefield Publishers, 2010. The Advocates for Human Rights. “Developing Legislation on Violence against Women and Girls,” 2011. Available at: http://www.endvawnow.org/uploads/modules/ pdf/1355776748.pdf (last accessed 16 August 2017). The World Bank, “Gender Assessment 2010 – Arab Republic of Egypt: Narrowing the Gap – Improving Labor Market Opportunities for Women in Egypt” Washington DC, 2010. Available at: http://siteresources.worldbank.org/INTMENA/Resources/ Gender-pub.pdf (last accessed 16 August 2017). The World Bank. “World Development Report 2012.” Washington DC, 2011. Available at: http://elibrary.worldbank.org/doi/book/10.1596/978-0-8213-8810-5 (last accessed 16 August 2017).

222

Bibliography

The World Justice Project. “World Justice Project Rule of Law Index 2016 Report.” Washington DC, 2016. Available at: https://worldjusticeproject.org/sites/default/files/ documents/RoLI_Final-Digital_0.pdf (last accessed 16 August 2017). Tomuschat, Christian. Human Rights between Idealism and Realism. 2. ed. Oxford: ­Oxford University Press, 2008. Tomuschat, Christian. International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law. The Hague: Martinus Nijhoff Publishers, 2001. Toubia, Nahid. “Female Circumcision as a Public Health Issue.” New England Journal of Medicine 331, no. 11 (1994): 712–16. Dahl Tove Stang. The Muslim Family: A Study of Women’s Rights in Islam. Oslo: Scandinavian University Press, 1997. Trew, Bel. “Breaking the Silence: Mob Sexual Assault on Egypt’s Tahrir.” Ahram Online, 07.03.2012. Available at: http://english.ahram.org.eg/NewsContentPrint/1/0/46800/ Egypt/0/Breaking-the-silence-Mob-sexual-assault-on-Egypts-.aspx (last accessed 16 August 2017). Tucker, Judith E. In the House of the Law, Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of Carlifornia Press, 1998. Tucker, Judith E. Women, Family, and Gender in Islamic Law. Cambridge: Cambridge University Press, 2008. United Nations Department of Economic and Social Affairs (DESA) – Division for the Advancement of Women (DAW). Handbook for Legislation on Violence Against Women. New York, 2010. Available at: http://www.un.org/womenwatch/daw/vaw/ handbook/Handbook%20for%20legislation%20on%20violence%20against%20 women.pdf (last accessed 16 August 2017). United Nations Development Programme (UNDP). “Human Development Report 2015.” New York, 2015. Available at: http://hdr.undp.org/en/2015-report (last accessed 16 August 2017). United Nations Development Programme (UNDP). “Summary Report of the Mid-Term Evaluation and Documentation Report on the National Council for Childhood and Motherhood’s ‘FGM-Free Village Project’.” Egypt, 2006. Available at: http://erc .undp.org/evaluationadmin/downloaddocument.html?docid=2141 (last accessed 16 August 2017). United Nations Development Programme (UNDP) – Regional Bureau for Arab States. “Arab Human Development Report – Towards the Rise of Women in the Arab World.” Amman, 2005. Available at: http://www.arab-hdr.org/publications/other/ ahdr/ahdr2005e.pdf (last accessed 16 August 2017). United Nations Fund for Population Activities (UNFPA). “Implementation of the ­International and Regional Human Rights Framework for the Elimination of Female Genital Mutilation.” New York, 2014. Available at: https://www.unfpa.org/ sites/default/files/pub-pdf/FGMC-humanrights.pdf (last accessed 16 August 2017).

Bibliography

223

United Nations Office on Drugs and Crime (UNODC). “Anti-Human Trafficking Manual for Criminal Justice Practioners.” New York, 2009. Available at: https://www .unodc.org/unodc/en/human-trafficking/2009/anti-human-trafficking-manual .html (last accessed 16 August 2017). United Nations Population Information Network (POPIN), United Nations Population Division (UNDP), Department of Economic and Social Affairs (DESA), and United Nations Fund for Population Activities (UNFPA). “Guidelines on Reproductive Health for the UN Resident Coordinator System,” 1994. Available at: http://www .un.org/popin/unfpa/taskforce/guide/iatfreph.gdl.html (last accessed 16 August 2017). United States Department of State – Bureau of Public Affairs. “Trafficking in Persons Report 2014.” Washington DC, 2014. Available at: http://www.state.gov/j/tip/rls/ tiprpt/countries/2014/226716.htm (last accessed 16 August 2017). United States Department of State – Bureau of Public Affairs. “Trafficking in Persons Report 2015.” Washington DC, 2015. Available at: http://www.state.gov/j/tip/rls/ tiprpt/2015/ (last accessed 16 August 2017). Vandenhole, Wouter. The Procedures before the UN Human Rights Treaty Bodies. ­Antwerp: Intersentia Publishing Ltd, 2004. Varennes, Fernand de. “The Fallacies in the ‘Universalim versus Relativism’ Debate in Human Rights Law.” Asia-Pacific Journal on Human Rights and the Law 7 (2006): 67–84. Wadud, Amina. Qurʾan and Woman: Rereading the Sacred Text from a Woman’s Perspective. New York: Oxford University Press, 1999. Walter, Christian. “Article 19 VCLT.” In The Vienna Convention on the Law of Treaties: A Commentary, edited by Corten Olivier, Klein Pierre, Corten Olivier, and Klein Pierre, 239–87. Oxford: Oxford University Press, 2011. Welchman, Lynn. “Criminal Law: Overview.” In Encyclopaedia of Women and Islamic Cultures Vol. II: Family, Law and Politics, edited by Joseph Suad and Najmabadi ­Afsaneh, 399–402. Leiden: Brill, 2003. Welchman, Lynn. “Egypt: New Deal on Divorce.” In The International Survey of Family Law, edited by Bainham Andrew, 123–41. The Hague: Martinus Nijhoff Publishers, 2004. Welchman, Lynn. “Honour and Violence against Women in a Modern Sharʾia Discourse.” Hawwa Journal of Women of the Middle East and the Islamic World 5 (2007): 139–65. Welchman, Lynn, and Hossain Sara. “Honour”: Crimes, Paradigms & Violence Against Women. London: Zed Books, 2005. Wiesbrock, Anja. “Equal Employment Opportunities and Equal Pay: Measuring EU Law against the Standards of the Women’s Convention.” In The Women’s Convention Turned 30: Achievements, Setbacks and Prospects, edited by Westendorp Ingrid, 417–34. Cambridge: Intersentia Publishing Ltd, 2012.

224

Bibliography

World Economic Forum. “The Global Gender Gap Report 2015.” Switzerland, 2015. Available at: http://www3.weforum.org/docs/GGGR2015/cover.pdf (last accessed 16 August 2017). World Health Organization. “Eliminating Female Genital Mutilation. An Interagency Statement – OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, ­U NICEF, UNIFEM, WHO,” 2008. Available at: http://www.who.int/­ reproductivehealth/publications/fgm/9789241596442/en/ (last accessed 16 August 2017). World Health Organization. “Men’s and Women’s Perceptions of the Relationship between Female Genital Mutilation and Women’s Sexuality in Three Communities in Egypt.” Egypt: 2010. Available at: http://apps.who.int/iris/bitstream/10665/70468/1/ WHO_RHR_HRP_10.17_eng.pdf (last accessed 16 August 2017). Wynn, L.L. Pyramids and Nightclubs: A Travel Ethnography of Arab and Western Imaginations of Egypt, from King Tut and a Colony of Atlantis to Rumors of Sex Orgies, Urban Legends about a Marauding Prince, and Blonde Belly Dancers. Austin: University of Texas Press, 2007. Youinou, Gary. “Egypt: Risk and Compliance Report.” Know your Country, 2015. Available at: http://www.knowyourcountry.com/files/egyptamlreportaug2014_3_.pdf (last accessed 16 August 2017). Zaunbrecher, Katie L. “When Culture hurts: Dispelling the Myth of Cultural Justification for Gender-based Human Rights Violations.” Houston Journal of International Law 33, no. 3 (2011): 679–715. Zuhur, Sherifa. “Considerations of Honor Crimes, FGM, Kidnapping / Rape and Early Marriage in Selected Arab Nations.” In Expert Paper prepared for the United Nations Expert Group Meeting on Good Practices in Legislation to Address Harmful Practices against Women. Addis Ababa, 25.-27.05.2009. Available at: http://www.un.org/­ womenwatch/daw/egm/vaw_legislation_2009/Expert%20Paper%20EGMGP (last accessed 16 August 2017).

Websites Links and Newspaper Articles Abdel Wahab, Mohamed S.E. An Overview of the Egyptian Legal System and Legal R ­ esearch, October 2012. Available at: http://www.nyulawglobal.org/globalex/Egypt1 .html (last accessed 16 August 2017). Aboulenein, Ahmed. “Egypt issues NGO law, cracking down on Dissent.” Reuters. 29.05.2017. Available at: http://news.trust.org/item/20170529161110-pbb0o (last accessed 16 August 2017). Al-Azhar University, International Islamic Center for Population Studies and Research. “Final Communique and Recommendations, Based on Highlights, Papers, Discussions and Recommendations of the International Conference on ‘Population and Reproductive Health in the Muslim World’, February (21–24), 1998.” Cairo: 1998. Available at: http://www.ncbi.nlm.nih.gov/nlmcatalog/101081139 (last accessed 16 August 2017). Allam, Rana. “On Women in Egypt: Equality Doesn’t Mean Justice.” Daily News Egypt. 24.02.2014. Available at: http://www.dailynewsegypt.com/2014/02/24/women-egypt -equality-doesnt-mean-justice/ (last accessed 16 August 2017). Amnesty International. “Egypt: Gender-Based Violence against Women around Tahrir Square.” London: 2013. Available at: http://www.refworld.org/docid/5114e69f2.html (last accessed 16 August 2017). Bains, Inderdeep. “Day of Shame in the Middle East: Female Protesters beaten with Metal Poles as Vicious Soldiers Drag Girls through Streets.” Daily Mail Online, 18.12.2011. Available at: http://www.dailymail.co.uk/news/article-2075683/Egypt -violence-Female-protesters-brutally-beaten-metal-poles-vicious-soldiers.html (last accessed 16 August 2017). Bundesverfassungsgericht.  Available at: http://www.bverfg.de/e/re20091104_1bvr215008 .html (last accessed 16 August 2017). Burleigh, Nina. “Opinion: Gang Rapes, the Dark Side of Egypt’s Protests.” CNN, 07.03.2013. Available at: http://www.cnn.com/2013/07/03/opinion/burleigh-rapes -tahrir-square/index.html (last accessed 16 August 2017). Dar Al-Ifta. “Islam and Modernity.” Available at: http://eng.dar-alifta.org/foreign/­ ViewArticle.aspx?ID=6&text=Islam%20and%20modernity (last accessed 16 August 2017). Dar Al-Ifta. “The Islamic View on Female Circumcision.” Available at: http://eng.dar -alifta.org/foreign/ViewArticle.aspx?ID=125&text=FGM (last accessed 16 August 2017).

226

Websites

Dar Al-Ifta. “Through Its Participation in the Activities of the “National Day Against FGM” in Cairo.” Available at: http://eng.dar-alifta.org/foreign/ViewArticle .aspx?ID=254&text=fgm (last accessed 16 August 2017). Egypt’s Central Agency for Public Mobilization and Statistics (CAMPAS). Available at: http://www.capmas.gov.eg/ (last accessed 16 August 2017). Egyptian government. Available at: http://www.sis.gov.eg/En/Templates/Articles/­ tmpArticles.aspx?CatID=206#.VqDFW1N97dQ (last accessed 16 August 2017). Egyptian Initiative for Personal Rights. “Background on Case No. 173 – the ‘Foreign Funding Case’ Imminent Risk of Persecution and Closure.” 21.03.2016. Available at: https://eipr.org/en/press/2016/03/background-case-no-173-%E2%80%9Cforeign -funding-case%E2%80%9D (last accessed 16 August 2017). Egyptian Streets. “More than 22 Million Egyptians live in Poverty: Report.” Available at: http://egyptianstreets.com/2014/07/13/more-than-22-million-egyptians-live-in -poverty-report/ (last accessed 16 August 2017). Egyptian Streets. “More than 25% of Egypt’s Population “Illiterate”.” Available at: http:// egyptianstreets.com/2014/09/09/more-than-25-of-egypts-population-illiterate/ (last accessed 16 August 2017). European Union Observatory on Democracy Citizenship. “New Policy on Egyptian Citizenship for Children of Palestinian Fathers,” 2011. Available at: http:// eudo-citizenship.eu/citizenship-news/530-new-policy-on-egyptian-citizenship -for-­children-of-palestinian-fathers (last accessed 16 August 2017). German Criminal Code. Available at: http://www.gesetze-im-internet.de/englisch _stgb/englisch_stgb.html#p1241 (last accessed 16 August 2017). Hayoun, Massoud. “Egypt Court Jails Doctor in ‘Historic’ FGM Prosecution.” Aljazeera America, 26.01.2015. Available at: http://america.aljazeera.com/articles/2015/1/26/ egypt-sentences-doctor-father-in-fgm-case-equality-now.html (last accessed 16 ­August 2017). Hessler, Peter. “Egypt’s Failed Revolution.” In The New Yorker. 02.01.2017. Available at http://www.newyorker.com/magazine/2017/01/02/egypts-failed-revolution (last accessed 16 August 2017). Kingsley, Patrick. “80 Sexual Assaults in One Day – the Other Story of Tahrir Square.” The Guardian, 07.05.2013. Available at: http://www.theguardian.com/world/2013/jul/05/ egypt-women-rape-sexual-assault-tahrir-square (last accessed 16 August 2017). Leila, Reem. “Citizenship Costs Less.” Al Ahram Weekly Online, 09.08.2006, Issue 806 edition. Available at: http://weekly.ahram.org.eg/Archive/2006/806/eg4.htm (last accessed 16 August 2017). Malaysian Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace from 1999. Available at: http://www.ilo.org/dyn/travail/docs/1627/ CODE%20OF%20PRACTICE%20ON%20THE%20PREVENTION%20AND%20

Websites

227

ERADICATION%20OF%20SEXUAL%20HARASSMENT%20IN%20THE%20 WORKPLACE.pdf (last accessed 16 August 2017). Michael, Maggie. “In Egypt, Marriages or Prostitution? Law: Foreigners Pay Dowries to Families in Exchange for Their Daughters, Who Are Later Abandoned.” Los Angeles Times. 29.08.1999. Available at: http://articles.latimes.com/1999/aug/29/business/fi4706 (last accessed 16 August 2017). Nazra for Feminist Studies, and Center for Egyptian Women’s Legal Assistance (­C EWLA). “‘Qanun Nashaz’ A Campaign on the Legal Issues Associated with ­Violence against Women in both Public and Private Spheres.” Cairo, 9.12.2014. Available at: http://nazra.org/en/2014/12/%E2%80%9Cqanun-nashaz%E2%80%9D -campaign-legal-issues-associated-violence-against-women-both-public-and (last accessed 16 August 2017). Office of the High Commissioner for Human Rights. “The Egyptian NGO Bill threatens to ‘devastate’ Civil Society, UN Expert warns,” Geneva, 23.11.2016. Available at: http:// www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20920 (last accessed 16 August 2017). The Inside Story on Emergencies (IRIN). “EGYPT: Minors Sold for Prostitution under Guise of Marriage,” 16.11.2006. Available at: http://www.irinnews.org/report/61947/ egypt-minors-sold-prostitution-under-guise-marriage (last accessed 16 August 2017). UN Women. “UN Egypt calls for Firm Stand on Violence against Women,” 11.06.2014. Available at: http://www.unwomen.org/en/news/stories/2014/6/new-anti-sexual -harassment-law-in-egypt (last accessed 16 August 2017). United Nations Children’s Emergency Fund (UNICEF). “Egypt Programme Profile: Education,” 2012. Available at: http://www.unicef.org/egypt/education.html (last accessed 16 August 2017). United States Law Library of Congress. “Legal Research Guide: Egypt,” 6 September 2015, Available at: http://www.loc.gov/law/help/legal-research-guide/egypt.php (last accessed 16 August 2017). Women’s Learning Partnership for Rights, Development and Peace. “Claiming Equal Citizenship,” 29.10.2010. Available at: http://www.learningpartnership.org/­ citizenship (last accessed 16 August 2017). Women’s Learning Partnership for Rights, Development and Peace, “Post-Revolution, Egypt Establishes Right of Women Married to Palestinians to pass Nationality to Children,” (13.05.2011). Available at: http://www.learningpartnership.org/lib/post -revolution-egypt-establishes-right-women-married-palestinians-pass-nationality -children-1. (last accessed 16 August 2017). World Health Organization: “Reproductive Health,” 20.02.2015. Available at: http:// www.who.int/topics/reproductive_health/en/ (last accessed 16 August 2017).

Index Al-Azhar 22, 105, 109, 125 Anti-Human Trafficking Law 140–151 Article 2 142, 146 Article 3 142, 147 Article 5 142, 148–149 Article 10 142, 148–149 Article 12 143 Child’s Act 126–128, 143–144 Child custody 83, 87, 132 Child support 87, 94, 132, 156 Committee on Economic Social and Cultural Rights General Comment No. 12 13n14 General Comment No. 18 114, 164n357 Committee on the Elimination of Discrimination Against Women 11–12, 22–24 Concluding observations Egypt 51n3, 68n93, 76n140, 99n281, 114n75, 127n152, 131n172, 157n312, 164n361, 174n413, 178n428, 179n429, General Recommendation No. 3 113n68 General Recommendation No. 4 44 General Recommendation No. 13 170 General Recommendation No. 14 24n86, 118 General Recommendation No. 19 24n87, 53–54, 120–121, 134, 136, 169 General Recommendation No. 20 44 General Recommendation No. 21 24n88 General Recommendation No. 23 24n89 General Recommendation No. 24 114n73 General Recommendation No. 25 13n15 General Recommendation No. 28 32n23 General Recommendation No. 31 13n20, 119n104, 120n112, 124 Committee on the Rights of the Child 114, 119 General Comment No. 18 114n70 Commission on the Status of Women 24–25 Constitution 1971 5, 101–103 Constitution 2012 5, 103–106 Constitution 2014 2, 5, 19–20–23, 71–72, 100, 106–110 Article 2 109

Article 6 108, 161–163 Article 7 109 Article 11 107–108, 160, 178 Article 40 160 Article 53 107 Article 80 141 Article 89 141 Convention on the Elimination of Discrimination Against Women Article 2 31–32, 50–52, 110, 118–122 Article 5 110, 122–125, 179 Article 6 129–130, 133–141 Article 9 151–152, 154–158 Article 11 164, 167–179 Article 12 110, 114–118 Article 16 32–33, 77–79 Convention on the Rights of the Child 131n172, 140n240, 153n279 Corruption 193–195 Cultural Relativism vs. Universalism 46–49, 197n47, 195–198 Customary international law 40–46 Customary marriages 70, 89, 131 Declaration on the Elimination of Violence Against Women 52n7, 53 Divorce 77–96, 186 ʿismah 81, 89 khulʿ 81, 93–94 talaq 80, 88 tatliq 82, 89–93 Domestic violence 51–77, 185–186 Honor killing 57–62, 67–72 Marital rape 65–66, 74–75 Wife battery 62–65, 73–74 Dowry (mahr) 79, 82, 87–89, 93, 130–133 Education 2, 124–125, 132, 139, 154, 194–195 Effectiveness of the Women’s Convention / Weaknesses 187–188 Fatwa 16, 22, 126 Female Genital Mutilation 6, 110–129, 182 fgm-free village Project 127–128, 180, 182

229

Index Fourth World Conference on Women (Beijing Conference) 53, 114n70 Gender Gap 166, 179n430, 195n30, 179, 195 Gender roles / stereotypes / social stigmas / traditions / customs 116, 120, 122–125,  156, 166, 174, 179–180, 189–198 Guardianship in marriage 18n57, 32, 86 Hanafi school of thought 16–17, 63–65, 79–83 Hanbali school of thought 16–17, 63–65, 79–83 Honor killing (see domestic violence) Human Rights Council 24–25, 122n124, 128n162, 192n15 General Comment No. 24 41n74, 42 Ijtihad 18 16–18, 97 Illiteracy 195 Impact of the Women’s Convention 188–193 Implementation De jure vs. de facto 128–129, 150–151, 163–164, 178–180, 181–184 International Court of Justice Fisheries Jurisdiction case (United Kingdom v. Iceland) 26n1 Namibia case, Advisory Opinion 26n1 Nottebohm Case (Lichtenstein vs. Guatemala) 152n277 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case, Advisory Opinion 29n7, 10, 42n81 International Covenant on Civil and Political Rights 10, 11n6, 49n134, 153n279 International Covenant on Economic and Social Rights 10, 11n6, 153 International Law Commission 29–35, 40, 43 Islamic Feminism 18 Khulʾ (see divorce) Labor law 164–181, 183 Maintenance / alimony 35, 82–96, 132 Maliki school of thought 16–17, 63–65, 79–83

Marital rape (see domestic violence) Marriage 86–87 Marriage age 86 Multilayered State obligation 12–13, 117–118, 138–140, 157–158 National Coordination Committee on Preventing and Combatting Human Trafficking 140 National Council for Women 3n5, 98n279, 101, 108, 102n6, 160, 173–174, 184 National Council for Childhood and Motherhood 127, 128n159, 131n172, 150–151 National Plan of Action Against Human Trafficking 144–146 Nationality Law 152–164, 183 Non-governmental Organizations / Civil ­society 7, 23, 25, 130n169, 140, 145, 160,  177, 189–193 ngo Law 191–193 Obedience / nushuz 62n60, 63–65, 77, 87, 92 Obstacles to the Women’s Convention’s effective implementation 193–198 Patriarchy (see gender roles) Penal Code / Criminal Code Article 17 69–71 Article 237 67–68 Article 240 73 Article 267 74–75 Article 274 72 Article 277 72 Article 291 143–144 Article 306bis 178 Personal Status Law (see divorce) Polygamy 85n209, 87, 92, 95 Poverty 132, 139, 147, 149, 165–166, 170, 183, 193–195 Quran 16–19, 55–56, 80, 96 Quota 169 Revolution 1–2, 5, 103–107, 131, 150, 162, 180, 191 Reservations 4, 13–15, 26, 185 Integrity vs Universality 4, 14–15, 29–30, 40–41, 188 Legal effect 38–46

230

Index

Object and purpose 29–38 Permissibility 28–38 Severability 42–44 Sharia-based 3, 34–38, 46–49, 185 Rule of Law 193–195

Treaty monitoring bodies (see cedaw Committee, Committee on Economic Social and Cultural Rights, Committee on the Rights of the Child, Human Rights Council)

Sexual harassment 177–178 in the workplace 175–178 Shafiʾi school of thought 16–17, 63–65, 79–83 Shariʾa 16–19, 55–66, 79–83, 103–106, 109, 125–126 State party obligation 12–13, 50–52, 77–79, 100–101, 113–125, 133–140, 154–158, 167–178 Summer marriage / Trafficking in ­Women 6, 129–151, 182–183 Sunnah 16–19, 55–56, 61n58, 80, 96 Supreme Constitutional Court 19, 22, 103, 105–106

United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 134 Universal Declaration of Human Rights 10, 47–48, 197n48 Usual al-fiqh 16–18

Trafficking in Women (see summer marriage)

Vienna Convention of the Law of Treaties 8, 27–39 Violence against women, see domestic violence Waiting period (iddah) 75, 79, 80, 87–88, 96, 132n181 Wife battery (see domestic violence)