Exhaustion of Domestic Remedies: CEDAW

Convention on the Elimination of All Forms of Discrimination against Women

Introduction


The Convention on the Elimination of All Forms of Discrimination against Women, CEDAW was adopted by the General Assembly in 1979 and had 165 states parties as of January 2000. The Convention seeks to address pervasive social, cultural and economic discrimination against women, declaring that states should endeavour to modify social and cultural patterns of conduct that stereotype either sex or put women in an inferior position. It also declares that states should ensure that women have equal rights in education and equal access to information; eliminate discrimination against women in access to health care; and end discrimination against women in all matters relating to marriage and family relations. The Convention declares that states must act to eliminate violations of women's rights whether by private persons, groups or organizations.
The Convention sets clearer definitions and standards than the earlier covenants with respect to gender equality and expands the protections against discrimination. In particular, it recognizes that because socially defined gender roles differ, provisions against discrimination and abuse cannot simply require equal treatment of men and women; there must be a more positive definition of responsibilities that applies appropriate rights standards to all. The Convention recognizes the need to examine rules and practices concerning gender in society to make sure that they do not weaken rights guarantees ensuring the equality of the two sexes in all aspects of their lives.

Nearly all states Except Afghanistan, Iran, Brunei, Monaco, Somalia, Sudan, Swaziland, United Arab Emirates and the United States - have ratified the Convention on the Rights of the Child, making it a strong tool for holding governments accountable on human rights issues. In addition to upholding specific rights of children, this Convention, adopted in 1989, deals more broadly with gender relations. It reaffirms, for example, the right to family planning services, recognized by prior conventions and conferences.

Article 24 obligates states "to ensure appropriate prenatal and post-natal health care for mothers". It also calls on them to take "all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children"; this is an explicit recognition of the deleterious effects of such practices as female genital mutilation. Article 34 says that states must "undertake to protect the child from all forms of sexual exploitation and sexual abuse". Article 17 states that the child should have access to information "aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health".
Applying the Convention, the Committee on the Rights of the Child has, for example: recommended that specific laws be enacted and enforced to prohibit FGM (1997); called on Kuwait to take action to prevent and combat early marriage (1998); and called on Mexico to raise and equalize the minimum legal ages for marriage of boys and girls (1999).


Exhaustion of Domestic Remedies


The exhaustion of domestic remedies is one of the most important procedural aspects of the Human Rights Convention. Under Article 1 of the Human Rights Convention, State is under an obligation to 'secure' its rights and freedom to everyone within its jurisdiction. The obligation includes the duty to have a legal framework in place to secure those rights. Article 35 reflects the general rule of international law that recourse may not be had to international tribunals unless and until every possible avenue of national redress has been tried and failed. To this end, Iranian legislators of the sixth Parliament have been reviewing the CEDAW for its compatibility to Constitutional laws in order to use domestic remedies to address discrimination against women. The ratification of CEDAW has been hampered by hardliners due to the fact that they are of opinion that in Islam, basic human rights of women are not similar to that of men. Subsequently the Constitution can not respond to the demands made by the CEDAW upon signatories as it explicitly calls on member governments to devise penalties for those who perpetrate discrimination against women.

CEDAW Article 1: Explaining discrimination against women

The Constitution of the Islamic Rep of Iran gives women following position: 'women, because they have suffered greater oppression under the regime of the Taghoot (the Shah's Regime) will deserve greater restoration of their rights.' Article 21 of the Iranian Constitution declares that 'the State is duty-bound to guarantee the rights of women in all areas while upholding Islamic criteria...' and: 'to adopt the necessary measures in order to prepare the ground for the elevation and development of the personality of women and revival of their material and spiritual rights.'

I will argue this very basic statement of the State as manipulation of the realities surrounding the life of Iranian women. The fact that women have had higher and more human social standing before the Islamic establishment is undeniable. I suspect the authorities of Islamic establishments having examined and adopted their proposed measures to redress the personality of women in their accepted frameworks should be more realistic in using the discourse while facing with serious social deviations, corruption, and degradations that have filled the essence of women's lives in Iran.

Decline of social capital has created serious consequences in the country to the point that national statistical indicators reflecting the number of escaped women from home, prostitution and wide spread poverty as its highest level ever. The fact that the radical rulers in Iran have been enforcing the Islamic fundamentalism into women's lives at all political, economic, social and cultural levels - that have forged different destiny for Iranian women ever since and has been the cause of much misery. The Islamic fundamentalism proves to be a political movement with a political ideology that considers women inherently inferior in intellectual and moral capacity. Contradictory to what is stated in the Constitution, the Islamic regime in Iran has implemented rules and regulations that has shadowed women’s life. This version of interpreting Islam stems out of dominant masculine fundamentalism that its existence depends on women’s lack of awareness and education, to abide and play passively the role that is disgnated to them. The Iranian Constitution rooted in Islamic jurisprudence emphasis the equal rights of men and women before the law. However, this principle of equality is unequivocally subordinate to Principle 4:'All civil, criminal, finacial, economic, administrative, cultural, minitary, political and similar laws and regulations must be based on Islamic criteriea. The fact that this article has precedence over all and every other articles of the constitution and dicerning this rests with radical members of the Guardian council', have in practice contradicted with the rights of women in all areas of her life. This is basically due to the fact that equality before the law, where the Islamic Shari'a laws assigns subordinate position for women, does not necessarily means equal rights for both men and women. Despite the paradoxical phrases of equality under the law, in practice men and women have different rights and responsibilities in certain situations, primarily due to the differential roles assigned to them under Islamic Law. The equality in principle repeatedly endorsed by the Constitution has been circumscribed by Islamic criteria. The distinctions between the rights of men and women under Islamic law are reflected in Iran's internal laws. Hence, positions such as Leader, Members of the Council of Guardians, the President, heads of the Judiciary and Supreme Court, Judgement and religious leader are exclusive to moslem men either explicitly as in the case of the presidency, or implicitly through applicatoin of the term mojtahed (learned clergy).

The Civil Law and other domestic laws also shown evidence of such distinctions. While the intent of the Constitution is to give equal rights to men and women, since these rights are based on Islamic jurisprudence they are unequal. Such as:

1) Clause 6 of Article 976 of Civil Law states that every foreign woman who marries Iranian man will be given Iranian nationality. On the contrary Iranian woman is not free to marry foreign man, she is obliged to initialy obtain her father's concession, and then the approval of the state by a legal paper from the Governement. The Clause No 1060 Civil Code of Iran declares In order for an Iranian woman to marry a foreign citizen, official authorization must first be obtained from the Government of Iran, the authorization is called 'marriage permit'. Without this permission the marriage is not considered legal under the Iranian law. The Head of a Family Court pointed out that this clause has been added for the safety and security of Iranian women and their protection, to think twice about getting married to foreign nationals. According to Iranian civil law any foreign man who marries an Iranian woman without the proper Marriage Permission, will be convicted to 1 to 3 years imprisonment. None of the mentioned laws are applied and effective for Iranian men, being free to choose their partners; since it appears that contrary to women they are mature individuals who can wisely decide for themselves. As such, as an Iranian girl apart from her father who owns her life and spirit, the Government interfering into her family affairs is an inseparable part of the life. Further more, Iranian woman married to foreign national not only will not provide him new nationality but also might loose her own civil status which might result in loss of her nationality in favor of her spouse's nationality, as stated in Clause 987 she will loose her nationality. The foreign woman who has obtained Iranian nationality through marriage, is able to return to her own nationality in case of her spouse death, unless her child is still under 18. In that case she is not allowed to return to her original nationality until her child reaches the legal age.

2) Men as spouse must authorize - by providing legal signature - for his wife to travel or applies for the issuance of travel document and passport. For girls under 18 the authorisation is designated to the father instead of husband. Additionaly girls at any age must obtain the concession of the father for her first marriage according to the Act 1043 of Civil Law; however the opinion of her mother does not have any legitimate effects, and her concession is not required. In terms of travel within the country according to the Clause 1114 of Civil Law, it is for man to decide for woman's place of home. In the case of women travelling inside the country, although she might not need legal authorisation, however, she has to obtain the concession of her husband or father to leave the house.

3) According to Islamic law, women are entitled to own material goods and property to be registered under their name. However, the assets accumulated during the marriage period are considered the property of man and she does not have any legal rights to claim otherwise unless she has clearly requested and added in her marriage documents prior to the marriage ceremony which is unlikely any man agrees to such condition, since they are granted, according to the Constitution, as the 'sole' bread winners of the family. Demographic composition indicate that 65 percent of Iranian women are housewives (Iran Statistic Center, 2002), this population are not entitled to any income or social security measures unless the husband applies for her.

CEDAW Article 2: Obliging States to take concrete steps to eliminate discrimination against women.

1) Article 20 of the Constitution states:'all members of the nation, men and women are equally under the protection of the law and enjoy full human, political, economic, social and cultural rights in accordance with the criteria of Islam.' However, equality of women and men before the law does not necessarily remove existing discrimination against women, since domestic laws give unequal rights to men and women, such as the inheritance law. A wife inherits only one eight of the estate of her deceased husband and does not have the right ot inherit the land on which a building is built. In contrary, the husband of a deceased woman inherits half of her estate.

2) Article 881 of the Civil Code, in effect, provides:' an unbeliever (non-moslem) does not take inheritance from a Muslim and if there are unbelievers among the heirs of a deceased unbeliever, the unbelieving heirs do not take inheritance even if they have closer affinity to the muslim. Therefore if a Zoroastrian dies, according to his religion, his property will be divided among his heirs. But if one member of his family has converted to Islam, no matter how far is the family relationship he will inherit all the deceased person's property according to the Law of Islamic Republic of Iran. Conversely, in the case of a muslim person passing away, only the muslim heirs will inherit, and if there is no muslim heir all the property will go to the Government.

3) According to Iranian laws, the father or paternal grandfather are designated obligatory custodians by religion of underage children and this custody is absolute. Article 1169 of child custody laws amended in December, 2003. Under the new provision the custody of children both boys and girls go the mother up to the age of seven as opposed to the previous law which granted boys to mothers up to the age of 2 only and girls up to the age of seven. There was bickering between the Parliament and the Guardian Council over the incompatibility of the provisions within the proposed amendment with the Sharia laws, and the bill was twice blocked by the guardian Council in the past. The Expediency Discernment Council resolved the differences and the law was passed. This is a step in the right direction in reviewing inadequacies in laws. A clause in this law states that the custody from the age of seven on is left to the judge to decide, so mothers may have a greater chance to gain custody after the stated age in the provision. Child custody laws are still inadequate in so far as proving the unsuitability of the father is extremely difficult unless in extreme cases of criminal behavior and irreparable addiction. Women still lose the custody battle and are torn away from their children on a daily basis. The child's financial management is on father and grand father where the mother has no rights on her child's asset even on those properties that she handed over to her child.

4) The right of the husband to divorce his wife with out bringing up any reason and loss of the right of a divorced woman to child custody if she remarries are among major discriminations in internal laws. Legal codes tend to legitimize patriarchy by granting men the right to divorce their wives whenever they choose. The reality for Iranian women is that the husband will remain with her out of the pitty through the old age.This has been the cause of insecurity for women, since she is totally independant on her husband for livlihood and has to be vigilant of divorce.

Section (f) of Article 2 of CEDAW requires member governments to adopt the necessary measures to reform or repeal laws, regulations, traditions or other conventions that entail discrimination against women. The Islamic Punishment Act of 1978 according to Islamic jurisprudence makes clear gender discriminations as follows:

1) The Criminal Liability for Boys are after completion of their fifteenth year, but this age for girls began when they turn to nine, while still a child.
2) The amount of blood money is unequal for men and women. In the case of men perpetrators the victim’s family has to pay the blood money before a sentence can be carried out. The family of the female victim should pay half of blood money to the family of the murderer in order to bring him into justice. If a father kills his child he will not bear any criminal punishment unless the mother file a complaint to the court. Even with that, his maximum punishment will not exceed more than 10 years prison.
3) The validity of testimony in criminal matters for woman is not accountable the same as that of man. The testimony of a woman plaintiffs is considered half valid, therefore woman’s testimony in this area of the law equals half that of the man’s. In some cases woman’s testimony is not accepted at all. There are two approaches in regards to testimony of women in the Islamic penal code. There are those areas of Islamic criminal code where a woman’s testimony is not admissible at all. In other domains of law it is accepted in certain crimes but must be accompanied by testimony of men to back it up otherwise the testimony of two women equals that of one man.

4) Men and women who commit 'Zena' adultary will be punished by stonning, however the woman will be kept in the soil upto her neck so she would not be able to escape, but although men are stronger they are burried upto the chest where it gives him too much space to free himself. The law states that if he could free himself, he would be allowed to walk away from the punishment.

Article 3 of CEDAW is calling member states to adopt every appropriate measure in all fields including legislation of the laws.
1) Women's work and profession needs to be approved by the male figure of the family. Women are allowed to work providing that the dignity of the family and values and criteria of Islam are preserved. However as there are no definitions to these terms it is upto men who decide whether their wives, daughters or sisters are allowed to work out of the home environment.
2) Men are considered breadwinner of the households according to Constitution - in endorsement of this statement, women are considered to be in need of Guardians. To this end, the protecting women and children without GUARDIANS Act was passed in Nov 1992 that provides protection to widows, girls and women in general as they are account under disabled and in need of GUARDIANS.
3) Proper roles for women are proved by Islamic law to be limited to mother hood, caring and nurturing the members of the family. This role could be shared with upto four wives for man's ultimate happiness. Apart from stereotyped jobs such as teachers and nurses, women are not encouraged to increase their economic participation. In practice income generation is the realm of man and have been biased to the advantage of man, in the extent that women participation in economy in all moslem countries does not exceed 20 percent and in the case of Iran it has decreased to 8 percent after the revolution. Due to economic deficiency and low household income as well as increasing number of higher educated women this figure has been elevated up to 13 percent in recent years.
4) Article 638 dress code, whenever a woman appears in public without the appropriate Islamic covering (hejab), she will be sentenced to lashings and fined. Recently, the sentence can be commuted to cash fines. Again in this case as there are no clear definitions of the “appropriate Islamic hejab nor the punishment”, women are at the mercy of the disciplinary forces and the judge.

Article 4 of CEDAW stresses the adoption of special temporary measures aimed at accelerating de facto equality between men and women.
1) Girls are deprived enrollment in more than 200 fields of study that are considered unappropriate in universities, such as mining, car maintenance, etc..
2) The cost of women labor in support of their pregnancy is solely on the account of employer, making it costly for employers to employ female labor force, for these over protective labor laws. For instance all the costs to provide care taking centers for female worker's children must be paid by the employer with no provision and assistance from the Government. Therefore employers are reluctant to bear all these extra costs to employ female labor. These policies not only do not protect female laborers rather drive them toward informal jobs which provides no social protection.The Labor Law enacted in 1990 considers women's work in production on equal terms with men's but in practice, they are liable to less working hours, early retirement, and certainly much lower wages for the same job categories.
3) Women who are socially marginalized as homemakers constitute 65 percent of women population; consequently they are excluded of any protective measures covered by the national social security system.
4) Women are deprived to participate or watch sport maches, drive bicycles, do swimming and other physical activities that are considered to be unappropriate.

Article 4 of CEDAW, elaborates on temporary affirmative action measures aimed at accelerating de facto equality, this means a positive discrimination to elevate women's position in the society.

Special measrures must be taken for women's empowerment and further capacity building to enhance her self esteem after centuries of abuse and discrimination. Due to the fact that men and women have unequal rights to employment and income, there are special treatment such as nuptial dowry from the husband for the bride which is intended to provide them with some financial security. Dowry is binding in the country of Iran, but many do not know that once out of the country, say if the couple decided to move to America, the husband has no obligation to the wife if there was never a written contract. This can leave an ignorant divorcee or widow in a desperate situation. According to Local official news agency, 95 percent of women who resort to the court of justice to request the payment of her dowery (marriage portion) are homemakers out of which only 25 percent succeed to actualy get their hands on the most legitimate money that are assigned to them. Man has all the right to ownership of his home and other family earnings. Man is entitled to divorce his wife without any specific reason, it is put to his judgment to play fair and give her a just divorce

Article 5 of CEDAW that is calling for modification of the social and cultural patterns to eliminate gender stereotyping.
1) Gender stereotyping is widely practiced and encouraged through traditional norms, job selection, educational opportunities and general role division at all level. The first Woman Judge designated to provide advise in the family Court - this was publicized by reformists as positive acts of the Islamic regime. However 3 years later in October 2004 she was found dead in her home, and was claimed that she had committed suicide.

Article 6 of CEDAW has requested the states to implement every measures including legislation of law in order to prevent women trafficking and prostitution
Although Iranian culture condemned the exploitation of women but their economic exclusion has infact gave free hands to traffickers to easily get their hands on girls and women who have no other channels to fight poverty and deprivation. The Islamic act of Sigheh (fixed term Islamic marriage) which was meant to legitimize relationships between men and women have brought disgrace and humilition for women. The fruit of these kind of relationships were illegitimate children wandering in the streets of Iranian cities as street children, because men do not take the responsibility to register as the father.

Article 7 of CEDAW requesting states to address discrimination in political and public life and shall ensure participation in the formation of government policy.
1) The national statistics are evidence of women under representation in offices where only 6 percent of management positions are occupied by women. This figure contains education sector including girl schools that are usually run by women, otherwise real statistics for participation in political offices are much lower.
2) women are asked at the time of campaigning to produce votes for candidates selected by their spouses, this should not be accounted as participation and should be considered as kind of abuse. Out of newly elected 290 members of the Parliament only 12 were women- the majority of the applications were rejected by Guardian Council to run for candidacy.
3) In May 1982 the Act of law opens with the sentence that Judges are selected from among men with following qualifications...
4) Section c of Article 7 of Constitution guarantees women the right to participate in NGOs and CBOs, however all kind of association or relationship outside home must be authorized by the husband or the father. In addition Article 10 of the Activities of Political Parties empowers the Government to exercise full control over any kind of assoiciations through a commission that is responsible for this issue.

Article 8 of CEDAW ecouraging women's participation in international affairs
1) In terms of representation of women, until now, female employees of the Foreign Ministry have not been included on the permanent staff of any mission abroad.
2) women who wish to continue their higher education abroad must be married before their file is considered eligible, no matter how gifted or eager she may be to continue her study.

Articles 9 ,10,11,12,13,14,15,16 of CEDAW elaborate on rights and access to them. These rights include all above mentioned discrimination such as the right to education, right to work as a human right, right to social security, right to access knowledge. Article 1117 of Civil law, clearly states a woman cannot accept employment without her husband's consent. This law in the hand of abused men can force women to leave their jobs. In the case of women physicians, as it is the husband who must approve that his wife travels to remote areas to practice her studies, it has actualy worked against women for proper implementation of her profession.
Under Section 2 of Article 82 of Social Security Acts of 1975 and 1979, children can claim social security benefits following the death of their mother only if their father has died or is not eligible to receive any other allowances. There are no such conditions for the children of a deceased man.

Iranian laws relating to polygamy implicitly sanction a form of discrimination against women. Article 83 of the Social Security Law states: The amount of allowance of the wife of the deceased person is equal to 50 percent of the annuity of the insured person, and if the person leaves several permanent wives, then the amount is divided among them in an equal way.

In 1992, the Parliament with the conservative majority passed an Act of law which guarantees women without guardian (meaning head of household) with a minimum livelihood. However, while due to the war more than one million female heads of household are marginalized - in practice only handful number of poor women receive a small sum that equalls nearly 30 percent of minimum basic salary. This does not cover even basic food necessity for the poorest of poor who are marginalized by the society and by the law.The head of the family, the husband or the father legally is responsible for safeguarding the interest of his family, hence under Islamic law in family decisions, there is no negotiation or discussion. A wife must accept the husband's superior role and decisions. Ultimatly there is no machinery or mechamism to compensate for any legal discrimination exerted on women. The only law that can be mentioned could be the Act 38 of Labor Law that requires equal wage for equal work for both men and women. Hence in case of breach of the law the female worker should complain to the court which is a costly procedure. As a result the employer must pay the difference to the worker and additionaly pay fine to the Government.

Nasrin Azadeh
12 Feb 2005

References:
1) UN, Division for the advancement of Women, Dept of Economic and social affairs: www.un.org/womenwatch/daw/cedaw
2) UNHCHR, Committee on the Elimination of Discrimination against Women: http://www.unhchr.ch/html/menu2/6/cedw.htm
3) Links, Oxfam newsletter on gender, www.oxfam.org.uk/what_we_do/issues/gender/links/downloads/LINKS0702.pdf
4) CEDAW, UNICEF Resources, full text : www.unicef.org/jordan/resources_722.html
5) Women's Rights, Human's Rights, Farideh Hamidi, Parvaneh Ghassemian, Solmaz Saleh Novin, Roshangaran publishing, Tehran in Farsi, 2003
6) UNICEF, The state of women, Iran, 1998
7) CEDAW, The Office of Women's Studies and Research, Ghom, Edited by Alireza Shaliaf, 2003
8) Feminist online journal, www.badjens.com/fifthedition/Joining.htm
9) Iran Feminist Tribune, website: http://www.iftribune.com/news.asp?id=3&pass=29
10)Legal Barriers in Political Development, Mehrangiz Kar 1998
11)Women under the shadow of the fathers, 'Zanan zir saye pedar khandehha' , Noushin Ahmadi Khorassani, 2001
12)HUMAN RIGHTS OF WOMEN, EVALUATION OF WOMEN’S CONDITONS IN IRAN, S.VAFA, 2004

Nasrin Azadeh, Feb, 2005