In July 2023, opening the Human Rights Council debate on a resolution on religious hatred and bigotry in the wake of the burning of the Qur’an in Sweden, the United Nations High Commissioner for Human Rights, Volker Türk argued that “many societies are struggling with this weaponization of religious differences for political purposes.” ¹ Open footnote #1 1 Footnote #1 content: Volker Türk, High Comm’r of Hum. Rts., United Nations, Türk Calls on States to Combat “the Weaponization of Religious Differences for Political Purposes” (July 11, 2023), https://www. ohchr.org/en/statements-and-speeches/2023/07/turk-calls-states-combat-weaponization-religious-differences. close The application of Article 20 of the International Covenant on Civil and Political Rights (ICCPR) and its prohibitions of hate speech is, ultimately, a matter for national law and courts to determine in a particular case. Türk stated, “[t]hey need to do so in a manner that is consistent with the guardrails that international human rights law provides.” ² Open footnote #2 2 Footnote #2 content: Id. close This statement provides an impetus to examine national constitutions and court decisions in their interpretation of cultural practice and women’s human rights. But a more personal quest has filled my time on the Convention on the Elimination of Discrimination against Women (CEDAW) Committee, where I see that the tension between cultural practice and rights is the enduring women’s human rights challenge and perhaps the most profoundly complex human rights challenge of our time. The CEDAW is the most heavily reserved treaty in the U.N. Human Rights system and this tension between rights and religion lies at the heart of these reservations. ³ Open footnote #3 3 Footnote #3 content: Shari’a is the justification used in a majority of the reservations made by these countries, two, MENA countries are in the majority in using contradiction with Shari’a as one of their justifications, and three, beyond Shari’a, religion is the overarching main reason for a majority of these countries for providing reservations, where countries like Israel, India, and Singapore do not specify Shari’a but instead specify religion more generally in their justifications. Preliminarily, fifteen countries have provided reservations to provisions of the CEDAW Convention, particularly Articles 2 and 16 (Bahrain, Bangladesh, Egypt, India, Iraq, Israel, Kuwait, Libya, Malaysia, Maldives, Mauritania, Morocco, Saudi Arabia, Singapore, Syria). Of the eight countries that have made reservations to Article 2, five out of the eight have cited contradiction of Islamic Shari’a as the reason: Bahrain, Bangladesh, Egypt, Libya, and Morocco. A small percentage have also noted contradiction with their own laws and constitution. Morocco, for example, declares a reservation to the Article insofar as it does not prejudice the “constitutional requirement that regulate the rules of succession to the throne,” while others, like Singapore, have said the same. Two countries, Iraq and Singapore, do not mention Shari’a directly, however; Iraq merely states that they are providing a reservation to the Article, while Singapore mentions contradiction with their “religious” laws, not Shari’a. Thirteen out of fifteen countries have made reservations in some shape or form to parts of Article 16. Nine out of thirteen of these countries, an overwhelming majority, have justified their reservations to either specific paragraphs of Article 16 or the Article as a whole on the basis of Shari’a. Malaysia, Mauritania, and Singapore also cite contradiction with their national laws or Constitution, while the Maldives provides a reservation with no justification. Interestingly, Israel, India, and Singapore provide different reasons than the other countries for their reservations. India cites their policy of non-interference in the personal affairs of any community without its consent, and notes that while it fully supports compulsory registration in marriages, “it is not practical in a vast country like India with its variety of customs, religions, and level of literacy.” Similarly, Israel provides their reservation to Article 16 to the extent that the personal status laws binding on various religious communities in Israel do not conform with the Article’s provisions. Singapore cites contradiction with their “religious laws,” without specification. Beyond Articles 2 and 16, five out of fifteen countries have provided reservations to other provisions of CEDAW. India notes that it will abide by Article 5(a) in so far as it is in conformity with the country’s policy of non-interference in personal affairs without consent, while Israel provides a reservation to 7(b) concerning the appointment of women to serve as judges of religious courts where prohibited by any religious group in the country. Malaysia expresses a reservation to Article 9(2) insofar as it is contrary to Shari’a or its Constitution, and interprets Article 11 to mean “discrimination on the basis of equality between men and women only.” Lastly, Mauritania provides a reservation to 13(a) insofar as it is contrary to Shari’a and its Constitution, and Syria provides a reservation to 9(2), 15(4), and 29(1), without reason. close

In many regions, an ongoing hermeneutical enterprise is looking closely at the alignment of religious practices and laws through the lenses of the human rights framework. At the same time, women are leading some of the most exciting social movements and are driving a quiet revolution to reclaim religious practice and culture in the image of men and women. These twin approaches are not the purpose of my inquiry. Rather, my purpose is to look at the deeply entrenched and globally pervasive tensions between culture and women’s rights, as enshrined in constitutions and as interpreted by courts. In framing harmful cultural practice, I agree with Frances Raday, who posits that “the clash between culture and gender equality, is the static, resistant version. This version of culture …traditionalist culture …is the concern of international and constitutional human rights jurisprudence.” ⁴ Open footnote #4 4 Footnote #4 content: Frances Raday, Culture, Religion, and Gender, 1 INT’L J. CONST. L. 663, 667 (2003). close I also subscribe to Raday’s view that “[r]eligion is a part of culture in its wider sense. It might even be said that it is an integral part of culture.” At the heart of this Article is the mapping of every country’s constitutional provision on state religion, customary law, cultural norms, and freedom of expression. In terms of constitutions, we see that God is mentioned in 109 constitutions and the term “freedom of religion” or one of its variants appears in 184 constitutions. Forty-two countries explicitly declare a state religion, 148 countries encode customs, and eighty-seven states codify customary laws. Culture has the most intimate and powerful impact on women’s lives. It is a site of struggle over power and control. It is often the locus of gendered power relations in the family. The cultural construction of gender determines the power relations in the family and the state. While the construction and definition of gender are deeply embedded in culture, rules about culture conceptually underlie other rules about women’s employment and commerce, education, and women’s public participation. The discourse around culture is supported by an invisible network of power exercised mainly by men in the public and private spheres. Culture can circumscribe a woman’s right to travel outside the home; get a job or pursue a trade or profession without permission; sign a contract; register a business; be the “head of household” or “head of family”; open a bank account; choose where to live; have ownership over property; and inherit property, as well as affect husband obedience laws. Moreover, dowry, maher, polygamy, child marriage, virginity testing, female genital mutilation (FGM), menstruation, feeding practices, mandatory dress codes, and so much more are defined by culture. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights into situations when rights may compete and gender equality hangs in the balance.

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