Section 7. Cultures of resistance, or saying 'No' to universalism

The successes in defining and promoting women’s rights, including the prohibition of domestic violence as a human rights violation, have generated criticism and reprisals. Social conservatives around the world have responded negatively to efforts to empower women and endow them with enforceable rights within the family, charging that such initiatives constitute an assault on ‘family values’, traditions, national cultures, and so on.

The promotion of women’s rights as human rights, and the recent declarations and conventions to internationalize and standardize those rights have become imbricated in raging debates over the legitimacy of human rights in general. Indeed, the rights of women constitute the quintessential challenge to the ‘uni­versality’ of human rights. These debates have been particularly vigorous in many developing countries. Critics and opponents argue that international legal standards contravene local customs and cultures and/or religious beliefs and practices, and that their promotion constitutes a form of ‘imperialism’. Indeed, the emphasis on individuals as rights-bearing subjects, and the tendency to prioritize political and civil rights over social, economic and cultural rights lend weight to arguments that human rights are ‘Western’ and (thus) ‘alien’.²⁸

Resistance to international human rights cannot be understood merely as a regressive reaction to change. Rather, it must be understood as a relational response to historic conditions and globalization. The creation (and continuing expansion) of human rights is one manifestation of the globalization of distinctly modern legal norms and political relations.

The internationalization of a common set of rights for all human beings has provoked a great deal of anxiety about cultural imperialism, especially in societies in the Middle East, Africa and Asia. To the extent that human rights are perceived as a Western construct, their legitimacy in non-Western societies is debatable. Moreover, the requirement to reform local laws and to transform local social and political relations to conform to international law is widely construed as a manifes­tation of enduring Western hegemony, a neo-imperial twist on a centuries-old global power dynamic in which values and norms are articulated and spread unidirectionally from the West to ‘the rest’.²⁹

Women’s rights, and the issue of gender relations more generally, have become the primary redoubts of these anxieties about cultural and legal imperialism. While certain aspects of modernity, such as national security and bureaucratization, have been embraced by states everywhere, the politics of culture - specifically, cultural difference - have marked women as a terrain for preserving that which is (imagined to be) particular to a given society. In the colonial era, women were targeted for social reform by Western administrators and Christian missionaries (i.e. the ‘civil­izing mission’). Modernizing reformers from colonized societies also targeted women as objects for intervention and change, whether to accommodate the imperatives of colonial administrations or to justify demands for self-rule. Accord­ing to Deniz Kandiyoti (1991: 7), these variants of ‘colonial feminism’ created a close association in the minds of many Muslims between the (changing) status of women and Western cultural imperialism, and sparked countervailing attempts to maintain and reinforce ‘authentic’ relations and roles for women as anti-imperial resistance.

When women are treated as markers of cultural authenticity, and when cul­tural discourses posit that women’s human rights are an alien concept, part of a cultural onslaught emanating from ‘elsewhere’, the disadvantages that women experience as women can be justified and defended, even glorified, as an aspect of that particular culture. Conversely, when the promotion of women’s rights is read as a sign (and imperative) of modernization (by vesting women with individual and inalienable rights), and when this goal demands the revision or revocation of local laws and practices, then it often provokes countervailing efforts to resist globalization and foreign influence by defending that which is (deemed) authentic and particular to a given culture or society.³⁰

Whether state agents are the authors of such resistance, or are pushed in these directions by powerful constituencies, it is the state, as both the arbiter of law and the representative of society in the international legal order, that bears primary responsibility for the provision and enforcement of rights for its subjects. The struggles over women’s rights are, in many ways, contestations over legal jurisdiction and authority, namely whether international legal standards will prevail to guide state policy, or whether other bodies of law (constitutional, religious, customary) are accorded precedence when there is a contradiction.

Although resistance to women’s rights is strong, it rarely manifests itself as an open defence of violence against women as a cultural value or end in its own right (possible exceptions being female genital cutting and δ'15 and 16. Article 16, along with Article 2, constitutes the crucial core of the Convention because it addresses relations and rights in the ‘private sphere’, which is ‘the fundamental site of discrimination against women which, effectively, sets the framework and opportunity for discrimination in public life’ (ibid., p.

The substance and scope of reservations by Muslim countries sparked a great deal of controversy. Some countries, notably Mexico, Germany and the Nordic states, protested that the reservations are incompatible with the principles and provisions of the Convention as a whole.³⁵ Sweden issued a statement that such reservations ‘would render a basic international obligation of a contractual nature meaningless. Incompatible reservations... not only cast doubts on the commit­ments of the reserving States to the object and purpose of the Convention, but also contribute to undermine the basis of international contractual [i.e. treaty] law’ (ibid., p. 360).

Such objections raised the issue of reservations for international discussion. This, in turn, generated counter-objections by reserving states that such discussion amounted to ‘an attack by the West on. first, the Islamic world and, by extension, the whole of the Third World’ (ibid., p. 361). These discussions about reservations continued in various sessions and committee meetings of the UN. Although Muslim governments were not the only ones to enter reservations, their reserva­tions articulated a common theme about the precedence of shari'a, leading to a general sense that the controversy was a debate about Islam.

Following the submission of Bangladesh’s first report to the UN Committee for CEDAW, and no doubt influenced by the contents of that report, the com­mittee formulated General Recommendation no.

The result was that, faced with appeals to cultural particularism, the UN tolerated a situation where some countries would be treated as parties to a convention whose substantive provisions they had professed their unwillingness to abide by. Implicitly, the UN acquiesced to the cultural relativist position on women’s rights... allowing parties to CEDAW to invoke Islam and their culture as the defense for their noncompliance with the terms of the con­vention. This was paradoxical, since... CEDAW was premised on the notion that, where cultural constructs of gender were an obstacle to the achievement ot women’s equality, it was culture that had to give way — not that women’s rights should be sacrificed. (Mayer 1991: 179)

‘Islamic resistance’ to international human rights law coalesced around CEDAW in particular, and women’s rights in general.³⁶ In 1990, the Organization of Islamic States, to which all Muslim countries belong, issued a collective re­joinder to international efforts to establish women’s rights in the domestic sphere as human rights: the Cairo Declaration on Human Rights in Islam established that all rights were subject to Islamic law, and that where there was a contradiction between international law and shari'a, the latter would take precedence.

The assertion on the part of governments that religious beliefs and juris­prudence justify the disregard for international legal standards illustrates persisting and onerous obstacles to women’s rights. On the one hand, under international law the sovereign prerogatives of states do provide for autonomy and independence on the legal character of rights within a country. On the other, the international nature of human rights standards and the jurisdiction of international law obligate states to conform under the doctrine of state responsibility; Indeed, the rights and responsibilities of states are legally subject to the requirements and restrictions enshrined in international law. Abdullahi An-Na'im (1994) argues that the most effective means of reconciling state sovereignty and local culture with international legal standards entails the cultivation of a broader and deeper ‘overlapping consensus’ on the universal cultural legitimacy of human rights, including women’s rights.

In exercising their sovereign prerogatives, Muslim governments have sought to present themselves as defenders of ‘Islam’ by building a firewall around shari'a. On the international level, despite the controversy that this has provoked, it epitomizes the capacity of states to speak and act in the name of their societies. Indeed, such a conflation is characteristic of the state-centric international order. Moreover, criticisms of Muslim governments’ policies by ‘others’, be they representatives of foreign governments or international organizations, can further entrench resistance to human rights within those societies.

But does such a stance actually represent a ‘Muslim consensus’? !'here is a substantial, albeit still marginal, discourse within Muslim societies that questions the putative incompatibility of Islam and women’s human rights, and, by ex­tension, governmental positions that assume that they are irreconcilable. This alternative discourse includes efforts to reinterpret elements of shari'a to provide for more egalitarian gender relations, and the censure or prohibition of practices that harm or disadvantage women.

Yet the degree to which this discourse can get a public hearing or impact upon national policy is limited by governments themselves. Many governments have acted to repress scholars, activists and organizations advocating women’s rights, even when such advocacy seeks to show their compatibility to Islam. Najla Hamadeh (1996: 346) describes this as ‘the authoritarian discourse of silence’, which produces a sterile ‘juridical monologue’. The effect is to reify religion by conflating ‘Islam’ with government positions. The means entails the use of state power to stifle and preclude dissenting views or alternative interpretations of religion. But the problem of politically authoritarian states, which characterize the majority of regimes across the three regions, is perpetuated — even bolstered - by their capacity to use religion (albeit in varying ways) as elaborated in the following section) to justify the lack, restriction or even outright violation of the rights of women.