<<previous  |  index  |  next>>

VIII. Egypt’s Obligations Under International Law

Egyptian personal status laws advance a model of the family based on the superiority of men over women. This model violates the rights of women to equality before the law, nondiscrimination,¹⁹² and equality in marriage and divorce enshrined in a number of international treaties that Egypt has ratified.¹⁹³ The Egyptian government has a positive obligation to remedy abuses that emanate from social and cultural practices.  CEDAW requires that states “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”¹⁹⁴ It obliges states 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” and to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”  CEDAW requires governments:

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.¹⁹⁵

In January 2001, the U.N. Committee on the Elimination of Discrimination against Women (CEDAW Committee), in reviewing Egypt’s periodic report, expressed concern about “stereotypical attitudes about the roles of women and men in the family and society reflected in the low level of representation of women in decision-making at all levels and in all areas.”¹⁹⁶ The CEDAW Committee expressed particular concern about the lack of women represented in the judiciary.¹⁹⁷

Human rights law also requires that governments address the legal and social subordination women face in their families and marriages. Under article 16 of CEDAW, states must:

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

(a) The same right to enter into marriage;

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

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

…

(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.

The International Covenant on Civil and Political Rights (ICCPR) obliges states to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”¹⁹⁸ As the body responsible for interpreting the ICCPR, the Human Rights Committee noted that “any discriminatory treatment in regard to the grounds and procedures for separation or divorce, child custody, maintenance or alimony, visiting rights or the loss or recovery of parental authority must be prohibited.”¹⁹⁹ 

Egyptian law violates women’s marriage and family rights under CEDAW and the ICCPR. Egypt is in violation of its obligations due to the existence of parallel and unequal divorce systems for men and women – severely obstructing women’s access to divorce while simultaneously allowing for the arbitrary and unchecked exercise of divorce rights by men. A host of personal status laws expressly permit discrimination against women within marriage and upon divorce, codifying their second-class status in the family. The government has done little to bring Egyptian law into compliance with its international obligations.

Officials condone laws and practices that discriminate against women in the family. The government’s acquiescence to social and cultural patterns of conduct that harm women’s rights to equality violates CEDAW. The introduction of no-fault divorce, or khula,has not only failed to address Egypt’s profoundly discriminatory divorce system, but has also been discriminatory in itself. The Human Rights Committee expressed concern about khula in its 2003 review of Egypt’s third and fourth periodic reports and recommended that Egypt “review its legislation so as to eliminate financial discrimination against women.”²⁰⁰  Discrimination in practice is exacerbated by official efforts to exclude women from the judicial bench.

The CEDAW Committee, in interpreting women’s right to equality in marriage and family relations, also acknowledged the right of women to own an equal share of marital property both during the marriage and in case of divorce.²⁰¹ It noted:

In some countries, on division of marital property, greater emphasis is placed on financial contributions to property acquired during a marriage, and other contributions, such as raising children, caring for elderly relatives and discharging household duties are diminished.  Often, such contributions of a non-financial nature by the wife enable the husband to earn an income and increase the assets.  Financial and non-financial contributions should be accorded the same weight.²⁰²

The Egyptian government’s failure to recognize a woman’s non-monetary contributions to the home, denying them a share of marital property absent specific title in the wife’s name, violates these rights and obligations. The Egyptian government has done little or nothing to combat the view and practice that the marital home is the exclusive property of the husband both in marriage and divorce. In fact, Egypt’s laws reinforce this position. Divorced women in Egypt who may have spent years or decades maintaining and contributing to the marital home are left with no ownership interest.

The Egyptian government has an obligation to amend both facially discriminatory and facially neutral laws, regulations, policies, and practices that discriminate against a particular portion of the population. Egypt’s obedience law, conditioning a women’s receipt of alimony on her obedience to her husband, is a particularly egregious example of a law that on its face discriminates against women. While police can no longer use force to return women to the marital home, the existence of the law denies women their autonomy and their rights to freedom from arbitrary interference with their privacy and family²⁰³ and their liberty of movement²⁰⁴ in violation of international human rights law. 

A facially neutral law, policy, or human rights abuse that has an unjustifiable disparate impact on a group distinguished by sex, and which has the effect of limiting their enjoyment of human rights, could also be read as discrimination within the meaning of the Convention on the Elimination of Racial Discrimination (CERD). ²⁰⁵ Compulsory mediation in family disputes, while a facially neutral policy, has a disproportionate impact on Egyptian women since only they need to resort to the courts–and in so doing endure the time and effort involved in mediation–in order to end their marriages. 

Egypt’s reservations to critical articles in CEDAW, and its general reservation to the ICCPR, cast doubt on its commitments to women’s rights. Reservations that are incompatible with the object and purpose of a treaty violate international law²⁰⁶ and are unacceptable precisely because they would render a basic international obligation meaningless. Article 2 of CEDAW, which obliges states to condemn and legally protect against discrimination is considered to be the foundation of this treaty, from which all other provisions stem.²⁰⁷ At the CEDAW Committee’s 13th session in 1994, it expressed alarm at “the number of State parties which have entered reservations to the whole or part of article 16, especially when a reservation has also been entered to article 2, claiming that compliance may conflict with a commonly held vision of the family based, inter alia, on cultural or religious beliefs or on the country’s economic or political status.”²⁰⁸

Egypt’s reservation to article 2 stating that it is “willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Shari’a,” goes against the very object and purpose of the Convention. This reservation, if put into practice, inevitably results in discrimination against women on the basis of sex, which is contrary to the fundamental purpose of the Convention.

The Egyptian government entered a general reservation upon ratification of the ICCPR noting that “taking into consideration the provisions of the Islamic Shari’a and the fact that they do not conflict with the text annexed to the instrument, we accept, support and ratify it ...”²⁰⁹ Meanwhile, as recently as October 2002, the Human Rights Committee voiced concern about the “general and ambiguous nature of the declaration made by the State party upon ratifying the Covenant” and recommended that Egypt “either clarify the scope of its declaration or withdraw it. The Committee also regretted “the lack of clarity surrounding the question of the legal standing of the Covenant in relation to domestic law and the attendant consequences” and urged Egypt to “ensure that its legislation gives full effect to the rights recognized in the Covenant and that effective remedies are available for the exercise of those rights.” ²¹⁰

Egypt asserts full authority on the basis of religion to discriminate against women in family matters. It stated that its reservation to article 16 (equality in relation to marriage) of CEDAW stems from its:

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 complementary which guarantees true equality between the spouses [emphasis added].²¹¹

International human rights law recognizes state accountability for abuses by private actors and requires states to show due diligence in preventing and responding to human rights violations. In General Recommendation 19, the CEDAW Committee emphasized: “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”²¹² A state’s consistent failure to do so when women are disproportionately the victims amounts to unequal and discriminatory treatment, and constitutes a violation of the state’s obligation to guarantee women equal protection of the law.²¹³

By denying women the right to equality in divorce, essentially condemning many women to violent marriages, the Egyptian government is failing to act with due diligence to prevent, investigate, and punish violence against women putting women’s health and lives in jeopardy. As recently as 2001, the CEDAW Committee expressed concern over Egypt’s lack of a “holistic approach to the prevention and elimination of violence against women, including domestic violence, marital rape, violence against women in detention centers and crimes committed in the name of honor or the punishment of perpetrators.”²¹⁴ The CEDAW Committee also expressed concern about the high levels of violence against adolescent girls and young married women.²¹⁵

Domestic violence prevents women from exercising a host of other rights. The CEDAW Committee noted that “gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men,” including the right to the highest attainable standard of physical and mental health.²¹⁶ Article 12 of the International Covenant on Economic, Social and Cultural Rights also provides for the right of everyone to the enjoyment of “the highest attainable standard of physical and mental health.”²¹⁷ Interpreting these provisions, the Committee on Economic, Social and Cultural Rights recommends that state parties “develop and implement a comprehensive national strategy for promoting women’s right to health throughout their life span.” ²¹⁸ According to the Committee, “A major goal should be reducing women’s health risks, particularly lowering rates of maternal mortality and protecting women from domestic violence.”

States undermine the right to health under the Covenant on Economic, Social, and Cultural Rights if they fail to “take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties.”²¹⁹ Violations that fall under this category include, among other things: “the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others” and “the failure to protect women against violence or to prosecute perpetrators.”²²⁰