III. Saudi Arabias Obligations under International Law
Through its ratification of the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 2001, Saudi Arabia assumed the obligation to take action to end discrimination against women in all its forms.111 The convention obliges Saudi Arabia to pursue by all appropriate means and without delay a policy of eliminating discrimination against women including any distinction, exclusion or restriction made on the basis of sex which has the 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.112
Saudi Arabias reservations to critical articles in CEDAW and its general reservation to the treaty cast doubt on its commitment to advance womens rights. The Saudi government entered a general reservation upon ratification of CEDAW stating that In case of contradiction between any term of the Convention and the norms of Islamic law, the kingdom is not under obligation to observe the contradictory terms of the Convention. Saudi Arabia is asserting full authority on the basis of religion to discriminate against women in any of the areas specified in the treaty. Saudi Arabia also does not consider itself bound by paragraph 2 of article 9 of the Convention granting women equal rights with men with respect to the nationality of their children. Reservations that are incompatible with the object and purpose of a treaty violate international law113 and are unacceptable precisely because they would render a basic international obligation meaningless.
CEDAW explicitly acknowledges social and cultural norms as the source of many womens rights abuses, and obliges governments to take appropriate measures to address such abuses. Article 5(a) of the convention obliges states 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.114 As the findings of this report demonstrate, the Saudi government has not only done little to tackle these customary laws and practices, it has instituted an entire system that is premised on the inferiority of women.
Saudi Arabias imposition of male legal guardianship on adult women violates article 15 of CEDAW, which requires states to accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. States parties are further required to ensure that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.115 In Saudi Arabia the government only grants adult men the right to full legal capacity. The authorities deprive women of this right and subsequently deny them the ability to act not only on their own behalf but also on behalf of their children.
Numerous treaties and treaty bodies acknowledge womens equal rights to travel, work, study, access health care, and marry without discrimination. Article 15(4) of CEDAW obliges states to accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.116 Restrictions imposed on womens freedom of movement in Saudi Arabia also violate the Universal Declaration of Human Rights, which is considered customary international law. Article 13 provides that Everyone has the right to freedom of movement and residence within the borders of each state and that Everyone has the right to leave any country, including his own, and to return to his country. Article 12 of the International Covenant on Civil and Political Rights also sets out the right to freedom of movement. The UN Human Rights Committee, in its General Comment on the right to freedom of movement, stated that states obligation to protect freedom of movement is particularly pertinent in the case of women. It went on to say, [I]t is incompatible with article 12, paragraph 1, that the right of a woman to move freely and to choose her residence is made subject, by law or practice, to the decision of another person, including a relative.117 While Saudi Arabia is not a party to the International Covenant on Civil and Political Rights, the government informed a United Nations committee in March 2003 that it would soon accede to this treaty.118
With regard to nondiscrimination in employment, Saudi Arabia has additional obligations as a member of the International Labour Organization (ILO) and as a party to ILO Convention No. 111 dealing with discrimination in employment.119 Since 1991 the ILOs Committee of Experts has repeatedly expressed concern about the governments policy on sex segregation in the workplace codified in section 160 of the 1969 Labor Code. The Committee has said the following in relation to segregation in the workplace:
The Committee also criticized the restriction of women to occupations deemed suitable to their nature and not contrary to tradition.121 It called on Saudi Arabia to review the occupations and activities that women may not perform, in light of current scientific knowledge and technology relevant to those occupations. As noted above, while the new Saudi Labor Code, which came into force on April 23, 2006, does not include a provision enforcing sex segregation in the workplace, there is little evidence that this has in any way affected the current work environment, which remains highly segregated.
The need for a male guardian to grant a woman permission to work and his ability to suspend her employment at any time and for any reason also violates Saudi Arabias obligations under article 11 of CEDAW. Article 11 stipulates that
With regard to education, CEDAW further obliges Saudi Arabia to
Saudi Arabia has ratified the UNESCO Convention against Discrimination in Education, which specifies that segregation is not in itself a breach of the Convention if these systems or institutions offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study.123 As noted in Chapter III, in Saudi Arabia, segregation often means that women are relegated to inferior facilities and unequal opportunities.
CEDAW also provides that states shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.124 In particular, states are required to afford to women the right to enter into marriage only with their free and full consent.125 Saudi Arabia violates this fundamental right when it allows legal guardians to withhold consent for marriages or dissolve marriages that they see as unfit. By denying women legal guardianship of children, Saudi Arabia is also violating article 16(f) of CEDAW, which clearly notes that state parties should ensure men and women [t]he 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.
Saudi Arabias failure to ensure that all hospitals admit women and provide medical treatment without a male guardians consent violates its obligations to ensure womens basic health rights. Article 12 of CEDAW obliges states to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.126
The CEDAW Committee, in its General Recommendation on the Right to Health, also explicitly states,
When legal guardianship stands in the way of redress for victims of violence, Saudi Arabia is also failing to act with due diligence to prevent, investigate, and punish violence against women, putting womens health and lives in jeopardy. Domestic violence prevents women from exercising a host of other rights. These rights include the right not to be subject to cruel, inhuman or degrading treatment or punishment,128security of person,129and in extreme cases, the right to life.130 The CEDAW Committee noted that gender-based violence is a form of discrimination that seriously inhibits womens 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.131 In 2001 the UN Committee on the Rights of the Child reviewed Saudi Arabias initial report under the Convention on the Rights of the Child.132 The Committee expressed concern that domestic violence is a problem in Saudi Arabia and that this has harmful consequences on children,133 and recommended that Saudi Arabia establish hotlines and shelters, staffed by women, for the protection of women and children at risk of or fleeing abuse and seek assistance from UNICEF [the United Nations Childrens Fund] and WHO [the World Health Organization], among others to carry this out.134
The Committee on the Rights of the Child also expressed concern about discriminatory laws and polices in force in the kingdom. It recommended that Saudi Arabia take effective measures, including enacting or rescinding civil and criminal legislation where necessary, to prevent and eliminate discrimination on the grounds of sex and birth in all fields of civil, economic, political, social and cultural life. The Committee also encouraged Saudi Arabia to consider the practice of other States that have been successful in reconciling fundamental rights with Islamic texts.135
111 CEDAW , art.2. Saudi Arabias accession to the convention was formalized through the adoption of Royal Decree No. 25 of 28/5 [Concerning the kingdoms accession to the Convention on the Elimination of All Forms of Discrimination against Women] on 28 August 2000.
112 CEDAW, art. 1.
113 See art. 19(c), Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force on January 27, 1980. United Nations, Treaty Series, vol. 1155, p. 331.
114 CEDAW, art. 5(a).
115 Ibid., art.15.
116 Ibid., art.15(4).
117 UN Human Rights Committee, General Comment No. 27, Freedom of Movement, UN Doc. CCPR/C/21/Rev.1/Add.9 (1999), para. 6.
118 See Committee on the Elimination of Racial Discrimination, Concluding Observations: Saudi Arabia, 21/03/2003, paragraph 8, CERD/C/62/CO/8. (Concluding Observations/Comments), March 20, 2003.
119 ILO Convention No. 111 concerning Discrimination in Respect to Employment and Occupation, adopted June 25, 1958, 362 U.N.T.S. 31, entered into force June 15, 1960.
120 Report of the Committee of Experts, ILO, Geneva 1996.
122 CEDAW, art. 10.
123 UNESCO Convention against Discrimination in Education, adopted on December 14, 1960, art. 2.
124 Ibid., art. 16(1).
125 Ibid., art. 16(1)(b)
126 Ibid., art. 12.
127 UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, The Right to Health, UN Doc. A/54/38/Rev.1 (1999), para. 14.
128 The right to be free from torture and cruel, inhuman or degrading treatment is provided for in article 7 of the International Covenant on Civil and Political Rights (ICCPR), 999 UNT.S. 171, entered into force March 23, 1976.
129 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art.3; ICCPR, art.6.
130 Article 6 (1) of the ICCPR states that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
131 UN Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against Women, UN Doc. HRI\GEN\1\Rev.1 (1992), paras. 1,7.
132 Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990. Saudi Arabia acceded to the convention on January 26, 1996. The Saudi government entered a general reservation upon accession stating that [The Government of Saudi Arabia enters] reservations with respect to all such articles as are in conflict with the provisions of Islamic law.
133 UN Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations, Saudi Arabia, U.N. Doc. CRC/C/15/Add.148, February 21, 2001, para. 35.
134 Ibid., para. 36.
135 Ibid., para. 24.