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Status of Arab Women Report Access to Justice for Women And Economic and Social Commission for Western Asia Status of Arab Women Report Access to Justice for Women and Girls in the Arab Region: From Ratification to Implementation of International Instruments E/ESCWA/ECW/2015/1 Economic and Social Commission for Western Asia Status of Arab Women Report Access to Justice for Women and Girls in the Arab Region: From Ratification to Implementation of International Instruments UNITED NATIONS Beirut © 2014 United Nations All rights reserved worldwide Requests to reproduce excerpts or to photocopy should be addressed to the United Nations Economic and Social Commission for Western Asia (ESCWA). All other queries on rights and licenses, including subsidiary rights, should be addressed to: ESCWA, United Nations House, Riad El Solh Square, P.O. Box: 11-8575, Beirut, Lebanon. E-mail: [email protected]; website: www.escwa.un.org United Nations’ publication issued by ESCWA. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the secretariat of the United Nations concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Mention of commercial names and products does not imply the endorsement of the United Nations. Symbols of the United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. 15-00071 3 Acknowledgements This publication was prepared at the ESCWA Centre for Women (ECW) by Ms. Lana Baydas, First Social Affairs Officer, under the substantive guidance and overall supervision of Ms. Samira Atallah, Director. Ms. Baydas authored the study, drawing on background papers prepared for ECW by Mr. Mahmoud Kandil, Advisor at the Arab Human Rights Organization; Ms. Suha Oudeh, lawyer in Kuwait; and Mr. Nizar Saghieh, lawyer and Editor-in-Chief of Legal Agenda, jointly with Ms. Rana Saghieh, lawyer and researcher. Mr. Imad El Nehlawi, Administrative Assistant at ECW, provided research, administrative and logistical support. The study benefitted from the invaluable contribution and constructive critiques of participants of an expert group meeting that was held at United Nations House (Beirut, 23- 24 September 2014) to discuss its preliminary findings. Ms. Lisa Majaj, of the University of Cyprus, provided meticulous peer review of the final draft and made concluding revisions to bring the study to its present version. 4 Table of contents P.3 Acknowledgements P.7 I. Introduction P. 7 A. Background and objectives P. 7 B. Scope and research methodology P. 9 C. Rationale: Why access to justice? P.11 D. Conceptualizing “access to justice” P.15 II. The Right of Access to Justice in International and Regional Instruments P.15 A. Access to justice in international human rights treaties P.19 B. Obligations of States under international human rights treaties P.22 C. The right of access to justice in regional human rights frameworks P.23 D. Women’s right of access to justice in conflict and post-conflict situations P.27 III. Access to Justice in National Legal Frameworks P.27 A. Access to justice in national constitutions P.31 B. Access to justice in national legislations P.39 IV. Barriers to Arab Women’s Access to Justice P.39 A. Barriers at the institutional and procedural levels P.42 B. Barriers at the capacity level P.43 C. Barriers at the social level P.43 D. Other barriers P.45 V. Addressing Barriers to Women’s Access to Justice: Strategies, Approaches and Good Practices P.45 A. Strategies adopted P.48 B. Holistic approach P.51 VI. Conclusion P.51 A. Legislative frameworks P.51 B. Institutional and procedural frameworks P.52 C. Recommendations P.54 Endnotes 5 P.58 Bibliography List of figures P.12 1. The justice chain P.15 2. Access to justice elements P.34 3. The ratio of girls to boys in tertiary education versus the percentage of Arab women in the labour force List of boxes P.16 1. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) P.16 2. Discrimination faced by women in seeking legal redress 6 “While both men and women face obstacles in accessing justice, women face different challenges and experience such challenges differently” © Michael Nivelet - shutterstock_197155082 7 I. Introduction A. Background and objectives economic, social and cultural rights in the region.9 Ensuring women’s rights plays an indisputable role in sustainable human The inability of women to challenge development.1 Yet Arab women discriminatory laws within their countries’ face persistent inequalities rooted in formal legal structures is one of the main discriminatory laws and institutions. 2 factors that contribute to gender disparity. Gender disparities in social, economic and Discrimination is clearly manifested in de political rights in the Arab region remain facto unequal protection before the law, as significant and widespread.3 Moreover, evidenced in discriminatory national legal multi-dimensional inequalities continue frameworks; and, subsequently, in unequal 10 to impede progress towards women’s access to justice. Discrimination is further empowerment in all spheres, whether compounded by the lack of institutional political, economic or social.4 Nor do mechanisms that would ensure proper principles of gender equality form an implementation of constitutional rights, and by integral part of the strategic approach the continued existence of contradictory laws to addressing discrimination in the Arab and legal provisions that discriminate against region. This is true despite the fact that most women, often merely for being women. Arab States recognize, in their constitutions as well as in their official international This study addresses the right of “access to commitments, the urgency to address justice” as enjoyed by women in the Arab gender inequality. region in the context of these intersecting factors. It examines available legal Arab States have legal obligations, as protection for women in the Arab region, as stated in voluntarily ratified international well as women’s ability to assert their rights instruments, that require them to through just, non-discriminatory judicial “protect, respect and fulfil” the rights processes. It assesses legislation, including of all individuals.5 Most Arab States constitutional rights, personal status codes have endorsed the Convention on the and labour codes, on issues and concerns Elimination of All Forms of Discrimination that impact women’s socio-economic and against Women (CEDAW),6 albeit with political development. Additionally, it reservations for the most part,7 and have examines the implementation of the right of recognized the principles of equality and access to justice, providing a comparative non-discrimination in their constitutions.8 overview of the principle of law (de jure) However, these principles have not versus its actual application (de facto). been fully reflected, normatively and procedurally, in national legal frameworks. B. Scope and research methodology The failure to implement principles of equality within the framework of law limits The study focuses on women in ESCWA women’s enjoyment of civil, political, member States. As such, the geographical Status of Arab Women Report Introduction 8 scope of the study includes the following between men’s and women’s ability to countries: Bahrain, Egypt, Iraq, Jordan, access justice, as well as the socio-legal Kuwait, Lebanon, Libya, Morocco, the State obstacles and gaps facing women in of Palestine, Oman, Qatar, Saudi Arabia, the accessing justice. The background papers Sudan, the Syrian Arab Republic, Tunisia, focus on existing measures taken by the United Arab Emirates and Yemen. The Arab Governments to improve women’s study’s focus on women in the region enjoyment of the right of access to justice encompasses citizens and non-citizens, and in terms of availability, accessibility, includes refugees and migrant workers as adaptability and affordability. As such, well as women of minority groups. they provide critical analysis of the impediments and challenges, whether The study addresses women’s access to legal, institutional or structural, that justice in various strands of law, including women in the region face in accessing personal status code, criminal code, labour justice at the dimensional levels of code and laws combating violence against availability, accessibility, adaptability women. It is worth noting in this regard and affordability.12 The study includes that it does not address issues related to this material in an attempt to understand the interpretation of religion in the analysis how national laws meet the requirements of personal status codes. The study set forth by voluntarily ratified undertakes qualitative legal analysis of international and regional conventions. information drawn from relevant literature The methodology also allows for greater and government-issued reports; official understanding of the applicability of the submissions to committees of applicable right of access to justice at a procedural human rights treaties, such as CEDAW and (de facto) level. the Human Rights Committee; and related reports by international and national Chapter II discusses the right of access non-governmental organizations (NGOs), to justice as embedded in international especially those addressing directly or and regional legal frameworks. It indirectly women’s access to justice
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