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When Culture and Religion Bar Girls' Right to Education Elizabeth Burch Charles H Digital Commons @ Georgia Law Scholarly Works Faculty Scholarship 1-1-2004 Rhetoric or Rights?: When Culture and Religion Bar Girls' Right to Education Elizabeth Burch Charles H. Kirbo Chair of Law University of Georgia School of Law, [email protected] Repository Citation Elizabeth Chamblee Burch, Rhetoric or Rights?: When Culture and Religion Bar Girls' Right to Education , 44 Va. J. Int'l L. 1073 (2004), Available at: https://digitalcommons.law.uga.edu/fac_artchop/1252 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. I NOTE Rhetoric or Rights?: When Culture and Religion Bar Girls' Right to Education L. ELIZABETH CHAMBLEE* TABLE OF CONTENTS 1. Introduction ...................................................................................................... 1074 II. The International Right to Education and Nondiscrimination ....................... 1078 A. International Instruments Providing for the Right to Education ............. 1078 B. Islamic Countries' Ratification of, and Reservations to, Treaties .......... 1083 C. United Nations Organizations, Commissions, and Committees D evoted to Education ............................................................................... 1089 III. The Core Content of the Right to Education: State Obligations ................... 1092 A . A vailab ility ................................................................................................ 1093 B . A ccessibility .............................................................................................. 1095 1. Accessibility in Law and in Fact: The Non-Discrimination Dimension ..................................................................... 1095 2. The State's Role in Undermining De Facto Discrimination ............ 1097 C . A cceptability ............................................................................................. 1099 D . A daptab ility ............................................................................................... 1102 IV. Religious/Social/Cultural Obstacles to Gender Equality in Education ......... 1104 A. The Islamic Religion and the Direct Requirements of the Qur'an ......... 1105 1. Islam ic L aw ....................................................................................... 1 107 2. The Veiled Threat to Education ........................................................ 1110 3. The Increased Risk of HIV/AIDS from Polygamy .......................... 1112 B. Social and Cultural Manifestations of Islam-Traditional Values and P ractices .................................................................................................... 1 11 7 1. E arly M arriage ................................................................................... 1118 1074 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 44:4 2. Labor Market Inequities: What Can Girls Do with an E ducatio n ? .........................................................................................112 1 V. Toward Removing Barriers to Education Through the Cultural and Religious Legitim ization of Gender ................................................................1123 A. Legitimacy within the Religious Context: Textually Reinterpreting the Q ur'an ..................................................................................................112 3 1. R einterpreting the B ible ....................................................................1124 2. R einterpreting the Q ur'an .................................................................1127 B. Using Human Rights Education to Combat Discrimination in E du cation ...................................................................................................1 12 9 1. Muslim Women's Organizations: Embracing the Modernist Interpretation of Islam .......................................................................1130 2. H um an R ights Education ..................................................................1133 V I. C onclu sion ........................................................................................................113 7 A pp en d ix 1 ...............................................................................................................1 139 A pp en d ix 2 ...............................................................................................................1 14 1 A pp en d ix 3 ...............................................................................................................114 3 "No culture today is pure. I. INTRODUCTION Two-thirds of the world's illiterates are female. 2 In the year 2000, the World Education Forum met in Dakar, Senegal, and set goals to (1) eradicate gender disparities in elementary and secondary education enrollment by 2005, and (2) reach educational gender equality by 2015.3 Two months before 2004, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) reported that sixty percent of the 128 countries that attended the Dakar Conference would not meet these goals. 4 The report attributed the failure to sharp discrimination against * B.A., Vanderbilt University; J.D., Florida State University College of Law (May 2004). This Article is dedicated to my mother, Dr. Margaret Torrey, for her lifelong commitment to furthering education. Special thanks to Thomas Burch for his encouragement and sense of humor and, as always, to my incredible family. I am grateful to Professor Fernando R. Tes6n for his support and to Cherie Dawson and the editors of the Virginia Journal of InternationalLaw for their exemplary efforts in preparing this Article for publication. All errors in this piece are, of course, my own. 1. EDWARD W. SAID, THE END OF THE PEACE PROCESS: OSLO AND AFTER 142 (2001). 2. UNESCO, GENDER AND EDUCATION FOR ALL: THE LEAP TO EQUALITY, SUMMARY R EPORT 1 0 ( 2 0 0 3 ) , available at http://www.unesco.org/education/efareport/2003_pdf/summaryen.pdf [hereinafter UNESCO SUMMARY REPORT]. 3. Id.at 5. 4. Id.at 9. 2004] GIRLS' RIGHT TO EDUCATION 1075 girls in social and cultural practices.5 The report failed to mention that social and cultural practices persist in many countries with high disparities because of the practices' firm entrenchment in the Islamic religion. Islam is the dominant religion in the majority of countries with the highest levels of educational gender disparity favoring boys.6 The report identified the causes of gender disparity as labor market inequalities, enduring stereotypes, the cultural preference for sons, early marriage, early pregnancy, domestic labors, and HIV/AIDS. 7 Although the report attributed the disparity to social norms and traditional practices, it failed to acknowledge that these norms and practices are symptoms and manifestations of the same source: Islamic fundamentalism. Because the disparity is attributable to religion and culture, the United Nations' organizations and many human rights groups opt to approach the situation with either carefully worded rhetoric or silence.8 These organizations implicitly consent to the cultural relativist position9 on human rights by remaining silent as well as by focusing their efforts on reporting violations committed against Islamic fundamentalists.' 0 As 5. Id. at 6. 6. See infra note 115. Some countries in Latin America, the Caribbean, and Europe, among others, have a gender disparity in favor of girls. UNESCO SUMMARY REPORT, supra note 2, at 9. A discussion of disparity in favor of girls is beyond the scope of this Article. 7. UNESCO SUMMARY REPORT, supra note 2, at 12-14. 8. As one Muslim author noted, although cultural identity is important: [I]dentity need not be seen in unique terms. It is a non-unique characteristic. It is a non- fragile characteristic. In fact, interaction happens to be enriching, rather than impoverishing. Along with the separateness of identity, we have to consider also the strength that is involved in tolerance. It is not a sign of weakness to have a sense of identity and yet to recognize other people's identity in non-hostile terms. Amartya Sen, Culture and Identity, in WOMEN LIVING UNDER MUSLIM LAWS DOSSIER 23/24, at 27, 31 (Int'l Solidarity Network of Women Living Under Muslim Laws, Harsh Kapoor ed., 2001). 9. Ann E. Mayer, Cultural Particularismas a Bar to Women 's Rights: Reflections on the Middle Eastern Experience, in WOMEN LIVING UNDER MUSLIM LAWS DOSSIER 16, at 21, 21-32 (Int'l Solidarity Network of Women Living Under Muslim Laws, Marie-Aimre H6lie-Lucas & Harsh Kapoor eds . , 1994), available at http://www.wluml.org/english/pubs/pdf/dossierl6/DI6.pdf; Women Living Under Muslim Laws: International Solidarity Network, Plan ofAction-Dhaka 1997, at 6-7 [hereinafter WLUML Plan of Action], at http://www.wluml.org/english/pubs/rtf/poa/dhakapoa.rtf (last visited Mar. 14, 2004). 10. WLUML Plan of Action, supra note 9, at 6-7. Human rights organizations often target violations committed against fundamentalists such as arbitrary arrest, illegal detention, torture, and the lack of fair trials. Although these are critical problems, exclusively focusing on these ends combats the symptoms, not the problem. By balancing the focus on both the symptoms and the problem, human rights organizations may effectively fight a host of human rights violations. Id. 1076 VIRGINIA JOURNAL
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