Status of Arab Women Report Access to Justice for Women and Girls in the Arab Region

62 Pages·2015·7.43 MB·English

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
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and Social Commission for Western Asia (ESCWA).
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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.
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Mention of such a symbol indicates a reference to a United Nations document.
15-00071
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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.
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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
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P.58 Bibliography
List of figures
P.12 1. The justice chain
P.15 2. Access to justice elements
3. The ratio of girls to boys in tertiary education versus the percentage of Arab
P.34
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
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“While both men and women face obstacles in accessing
justice, women face different challenges and experience
such challenges differently”
© Michael Nivelet - shutterstock_197155082
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I. Introduction
A. Background and objectives economic, social and cultural rights in the
region.9
Ensuring women’s rights plays an
The inability of women to challenge
indisputable role in sustainable human
discriminatory laws within their countries’
development.1 Yet Arab women
formal legal structures is one of the main
face persistent inequalities rooted in
factors that contribute to gender disparity.
discriminatory laws and institutions.2
Discrimination is clearly manifested in de
Gender disparities in social, economic and
facto unequal protection before the law, as
political rights in the Arab region remain
significant and widespread.3 Moreover, evidenced in discriminatory national legal
frameworks; and, subsequently, in unequal
multi-dimensional inequalities continue
access to justice.10 Discrimination is further
to impede progress towards women’s
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
B. Scope and research methodology
procedurally, in national legal frameworks.
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
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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 in the also examines the trilogy of the legal
region. It also relies on the interpretative obligations of States to “protect, respect
work of the committees of human rights and fulfil” human rights. This discussion
treaties. attempts to determine the scope of
the right of “access to justice” and to
The study draws upon background establish national responsibilities to
papers produced by legal experts implement and put into practice their
addressing research questions related commitments in this regard, including in
to the applicability of women’s right situations of conflict and post-conflict.
of access to justice in each of the Arab
subregions.11 These background papers Chapter III analyses the legal and
examine the integration of the right of constitutional frameworks in the Arab
access to justice within the constitutions region in an attempt to determine the
and national legal systems of ESCWA extent to which the implementation of the
member States. They analyse existing right of access to justice for Arab women
structures of justice and consider conforms to international and regional
to what extent these structures are conventions. This chapter specifically
compliant with international obligations. addresses how the right of access to justice
Furthermore, they examine the difference for women, as enshrined in agreed-upon
9
international instruments, figures in national can significantly impede the advancement
constitutions and legislations. of women’s rights”. 13 Access to justice and
effective national remedies are critical to
Chapter IV focuses on impediments and the full and proper application of human
obstacles faced by women seeking access to rights. Rooted in the principles of equality
justice in ESCWA member States. Focusing and non-discrimination,14 access to justice
on issues of availability, accessibility and encompasses “equal access and equality
affordability, it examines whether – and in of arms, and ensures that parties to the
what manner – States manage to translate proceedings in question are treated without
their obligations under international any discrimination”. 15 As such, it is “a key
conventions into concrete procedural element of human rights protection, and
measures, which will in turn ensure full serves as a procedural means to safeguard
enjoyment of this right. the rule of law”. 16
Chapter V discusses approaches to The international community as a whole
improving the situation of access to has engaged in the development of
justice for women in the Arab region and standards, guidelines and strategies aimed
enhancing the accessibility of national at strengthening justice systems and national
remedies to gender-based injustice. legislations by incorporating into them
Highlighted in this discussion are best principles of non-discrimination and equality
practices and tools available for use by in enjoyment of rights. International human
Governments. The chapter illuminates the rights treaties consider national laws to be the
current efforts and related reform measures ultimate source of remedial justice, and assign
of some ESCWA member States taken the prime responsibility of human rights
towards meeting their obligation of making protection to the State. This responsibility is
equal access to justice possible. embodied in the principle that States should
ensure that procedures to seek protection
The conclusions in chapter VI provide from human rights violations are available and
applicable policy measures that may be accessible to all individuals.17
considered by member States and key
stakeholders. These measures aim to The right of access to justice is afforded to all
enhance access to justice for women and individuals: male and female, citizen and non-
to ensure the availability and affordability citizen. However, while both men and women
of national remedies in cases of violation of face obstacles in accessing justice, women
their rights. face different challenges and experience
such challenges differently. It is well noted
C. Rationale: Why access to justice? that groups suffering from discrimination
and from a lack of the protection of the rule
Ensuring rights and upholding the principles of law are more likely to experience a range
of equality and non-discrimination must be of socio-economic, political and criminal
achieved through the rule of law. However, injustices.18 As explained by the Special
rights are only meaningful if they can Rapporteur on extreme poverty, economic
be protected. As it has been well noted, obstacles to access to justice are “a major and
“just as a strong legal system can protect unacceptable challenge for all people living in
and open up opportunities for women, a poverty, but they are particularly pronounced
justice system that is inaccessible or that for women, due to the unequal distribution of
contains discriminatory rules or practices resources at both the household and societal
Status of Arab Women Report Introduction