Using a background-vernacularist approach to promote compliance with CEDAW, with reference to Egypt and Tunisia.

Author: Sami Thamir S Alrashidi

Alrashidi, Sami Thamir S, 2017 Using a background-vernacularist approach to promote compliance with CEDAW, with reference to Egypt and Tunisia., Flinders University, Flinders Law School

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This thesis examines the possibility of promoting human rights by utilising cultural norms and values. It focuses on the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), particularly Article 5(a). CEDAW is considered to be the global bill of women’s human rights, and the majority of countries have become states parties to it. When ratifying CEDAW, a state is required to change its national laws, social policies, administrative law and social practices in order to achieve the equality of women (article 2(f)).

Article 5(a) of CEDAW requires states parties to change or modify cultural norms in order to achieve ‘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’.

In order to understand how culturally-informed methods can be deployed to promote women’s status and social change, this thesis presents what I call the background-vernacularist approach as a theoretical framework. Through this theoretical framework, the thesis attempts to understand possible strategies for compliance with article 5 (a). The background-vernacularist approach involves promoting change in those aspects of the cultural background that underpin discrimination, as well as vernacularizing women’s human rights norms and principles in the local legal and social context.

I use Egypt and Tunisia as case studies because they are both states parties to CEDAW and I am familiar with the legal and social issues facing these countries. Both countries have a history of debates about women’s rights that suggest they have the potential to deploy cultural tools to improve women’s status and compliance with CEDAW.

Understanding how the background-vernacularist approach operates can give a better comprehension of how one can deploy a hybrid discourse strategically and normatively. We assume culture sometimes has a negative effect on women’s rights. However, a deeper understanding of a particular culture might allow for the use of certain aspects of that culture to promote women’s rights. This deeper understanding would allow for a better dialogue about the nature of culture and why some changes seem to be more acceptable than others. This more sophisticated dialogue would improve the ability of various actors to engage in the hybrid discourse this thesis suggests should occur. It suggests that human rights discourse should be a hybrid discourse that can mediate between human rights culture and local culture. This thesis shows how such a discourse has in fact been deployed in Egypt and Tunisia in historical intellectual movements and legislative reforms to support improvements in women’s status in these countries.

The background-vernacularist approach is unlikely to offer immediate or easy solutions. But, over time, women’s human rights may be promoted and protected through the states parties’ commitment and through cooperation with governmental and non-governmental organizations, human rights advocates and private actors. To achieve these aims, states parties to CEDAW may find the background-vernacularist approach and its hybrid discourse useful as a long-term strategy to enable social change and women’s full legal and substantive equality.

Keywords: CEDAW, Background theory, Vernacularization of human rights, Feminism, Cultural Values, CEDAW article 5, Egypt, Tunisia, Postcolonial Theory, Hybrid discourse, Cultural Production, Women's human rights, transnational netowrks, Arab intellectuals, Islamic feminism, State feminism, Islamic family law reforms

Subject: Law thesis

Thesis type: Doctor of Philosophy
Completed: 2017
School: Flinders Law School
Supervisor: Professor Margaret Davies