Women's Social Status and Family Law

Wednesday, December 12, 2018
Don Pollard
Andrew Gilmour

Assistant Secretary-General for Human Rights, United Nations

Yasmeen Hassan

Global Director, Equality Now

Hina Jilani

Human Rights Activist in Pakistan, Human Rights Watch

Rachel B. Vogelstein

Douglas Dillon Senior Fellow and Director of the Women and Foreign Policy Program, Council on Foreign Relations

In many nations, family law creates a constellation of intersecting barriers—including requirements for spousal consent to work, inequality in inheritance law, and guardianship clauses—that undermine women’s ability to participate in the global economy. The path from legal change to normative shift is rarely straightforward, and efforts to reform remaining inequalities can lead to backlash. This panel assesses progress in family law reform, and highlights recommendations to effect legal and social change to advance women’s economic participation.  

VOGELSTEIN: Good afternoon. Good afternoon, everyone. Thank you for joining us for the fourth session of our Women and the Law Symposium. Once again, my name is Rachel Vogelstein and I lead the Women and Foreign Policy Program here at the Council.

Our final session today will explore the relationship between women’s economic participation and family law reform, which is perhaps the most intractable area of law governing the lives of women worldwide. In many nations, family law creates a web of intersecting legal barriers that inhibit women’s participation in the workplace from requirements for spousal consent to work to marriage and divorce regulations to inheritance restrictions, all of which can undermine women’s participation in the workplace and their contributions to the global economy.

So what is the status of family law reform for women around the world today and which policy approaches have had the most success in reducing inequalities in family law that constrain women at work?

This afternoon we have three terrific experts to help shed light on these questions. First, we are delighted to host Hina Jilani, a lawyer and human rights defender based in Lahore, Pakistan, who has founded numerous NGOs to advance the rights of women.

Second, we are very pleased to welcome Yasmeen Hassan, the global executive director of Equality Now and an expert on legal reform for women globally.

And third, we are very fortunate to host Andrew Gilmour, the assistant secretary general for human rights who leads the Office of the U.N. High Commissioner for Human Rights in New York.

Welcome to all of you.

HASSAN: Thank you.

VOGELSTEIN: Yasmeen, I’d like to begin with you. Back in 1999, you authored one of the first reports on sex discrimination under the law and family law was a very significant area of focus. Two decades later now, you’ve observed that we’ve made progress globally in a few significant areas—for example, in passing laws related to violence against women—to some extent, laws related to women’s economic status. But we’ve made very little progress in reforming family law. So why is that? Which barriers remain, how do they inhibit women’s economic participation, and what will it take to eliminate them?

HASSAN: OK. So that’s a big question. (Laughter.) So I’ll go back to from 1999. Let’s go back to 1995 when the Beijing conference happened, and one of the things that was in the Beijing Platform for Action is that 189 countries said we will repeal all sex discriminatory laws, right, get rid of it. I mean, people recognized at that time that the law matters, right? Law is not everything but it is your status. It is what your country thinks of you. It is what your rights are as a citizen, right.

So five years later after we all rejoiced as women’s rights groups, and somebody in the previous panel talked about how under resourced women’s rights groups are. We are. All of us, like, at the national level are working against tremendous odds and we have the will to go forward. But we were very pleased at Beijing. Four years after Beijing, we looked at, like, what’s happening with sex discriminatory laws and not a single one had been repealed.

So I was at that time a corporate lawyer at Davis Polk & Wardwell and I was told to come into Equality Now and start compiling a list of laws, OK, and we found marital status huge kinds of discrimination, right. They were in the letter of the law, from laws looking at unequal rights to entering into marriages, exiting marriages, custody of children, polygamy, laws requiring wife obedience, laws requiring men to be head of households, permission.

So from that to economic status—women needing permission of husbands to work, women not inheriting, women not being able to do certain jobs or work at certain times—to laws on personal status—not being able to travel, not being able to give evidence on the same basis, not being able to pass your nationality. And then violence against women laws that allowed men to beat their wives, in certain countries, allowed honor crimes. All of it is part of family law. It all boils down to your status in the home, right.

So our thing was these are going to get repealed now. But nothing happened because people didn’t know what a sex discriminatory law was. That’s what led to us doing our first report on sex discriminatory laws and over twenty years we have seen more than 50 percent of the laws that we have identified as sex discriminatory have been repealed. Where the progress has been slowest is in the family law section.

And let me tell you, going back to when you work with women’s rights groups around the world, family law is what matters the most. It’s not that other laws are not important. They are very important. Family law is what matters because it is your status in the household, and that is your status in life—kind of it determines, right?

So when we were looking at women’s rights groups, they said family law is important. When we were looking at the reform that was happening, it was not happening in family law. And part of it is family law is very tied to religion. There’s either Muslim, you know, family laws or Christian family laws or Jewish family laws, Hindu, and people—and I think this might been—I don’t want to call it a mistake of the women’s rights movement but there was a hesitation in the global women’s rights movement to engage with religion, right, because we were, like, we are going to look at international human rights. We are going to get laws changed based on people have signed CEDAW and people have signed, you know, all these human rights instruments, and that was very successful. Where the success wasn’t was in—was in family law.

Now there have been groups—I’m on the board of another group called Musawah, which literally means equality in Arabic, and it’s a group of women’s rights lawyers mostly who are looking at Sharia law and saying, we need to take back the night because we have not been in the forefront of religious reform. We haven’t been able to move that dial. And it’s not that that’s the end-all and be-all. They have been successful now in providing arguments to—in addition to CEDAW which usually—you know, countries would come before CEDAW. They would have discriminatory law and then they would have a reservation this is based on religion or Islam or, you know, and the CEDAW committee couldn’t argue that.

So this—groups like that give ammunition not only to CEDAW but also to Islamic institutions like Al-Azhar University, which is right now doing a convention looking at family laws and they are being provided input. So that’s kind of great. But my point was family law has not been—even globally, as a global movement we haven’t looked at—and I’m counting equality now as part of it.

We took on nationality laws as one level of because it was going to be easier to change those, right, and we thought that would be a way into other laws like family laws. We took on rape laws—again, easier. Family law we have shied away from but I think right now there is momentum. There is time to make those changes and I want to give you one story of a very recent case that we have that’ll make you see how important family law is.

In May, we were told of a young girl, Noura Hussein, who was in the Sudan and she was on death row for killing her husband. Noura was married off as a child at sixteen years old. She protested, and the law of Sudan allowed her to be married at that age. Even at age ten she could have been married. She protested, ran away to her aunt’s house. She was brought back, forced into the marriage. She kept saying no but her consent was not even sought because her male guardian could consent to her marriage.

Then in that marriage there are wife obedience laws in Sudan, which require a wife to obey the husband. She was—she kept saying no to sex. She was brutally raped, held down by the husband’s cousins and nephews while he raped her. The next day he tried again and she killed him, and she ran to her house. Her parents turned her in and the state said not that she was a victim of child marriage, of sexual assault, of rape—gang rape, basically—but that she was tried for murder and she was going to get the death penalty. This is the extreme, right, and this girl wanted to study. She wanted to not be married. And if we don’t fix—we’ve been doing all sorts of other legal reform in Sudan and we got the rape laws changed there recently. But the family law that led to this situation hasn’t been touched, right.

So we got internationally and nationally, at Sudan level we got groups involved in this. We made a huge hue and cry. Her death sentence was then commuted to five years imprisonment and she had to pay a fine and we are still, you know, working on her release but, importantly, now working against child marriage to get laws changed on child marriage, on marital rape, on the male guardianship laws. So those have all been spearheaded, right.

Other important thing—up till about three years ago when we talked about women’s rights in the economic sphere it was education and employment opportunities, sometimes political participation, and we have been—I mean, I missed the sessions in the morning with the World Bank and the IMF but we had been after them saying, what about family laws—this is what matters the most. And three years ago, the World Bank did the Women, Law, and Business Report where they focused on discrimination in the unit of the family, which I really believe is without looking at that I think progress is going to be limited in other region—in other areas.

So we are hopeful, and we are continuing to work with women’s rights groups all over on family laws and other laws. And I will stop here because I think I took up too much time. (Laughs.)

VOGELSTEIN: No, that was incredibly helpful.

And to continue on the hopeful note, one of the issues that did come up this morning in Madam Lagarde’s remarks was the importance of the family law reform that is taking place in Tunisia on the issue of inheritance, another issue I know you’ve been hard at work on. So I think there’s a growing recognition of how—

HASSAN: Right.

VOGELSTEIN: —central these family laws are to women’s economic improvement.

Hina, I’d love to turn to you to talk about the pioneering human rights work that you led in Pakistan. You’ve addressed many of the issues that Yasmeen raised—entitlement to inheritance, marriage, divorce, and child custody, property rights. What is the role of Islamic or customary law in enshrining inequalities into the legal code and what will it take to accomplish reform?

JILANI: I think I’d like to put it in a different way. I couldn’t agree more with what Yasmeen has said because having dealt with women for almost four decades now with their legal problems but also having—you know, I run this shelter for women and I can see that whatever form of distress they are suffering from, family law always is one of the tools that has to be used to give her relief. So whether it’s violence she’s fleeing from, whether it’s, you know, domestic violence, honor killing, whatever, there is always some form of relief that she requires in the sphere of family law.

So that’s extremely important. I wouldn’t say that, you know, Sharia or customary law are the problem. I think it is the will of the state that’s the problem. I think the civil society is ready to go forward. What I don’t really agree with here is that we wait for religious reform to tackle the issue of discrimination against women under any religion or culture. I mean, religious reform can take place if they like wherever they want it to take place. But this should be a separate issue altogether. Discrimination against women in all spheres, whether it’s law, policy, or practice, should not be tolerated anymore.

And I’ll give you some examples. This has happened. In Pakistan, it just happened. I can’t say that, you know, we’ve changed by leaps and bounds but we’ve certainly mitigated some of the harm that certain religious laws or customary practices have brought. But at the same time, I think at the national level at least there have been good procedural law reforms which mitigate the harm that substantive law does.

At the same time, there are lingering problems. For instance, in the twenty-first century in my country and I’m sure in many countries that Yasmeen is working in a widowed mother cannot administer the property inherited by her orphan children because she’s never considered under Islamic law as the natural guardian of her children. So she has to go to court where, you know, the problems of protracted litigation, everything, even the problem of the social restraints on mobility of women makes it a big barrier—a big leap for her to go out of her house, of her home, try and litigate, get a guardianship certificate. In the meanwhile, the family is starving.

At the same time, I think that what we also need to understand is that when we talk about empowerment of women we have to see how lack of reforms in the law, in the area of family law, is leading to increased poverty of women. It’s not just inheritance but it’s also the practice of polygamy in many of these countries, lack of sufficient legal rights for maintenance of the wife.

There is absolutely no concept under Islamic law of marital property. The woman doesn’t get anything in the share of her husband after divorce. In many countries, not in mine—we have a good divorce law now—but in other countries women can just be divorced by three pronouncements by the husband and she can just—she just has to leave the house. So these are some of the problems we have to tackle if we are really serious about women’s empowerment. I think institutions like the U.N., especially U.N. Women, has to give some attention to this side of the issue.

Child marriage, for instance—you know, we talk about bringing this religious reform and only then women can benefit from a reformed religious philosophy. That’s really not true. In Pakistan, there were these Hudood ordinances which were notorious laws—criminal laws—which in many ways put women at risk of being punished for extramarital relationship, punished with something like stoning to death or public lashes. That law still exists on books.

But what did we do? The women’s movement was so strongly influencing several governments successively that the law has now been put on the back burner and nobody really now gets charged with that law. Islam didn’t change in Pakistan or Islamization trends didn’t change in Pakistan. But at the same time, somewhere along the way it came to the public—the public came to its senses that these are not things that can now be tolerated in the twenty-first century.

And the same way in child marriage. We have two provinces in Pakistan where parliaments—provincial parliaments have passed a law against child marriage. What about the other two provinces? This is an Islamic country. Are two provinces less Islamic than the other two provinces? So it’s not a question of religion at all and that’s why I have always advocated this is a political question and a question of political will of the state and the legislatures are the ones who have to be made conscious of the fact that they have to legislate so that the capacity of the state to protect is strengthened.

Today, every state that you look at, not just from the point of view of women but the point of view of defending human rights, they have enhanced their capacity to control but their capacity to protect is as weak as it ever was.

So these are some of the things I think that women have to pursue together with other rights because I don’t think that women’s rights will be promoted in isolation. As it is a political question it will have to be dealt with as a political question and as a question of political will of the states.

Advocacy has to be well informed. It has to be targeted at the right sources. We talk about Al-Azhar. We talk about the clerics in our country. I think these are useless for us. It’s a political question and whoever has the power at a particular time, whether to interpret law in an institution or in a government or a state, it will be their particular slant or agenda which will determine how they will interpret the law.

So I really don’t think that’s the answer. As a women’s rights movement in Pakistan we have achieved a great deal. But we’ve achieved it despite the state and despite governments. So I think civil society does have a power. It does eventually come to a state.

Well, you know, when I started there was a case that I was doing of rape of a ten-year-old—twelve-year-old girl. The person who had—the accused had submitted a marriage certificate in court saying that she was his wife so it was not rape at all because under our laws marital rape is not an offense. And this is the High Court—said at best it can be the misuse of the wife because there were marks of violence on this twelve-year-old girl’s body. So these are the kind of things we confronted thirty years ago. I don’t think that any court in Pakistan can today dare to say something like that in a judgment.

So we have come a long way. We have to go a long way. But institutions at the international level have to understand that family law is a locus of distress—for causing distress for women and unless and until these very anachronistic laws and ideologies are corrected, women cannot be empowered whether inside the family or in the public domain.

HASSAN: Can I just add?

VOGELSTEIN: Please, Yasmeen.

HASSAN: Oh, sorry.

I just—I do want to clarify. I am not arguing for religious reform in any way and I agree with you. I am using—like, if there are laws that are justified on the basis of religion, you have to debunk them on the basis of religion and what I felt—I mean, I studied Islamic law when I was in law school here and it was really understanding that this religion has been misused. So it’s one strategy to bring whatever the laws are in harmony with international human rights standards and that’s all.

It is not—I’m not advocating religious reform. I agree with Hina 100 percent that that is a road that, you know—but we have personal status laws that are justified on the basis of religion. We want to argue as women saying that this is no longer twenty-first century. This is no longer right. But we get assaulted on the back end saying this is justified. And if we don’t have those right arguments, sometimes it’s harder to move forward.

JILANI: We have the right arguments. And I think during my life as an activist many, many women have given the right arguments and argued about it.


JILANI: I don’t think that that has helped.

I’ll give you Pakistan’s example on child marriage. Two provinces have a child marriage prohibition law. Two don’t. And in 1961, we had law reforms. To this day, those laws are controversial amongst the religious community in Pakistan. But after having done about maybe thousands of women’s cases—many of them were very religious minded—not a single woman came to me and said that, I don’t want to go to court under these laws because they are against Sharia, as the mullahs say. So I don’t want this right. None of them.

So, you know, ultimately, it’s self-interest. Even the most religious woman wants her rights that were given by a controversial law which mullahs say are un-Islamic. Even today, the federal Sharia court has said these are laws that are un-Islamic and we are in the Supreme Court arguing that, you know, they are constitutional rights of women. So these are some of the things I think we must remember when we are doing our advocacy. All right. It’s fine. That can be a complementary strategy. But this should be really something that has to be separate for us as women.

You can interpret laws the way you like. But these are certain principles which are universal. Discrimination cannot be allowed. Women’s status has to be equal in all senses. So I think that’s an argument the mullahs can have. But that’s not an argument that we can—we should be promoting. Our point of reference has to be human rights, women’s rights to equality, and the right to dignity and, you know, freedom from discrimination.

VOGELSTEIN: You know, one of the things that you talked about is the role of multilateral institutions like the U.N. in making this connection between family law and the economic effects of the restrictions that exist. Certainly, when we think of the calculations, for example, that the World Bank has recently done to estimate the cost to GDP of laws that permit marriage under the age of eighteen, we could imagine how that type of analysis could be expanded to the full constellation of laws that discriminate against women in this realm and imagine that that too would provide for some very effective argumentation to the state leaders, Hina, that you mentioned that need to be doing more.

But I want to get back to your question about multilateral institutions and the U.N. and, Andrew, ask you about your work, in particular, focused not only on the legal inequalities that have already been mentioned—property, inheritance, and other family laws—but also your work addressing the very idea that the man is the head of the household and the implications that that assumption has for housing policy, social security policy, other policies, and how that assumption relates to the disproportionate burden of unpaid care and domestic work on women.

How is it that nations can address these structural and cultural inequalities that often inform this constellation of family laws and what is the role of the U.N. and, in your case, the Office of the High Commissioner on Human Rights, in addressing these barriers?

GILMOUR: Thank you very much, indeed. Like before, it’s a very complex question that I’ll try to unpack it. But I’m extremely happy to be here. Thank you for having me.

So yes, the issue of unpaid work and the massive imbalance between all the—the unequal distribution of unpaid work, pregnancy, childbirth, child care, elderly care, and domestic work—and it’s been estimated that globally women do 2.6 times the amount of unpaid work as men and this has all sorts of effects.

We all know that society historically or traditionally undervalues unpaid work, and it means that people who do so much unpaid work of all those natures—it means that they have much less ability to actually do full-time work. So the type of work they do get outside the domestic zone tends to be the lowest paid, ones with the lowest qualifications and the most precarious, and the ones that lack any form of pension, benefit, or anything else.

So all of that is a key point, and so we’re actually very happy that the Sustainable Development Goals target—5.4, to be precise—it did stress the need to value and—recognize and value the unpaid care and domestic work.

And so a solution to that would include, for example—obviously, here we have it but in many places we don’t—paternity leave and to get men to understand that there has to be a much more equitable distribution of domestic work and then, of course, the facilities—again, much more common in some parts of the world than others—of day care centers to allow women to do that.

But then you have—and you alluded to this as part of your question—of the stereotype that the man is the breadwinner. And this also has sort of terrible knock-on effects in many cases because so many—in so many places we have the social benefits that go with real work or the assumption that the head of the household or the breadwinner is a man. So you get social housing, health care benefits, or cash allowances that go to the man and the women only get it, if they’re lucky, indirectly and almost as if it’s the gift of the man.

And, of course, then the CEDAW committee has examined cases in many countries, actually, where particularly how the fact that social housing goes to the male spouse aggravates the situation and knock-on effects, and sometimes can put women into a terrible dilemma. You either stay in a violent household—remain in it—or become homeless. And that is clearly—working on that assumption and breaking that link that it is only the male who has access to social benefits is absolutely crucial.

And then so that—so that links it to something which we do a lot of work on, which is violence against women—in the domestic sphere, of course, but then there’s also a much wider sphere. In the domestic sphere, there are a lot of sort of governments—we have field premises around the world, but we do what we can.

I mean, I will just give an example. Just a few months ago, I was in Afghanistan. I had a meeting the president and many ministers who, by the way, took the arguments very receptively. They do have a law against violence against women—criminalizing violence against women, unlike many other countries, by the way. There are at least thirty-six countries that don’t have any—they don’t recognize any form of violence against women as a crime.

But in Afghanistan they do have one but it tends not to be used very much and one reason is that they set up these family tribunals and then put immense arbitration centers—not centers but a system—an immense pressure on the woman who has suffered the violence to withdraw the complaint under the guise of reconciliation. And, of course, one can’t argue against reconciliation. But one can argue against it, as we do and very strongly. It just looks as if it’s just exercising extreme heavy pressure on the woman to drop her case.

So on—I mean, I just wanted to mention a case, because I was in Yemen last week. And this isn’t so much domestic law but it’s just violence against women in general and, particularly, sexual violence and I raised it in every single meeting I had both with the government that’s recognized that’s in Aden, and then the de facto authorities that are in the capital, Sana’a, run by the Houthis. And in every meeting I raised it, and I said, look, I know that this is an incredibly sensitive matter—because it is—to raise the issue of sexual violence, but luckily the international community in the last ten years has really put this issue up there much more than it ever used it to be, but in countries like Yemen, we believe it is massively underreported, not least because women daren’t report it because there is the presumption that—and it’s a bit like your terrible case in the Sudan that we know about because it’s—but the woman is regarded as having—it’s her fault so that she will then be punished again.

But raising it with some people, particularly very hardline people on the Houthi side who really just do not want to admit that there is a problem; that this is not something we do here, but alas, it is, but this is something that we have to raise very sensitively because they take tremendous offense over it. But, I mean, I went public on it as well and issued a press release.

And then maybe I could just mention the third one because this week was coincidentally the 70th anniversary of the Universal Declaration, on Monday, and as part of a—and I’ve been speaking about it for weeks on this, but the global backlash against human rights, which certainly includes—but of course, that’s the first time I ever heard backlash was—specifically it was Susan Faludi’s great book in the early ’90s specifically referring to the fact that the progress that had been made, the great gains of feminism in the ’70s were being pushed back by those who resented those gains. But we do find that in various forms in the whole—across the human rights movement at the moment.

But I’ve gone off the topic because I meant to say that on the—coincidentally, I mean, terribly bitter irony that on the day of the 70th anniversary I was prevented from giving a speech in the Security Council on human rights abuses in North Korea, and the Security Council—it just made it so much harder for us to actually bring human right matters to the table, that even though the last four years we have done it, this year we didn’t get the nine positive votes; we got only eight that on a procedural matter would allow me.

But one point I would have made in that is very relevant to this. It is how law exacerbates sexual exploitation and violence in Democratic People’s Republic of Korea. You see, women in so many cases—and it impossible to have numbers here, but we are talking hundreds of thousands and millions whereby the women is the breadwinner of the family because the husband is in prolonged conscription for military service, at the end which then, if he does get demobilized, he gets sent off to work for some state enterprise for a long time and a long way away. And then of course there are the prison camps, as well, which again we don’t have numbers for.

But the situation—so they are the breadwinner, but that puts women in a sort of gray zone where they are acutely vulnerable to sexual exploitation and bribery. And then you find the ones—and there are large numbers of them—for whom the situation is so bad that they escape—try to escape and in many cases do escape to China even though they know—they know the incredibly high likelihood that once there, they will then fall victim to traffickers and sexually exploited by every—sexually exploited by a lot of people, and trafficked, and beaten. And moreover, if—as is often the case, and we have interviewed many of them in Seoul—that they then make it back, they are then—no, not make it back; that’s the wrong expression—they are then handed back at the court by the Chinese authorities and handed back to the North Koreans. They then get exploited and brutally sexually abused again.

So this is a really huge problem. In answer to your question—one of the many questions you asked was what do we do about it—well, on the way back from Yemen I was in Tunis until this weekend, and that is a positive example we’ve had where we were working with the government, and they announced just last month that they—it’s a very—and we congratulated them, it’s very welcome—that they are supporting a new law that will allow women and men absolutely equal rights of inheritance, which is obviously an absolutely emblematic issue to get basic equality. And we were working with that, and we’re happy to get it, and now we’re going to have to try and see how we can support them to get it through parliament. So that’s just an example.

VOGELSTEIN: So certainly pressuring governments, using the multilateral stage, working with civil society organizations to effect change at the governmental level, and bringing the lawsuits that, Yasmeen, your organization brings—these are all levers that have helped to push for progress in this area.

HASSAN: And you know, the one other thing that I’ve seen and I’ll mention goes on rights and the issue of child marriage being taken as one issue that you can work across countries, and really using the international system for that, and then getting national groups. So it’s like not that you guys in one country have this issue; everybody has these issues, and how do we work—like it has really highlighted that one issue that’s been a big success of a global movement that has taken one issue and moved the dial on it.

And, I mean, Hina also mentioned two provinces in Pakistan that have eighteen as a minimum age of marriage, and I believe in sin there are no exceptions, right? Those things are partly a credit to that movement, also, right, like—and I’m not saying that that meant that internationals worked on it—local women’s groups worked on it—but when you create that dialogue at an international level, and you have resolutions at the U.N. level, and you have CEDAW weighing in, and every—all of us work in concert, big things can happen, including on family law.

We’ve had the same experience on nationality laws where we took on laws that discriminate against, you know, women passing their nationalities to this children and to their spouses, and in this very global world that becomes part of family law because your entitlements in a country, and that—because we made it a global issue, and we put all the countries, and we worked with groups in every country and brought UNHCR in and OHCHR in, that has changed a lot of laws.

So I think that there is progress to be made, and I think the progress is—absolutely I want to recognize the momentum of the women’s rights movement at the local levels because they know the context, they know what change is possible, they know how to do it, but then the support internationally, and bringing that issue as a whole issue. I hope family laws can get picked up as the next thing, right, because we’ve taken on child marriage, nationality—they are issues that we took on. Right now Equality Now is working on rape laws which—particularly laws that exempt rapists from punishments when they marry their victims that are in a whole host of countries, and we’ve had a lot of progress changing those laws.

So I—I mean, I am very hopeful. Family law is the biggest frontier for women, and it is what matters to women almost the most, you know—every woman you talk to. So I’m hoping we can have a global campaign on this that, you know will bring us together, and I think you all can change it.

VOGELSTEIN: A note of optimism in an otherwise very challenging area.

Well, I’d like to now open the discussion to—

JILANI: Can I say one last word?

VOGELSTEIN: Hina, please.

JILANI: Just in conclusion, we keep talking about empowering women, and through our, you know, advocacy, through the messages we send to women, we do empower them to some extent, but then when they take an action through this empowerment, they are left hanging dry.

So what I’m saying is if you want to empower women, empower the law, and without empowering the law, don’t give women expectations of the law which will not be fulfilled because then it really ends up in a lot of frustration and disillusionment with the institution of the law.

VOGELSTEIN: With that I want to open the discussion to your questions. Please state your name and affiliation, and we’ll get to as many as we can.

There in the back.

Q: Yeah, hi. Barbara Chai from iSunTV based in Taiwan and Hong Kong.

My question actually goes back to one of the topics that was covered this morning about this cashless, digital payment which has great potential in the world to empower women to take control of the financial resources and make them—or supposed to make them more independent and have bigger say in the family.

And to what extent has the Islamic financing the banking system embraced this technology innovation? And to be more related to the discussion—or the panel discussion right now, is there a(n) obvious legal barrier that, you know, in the Islamic legal or financing banking system that prohibit the growth of this digital payment methods, especially in—I mean, in these countries like Pakistan, Indonesia, Malaysia, and Turkey. Yeah, thank you.

JILANI: Is the question to me? You know, I’m not an Islamic expert, so I really can’t answer that question. I’m only an expert on where the barriers are caused by Islam, so I can’t give you an answer to this. The only thing that I can say is that there is a lot of potential in that whole—in any financial system for giving women that agency. But in legal jurisdictions where the evidence of women or their ability to sign contracts is limited, it becomes very difficult.

I mean, in Islamic law, women are agents fully able to—capable to sign contracts, but they can’t be witnesses to any financial document. So these are some of the issues that probably might intervene here, but I do see a lot of potential in any financial system for that to be taken forward. We don’t necessarily have to depend on an Islamic system or anything of that kind.

VOGELSTEIN: Other questions? Yes. Yes, please, Ellen.

Q: Ellen Chesler from the Roosevelt Institute.

I just wonder, from a policy perspective, whether you feel that conditioning aid is a useful tool in changing behaviors at a country level and that programs need to be—this has to be made an economic issue. The U.N. was extremely valuable seventy years ago. Some of these issues are dealt with in the Universal Declaration of Human Rights, the 70th anniversary of which we celebrate this week. Over the course of the decades of women, a great deal of progress has been made, but you still continued to have an international consensus that valued diversity and stood silent in the face of claims of cultural, or regional, or religious pluralism.

So we seem to have moved beyond those barriers. We’ve now made an economic link between empowering women and equal rights for women, but do we need to have some teeth put into this by aid conditionality? Maybe the U.N. representative might want to speak to this first, or all—any one of you.

VOGELSTEIN: Yeah, a really interesting question about whether to condition aid, and I’m called to the example of the Millennium Challenge Corporation here in the United States which did incorporate, as part of its criteria for investment in a given country, legal reform to encourage equality between men and women. And there was actually a study of this aid conditionality that was subsequently termed the MCC effect where we did see countries changing laws and policies related to equality—inheritance, property, et cetera—in order to become more competitive for U.S. aid—so thoughts on how effective that could be as a strategy.

GILMOUR: I will speak, but not necessarily as—to give the U.N. viewpoint on this because I’m not sure there is a U.N. single viewpoint on this.

But, yes, aid conditionality can be effective, and this goes well beyond this topic, of course. It could apply to the entire—any issue you want—to aid is conditional to changing your country’s trade policies, or it can be done on a human rights issue, or signing up to a military alliance, so anything like that.

And it is definitely—I mean, looking at aid flows in Africa you will see that—and this is why I am saying it in a very non-U.N. capacity—because you will find that the countries of the West—i.e., EU and U.S.—are in many countries losing their ability to influence policy precisely because government recipients don’t like conditionality, and so they go to countries that give them the money and don’t demand conditionality. So if you want to be absolutely sure of losing your influence, then you over-conditionalize your aid—(inaudible).

But I’m not a—I sound as if I’m against the principle, which I’m not because, obviously, on some issues like that where you really care and believe that doing so would actually not lead to a backlash—for example, I mean—not on—directly related to this women’s issue, but on LGBTI issues, there have been conditionalities imposed on—and I won’t mention which ones—but on a couple of African countries whereby, after terrible threats were made to the local gay community, some countries threatened to cut off aid. That led to an additional backlash against the gay community. They were accused of impoverishing the country because they were accused of having whipped up donors abroad.

So you have to really be careful to do so. I mean, if you were doing it, you wouldn’t want women to suffer as a result of being blamed for the fact that a country like the U.S., for example, had decided to cut aid as a result. So it’s a very, very complicated question anyway.

JILANI: You know, I think it does make a difference. Nevertheless, we must remember that there it can be counterproductive as well, like Andrew has just said.

But remember, whenever there is any chance of aid conditionality being something that is acceptable and seen as a transparent policy, it will always be conditionalities that are coming or are reflecting social movements in that country and the messages that that population is getting, or human right movements and communities in that country are giving. Otherwise it is always going to be labeled as some kind of foreign agenda.

So always conditionalities must echo what those local movements and human rights communities are saying and very specifically stating. And this should be stated that this is in response to those demands of the local populations.

HASSAN: Exactly. Just to second that, I mean, on aid from government, we are an advocacy organization, so when they are giving aid, we always weigh in. Like we weigh in to the State Department here, we weigh in to the Norwegians and all, like what should your priorities be and make sure that is covered. So that’s our role as an advocacy organization.

I can’t talk that much about what happens, but we do it. But then there is also the aid that is given by individuals and foundations, and that I would be very—I have seen movement-killing things happen with that aid because they condition it, and it becomes the agenda of the donor as opposed to the women’s rights movement there. And, you know, I’ve seen that in many countries—Afghanistan being one of them—where it like this is what we want to get done, and you guys become our agents to get that thing done, and I think that is very dangerous.

I agree with Hina that the impetus must come from the movement within, and you must be—the donors must be in support of that movement rather than dictating what they do and how they do it.

VOGELSTEIN: The importance of increasing investment in local women’s movements around the world, an issue we’ve talked about before.

Other questions? Yes, over here.

Q: A few years ago the U.N. was asked by the Arab world to do a study on what would be their best path to prosperity, and the number one was education of women. What happened?

HASSAN: They did reach parity on education for—I mean, that was part of—

Q: Did it—was it implemented or—

HASSAN: —the Millennium development goals, and if you look in the Middle Eastern countries, women outstrip men at every level of education.

But, again—going back to—and we were looking at this, and we were like you are only going to focus on education, you are not even going to look at what’s within your educational curriculum, what opportunities you have with the education, what can you do, and so that’s one—and we met the Millennium development goal. At least in the Arab world there was huge progress, but there was not progress in economic participation, there was not progress in political participation, and the crux of it is family law and opportunity.

So I think, now that we have the sustainable development goals, which is the next step, it has all forms of discrimination in women integrated, and I’m very happy that sex discriminatory—repealing all sex discriminatory laws, which includes family laws, is part of that goal. So I think we will see more holistic change.

Q: (Off mic.)

HASSAN: I think they counted the numbers—and you can chime in—I think they counted. When they looked at just education of women, at primary level, secondary, even at post-graduate level, women had outstripped men at many of those levels. So it was—what was clear was we had achieved gains in education just by numbers, but it didn’t necessarily relate to progress generally that had been anticipated through—because I think we didn’t look deeply enough into education systems and other systems around that would lead to empowerment.

So I think we did look at it, and that’s why—the Sustainable Development Goals we said—we kept telling you because you remember Millennium Development Goals there was just one goal on women; it was education of women. Everybody focused on that, and we were like women’s rights advocates, and we were saying this is not the end all and be all. You have to look across the board, and I think now we are—(laughs)—in the next step, right?

VOGELSTEIN: I mean, the—throughout the course of our discussion today what we have focused on is how the playing field is still not level for women so, you know, as important as education is, this question of how you translate educational gains into gains in the economic sphere is related to the constellation of family laws and the other ways in which women are held back by the legal system.

Other questions? Come over here.

Q: Sorry. I was curious about returning to this area of tension between the three of you about the discourse that is helpful today, and I heard Andrew saying something about the—you could call it the backlash to globalization, also the backlash to universal human rights discourse, which many of us have confronted in a number of different areas.

And then Yasmeen was talking more in a human rights discourse—universalist human rights discourse, and then I heard you talking more in a political—a local political discourse. And I’m wondering—you know, we’re outside, right? Most of us in this room are working outside of the countries that you are talking about. Could you reflect again—maybe something from each of you about what you think is a useful way to engage on these issues because I think that globalization—you know, OK, a backlash because we haven’t done, you know, many aspects of it well, and certainly a lot of actors have been left out, and we’re seeing a populist response both from the left and the right here and in other places—Europe and so on—so it isn’t just this issue.

So I’m wondering if—upon reflection if there are people working on this question of how best to engage, you know—the U.N., other actors, you know, including people around this room. I just wanted to hear a little more about—

JILANI: I just want to—

Q: —and also about religion, you know, because the religious—the exchange between the two of you kind of seemed to highlight the difference between maybe politics, religion, law—these are big terms, you know, yeah.

JILANI: You know, just to clarify my own position, I can say this, that my thoughts are totally rooted in the human rights values. But I also believe that as a human rights defender, unless and until, I’m very well aware, number one, that nobody works in isolation for the promotion of rights and that one category of persons cannot claim that their rights will be promoted in a vacuum. So there is a political environment that we, as human rights defenders, are always trying to build. That’s why democracy, participation, inclusion is part of our work.

Secondly, on the religion thing, I’m not against religion. What I am saying is if we make women’s rights dependent on religious interpretations, there are myriads of such interpretations. And the person in control and in power will choose which one or select which one is appropriate for their own agenda and what kind of environment they want in a particular country.

So obviously what we are talking about is universal human rights. Those who can and—can influence religious communities and religious social environments in religiously led countries should do so, but that should be a supporting argument. That should not be the basis for women’s rights or not the point of reference for everyone.


HASSAN: Yeah, so just to answer your question, the discourse is important, and I think—I agree with Hina in everything she said.

What I experience—I’m not talking from equality now, just personally I have seen backlash against the—we have built up the human rights system over a long time to great success, right, and what we see again is people discounting that system, people saying this is a Western agenda over and over and over again, which I completely believe is false and ridiculous, and it’s undermining.

But then what is the strategy, right? To me the strategy is feed that discourse in all other discourses, so example of the Millennium Development Goals and the Sustainable Development Goals, we as human rights advocates didn’t really engage on the Millennium Development Goals; that’s why they looked the way they did. (Laughter.) We engaged on the Sustainable Development Goals, and that’s why they look like a human rights agenda.

Same thing on the economic front, OK? World Bank we weren’t working with previously, and we started working with them five years ago. One of the things that happened is like we worked with them on the women, law and business report, and we feed in all that stuff. So on the economic agenda you are feeding human rights.

My same thing is on the strategy on religious laws, like to the extent people are following these systems, we need to bring human rights. It’s not about engaging with religion; it is bringing human rights into those discourses because I feel that if we don’t do that, we lose out on a huge portion of the world. So to me it’s like bringing the human rights agenda into all these discourses and making it part of those discourses, and how do we do it because otherwise I feel we can lose our high ground—like for lack of a better word, right, so that’s my pitch because I remember I was at Human Rights Watch something—there was a convening, and the way people were talking, I was like, you know, I’m an intelligent person; I don’t understand half of the stuff you said. It’s like, this can’t be a human rights discourse. Human rights discourse is supposed to be about human beings, and human beings should understand it, right? (Laughter.)

So we had become so elitist in the human rights talk that it was counterproductive. So I’m like where do you take that and you break it down and make it about the person in wherever those people are. I think that’s very important, so. (Laughs.)

VOGELSTEIN: Andrew, thoughts?

GILMOUR: You know, that’s an extremely good question. And indeed, I would say our office is absolutely focused on this because it clearly is not working—or what we’re doing at the moment. And, I mean—so the human rights agenda is under threat from two broad lines of attack: one, the security argument, and the other is the sovereignty argument.

The security argument is that you are undermining the state. You are trying to—you are promoting terrorism. We now get accused of promoting terrorism. And I have a particular role in acting on reprisals against individuals who cooperated with the U.N. by trying to share information with us. And we find time and again the denigration of human rights defenders is based on the fact that they are sympathizers of terrorists, and that the human rights agenda is a terrorist agenda. You are undermining our government, and you are criticizing our police force, it means you promote terrorism.

Then there is the sovereignty argument that you are imposing an alien Western agenda on our traditional values, and who the hell are you anyway, and I don’t—not interested in your arguments. So that sovereignty—both of those lines.

I mean, I find—and Yasmeen’s last point very much spoke to me because I find that the human rights discourse can be very off-putting; I mean, it sounds legalistic, arrogant—often it sounds arrogant and incomprehensible. So we do definitely need to show that human rights applies—first of all, it’s got to be easily comprehensible and people can understand why they need to fight for it, and secondly—and this is a difficult point to make because all the groups I’m about to (make ?), I really believe that we have to do more to defend, whether it’s prisoners, or migrants, or LGBTI, or disabled.

But the trouble is if the human rights movement is seen as only focusing on vulnerable groups, then it means that anybody who is not in a vulnerable group—isn’t disabled, isn’t gay, isn’t migrant, isn’t disabled—then they just feel, well, it’s not—it’s not my agenda; it’s an agenda of other people. Yeah, we feel sorry for them, but it doesn’t relate to me.

But even more broadly than that, what I try to do—because I see when I actually go to places and since my road is much more in areas of conflict, where there is governments who aren’t very pleasant and aren’t remotely interested in human rights, frankly, the idea of pitching them in a human rights discourse is going to have zero impact. So if I argue on torture, I will tell them it’s immoral; they don’t care. Tell them it’s illegal; they don’t care. But if you tell them—and show that it’s actually ineffective because torture almost invariably leads to wrong information being handed over, almost never leads to really useful information because people just say anything to stop the pain and whatever they think the interrogator might want.

And also on counterterrorist, I go to so many countries where they claim to be fighting terrorists, and I point out that in other places—all the other places that I’ve worked in, that they’ve fought a similar battle. And almost in every single case they’ve created more terrorists than there were in the first place because of the bovine and brutal way that they fought it. So if you can put it like that rather than saying you ought to do it because it’s immoral the way you are doing it, which is traditionally what I think the human rights movement has done, that’s a little bit too much of—and we might conceivably—I’m not wildly optimistic, but at least we’ve got to go for it—might have a better chance of persuading people.

VOGELSTEIN: Well, I hope that the discussion today and the resources that we have put together here at the Council will help make that strategic case as the work moves forward. And while it is clear that much more work remains to realize the economic potential of women around the world and reform family law, there is no doubt that our discussion today illuminates the path forward.

So please join me in thanking our panelists here and all of our panelists today. (Applause.)


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