P. Kruiniger
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引用次数: 1

摘要

为了证明《妇女公约》第16 (1)(c)条关于性别平等和穆斯林妇女离婚的重要性,本文首先强调了《公约》向消除对妇女歧视委员会提交报告程序所加强的“说服力”的重要性,尽管这是一种软法律机制。因此,各国急于在国际社会中塑造支持妇女平等的形象,如摩洛哥和巴基斯坦所示,导致其歧视性国内离婚法的合法性受到侵蚀,因为这些国家越来越难以证明其适用的合理性。这一进程本身已经表明了朝着改革从而遵守《公约》的过渡阶段。此外,这些外部压力的施加力量与NGO内部的改革压力是不可缺少和相辅相成的。此外,本章还提倡从文化上细微差别的角度采取一种方法,以便在伊斯兰国家进一步实施第16 (1)(c)条。看来,争取实质性平等或结果平等的选择比争取《公约》要求的完全平等更为可行。后者不符合基本的伊斯兰法律原则,即配偶双方都有自己的离婚方式。摩洛哥在这方面堪称典范,因为它的政府在非政府组织和消除对妇女歧视委员会的压力下,实行了一套平衡的离婚方式制度,为配偶一方或双方实行了一种独立的、可获得的司法离婚方式,并将基于拒绝的离婚提交司法监督。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce
In order to demonstrate the significance of Article 16 (1)(c) Women’s Convention on gender equality and divorce for Muslim women, this article first highlights the importance of the ‘persuasive power’ of the Convention strengthened by - although it is a soft law mechanism - its reporting procedure to CEDAW. As a result, the eagerness of states to create the image of being supportive of equality for women in the international community, as illustrated by Morocco and Pakistan, leads to corrosion of the legitimacy of their discriminating domestic divorce laws as it becomes more and more difficult for these states to justify their application. This process, as such, already indicates a transitional stage towards reform and thus compliance with the Convention. Moreover, these external pressure exerting powers are indispensable for and complementary to the domestic pressure for reforms by NGO’s. Furthermore, an approach from a culturally nuanced perspective in order to further the implementation of Article 16 (1)(c) in Islamic states is advocated in this chapter. It appears that the option of striving for substantive equality or equality of results is more feasible than to strive for the Convention’s requirement of full equality. The latter is at odds with the fundamental Islamic legal principle that either spouse has his/her own modalities of divorce. Morocco is exemplary in this respect as its government - under pressure of NGO’s and CEDAW - has accomplished a balanced system of divorce modalities by introducing an independent accessible, judicial divorce modality for either or both spouses and submitting the repudiation-based divorces to judicial monitoring.
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