Why do we need special “women’s human rights” treaties and not just “human rights” ?
Whilst the very term “human rights” is built upon the principles of non-discrimination and equality, the practice of the law does not comply with the principle. International organisations and states, whose power structures are overwhelmingly patriarchal, are the main subjects of international law. Women rarely occupy positions of power in such institutions, and even then, their voices tend to be silenced (Charlesworth and Chinkin, 2000, pp.621-2).
Within the UN itself where the attainment of nearly universal participation is hailed as a great victory of the international community, such universality does not even apply to women. Especially in treaty bodies, women have been consistently absent, making up less than 20% of the membership prior to 2000 (Edwards, 2010, p.97).
This major absence of women in the development, implementation and enforcement of human rights has resulted in a rights-based system that reflects the realities of men’s lives while failing to reflect the rights, concerns, desires and needs of women. Sex and gender are not recognised as significant dimensions for defining the content of mainstream human rights law or for the strategies that must be taken to ensure that individuals are free from violations of their human dignity (Charlesworth and Chinkin, 2000). However, as Kaufman and Lindquist argue, “there is no such a thing as an ‘objective’ application of the law, or for that matter, gender-neutral norms, as law-making is a socially constructed enterprise” (2018, p.117). The major concepts in mainstream human rights treaties, such as “equality” or the dichotomy between the public and private, for example, are co-opted by men to reflect their own experiences and needs.
In this regard, the notion of equality employed in mainstream human rights discourse is centred around difference and uniformity. Equality is understood as placing women in the same position as men by ensuring their uniform treatment, whereas inequality refers to the situation in which men and women are not treated identically (Charlesworth and Chinkin, 2000). Hence, the ‘male’ sex is normalised here as the standard for achieving equality—if men have a right to something, women must have the right to the same (Edwards, 20120, p.175).
Nevertheless, this understanding of equality is a superficial one that is unable to recognise the structural inequalities in political, social, cultural, and economic spheres of life that sustain women’s substantive inequality. It falls short of acknowledging that in a globally patriarchal environment where women are consistently oppressed and lack the same opportunities as men to have an ‘equal start’ or the ‘equality of result’ (in their endeavours), equality might indeed mean differential treatment to overcome such structural obstacles.
Moving on to the dichotomy between public and private, the human rights rhetoric once again fails to accommodate women's unique experiences. In legal theory and practice, the "public" sphere is regarded as the jurisdiction of law, whereas the “private” sphere is often kept out of the reach of any legal legislation and jurisdiction (Edwards, 2010, p.65). As Thornton argues, “the public sphere, mediated through the law, has enabled benchmark men to construct normativity, like God, in their own image” (1995, pp.11-12). This dichotomy is believed to facilitate women’s discrimination and inequality in international law primarily because it leaves home, where the majority of women spend most of their lives, vulnerable to abuse (Edwards, 2010, p.66). In this context, both at the national and international level, women struggle to convince law enforcement that domestic violence is a crime.
Other shortcomings of the mainstream human rights law are embedded in its inability to recognise specific types of physical and psychological violence women are subjected to—whether in public or private. An example of this can be seen in the case of torture. As Edwards explains, while the understanding of ‘persecution’ in international law remained limited to acts of torture carried out against political arrestees in state custody, a form of violence that most prominently affects men, the forms of sexual violence such as rape that overwhelmingly affects women were overlooked (2010, p.198).
In this context, a programme of special rights, such as women-specific treaties, has been essential in addressing the unique needs, concerns, desires and rights of women (Edwards, 2010, p.49). Unlike mainstream human rights law, express provisions in the CEDAW, for example, recognised the importance of both formal (de jure) and substantive (de facto) equality (see CEDAW art.1; Cusack and Pusey, 2013, p.64). In this regard, the CEDAW Committee indicated that it is not enough for states to promise equal treatment for men and women, but structural inequalities arising from social or biological factors must be taken into consideration to ensure that women are “given an equal start” and are “empowered by an enabling environment to achieve equality of results” (Cusack and Pusey, 2013, p.64). This points out that, acknowledging structural causes of inequality and discrimination, if identical treatment has the effect of impairing women's rights, it may be considered discrimination under CEDAW (ibid). This happens “when a law, policy, programme or practice appears to be neutral in so far as it relates to men and women, but has a discriminatory effect in practice on women” (CEDAW, General Recommendation, 28(16)).
Similarly, the extensive scope of CEDAW, which regulates both the public and private, has guaranteed that the whole spectrum of harms women suffer due to their sex and gender are regulated (Cusack and Pusey, 2013, p.63). Especially after the 1992 General Recommendation of the Committee, the treaty has transformed into a fully comprehensive gender-based violence treaty (Edwards, 2010, p.180). The General Recommendation declared that “gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on the basis of equality with men” (CEDAW, General Recommendation, 19(1)). Consequently, according to the Women's Committee, not only is equality a fundamental element of the CEDAW but so is gender-related violence. The two problems are innately linked since they both impede and restrict women's ability to enjoy their human dignity.
The Committee made a connection between violence, tradition and custom in particular. The General Recommendation states that “traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practises involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision” (CEDAW, General Recommendation, 11). Such harmful practices are then regarded as having significant negative implications for the mental and physical integrity of women and “depriving them of the equal enjoyment, exercise, and knowledge of human rights and fundamental freedoms” (ibid, para.12). Here, it must be noted that classifying violence against women as sex discrimination has filled a significant vacuum in international human rights legislation, particularly the lack of an express enforceable prohibition on violence against women (Edwards, 2010, p.183). Various women’s human rights violations have been addressed under this strategy, including sexual assault, domestic violence, various forms of rape, pornography and physical abuse (ibid).
Nevertheless, despite the contributions of special women’s rights treaties to women’s equality and non-discrimination, such special rights are also subject to criticism. It is often argued that the gendered treaties of international law “rely on and reinforce a collective female identity” (Edwards, 2010, p.71). As Mohanty argues, this reveals the critical assumption that “all of us of the same gender, across classes and cultures, are somehow socially constituted as a homogeneous group identified prior to the process of analysis” (1984, p.337). This understanding of women as a singular, homogeneous group is achieved not on the basis of biological characteristics but on women’s universal oppression by patriarchy (ibid).
Here, it is important to draw on what Foucault terms the “juridico-discoursive” understanding of power, which informs liberal and feminist scholarship in great depth (1990). According to this understanding, power is an inherently negative force that is either possessed or lacking by individuals or groups of people, and it is universal and uniform in its application (ibid, pp.84-6). In this framework, patriarchal power is analysed as oppressing its subjects, women, in a universally monolithic manner; women are categorised as a cross-culturally homogeneous group on the basis of their collective oppression and lack of power (Mohanty, 1984).
The juridico-discursive understanding of power also informs feminist efforts to locate freedom and agency outside the realms of power—such as norms, custom, tradition and religion. Here, an image of a ‘free agentic woman’ as emancipated from her community ties, culture, tradition and religion is portrayed. This image further suggests an improvement from the religious-collectivist way of living to a secular-individualistic one. In this regard, feminist scholarship and women’s rights treaties developed in the light of feminist jurisprudence have been accused of seeing the world through “middle-class glasses” (Edwards, 2010, p.74). In a similar way that the ‘male’ sex is normalised in mainstream human rights rhetoric as the standard for the achievement of equality, the ‘white middle-class’ experience is standardised in the feminist understanding of a free agentic woman (Grewal, 2005). Followingly, this image of culture as a problem rather than a resource then marginalises minority women and contributes to their inequality and discrimination instead of challenging it (ibid).
Nevertheless, I believe that one must be careful when criticising women’s rights on the same grounds as ethnocentric Western feminism, or what Khader calls “missionary feminism” (2019, p.23). Although such hostility towards minority cultures is observable in missionary feminism, which cannot imagine that women might find freedom and agency in sustaining their collectivist and religious identity, the same cannot be said of women’s rights discourse (Edwards, 2010). The women’s rights treaties do not imply that women around the globe are oppressed in an identical manner or that there is a single recipe for women’s equality and non-discrimination. In contrast, it merely acknowledges a general trend of patriarchal oppression—although it might significantly vary in its degree and mode of operation—and advocates for minimal norms of humane treatment (Edwards, 2010). In this regard, the notion that there is a general trend of women’s oppression by patriarchy is not incompatible with the possibly different causes of the oppression in different contexts, as well as the employment of context-dependent strategies or moral vernaculars (Khader, 2019, p.38).
Finally, although certain cultural or religious practices (such as female genital mutilation) or non-access to certain goods (such as education) are specifically ruled out as women’s rights violations in international law,—regardless of their context—this does not imply cultural imperialism. As Khader argues, “feminists should not completely embrace non-specificity about indicators of advantage” because it is also crucial to retain the view that some goods such as access to food, shelter, clothing, or freedom from slavery, assault and violence are universal markers of disadvantage (2019, p.39).
Reference List
Charlesworth, H. and Chinkin, C., 2000. The boundaries of international law. New York: Juris Pub.
Cusack, S., and Pusey, L., 2013. "CEDAW and the Rights to Non-Discrimination and Equality." Melbourne Journal of International Law, vol. 14, no. 1.
Edwards, A., 2010 Violence against Women under International Human Rights Law, Cambridge University Press, ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/kcl/detail.action?docID=691904.
Foucault, M., 1990. The History of Sexuality. 2nd ed. New York: Pantheon Books.
Grewal, I., 2005, Transnational America. 2nd ed. New York: Duke University Press, pp.120-157.
Kaufman, N. and Lindquist, S., 1995. Critiquing Gender-Neutral Treaty Language. New York, NY: Routledge.
Khader, S., 2019. Decolonizing universalism. 1st ed. New York: Oxford University Press, pp.21-49.
Mohanty, C., 1984. Under Western Eyes: Feminist Scholarship and Colonial Discourses. boundary 2, 12(3), p.333.
Thornton, M., 1995 ‘The Cartography of Public and Private’, (ed.), Public and Private: Feminist Legal Debates. Melbourne: Oxford University Press.
UN Committee on the Elimination of Discrimination Against Women (CEDAW), 2010. General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28.
UN Committee on the Elimination of Discrimination Against Women (CEDAW). 1992. General Recommendations Nos. 19 and 20 CEDAW/A/47/38.
United Nations. 1985. CEDAW: Reports of the Committee on the Elimination of Discrimination Against Women (CEDAW). New York, United Nations.