Has international human rights law failed women?

By Elizabeth Willmott-Harrop

May 2002, updated October 2004

We are living in exciting times in terms of the development of human rights as a whole. The post war era has heralded a burgeoning in human rights awareness with hundreds of conventions, treaties and conferences, international standard-setting and dialogue, and the development of international and domestic human rights laws. Not to mention the establishment of important institutions including the United Nations, thousands of NGO’s concerned with human rights issues and the International Criminal Court.

Developments in women’s human rights are also gaining momentum. The “equal rights of men and women …” were first referred to in an international human rights context in the preambles of both the United Nations Charter of 1945 and the Universal Declaration of Human Rights of 1948.

Just 33 years later, not a great amount of time in the scheme of human rights history, a comprehensive declaration of women’s human rights, including both categories of civil and political rights and economic, social and cultural rights, were embodied for international recognition in the UN Convention of Elimination of Discrimination Against Women of 1979 (CEDAW). As of October 2004, 179 states are party to the Convention, a very real achievement.

However, there is a more pessimistic view which holds that irrespective of the progress made in the last 50 years, human rights are now more threatened than ever, not least by a world in which civil and international conflict has become the mainstay of life and in which civilians are increasingly at risk from related human rights abuses.

Likewise, with regard to women’s rights, how can we be optimistic when rape and sexual assault are used to achieve political objectives during armed conflict, when the US Senate has still not ratified CEDAW, when every year, thousands of women and girls are murdered in the name of honor, and when trafficking of women is widely acknowledged as one of the fastest growing and most lucrative industries for the international criminal underworld.

Why a separate category of Women’s Human Rights

Human rights abuses against women are not just about violations of the integrity of a person, who happens to be female. They stem from deep-seated cultural attitudes which denigrate the female sex to an inferior status with huge implications in terms of a woman’s employment opportunities, enjoyment of good health, protection from coercion and violence, and her legal status.

The United States Department of Justice estimates that 700,000 women and children are trafficked ever year, 50,000 of those into the US. A US Government Report on International Trafficking in Women to the United States illustrates perfectly how cultural preconceptions about what it is to be female act as the bedrock of human rights abuses against women: “Traffickers have taken advantage of the unequal status of women and girls in the source and transit countries, including harmful stereotypes of women as property, commodities, servants and sexual objects.”

The former Special Rapporteur on Violence Against Women, Radhika Coomaraswamy (right), reinforces this view, seeing the lack of rights of women as “the primary causative factor at the root of both women’s migration and trafficking in women.”

Trafficking is therefore a good illustration of the complex nature of women’s human rights, providing a compelling argument for why they should be treated as a separate category, rather than be addressed solely under generic categories of human rights which apply to both men and women. Trafficking also illustrates the way that women suffering human rights abuses are often treated as criminals instead of victims – women trafficked overseas are arrested as illegal immigrants. Likewise, victims of rape are tried for adultery, which is then compounded by their socially-demanded rejection from their marriage, family and society.

I would argue that the strong cultural influence also makes its harder for human rights law to develop in the area of women’s human rights because the element of state practise or opinio juris will be weaker, thereby impairing the development of customary law.

The impact of the interplay between race and gender is also coming to the fore in human rights dialogue. In its annual report 2002, Human Rights Watch explains: “(in 2001) women experienced racism and sexism not as separate events but as violations that were mutually reinforcing.”

The World Conference Against Racism in South Africa in September 2001, included several references to the impact of racism on women. For example: “We are convinced that racism, racial discrimination, xenophobia and related intolerance reveal themselves in a differentiated manner for women and girls, and can be among the factors leading to a deterioration in their living conditions, poverty, violence, multiple forms of discrimination, and the limitation or denial of their human rights. We recognize the need to integrate a gender perspective into relevant policies, strategies and programmes of action against racism, racial discrimination, xenophobia and related intolerance in order to address multiple forms of discrimination.”

Human Rights for Women therefore requires firstly the setting of human rights standards, their acknowledgement by the international community and their adherence by state parties, but also the challenging of a wide range of fundamental cultural and religious beliefs. These may be hundreds of years old and may be as embedded in the mind-sets of the female members of society as those of male members. Take for example the practise of female genital mutilation, which is often overseen by women, and a recent study by the International Institute for Population Sciences and India’s Health Ministry, which revealed that 56% of women in India endorsed wife-beating on at least one of six grounds.

There is therefore a significant educational component to the furthering of women’s human rights. To this end, article 5 of CEDAW, for example, states that State Parties shall take appropriate measure “To ensure that family education includes a proper understanding of maternity as a social function …”.

The United Nations Development Fund for Women states in relation to CEDAW that “Popular education has to be part of any litigation strategy. Good arguments can persuade a court to rule in favour of women’s human rights, but decisions still have to be implemented. If not enough work has been done to inform and educate the Government and the general public, there is a real possibility that a court’s decision will not be properly enforced or even that the decision might be overturned by new legislation.”

Public vs Private

Abuses of Women’s Human Rights take place predominantly in the private sphere by non-state actors (eg in the area of employment or the family). This impedes their status further because in the public/private distinction of human rights abuses, those which occur in the public sphere – i.e. by the State and which are covered by the International Covenant on Civil and Political Rights (ICCPR), are taken more seriously and have a higher status within the human rights arena.

Furthermore, other human rights treaties are careful to protect the family as a social unit, thereby reinforcing the impotence of women in situations of domestic violence or slavery. Article 10 of the International Covenant on Economic, Social and Cultural Rights for example states that “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.”

However, the CEDAW Committee is unequivocal in its holding of States responsible for private violations. In its General Recommendations following its 11^th session in 1992, the Committee reinforced the fact that “under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”

This has not prevented States from wishing to avoid such accountability, notably the United States which prepared a reservation to CEDAW stating “The United States does not accept any obligation under the Convention to enact legislation or to take any other action with respect to private conduct except as mandated by the Constitution and laws of the United States.”

Advocates of women’s human rights can therefore be seen to be blurring the distinction between the public and private spheres of human rights and challenging governments to take responsibility for both arenas. This is particularly relevant in an era of globalisation where big business is considered to have equal if not more authority and power than State Governments and is a major perpetrator of human rights violations.

The UN and Women’s Human Rights

Feminist perspectives of human rights have emphasised the male bias from which international human rights law, the language and content of human rights treaties and the functioning of the United Nations itself operate (See Charlesworth and Chinkin). They thereby propose that the fundamental structures underpinning the human rights discourse should be altered to acknowledge violations against women, rather than being satisfied with the creation of a separate category of human rights for women, which merely reinforces their status as an optional extra.

It is true that the UN has indeed failed to incorporate the female perspective into its machinery at a fundamental level. Examples of this include using only the male pronoun in the major treaties; the ICCPR’s failure to acknowledge how fundamental rights such as the right to life have a specific application to women. For example female infanticide or honor killings which are outside the boundaries for redress which apply to violations committed by a “person acting in an official capacity – ICCPR Article 2, Paragraph 3a. And the failure of the UN to detect systematic sexual violence against women during a fact finding mission to Rwanda after the 1994 genocide. See Sexual Violence and Armed Conflict: United Nations Response.

However, in spite of gender-biased foundations, the human rights system is evolving to incorporate a female perspective through the creation of specialised instruments and functions. These include a convention and committee specifically on women’s rights (CEDAW), the creation in 1994 of a Special Rapporteur on Violence Against Women, the adoption of a General Assembly Declaration on the Elimination of Violence Against Women, the Department for the Advancement of Women at the UN and by key human rights NGO’s such as Human Rights Watch and Amnesty International developing women’s human rights sections (see www.hrw.org/en/category/topic/women and www.amnesty.org/en/campaigns/stop-violence-against-women). All act as a voice with which to lobby the international community and other human rights treaty committees and to provide a platform from which real progress has been made.

Convention of Elimination of Discrimination Against Women

CEDAW has an important roles because it not only elaborates existing human rights in terms of their availability to women, some of which are already defined in other conventions, but is crucially concerned with the effective implementation of those rights by the state parties. This is in recognition of the fact that taking measures to allow the equal treatment of women is not enough in and of itself, because for example of the cultural attitudes which can override seldom-referred to legislation. There has to be a real commitment to ensuring that those measures effect real change.

The Committee for the Elimination of Discrimination Against Women which oversees the convention summed this up by saying that the convention is “conceived as an affirmative action programme requiring measures by State Parties to ensure that internationally recognised human rights are equally applied to women”.

The convention therefore calls for a significant amount of state action in order that the requirements of the convention be met. Examples include:

• Article 2 d): To refrain from engaging in any act or practise of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.
• Article 5 a): State parties shall take appropriate measure to modify the social and cultural patterns of conduct of men and women …
• Article 15.2: State parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity.

Monitoring of CEDAW

The emphasis of CEDAW on implementation is also, however, its weakness with poor enforcement mechanisms and widespread use of the phrase “all appropriate measures” which is vague enough for states to claim they have done enough to meet the terms of the convention.

The reporting and monitoring procedure for CEDAW is vitally important to ensure that states do not just pay lip service to women’s human rights by ratifying the convention, making substantial reservations and then doing little about its effective implementation. This is even more important in light of the fact that CEDAW has the most reservations of any treaty with nearly one third of States parties having lodged substantive reservations or declarations. This makes the lobbying efforts doubly hard – firstly to persuade a state to ratify and secondly in removing the constraints that reservations impose on CEDAW’s application.

The CEDAW Committee monitors the implementation of the Convention through periodic State reports, as mandated by article 18 of the Convention. The arguments critical of the state reporting system apply as much to the other conventions as to CEDAW. Namely that the initial stage of implementation is at the behest of the state, which must first ratify the various conventions. Then, once a party to the covenant, the voluntary cooperation of the state is required in submitting its reports on time or even at all.

If a state party fails to submit its report, the CEDAW committee can only mention this failure in its Annual Report to the General Assembly, as outlined by the reporting procedure in article 21 of CEDAW. The sheer number of state parties that have failed to report on time, throughout the UN treaty system, shows that states do not regard this to be of major significance.

A further problem arises if a state is not due to report, but a critical situation is occurring with regard to women’s human rights, such as happened in the former Yugoslavia in 1993 – the committee did not have the authority to demand an ad-hoc or timely state report to address widespread allegations of human rights abuses against women (Yugoslavia’s third periodic report was due in 1991 and was submitted in 1998).

Due to the emphasis on state action in CEDAW, the effective monitoring of domestic legislation and practise is vitally important in determining a state’s progress. A useful tool for non-governmental organizations submitting Shadow Reports to the UN CEDAW Committee was introduced in January 2002 by the American Bar Association.

The CEDAW Assessment Tool analyses a nation’s laws and measures the degree to which these laws promote and protect the rights of women, as mandated by CEDAW. As well as a de jure analysis, the process separately measures the degree to which women, in practice, are accorded the rights and status guaranteed to them under CEDAW. This is particularly important as it acknowledges impediments to the equality of women which may lie outside the sphere of legislation such as cultural or religious traditions. It also will highlight problem areas and reinforces the fact that legislation in and of itself is not enough to meet the criteria for respect of women’s rights outlined by CEDAW. The tool is important because it provides yet more weight to NGO’s lobbying for women.

CEDAW Optional Protocol

In a highly significant and recent development, the status of CEDAW has increased with the entering into force of The Optional Protocol to CEDAW on 22 December 2000, which has 68 State Parties as of November 2004. This provides an additional monitoring mechanism by allowing individuals or groups to submit complaints (known as comminations to protect the sensitivities of state parties in a spirit of “constructive dialogue”) to the CEDAW committee in respect of violations of the rights set forth in CEDAW.

This puts CEDAW on an equal footing with the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, all of which have communications procedures.

Conclusion

Women’s Human Rights are an extremely challenging area, interweaving issues of gender, race, religion and cultural relativism. Demanding respect for the human rights of women is therefore also about challenging and reassessing the fundamental tenets of our society.

Every achievement in human rights for women should therefore be acknowledged as an individual breakthrough and a great deal of resistance to future progress is to be expected and should not be taken as failure or a sign of lack of progress.

Human rights abuses against women are perpetual, systematic and pandemic and yet the last 5 years alone has seen two incredibly important verdicts for women in International law. In 1998, the International criminal tribunal for Rwanda declared rape to be an act of genocide in its Akayesu verdict. It was also the first time an international court has punished sexual violence in a civil war. This was followed in February 2001, by another precedent, this time set by the International Criminal Tribunal for the former Yugoslavia which issued a landmark verdict stating that rape and enslavement rose to the level of crimes against humanity in Foca, Bosnia.

And so it is that human rights abuses against women are slowly being recognised on an individual scale, with the promise of the Optional Protocol to CEDAW and on a global scale through verdicts such as those above. So, there is hope for progress in relation to women and human rights, albeit slow.

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Bibliography

1. Charlesworth and Chinkin, The Boundaries of International Law, a Feminist Analysis
2. Feminism and International Law 2002 pre-conference report
3. Convention of Elimination of Discrimination Against Women
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights
6. International Criminal Court
7. International Human Rights Law Group
8. International Organisation for Migration
9. International Trafficking in Women to the United States
10. Rights Consortium
11. Steiner and Alston, International Human Rights in Context
12. United Nations Development Fund for Women
13. UN Foundation
14. Office of the UN High Commissioner for Human Rights
15. UN Population Fund
16. US Justice Department
17. Women’s Human Rights Net
18. World Justice Information Network