Feminist Strategies in International Governance

Gülay Caglar, Elisabeth Prügl, Susanne Zwingel, Gülay Caglar, Elisabeth Prügl, Susanne Zwingel

• Publisher: Taylor & Francis
• Year: 2013
• eBook ISBN: 9781136210631
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

The struggle for women's rights and to overcome gender oppression has long engaged the efforts of inter-governmental and non-governmental organizations. Feminist Strategies in International Governance provides a new introduction to the contemporary forms of this struggle. It brings together the voices of academics and practitioners to reflect in particular on the effectiveness of human rights strategies and gender mainstreaming. It covers three international issue areas in which feminists currently seek change: women's human rights and violence against women; the participation of women in peace-making and their protection during conflict; and the gendered effects of development, economic and financial governance.

The book combines a critical reflection on the current state of feminist politics with an introduction to urgent issues on the contemporary international agenda. In addition, the book draws on innovative conceptualizations from constructivism in international relations, legal anthropology and discourse theory to provide new framings of current feminist struggles.

Offering an accessible guide to the engendering of international governance and examining the challenges for international feminist politics in the future, this work will be of great interest to students and scholars of international organizations, gender politics and global governance.

Part I

Feminist strategies

1International human rights law

A portmanteau for feminist norms?

Hilary Charlesworth

•Sex and gender in international law

•Women's rights after conflict

•Conclusion

What is the relationship of international human rights law to sex and gender? Is international law a useful mechanism to improve women's lives? International law presents itself as a universal system of values whose breach has legal repercussions, including sanctions, triggering a duty to compensate, or sparking condemnation by international bodies. Breaching international law may have a further impact domestically if international law is incorporated into a national legal system. Violations of international law can also have political effect through reducing the legitimacy of particular courses of action or inaction.

This chapter considers, first, international human rights law's account of sex and gender and the way it has shaped rules relating to women's lives. It then explores how these rules have been disseminated and the effect they have had in the context of post-conflict societies. It argues that, while international institutions have developed a suite of legal standards relating to sex and gender, the observance of these standards has been limited. Feminist concepts and methods must be developed to give international law standards some bite. The new United Nations (UN) entity dealing with women, UN Women, is well placed to begin this task.

Sex and gender in international law

Understandings of sex and gender in international human rights law have always revolved around women, and usually the context has been that of discrimination. This means that their development has taken place in particular fora and contexts and that sex and gender are understood as a “special” interest, distinct from mainstream concerns of the discipline. Men's lives are rarely viewed through these lenses.

The major focus of the protection of women's rights internationally has been the right to equal treatment and non-discrimination on the basis of sex. The UN Charter (1945) was the first international agreement to endorse the equality of the sexes, the product of an energetic lobbying campaign by women's organizations with the support of a few women representing states at the San Francisco conference. In its preamble, the Charter reaffirmed faith in “the equal rights of men and women” and the purposes of the UN included promotion of human rights “without distinction as to race, sex, language or religion.”¹ The Charter also specified that the UN should “place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.”²

Women's rights were also on the agenda of the drafters of the Universal Declaration of Human Rights, adopted by the UN in 1948. The UN Commission on Human Rights was given a specific mandate to deal with the status of women in the Declaration. Signs of the influence of women delegates and institutions in drafting the Universal Declaration are the reference to the equal rights of men and women in the Preamble, Article 2’s prohibition of discrimination on the basis of sex with respect to the enjoyment of rights contained in the Declaration and Article 16’s guarantee of the equal rights of women and men before, during and after marriage.

The two major human rights instruments, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both adopted in 1966, contain general provisions relating to women's rights. Both covenants provide that the rights they recognize should be respected “without distinction of any kind” including sex,³ and, more specifically, that state parties should ensure the equal right of men and women to enjoy the designated rights.⁴ The ICCPR also offers abroad guarantee of equality before the law and a prohibition on discrimination on a number of grounds, including sex.⁵ International human rights law thus provides the bones for a body of jurisprudence on women's rights.

The most wide-ranging of the international human rights treaties devoted to women is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the UN General Assembly in 1979. The Convention contains a broad definition of discrimination in Article 1, covering both equality of opportunity (formal equality) and equality of outcome (de facto or substantive equality). It requires states to take legal and other measures to ensure the practical realization of the principle of sex equality.⁶ The Convention covers a range of areas where state parties must work to eliminate discrimination including political and public life, international organizations, education, employment, healthcare, financial credit, cultural life, the rural sector, and the law.⁷ In its wide coverage, the Women's Convention transcends the traditional divide between civil and political rights, and economic, social and cultural rights, illustrated by the separate development of the ICESCR and the ICCPR.

The Women's Convention also offers a bridge between public and private spheres of activity. This is unusual in international law which typically operates to regulate “public” areas such as resources, or relations between states, or human rights abuses directly by the state, but leaves “private” areas such as the family unregulated. The Women's Convention, for example, explicitly affirms women's right to equality within the family.⁸

One striking omission from the Women's Convention is the prohibition of violence against women. This may be because, at the time of the treaty's adoption, the global extent of violence against women was not well understood, or because violence was not analyzed as a matter of discrimination. The Women's Convention monitoring body, the Committee on the Elimination of Discrimination Against Women, adopted a General Recommendation on Violence against Women in 1992, stating that “gender based violence is a form of discrimination which … impairs or nullifies the enjoyment by women of human rights and fundamental freedoms.”⁹

The Women's Convention has attracted an impressive number of parties (187 as of 1 October 2011). Many states have made broad reservations to provisions of the treaty, however, which limit their commitment to it. Most of these reservations are based on assertions of cultural and religious values. Some states have objected to the wide reservations,¹⁰ and CEDAW has probed reserving states on this issue. Under the international legal regime governing reservations, no more direct sanctions can be used to pressure states to withdraw their sweeping reservations.¹¹

An Optional Protocol to the Women's Convention was adopted in 1999 to allow for both individual communications to CEDAW and an inquiry procedure in cases of systematic and widespread violations of the treaty. Although the Optional Protocol has 102 parties, these mechanisms have been invoked much less frequently than comparable provisions in other human rights treaties. CEDAW's website records that it has made a single inquiry under article 8 of the Optional Protocol in July 2004 dealing with violence against women in Mexico. As of 1 October 2010, the committee had received 27 communications alleging a breach of the Convention; by 1 October 2011, 10 of these had been found admissible and eight inadmissible.¹² Through its Concluding Observations on states’ reports under the treaty, however, the CEDAW Committee has played a significant role in elaborating the Women's Convention. It has been very active in developing a jurisprudence of sex discrimination, emphasizing direct and indirect discrimination against women, and focusing on the reality of women's lives and the need for structural change, rather than simply formal equality.¹³

Overall the development of international human rights standards dealing with women illustrates a strategic dilemma, identified by Olympe de Gouges in the eighteenth century as the paradox of feminism: whether women's rights are best protected through general norms or through specific norms applicable only to women.¹⁴ This dilemma pervades modern international legal responses to the unequal position of women: the attempt to improve women's lives through general laws can allow women's concerns to be submerged in what are deemed more global issues; however, the price of creating separate institutional mechanisms for women has been the building of a women's ghetto with less power, resources, and priority than the “general” human rights bodies.¹⁵

Feminist critiques have had some effect on the international human rights system.¹⁶ One example, discussed in other chapters in this book, is the development of “gender mainstreaming” as a technique to encourage consideration of women's lives by the UN human rights machinery.¹⁷ This concept was defined by the UN's Economic and Social Council (ECOSOC) in 1997 in the following way:

Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women's as well as men's concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.¹⁸

Approaches to mainstream gender perspectives in the UN human rights system were developed in 1995 by a meeting of experts.¹⁹ The Commission on Human Rights then adopted several resolutions over a number of years on “Integrating the Human Rights of Women Throughout the United Nations System.”²⁰ These resolutions called for all components of the UN human rights system to “regularly and systematically take a gender perspective into account in the implementation of their mandates.”²¹ The resolutions specified the responsibility of the human rights treaty bodies to integrate a gender perspective, with reference to “gender-sensitive guidelines” in reviewing states’ reports, preparing general comments and issuing recommendations and concluding observations. ECOSOC and the Commission on Human Rights also requested that the country-specific and thematic special rapporteurs, experts, and working groups include sex-disaggregated data in their reports, to address women-specific violations of human rights and to cooperate and exchange information with the Special Rapporteur on Violence against Women.²² This is also an annual agenda item in the commission's replacement body, the Human Rights Council.²³

The response to calls for gender mainstreaming in the UN human rights system has been rather muted, however.²⁴ This is to some extent the product of the low representation of women in most parts of the system. Responsiveness to the gender mainstreaming mandate seems to depend on the presence of at least one or two committee members who have a strong commitment to the issue. For example, the Committee on Economic, Social, and Cultural Rights has addressed the task of gender mainstreaming to a limited degree, at least insofar as it refers to the position of women in its Concluding Observations on States parties’ reports and in its General Comments.²⁵ Gender mainstreaming appears in these contexts as exhortations to non-discrimination on the basis of sex and the inclusion of women in relevant decision-making, and as references to the special burdens women face with respect to access to the right in question. The Committee's reporting guidelines are uneven, however, with respect to women and gender issues. Some guidelines request information on the situation of women, but others do not. For example, the guidelines do not refer to the position of girls with respect to the right to free primary education.²⁶

The Human Rights Committee, which monitors the ICCPR, has adopted some General Comments on articles of the treaty that are relevant to the position of women. The most explicit is General Comment 28 on Article 3 of the ICCPR, adopted in 2000.²⁷ This document examines each of the rights set out in the Covena...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Tables
• List of Contributors
• Foreword
• Preface
• List of Abbreviations
• Introducing feminist strategies in international governance
• Part I Feminist strategies
• Part II Human rights of women
• Part III Security governance
• Part IV Economic governance
• Conclusion advancing feminist strategies in international governance
• Select Bibliography
• Index