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Comment
Last Updated: 06/03/2011
The Absence of Women in the Development of International Law: A Critical Women’s Rights Issue
Jerry M’bartee Locula

Jerry M'bartee Locula sheds light on the development of international law from a gendered perspective, emphasizing the lack of women's involvement in the patriarchal global system. Highlighting ways to strengthen the international women's rights movement, he calls on men to become advocates of gender equality by being outspoken in demanding the inclusion of women's rights at all levels of international lawmaking.


Introduction:

For too long, women had been isolated from the making of international human rights law. With fervent interest, this essay argues why society is structured the way it is; especially from the cultural and/or global patriarchal perspectives. It further discusses and creates a supporting argument for the women’s human rights revolution. The debate also pushes the international agenda in the interest of women for the simple reality that male-dominated society has always looked down upon the issue of women; particularly issues that affect them most. The down-play of women’s rights has its foundation on the basis of their gender and/or sex. In the conclusion, the forethought considers that regardless of the cultural relativism that isolates women’s perspectives and the well grounded biases that the international legal system has had over the years, there have been some significant achievements made in the women’s human rights movement in recent times. It is demonstrated that with the present women’s human rights instruments at hand, potential milestones await the women’s human rights movement in the international legal arena.

Where Did It Begin?

Some of the worst atrocities on the face of the earth were committed during World War II. Based on these grave crimes committed in human history, following World War II, the international human rights and legal order was born,[1] even though it was anticipated long before and after the Nuremburg and Tokyo trials. This order is universal and does not discriminate against any human person, as enshrined in the first sentence of the preamble of the Universal Declaration of Human Rights (UDHR),[2] for the fact that it did not single out nor name a gender or sex. The declaration emphasizes, “All members of the human family”[3], which women are part of. But society, being what it is, has and continues to overshadow women, and it seems like men’s rights are the only ones that matter, and therefore, must be dominated, enjoyed and exercised by men alone. This is where I have disassociated myself. History is meant so that all should be the subjects, not only the few while others are made into objects. Technically, if one looks at the original laws in societies, it can be seen as males’ rights or laws only. Also, you will agree with me that most laws, including the very UDHR itself, were or are framed by a majority of men,[4] leaving out the presence and perspectives of women. On this ground, and in many national instances where a state fails to enact specific laws that address women’s issues, the situation can be seen as biased. In the same vein, in a domestic legal system where there are “gender neutral laws”[5] it can be sufficiently understood that there is a bias against women in that country’s jurisprudence.

The Way Society Is Structured:

International women’s legal advocates will accept this analysis that it is a glaring reality that society has from time to time been structured on patriarchy system. Patriarchy is that social system in which father or eldest male is head of the household, having authority over women and children,[6] and since family is the most important and fundamental unit of society, this stereotyping rolls down from the family to the society. This practice has continued for centuries. In the 3rd Century BCE, Aristotle taught that the city-state developed out of the patriarchal family.[7] It is consequently vivid in many religions, societies, cultures and governments that where the system is based on male dominance and family lines are traced from the male background, women are definitely objects of discrimination. Take for instance ‘honour killings,’ which are the “killings”[8] or “murders by families of family members who are believed to have brought "shame" to the family name.[9] In most honour killings, women are always targeted. Research has proven that “Most honor killings occur in countries where the concept of women as a vessel of the family reputation predominates.”[10] In honour killing, women are always the victims rather than men.

It is based on this male-dominated societal arrangement that most systems are controlled, not to mention the very international law project. At this point, it is critical to say that since life is a stage, generations come, play their parts and turn over to the next. When this happens, culture is hereon passed from one generation to the other. This is where it must be cleared that the system was not created by contemporary man himself. Instead, man meets the system, but what has happened, which can not be disputed, is that man has immensely enforced and continues to reinforce the system[11] to the detriment of women, particularly in adding to his power, status and superiority in society. This is also found in international lawmaking. This is where man must take the blame of creating and facilitating a prejudiced legal instrument.

Based on the entire budding discussion, the view that international law has produced narrow and inadequate jurisprudence, and that it has legitimated the unequal position of women around the world rather than challenge it, can not be contested. However, it can be contested by individuals who are anti-feminists - those who are against the development, inclusion and progress of women in every layer of the society. Let us even consider that anti-feminism might be a little far from the debate, but the everyday ideology and notions, the terminology and, in fact, the different groups of people and structures in societies that human rights advocates in general grapple with. In the human rights moment, the ideology or notion that women are subject to men, or ‘cultural relativism’, is one major challenge at the moment. The multiple different groups of people, including the religious, are some of the ills and oppressors we can identify. Men making the laws, in which the expression of men’s ideas and emotions do not included the entertainment of women’s perspectives, can therefore become an absolute fact of repressing the women’s human rights moment. The nonattendance of women in the development of global law has fashioned a slight and insufficient jurisprudence that has, among other things, justified the unequal position of women around the world rather than challenge it.

Discrimination Against Women:

This may sound alarming especially in the highly saturated masculine world: “The fact that women’s perspectives have been lacking in the making of global law has produced a narrow and inadequate jurisprudence that has among other things, legitimated the unequal position of women around the world rather than challenge it.”

Discrimination against women in the international lawmaking process, the gender-based violence perpetrated against them, and the lack of attention given to issues surrounding them is generally intrinsic in society and culture and immeasurably expressed based on their gender.

In the field of international law, most of the laws are concerned with state sovereignty, which is referred to as the defining principle of interstate relations,[12] law of the sea, international aviation law, international postal law, use of force, international trade law, etc. The protection of women was absent on the stage of international law for many years; it was not until 18 December 1978 that the United Nations General Assembly adopted the international human rights treaty for women,[13] the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[14] The main purpose of CEDAW is to ensure that nondiscrimination on the basis of sex is found in all international human rights law. It is my hope that signatory nations will express much interest and embark on nationalizing it in their local legal systems.

Most reasons why women’s issues are somewhat considered less important or are not paramount is because of their gender. In most cultures, women are required to perform their gender roles consistently, neglecting that globalization is here. If women step outside of traditional female gender roles, including bearing children, staying home to care for the children, cooking, and cleaning, societies may not completely outcast them; however, in some ways, the growth and development of that woman may be difficult.

In the same vein, when it comes to the work industry, women work harder than men. While it may vary from country to country or from region to region, the majority of men are in more comfortable and well-paid jobs than women. A study conducted by UNDP shows that when paid and unpaid workers are put together, women work longer hours than men,[15] and it is very true of the common day-to-day household work that women have to do more as compared to men in some of our own communities.

Inter-sectionalism is one of the major areas needing laws and attention in the women’s human rights movement. This is a concept I totally accept in that women are not homogenous. Women face different kinds of discrimination based on their class, race, status, etc. Some of their experiences are single, yet some are multiple and complex. In some areas, wife abuse, wife beating, and wife shaming, in different forms, are all categorically degrading treatments, intended as restrictions to thwart women’s rights and voices, and left untouchable by laws in many societies.

Let’s take, for instance, torture. Torture is also one vital subject that I believe international human rights scholars and advocates in the vocation of women’s human rights need to consider in order to construct laws and criminalize certain types of acts against women as torture. At the moment, an act is considered torture when it causes severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,[16] and only when it is committed by state actors with the intent to gain certain information. What I have come to understand along the way is that the drafters, signatories and rectifiers of the convention on torture did not realize that individuals are perpetrating these very acts, individuals who are not state actors, but who commit torture with intent against women, either in their homes, workplaces or other parts of the larger society.

In its jurisprudence, the Inter-American Convention to Prevent and Punish Torture[17] has three standards of torture: the high standard – severity of the act as found in the Bámaca Velásquez case[18] and the Loayza Tamayo[19]In its medium standard with no distinction, the court rendered the decision in the Cantoral Benavides case,[20] and in its low standard in a variety of situations in the Maritza Urrutia case.[21] These cases present the level framework and categories of torture inflicted on individuals. Based on this, there are certain actions committed against women that must be considered torture. I am interested in the criminalization of certain acts against women to be considered torture.

With the jurisprudence of the Inter-American Convention to Prevent and Punish Torture, I am of the legal mind that it is a good instrument, since the treatment of women in a degrading manner can fall in the low standard in particular, and justice can be served for the victims and/or survivors of any action perpetrated by men against women.

From these arguments projected above, you realize that there are grave gaps left open for women’s rights; first on the community level; second, on the national sphere; and then thirdly, in the international arena. Women’s rights are being manifested through inequality and discrimination committed against women worldwide. However, just saying that a certain act is considered inequality or discrimination against women is not enough. Something more concrete than those mere words needs to be undertaken and be added to the few laws of women’s human rights. Stronger language and actions must be taken to improve and take the women’s human rights movement to greater heights.

The Current Instruments:

One important area that needs more concentration in women’s human rights advocacy is the ability of the advocates to stand firm in educating those who do not know their rights. One realistic fact is that there is either complacency or ignorance on the part of the women themselves whose rights have been abused. What I truly know and have keenly observed about any system for that matter as it relates to change is ‘education.’ However, there are two major things about education: to either keep the status quo or change the system. In the case of the women’s human rights moment, what is important is that people need relentless education on the grassroots level. In this way, people who are either complacent or ignorant will be awakened, and the movement will get support en masse. Nothing can change a system other than those who are affected becoming informed and involved. At this point, they can no longer accept it; they will rise up and fight the fight.

More groundwork needs to be implemented other than just appearing as though nothing has been done in the least to address women’s rights; even if it is not desired by those at the forefront of the moment. The available tools can now be put to work with a clear timeline and objectives; especially with the coming together of the United Nations Development Fund for Women (UNIFEM), the Division for the Advancement of Women, the Office of the Special Adviser on Gender Issues and the United Nations International Research and Training Institute for the Advancement of Women (UN-INSTRAW) to be merged as one institution,[22] which will make women’s rights and programs more effective in general, much more robust and with efficient funding.

The Protocol on Women’s Rights of the African Charter is one very significant instrument that the women’s rights movement can use within the African context to launch a massive campaign on the continent, particularly because it is a document that is quite practical in addressing the rights of African women. The instrument addresses cultural cases and those of women who are under special circumstances, including the elimination of discrimination against women, rights to dignity, elimination of harmful practices, rights to inheritance, as well as special rights and protection for elderly women, women with disabilities, and women in distress.[23] It is actually a unique framework for the women’s human rights movement. States who have signed onto this convention are bound by it.

The Security Council (SC) Resolution 1325, SC Resolution 1820, and SC Resolution 1880 may not be binding, but do have some positive influence on states in some respects. The International Covenant on Economic Social and Cultural Rights (ICESCR), which is seeking primarily for the promotion of women’s rights, is a great document; however, in my mind, not much has been done for the advancement of women’s rights under this agreement, but with its nondiscriminatory objective as the other UN treaty bodies is a positive step.

Conclusion:

To be successful in the women’s human rights movement, the current instruments, whether national, regional or international, must be nationalized and/or internalized by states. Moreover, the encouragement of more male counterparts to come on board should be a central strategy of the movement. Those in the movement, mainly the females or die-hard feminists, should be more moderate, adopt welcoming approaches to the males, and carefully choose how they frame their rhetoric in order to prevent hashing out defeating terminologies to the very males they want to win over. Leading women’s human rights scholars and advocates need to encourage males to realize that women’s rights are human rights. Women must use the current instruments to conduct more education programs, especially awareness on women’s rights on the grassroots level.

It is also very necessary to maintain that while it is true that society has been patriarchy-centered during the greater portion of the centuries, and thus responsible for the gaps created between men and women, man has largely contributed to the enforcement of the patriarchal system, which has left women behind in most development processes, even in the creation and implementation of international law. As human rights practitioners, it is incumbent upon us to create the space for the promotion of women’s human rights. We, as international human rights advocates, specifically the males, must say in a loud voice that ‘women and men are partners in development for our common good, and so we must bring them on board and invite their views and participation in every perspective’. With this, our world can be a great world, and the unequal position of women around the world in development the international legal project can march forward; even though it will takes years to achieve, interestingly, it is on its way.

“I am convinced that women have great talents and have valuable potentials. Those talents and valuable potentials of women can only be unveiled when we men include them and get their perspectives.” Gray I Allen said in his work, Maximizing the Contribution of Women to Society: “Men blind themselves to the fact that women have much strength. We men fail to see the many beautiful characteristics that are unique to women. We fail to listen to the cry of their hearts. Instead, we are preoccupied with winning the gender war.”[24]

Let the women’s human rights moment sail on…. let it sail.



[1] Hilary Charlesworth and Christine Chinkin, The Boundaries Of International Law, A Feminist Analysis

[2] http://www.un.org/en/documents/udhr/ (accessed March 20, 2010)

[3] Ibid

[4] http://en.wikipedia.org/wiki/Drafting_of_the_Universal_Declaration_of_Human_Rights (accessed March 20, 2010)

[5] Project On A Mechanism To Address Laws That Discriminate Against Women Commissioned by: Office of the High Commissioner for Human Rights – Women’s Rights and Gender Unit Consultant: Dr. Fareda Banda Release date: 6 March 2008 (accessed March 24, 2010)

[6] http://en.wikipedia.org/wiki/Patriarchy (accessed March 20, 2010)

[7] Ibid

[8] The definition of honour killing, available at: http://marriage.about.com/od/arrangedmarriages/g/honourkilling.htm, (accessed on May 13, 2011)

[9] Ibid (accessed on May 13, 2011)

[10] National geographic news, reporting your world daily, available at: http://news.nationalgeographic.com/news/2002/02/0212_020212_honorkilling.html

[11] http://www.ithaca.edu/students/breynol1/patriarchy.html(accessed March 20, 2010)

[12] http://www.idrc.ca/en/ev-28492-201-1-DO_TOPIC.html (accessed March 21, 2010)

[13] http://www.unifem.org/cedaw30/ (accessed March 21, 2010)

[14] Convention on the Elimination of all Forms of Discrimination Against Women, available at: http://www.un.org/womenwatch/daw/cedaw/, (accessed on May 13, 2011)

[15] Ibid at.1

[16] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment available at http://www.hrweb.org/legal/cat.html (accessed March 22, 2010)

[17] University of Minnesota Human Rights Library available at Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force28, 1987, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 83 (1992). http://www1.umn.edu/humanrts/oasinstr/zoas9tor.htm (accessed March 25, 2010)

[18] http://www1.umn.edu/humanrts/iachr/E/2-ing-14.html (accessed March 25 2010)

[19] http://www1.umn.edu/humanrts/iachr/C/42-ing.html (accessed March 25, 2010)

[20] http://www1.umn.edu/humanrts/iachr/C/88-ing.html (accessed March 25, 2010)

[21] http://www1.umn.edu/humanrts//iachr/C/103-ing.html (accessed March 26, 2010)

[22] http://www.un.org/apps/news/story.asp?NewsID=32066&Cr=women&Cr1(accessed March 25, 2010)

[23]http://www.achpr.org/english/women/protocolwomen.pdf (accessed March 25 2010)

[24]Gary I. Allen “Maximizing the Contribution of Women to Society” available at http://www.christianmission-un.org/resource-center/manuscripts/pdf/maximizing-the-contribution-of-women-to-society.pdf (accessed March 25, 2010)


Jerry M’bartee Locula is Human Rights and Governance Officer for the Lutheran Church in Liberia’s Trauma Healing and Reconciliation Programme. He can be reached by email at tjerrysky101@hotmail.com
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