In this piece I wish to examine the ways in which women’s human rights have been put forward over the last 30 years by international human rights organizations. The United Nations (the U.N.) provides a key example of international human rights accords pertaining to the rights of women. I use the issue of domestic violence as a key point of entry into exploring the reach of international feminist human rights discourse. The emergence of such an international feminist discourse, framed legally as antidiscrimination laws and principles, draws on minority rights analysis that informs human rights law.
The working definition of domestic violence, for the purposes of this paper, is the one which forms the basis of the U.N.’s own work in the area. Domestic violence is explained as a course of conduct based on ‘varying relationships’ which encompasses physical and emotional/psychological violence as well as “repeated verbal abuse, harassment, confinement and deprivation of physical, financial and personal resources.” The victims of domestic violence are overwhelmingly female.
Two related instruments have been excitedly greeted by feminist legal advocates, with particular relevance to the international struggle against domestic violence. These are the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and those of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). The production of these documents was not without contestation. They emerge from a system that has only recently come to terms with the existence of the specificities of women’s lives and experiences of human rights violations. But once produced, CEDAW and related women’s human rights instruments, have also led to other dilemmas about the impact of colonialism and racialization across and within the formations of gender. This essay hopes to briefly explore the system of reservations to CEDAW, which stems from the discourse of competing rights embedded in the UN’s operational system leading to state parties’ arguments in favour of cultural/religious defenses toward the maltreatment of women.
Feminist commentators have noted the lack of enforcement mechanisms to the existing CEDAW and other human rights instruments at the domestic level. In their view, this points to the highly illusory nature of present mechanisms for gender justice within the human rights framework. Domestic violence is a challenge for traditional human rights activism, for it represent(s) the break down of the ‘public/private’ divide which has characterized the ‘male’ law and indeed, permeated human rights law as well.
For feminist legal advocates such as Hilary Charlesworth, international human rights instruments and mechanisms emanating from institutions such as the U.N. are already part of a work that is both power-laden and gendered. An epistemological shift, similar to that conceived of by dominance feminism, is required for women’s participation to be anything close to meaningful. Notions of femininity and masculinity deployed here may be identified as reflecting a binary characterization of women’s attributes as being opposed to those of men. Thus we get notions of masculinity as active and rational and femininity as irrational and passive, notions that have permeated law for centuries. These essentializing discourses can be read as Charlesworth does, as privileging a masculinized agenda at the cost of women’s continuing subordination. She argues,
In this sense, the very categories into which the U.N.’s work is compartmentalized and analysed – security, peacekeeping, human rights and economic development –may be seen as shaped by gender. They are all constructs defined from male experiences. Indeed the presence of men in the U.N. system can be seen as contingent on the absence of women.(Further).…the invisibility of women at decision-making levels has affected the treatment of not only “women’s” issues, but also other issues in the United Nations.
For Charlesworth, locating gender at the centre of critical discourse has had implications for understanding the political and economic status quo vis- a- vis male domination. Men’s political power in the realm of the public and individual power in the home is only possible ‘because women can be relied upon to provide enough support, both at home and in low-level employment, to sustain such activity”. As an institution the U.N suffers from a paucity of women in key decision-making roles and in spheres outside of cultural and humanitarian discourse. The bureaucracy has an over-representation of women at the support staff level, but very little in senior management. Women have not been part of setting the agenda of the U.N outside of the specific campaigns for women’s human rights initiated preceding the Beijing Conference on Women in 1995. The idea of state responsibility underpins whether a state may be held accountable for human rights under international law. By perpetuating the public /private paradigm institutionally, the U.N. has had a great deal of difficulty as have regional human rights organizations, grappling with the notion of state responsibility for violence against women, especially when directly perpetrated by non-state actors.
Making the links that hold states accountable for violence perpetrated in the home has been a massive challenge headed by radical feminists and their allies. Questioning the gender-bias of state parties in determining governmental and international priorities has been integral to the work of such international feminist human rights advocates. Although human rights law is ostensibly gender-neutral, the application of it within the discourse of individuals’ rights to be protected from inappropriate and violatory state action, has been historically predicated on a Western male legal subject. The truth claims of Western masculine experience and the construction of the public sphere have preoccupied human rights law.
Seen from other theoretical perspectives, dominant human rights and feminist discourses themselves suffer from similar types of limitations that have enormous implications for the socio-legal sphere. Gary Teeple, for example, provides a Marxist analysis of the short-comings and built-in contradictions of human rights practice under an increasingly globalized capitalist system. In particular, he argues that capitalism is incapable of remedying the gross human rights violations that women experience because it relies on those same violations to reproduce the social hierarchy of labour, reproduction, and class formation under shifting conditions always geared to profit. Nonetheless, Teeple is not contemptuous of the notion of human rights. He merely points out that they are rights contingent on a particular moment in a particular mode of production, and thus are fluid and contested categories that are open to re-invention as hegemonic processes transform — as do the means and forces of capitalist production. This is apparent as we explore the contested meanings of women’s human rights in the discussion that follows. The struggle between universalist or essentialist feminist approaches and those of critical race feminism or subaltern feminism signal the relevance for such a broad theoretical scope. Discussing the importance of the Universal Declaration of Human Rights (UNDHR), he says:
That document marked a significant step by extending eighteenth-century abstract national rights to the whole world and affirming the individual, along with the state, as a subject in international law…Once limited to the constitutions of a small number of nation-states, the claimed equality of humans was now proclaimed to be a universal truth. The acknowledgement…marked an enormous change over pre-war attitudes and practices in which the colonization, enslavement, annihilation and dispossession of whole populations had been justified by various doctrines of inferior and superior peoples…This assertion of universal rights and a universal subject forms a watershed in human history and consciousness.
Subaltern human rights theorist and lawyer, Upendra Baxi critiques the way in which human rights struggles and claims have been co-opted by market mechanisms and ideology that empties human rights of its content of resistance and opposition, enabling instead ‘gender-justice’ notions to trickle down as negotiating cards for IMF, World Bank and other types of economic growth projects. These take as their (contested) starting point understandings of Third World women, understandings subalternist Ratna Kapur describes as a ‘victim plus’ status.
For Kapur, the dominance feminism epitomized by Catherine Mackinnon and other Western feminists contributes to a feminist discourse— in which women of colour are reconfigured as a kind of symbolic superwoman who is ‘done to’ and always already constructed as passive or as a receptacle for bourgeois white feminist fantasies, as much as nationalist masculinities. Kapur and other feminists of colour and anti-racist feminists have been critical of the ways in which, through this theoretical approach, the social relations of oppression become reified and fixed as ‘natural’ and the social relations of some environments are depicted as ‘inherently’ patriarchal. This is contrasted with the liberal promise of true universalism supposedly ‘inherent’ to the western female legal subject.
Kapur’s critique is an extension of that proffered by Critical Race feminists and others about the ‘essentializing’ nature of ‘woman’ as legal subject, as put forth by Mackinnon and a vast body of largely white, feminist legal advocates, whose lives and world views are largely uncomplicated by neo-colonialism, racism, non-heterosexuality, or poverty.
Consequently, such critics have long been wary of the singular female legal subject upon whom Mackinnon relies, referring to this reduction of women’s lives and experiences under a totalizing male social formation to be ‘essentialism’ because it focuses only on decontextualized concepts of masculinity and femininity as the overarching symbols of the global oppression of women—without taking into account the very particularized histories of colonial expansion and empire-building among competing European nations and the varying ways in which they have inscribed masculinity and femininity among both colonized and colonizer, whites and non-whites. Secondly, some critics see Mackinnon’s work as easily co-opted or utilized by the state, precisely because it is a feminized extension of the eighteenth-century liberal rights discourse that is presumed to be the preserve of the male legal subject, law’s fictitious rational actor. These critics see as problematic not only the denial of individual liberal rights to women but the very origins and telos of bourgeois rights discourse itself.
Mackinnon and other radical or dominance feminists, who followed her method, were thus unable to adequately understand or factor into their work the social relations of race and racism, class oppression, or imperialism in women and men’s lives. This stance thereby raised questions among critics about the troubling nature of a ‘universalizing’ female legal subject dependent on the erasure of ‘other’ factors or social relations that intersect with, and even shape, women’s experiences and understandings of gender—particularly social class, racialization, religious identity, and neo-colonialism in its corporate globalization phase. This debate has had a massive impact on feminist legal scholarship regarding international human rights law and practice, where the question has been reframed in terms of cultural relativism versus universalism. This will be discussed below.
Feminist international lawyers working in the field of human rights have relied on the United Nations framework as contained in legally binding instruments such as the International Bill of Human Rights which is made up of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Read together, these two documents conjure up a body of internationally acceptable human rights standards. Under the non-discrimination clauses of these instruments women are guaranteed equal access to the protection of the state party of the state in which they reside. Along with these non-gender specific instruments, ‘lesser’ instruments can also be read in conjunction with the above documents. Of these, the two most appropriate for women fighting against domestic violence on the international front, is CEDAW and the Convention Against Torture. Other instruments, which are relevant, but are beyond the scope of this essay, are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).These lay out the economic, civil, political and cultural rights that pertain to human rights frameworks and are seen as templates to desirable uniformity in domestic law-making as well. These latter instruments are potentially important for victims of domestic violence as they lay out clear prohibitions and guidelines about discrimination against women. Because domestic violence is a phenomena made possible in large part by the conditions of social subjugation of women internationally feminist lawyers sought to make the links between the conditions of employment, education, property rights and civil and political life that could assist women exiting abusive relationships. Thus, rights to housing, to education, to the vote, to equal pay for equal work, etc., are enshrined in these documents and offer the social supports that women need to truly experience substantive equality and freedom from intimate and other kinds of violence and sexual aggression.
CEDAW in particular established that women are members of an international polity and as citizens and residents of geopolitical entities recognized as states, lay claim to women’s rights as human rights. The coming into force of the Convention stripped away the hidden masculinization of the category ‘human’ and replaced it with an extension of the liberal rights discourse to encompass women as political and civil actors. This liberal method of reasoning was given weight by Article 1 of CEDAW. Indeed, through this approach, feminist international lawyers and advocates sought to hold states accountable for permitting or failing to tackle domestic violence which created conditions of unequal protection of the state for female residents and citizens. Article 1 of CEDAW reads:
For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
This equal protection clause is crucial for women fighting both violence and discrimination, and assists international feminist advocates in arguing that violence against women is a priori rooted in social, historical, political, economic, cultural and religious discrimination. Although CEDAW’s mandate is not expressly concerned with violence against women, such issues, including domestic violence, can be read as implied by the document. “Article 2(e) of CEDAW requires its signatories and/or ratifiers “[t]o take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise” which the CEDAW Committee interpreted as the basis for holding states responsible for failing to prevent, investigate and punish acts of violence perpetrated by private citizens against women. Article 2 (f) and Article 3 continue to emphasize that CEDAW is a pro-active document, located not simply in state non-interference with the lives of citizens but rather requiring the imposition of positive laws and duties, a kind of international ‘affirmative action’ as it were:
Art. 2 (f)To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
Art. 3: States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
Further, Article 5(a) focuses actively on modifying social and cultural patterns of conduct that are based on notions of male domination and superiority over women and Article 12 affirms the equal right of women to enjoy mental and physical health.
Art. 5(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
Read in conjunction with Article 16 which is geared towards fighting discrimination against women in family and marriage-related matters, these articles can be used for the basis of anti-domestic violence claims.
In an example of the use of CEDAW in conjunction with regional human rights accords, the case of Brazil’s Maria da Penha Maia Fernandes merits attention. Ms. Maia Fernandes was a victim of domestic violence for more than a decade. She turned to the Brazilian police repeatedly but to no avail. Ms. Fernandes’ lawyers’ turned to the Inter-American Court of Human Rights, and utilized the equal protection principle, emanating from Article 1 of CEDAW but also found in Articles 1 and 24 of the American Convention on Human Rights as the basis of their claim. They argued that as a Brazilian woman, Ms. Fernandes was not protected by Brazilian police, even though she repeatedly asked for their help in apprehending her battering husband. This signaled a failure of the Brazilian government to offer protection of the state without discrimination on the basis of sex, violated her right to expectations of a fair trial, and violated the state’s positive obligation to provide her with equal access to judicial protection. Importantly, the Brazilian government failed to respond to repeated requests by the Inter-American Court of Human Rights to participate in the proceedings of the case, although they were signatories to CEDAW.
In cases like these, the significance of this feminist human rights framework has been to utilize the principle of indivisibility of human rights in order to rupture the existing hierarchy in international human rights law between civil and political rights and economic, social, and cultural rights. This is crucial because enabling the right of women to be free from violence requires that the state guarantee the destruction and transformation of social and economic conditions which maintain and perpetuate women’s subordination. Hence, Ms. Maia Fernandes’ claim shows how victims of domestic violence are clearly victims of state complicity in maintaining violent patriarchal relations between citizens. The civil and legal rights denied her as a woman in Brazilian society, represent the bars of the social prison that traps her, making her vulnerable in every way to the man who battered her and permanently disabled her. Moreover, the 1993 Declaration on Violence Against Women along with the Convention of Belem do Para offered up a definition of gendered violence that included both ‘public’ and ‘private’ occurrences of violence. Para. 23 of the General Recommendations of CEDAW discussed earlier, emphasizes:
Family Violence is one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships, women of all ages are subjected to violence of all kinds including battering….Lack of economic independence forces many women to stay in violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women’s health at risk and impair their ability to participate in family life and public life on a basis of equality.
In Beijing in 1995, the UN Fourth World Conference for Women devised a Platform for Action that focused on violence against women (including domestic violence) as a critical international issue. The Recommendations that emerged included enjoining state parties to
(b) Refrain from engaging in violence against women and exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons;
(c) Enact and/or reinforce penal, civil, labour, and administrative sanctions in domestic legislation to punish and redress the wrongs done to women and girls who are subjected to any form of violence, whether in the home, the workplace, the community or society;
(d) Adopt and/or implement and periodically review and analyse legislation to ensure its effectiveness in eliminating violence against women, emphasizing the prevention of violence and the prosecution of offenders; take measures to ensure the protection of women subjected to violence, access to just and effective remedies, including compensation and indemnification and the healing of victims and the rehabilitation of perpetrators;
(e) Work actively to ratify and/or implement international human rights norms and instruments as they relate to violence against women, including those contained in the Universal Declaration of Human Rights…the International Covenant on Civil and Political Rights.…the International Covenant on Economic, Social and Cultural Rights….and the Convention Against Torture….
The importance of these recommendations is identifiable by the fact that since approximately 1995, countries as diverse as the United States, Canada, the United Kingdom and Cuba have developed strong domestic violence policies and legislation.
In Canada, the adoption of official mandatory charging by police and aggressive prosecution policies has been combined with activist efforts to approach domestic violence through a multi-sectoral strategy encompassing social services, emergency shelters, social housing, police, court officials, victim witness programs, child and welfare services, and the like. Increasingly, groups such as the Woman Abuse Council of Toronto (WACT), for example, bring together front-line staff in ethno-specific and mainstream agencies who deal daily with domestic violence, for monthly check-ins and information sharing sessions. The aims are two-fold: to provide a common ground of operation for counselors and social workers who are ‘first responders’ to women’s brutalization, and secondly to allow staff a chance to ‘decompress’ and share informal strategies with their peers in the high-stress, low-paying Violence Against Women (VAW) ‘industry’. Along with the mainstreaming of VAW strategies through harmonizing domestic violence ‘prevention’ and policing approaches with the recommendations that came out of Beijing, these policies together have served to professionalize and depoliticize what was once a vibrant facet of feminist activism—the struggle against male violence. In large part this process has been helped along by the nature of criminal law intervention, which has been deemed to be the most appropriate field for such work. While the adoption of international covenants have been an important aspect of raising awareness and educating societies generally about violence against women in the family at the national level, the professionalization of work in this field has also generated its own logic, turning activists into bureaucrats and generating vast competition among non-governmental or arms-length social service providers such as shelters and women’s mental health resource centres to secure funding. The shift in discourse away from systemic understandings of the phenomena of male violence to the gender-neutral language of the criminal law has served to individualize understandings of domestic violence rather than see it as a broader social problem. While punishment of individual batterers may be part of the response, few progressive feminists would see this as the solution in light of the existing social relations of oppression manifested in criminal law.
Mandatory arrest policies, for example, are recent appearances in the state’s arsenal of domestic violence response. Some feminists are also troubled about women’s autonomy to withdraw charges under such arrest and no-drop prosecution policies. But these types of policies are attractive for they allow national governments to meet their U.N obligations, offer a ‘get tough’ approach on domestic violence to appease local human rights, feminist, and anti-violence lobbies and yet offer no corresponding assistance in social and economic spheres for women.
Because men who batter benefit directly from women’s subordinated economic positions, many feminists are of the mind that domestic violence can only be said to have been addressed when social change in the areas of employment, affordable housing, child-care, universal health care and the like, make it feasible for women to exercise their legal rights against batterers, no matter how flawed those rights may be.
Cross-sectoral approaches are also the new norm in Cuba as social workers, court officials, mental health and public health professionals have come together in an umbrella organization to raise awareness about, and combat, domestic violence. Violence against women grew alarmingly and became visible to the public eye during the collapse of the Soviet Union. This had a major impact on the Cuban economy and the country entered its so-called ‘Special Period’ during which hunger, unemployment and lack of basic consumer goods put further stress on Cuban homes. Utilizing revolutionary organizations such as the Federation of Cuban Women (FMC) along with workplace and professional responses to violence against women in the home, the Cuban strategy is one of the first comprehensive strategies on the topic in the Third World. Just now in 2019, Cuba released its first femicide statistics and they are concerning in the context of a society that has reinforced machismo and misogyny through reliance on tourism and highly gendered and racialized divisions of labour while promoting an ideology of gender equality.
Indeed, authors Vedna Jivan and Christine Forster, argue that the implementation of CEDAW, another recommendation of the Platform for Action, has had a positive effect in domestic litigation strategies against discrimination and violence against women in the Asia Pacific region. In their view, women of the Third World are pragmatic and rational, challenging “cultural practices and traditions that discriminate against them”.
Applying the ‘autonomy test’ devised by Radhika Coomaraswamy, and the theoretical balancing act of S. Desai, who seeks to navigate a third path between universalist Western feminist norms and culturally relativist resistance to CEDAW, Jivan and Forster demonstrate the impact progressive litigation is having in linking domestic and international feminist agendas in this region. They underscore that the Recommendations have the purpose of providing clear guidelines “to the application of the Convention in particular situations. General Recommendation 19, for example, identifies gender-based violence as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men”.
The particular optimism of Third World feminists and their allies is doubly important for it is a discourse that is transformative of the very nature of ‘community’ itself. By openly siting women’s bodies within the traditions, customs, and practices that disable or circumvent female agency, such feminist critiques have occupied themselves with the dual and simultaneous exclusions of ‘black’ masculinities and ‘white’ feminisms by taking ‘ownership’ of their experiences, social relations and histories. No longer is the experience of women of colour the same as white women’s, but ‘more so’.
Rather, by contextualizing and locating women’s experiences of violence in the family and community, religion, and society, women are able to understand that their experiences of gender—in so far as it is constituted by power and powerlessness in radical feminist terms—is part and parcel of their class and racialization experiences. Thus, contesting the meanings of women’s rights are part of the educational and socially transformative process of extending women’s human rights.
The Optional Protocol
The adoption in October, 1999 of an Optional Protocol by the United Nations with regard to CEDAW has given the convention some backbone. Under the Protocol, further provisions of accountability accrue to state parties through
1) [T]he communications procedure, which provides individuals and groups the right to lodge complaints with the Committee on the Elimination of Discrimination Against Women.…regarding violation of the terms of the Convention by State Parties and 2) the inquiry procedure, which enable CEDAW to conduct inquiries into serious and systematic abuses of women’s human rights within State Parties.
Nevertheless, although CEDAW may be utilized effectively and creatively in an individual women’s claim against her national government, the lack of enforcement mechanisms plague the international community’s attempts to achieve a base line or minimum core of women’s human rights.
Convention on Torture
While feminists were agitating to make women’s experiences of rights violations central to the concerns of the United Nations through the use of CEDAW, they also extended their creativity to examine the ways in which women’s experiences of violence and discrimination, particularly domestic violence, could be understood by men. As such, they turned to the Convention on Torture (CAT), which came into force in June 1987, to draw analogies between public political experiences of a largely male citizenry—i.e., torture as a political tactic and turned international attention to the ways in which domestic violence could be understood as an analogous ‘private’ course of conduct equating torture between heterosexual intimates. In this schema, the male, generally granted intimate power through the mutually reinforcing discourses of ‘privacy’ and cultural relativism, benefited from personal exploitation and power and control over women, just as state and non-state actors broke other covenants that set out the parameters of appropriate behaviour in political and civil spheres.
The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) is premised on an international consensus with regards to the use of torture, at least at the level of rhetoric. The CAT definition of torture is the following:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting within an official capacity.
Women from Latin American countries who had suffered gender-specific forms of torture and cultural practices such as political rape, brought forth the analysis comparing domestic violence to torture in international organizations, pushing for an understanding of torture in some of the ways it is concretely experienced by women and distinguishing such experiences from those of men, the conventional classic political prisoners. By elucidating the specificities of torture as used against women, these women contributed to the expanded notion of the concept of torture to better understand severe cases of domestic violence, having sometimes experienced both battering and sexual violence in the home and at the fists of the state. In a discussion of “torture-like practices”, the U.N. Special Rapporteur on Violence Against Women, enumerates Female Genital Mutilation (FGM), sati, and honour violence as archetypal examples of “women’s human rights violations that most resemble torture”. All of these types of violence are rooted in the conventionally ‘private’ sphere of the family. In my view, sati, dowry deaths, and FGM are particularly complex examples of domestic violence as they often involve female as well as male perpetrators, although the logic of the system in which the violence operates clearly privileges male ‘superiority’ in society, religion, and in the family. Tellingly, they also fall into the western feminism’s category of the ‘exotic’. This label is pinned to some human rights violations as Hope Lewis and Isabelle Gunning bemoan—those that are infrequently encountered in Western countries. Lewis and Gunning posit the notion that, to the Western radical feminist gaze, these types of violations ‘seem’ different and more ‘backward’ than the types of domestic violence that commonly take place in Judeo-Christian environments. As Kapur points out, this ascription of ‘extra terrible’ oppression to colonized women assists this kind of feminism to reproduce an imperialist normativity, where women of colour must be saved from men of colour. Similarly, Gunning and Lewis determine that a strand of Western feminism is more comfortable with the familiar than with the unknown, and that labels of difference encompassed in concepts of torture, also provide the distancing of the ‘Other’, a discursive practice which both enables and perpetuates racial and colonial domination.
For radical feminist international lawyers, however, “Understanding domestic violence as torture thus situates intimate violence as a form of political violence.… It also opens the door…to relief for battered women refugees who cannot be legally returned to countries where they are in danger of torture”. Professor Copelon argues that situating severe cases of domestic violence as torture also enables domestic violence survivors to see themselves in more political and less pathologized ways.
Reservations to CEDAW
Any examination of CEDAW requires an examination of the system of reservations to United Nations treaties. A reservation is “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in application to that State.” Professor Rebecca Cook examines the way reservations provide escape routes for state parties that ratify international conventions without incurring obligations to fulfill their provisions. This dilutes the impact of conventions in real terms: “The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has been ratified with reservations by more states than almost any other human rights treaty to date”. There are 183 states parties ratifying the agreement and there are over 75 reservations. Numerous countries have attempted to ratify the covenant without having any intention of adhering to key anti-discrimination articles. According to the CEDAW committee,
Removal or modification of reservations, particularly to articles 2 [anti-discrimination principles] and 16 [discrimination in marriage and family life], would indicate a State party’s determination to remove all barriers to women’s full equality and its commitment to ensuring that women are able to participate fully in all aspects of public and private life without fear of discrimination or recrimination. States which remove reservations would be making a major contribution to achieving the objectives of both formal and de facto or substantive compliance with the Convention.
A number of countries are also reserving their right to be bound by Article 29 which administers dispute resolution mechanisms between states parties in the event of a disagreement over the interpretation of the Convention. Currently, CEDAW handles countries’ reservations through the reporting process, which encourages the removal of reservations. The CEDAW Committee depicts the purpose of the reports in the following manner: “Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations”. Many international human rights advocates emphasize that reservations undermine the effectiveness of treaties. They turn covenants into mere discursive rhetorical devices, fragmenting their purpose and integrity. However, absent any enforcement of the provisions of treaties such as CEDAW and CAT, they, like other United Nations instruments, “operate more in rhetoric than in reality.”
In a recent update to the issues discussed here, I have linked the following recent coverage of rape as a war crime and the right of women to choose to abort in cases of sexual torture and rape.
Cultural Relativism and Universalism
For many women and men in formerly colonized countries, the U.N. is seen to legitimate a Western hegemonic and imperialist discourse through the
“imposition of universalist norms [which are] likely to result in the erasure of cultural norms.” In particular, the years since 2001 may excuse cynics who saw in the recent manifestations of the U.N., not the promise of an alternate forum in which international equality would be obtained, but the imposition of new hegemonies of consensus and co-optation as the global balance of power reconfigures itself.
The demonization of Islam and state-led retrenchment of civil and constitutional liberties and even violation of jus cogens by the United States through its use of torture in its prisons in Guantanamo, Abu Ghraib, and elsewhere, have further fuelled the emergence of militarized masculinist religious and nationalist identities on all sides as one aspect of the shape corporate globalization is taking. These powerful groupings are adamantly opposed to extending rights on an equal footing for women. We can thus understand the climate that prevails when Jivan and Forster sum up the cogent aspects of cultural relativist arguments:
[F]or many women, tradition is a source of identity. The individual rights of women, particularly in many non-western countries, are secondary to the community’s rights as human dignity is preserved not through individual rights but through membership in a community. The imposition of western norms, which favour individual rights, fails to accommodate such difference…. there is also the suspicion that the assertions of western universal human rights are pretexts for intervention in the domestic affairs of other countries. Finally, cultural relativists argue that since there are no legitimate cross-cultural standards, outsiders should not judge the moral rules and social institutions of others.
Yet, the concept of community used in these arguments, is implicitly masculinized. If this were not the case, women would not have to make false choices between autonomy and community in the international sphere. For Nancy Kim, the radical feminism of Mackinnon epitomizes the kind of universalizing feminism emanating from organizations such as the U.N. and other human rights bodies located in the West. She argues, “To the extent that radical feminism rejects existing cultures as male dominated, radical feminists allow themselves to be pushed in a corner by cultural relativists. The absolutist ‘this or that’ construct of relativism forces radical feminists either to accept or to reject the entire culture as patriarchal.” The reassertion of ‘tradition’ and ‘authenticity’ are part of another shift in challenging the universalist truth-claims of international law. The ‘reasonable white man’ has met his match in the rise of militant and counter-hegemonic identities that have resurfaced in the guise of religious fundamentalisms, ethnic nationalisms and the like. These characters exert disproportionate effects on the United Nations and regional human rights organizations when it comes to human rights. Yet, the rise of such identities is comprehensible in light of the flagrant flouting of the rules of war and engagement by the United States; the use of strategies such as racial profiling; indeed, what legal philosopher Giorgio Agamben describes as the ‘state of exception’—the process through which law and legal systems ‘unmakes’ rights and peoples to accomplish security and nation-building goals. This task of defining the parameters of nation is not confined to the geo-political. In fact, the discourse of nation building is intertwined with that of entitlement and citizenship, as many Canadian social scientists point out.Thus we can understand the ways in which the U.N.’s system of reservations to covenants like CEDAW, play a formative role in defining the limits of women’s socio-political participation as they impact on domestic common-sense and legislation.
Still other identities are born of the immigrant or refugee experience—nostalgia, racism, and the desire to belong, creating a potent brew for the forging of hybrid-identities in new lands as well as the “re-invention of tradition.” Nonetheless, the use of cultural justifications to defend human rights abuses against women has provoked fierce reaction from anti-racist feminists committed to extending human rights for women. As Feride Acar, Chairperson of the CEDAW Committee points out,
The issue of traditions and culture is inevitably raised, be it as an “obstacle” or an “excuse” during the CEDAW Committee’s dialogue with state parties when they report. There is no doubt that discriminatory traditions and prejudicial cultural practices continue to be major impediments to women’s human rights in most societies around the world.
But the competing rights paradigm that the U.N is mired in lends itself particularly well to competing discourses of gender versus race/culture/religion, much as for example, Canadian constitutionalism engages in positing analogous and competing discriminations for remedies. Hence feminists themselves have sought to find ways to provide an analysis of social relations that reveals the intersectionality of racism, gender, class and colonialism/imperialism. Having to fragment one’s identity within conventional rights paradigms has caused consternation among Black, ThirdWorld and critical race feminists that will not be easily quelled. Both domestic and international feminisms have come under the scrutiny of anti-racist women’s advocates whose use of new modes of reasoning have opted out of the universalist /cultural relativist binary, looking instead to domestic women’s movements to concretely identify and challenge ‘traditional’ and cultural practices that impede women’s autonomy, including domestic violence.
Feminist human rights activists in Canada, for example, concerned with the rights of refugee women, fought to include domestic violence as type of persecution carried out by non-state actors but with the condonation of the state—a stance that literally endangers women’s lives. In this formulation, inaction itself becomes a type of persecution when carried out against an identifiable social class—women. Such analysis resulted in the development of the Canadian Immigration and Refugee Board’s Gender Persecution Guidelines in 1994. This change allowed victims of domestic violence who did not receive equal protection of the state in their country of origin to apply for the determination of refugee status. It also extended the scope of acceptable grounds of persecution to include non-state actors, a determination first made in light of warring parties engaged in civil war, and creatively expanded to include and politicize women’s everyday experiences.
Thus the uses of CEDAW and CAT as well as other human rights mechanisms have resulted in some changes to women’s expectations that the international human rights system may be responsive to their needs. But as in other projects of social transformation, women are not a homogenous social category and thus the meaning of women’s experiences is constantly contested and reconfigured, reflecting and challenging hegemonic structures.
Just as social movements range from reformist and institutionalized strategies to more revolutionary ones, women’s voices are divergent, rooted in the racialized, geopolitical, and classed realities of their gender (among other things, such as sexuality and legal status). And thus we return to the famous words of Sojourner Truth, 19th century American Black feminist, who posed the question, “Ain’t I a Woman?” to a conference of all-white suffragettes.
But today’s critiques come from a myriad Sojourner Truths, who speak not only to the embedded white privilege of western feminists, but also to the localized practices, economies, customs, and social relations that harm and over-determine women’s lives with agendas of male superiority and female subordination.
The issue of domestic violence remains a crucial point of engagement with law for anti-racist feminist advocates, because it contains the most fundamental contradictions of liberal rights discourse and patriarchal capitalist social relations: the public/private split and the confining and even, ideological, nature of the binaries that inform liberal rights discourse, especially those which influenced (dominance feminism as a branch of) radical feminism.
On a deeper conceptual level, women’s attempts to convey the complexity of their experiences of human rights violations by intimates with the collusion of the state have offered stirring testimonials to the prevalence of gendered violence in heterosexual relations, relations which are shaped and determined not only by male intimates, but by civil societies and states and a system of international law predicated on women’s absence and oppression. Thus women’s legal strategies offer an epistemic possibility that allows for multiple stories and one truth.
That is, women’s experiences of domestic violence may vary from continent to continent (or neighbourhood to neighbourhood, for that matter) but there is no denying that there are profound similarities of power and control in activities overwhelmingly carried out by men that range from battering to dowry death. Employing a feminist method rooted in history and context, allows the meaning of domestic violence to reflect concrete social relations. There is no denying either, that wider social processes, attitudes, and structures play key roles in permitting and reinforcing violence that benefits males in the family and outside it. That is why, flawed and fractured though it may be, feminist engagement with the system of international human rights law is an important aspect of a larger transformative vision, which sees all women as capable of shaping the agendas and resources of global and domestic priorities in equal part with men.