Gender, Sexuality and IHRL Oxford Summer 2017
GENDER, SEXUALITY & IHRL Jus Cogens....... 1 The doctrine of jus cogens..... 1 Human rights as norms of jus cogens. 1 Women s rights as human rights. 3 Women s rights as human rights... 3 4 th World Conference on Women.. 3 Should there be a fifth world conference on women?.......... 4 CEDAW... 5 What is CEDAW?..... 5 Background to CEDAW...... 6 Optional Protocol.... 7 AT v Hungary........... 7 Other conventions under which women can claim their rights...... 8 Domestiv violence as torture.... 9 Recognising violence against women as a human rights violation 9 Elements of torture applied to domestic violence......... 9 International legal standards on torture....... 12 Consequences of understanding domestic violence as torture..... 12 Influence of NGOs............. 13 Women s rights NGOs... 14 NGOs as international legal actors... 14 Women s human rights NGOs............. 14 Mainstream human rights groups.......... 14 Case study: Human rights, Muslim fundamentalisms and the war on terror... 14 Violence against women in armed conflict 15 Case study 1: Democratic Republic of Congo 15 Case study 2: Algeria in the 1990s...... 16 Case study 3: Jane Doe v Islamic Salvation Front....... 18 Do we need new international law to protect women in armed conflict?... 18 Harms to women in armed conflict.......... 18 International humanitarian law.......... 19 Strategies to address gender deficiences in the law....... 21 Sexual orientation & IHRL.. 22 Toonen v Australia...... 22 Young v Australia..... 22 Case study: India and Sexuality.. 24 International recognition of sexual orientation.. 25 Inter-American Court of Human Rights..... 26 Challenges to the Inter-American System. 27 The Yogyakarta Principles... 27 What are the Yogyakarta Principles? 28 Background to the Principles.. 28 Why are the Principles needed?.. 28 Sexual orientation and gender identity in IHRL... 29 1
Sexuality as a human right..... 31 Applying human rights to sexuality.. 31 Current models and proprosals for applying human rights to sexuality..... 32 Case study: persecution in Uganda.......... 32 Fundamentalism and women s human rights. 34 Defining religious fundamentalism 34 The cause of religious fundamentalism. 34 Strategies of religious fundamentalists.......... 35 Strategies to combat fundamentalisms. 39 A human rights approach to fundamentalism........ 39 International legal framework.......... 39 Fundamentalism and cultural rights......... 42 Religious fundamentalism and obedience of women....... 43 Major fundamentalist religions............ 44 Case study 1: fundamentalism in Africa.......... 46 Women s human rights defenders. 49 Advancing feminist analysis of fundamentalist strategies.. 49 Pro-active feminist strategies for challenging religious fundamentalisms.. 49 Strengthening feminist movement building..... 50 Strengthening alliances beyond women s rights movements..... 50 Influencing public policy and recapturing public spaces. 51 Individual women s strategies of resistance and challenge.... 51 Factors complicating resistance to religious fundamentalism..... 51 Fundamentalism and Muslim societies...... 52 Women s rights defenders in the UK: WAF....... 52 Preventing fundamentalism in the UK...... 53 2
JUS COGENS Session 1 The doctrine of jus cogens The modern international law doctrine of jus cogens asserts the existence of fundamental legal norms from which no derogation is permitted. Article 53 Vienna Convention on the Law of Treaties: A peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a sub-sequent norm of general international law having the same character. Article 53 contains 2 strains: peremptory norms bind irrespective of consent but what those norms are is determined by consent. Article 53 & 64 together provide that treaties conflicting with peremptory norms of international law become void. Basis of jus cogens can be explained as the collective international good rather than the individual national good. The function of jus cogens in international law Article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Freedom of states to enter into treaties is limited by fundamental values of the international community. Pacta sunt servanda agreements must be kept. Inconsistent principles of customary international law cannot stand alongside jus cogens. Jus cogens assumes that decisions with respect to normative priorities can be made and that certain norms can be deemed to be of fundamental significance. Therefore it incorporates notions of universality and superiority into international law. Jus cogens norms reflect a male perspective of what is fundamental to international society that may not be shared by women or supported by women s experience of life. If women s lives contributed to the designation of international fundamental values, the category would be transformed in a radical way. Human rights as norms of jus cogens Gender bias in human rights law Human rights and international law promises more to men than women. Due to male domination of all international human rights fora, which itself fashions the substance of human rights law in accordance with male values. International law informs and reinforces a number of dichotomies between public and private spheres of action. One is the distinction between international public concerns and those within the domestic (private) jurisdiction of the states. International law is almost exclusively addressed to the public or official activities of states, which are not held responsible for the private activities of their nationals or those within their jurisdiction. Women need protection from different harms than men. All the violations of human rights relate to crimes including genocide, slavery and murder, the silences on the list indicate women s experiences have not directly contributed. For example discrimination based on sex does not appear in jus cogens. The right to life is set out in article 6 of the Civil and Political Covenant which forms part of customary international law. The right is concerned with the arbitrary deprivation of life or liberty through public actions. This right does not address the ways in which being a women itself is life-threatening and the special ways in which women need legal protection to enjoy their right to life. For example, being a woman can be hazardous even before birth as in some area they abort female foetuses due to the social and economic pressure to have sons. In India 80% of wives are victims of violence, domestic abuse, dowry abuse or murder (Crimes Against Women: The Proceedings of the International Tribunal 1984) Violence against women has been unaddressed because the legal system is focused on public actions of the state, for example: 1
UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art 1(1): Torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Violence against women is never purely a private issue as it is caused by the structural relationships of power, domination and privilege between men and women. However, to hold states responsible for private acts of violence challenges the traditional rules of state responsibility. It could be argued that failure to improve legal protection for women and to impose sanctions against perpetrators for women should engage state responsibility. Feminist rethinking of jus cogens Existing human rights law can be redefined to transcend the distinction between public and private spheres and truly take into account women s lives as well as men s. Give prominence to a range of other human rights: the right to sexual equality, to food, to reproductive freedom, to be free from fear of violence and oppression, and to peace. Fundamental norms designed to protect individuals should be truly universal in application as well as rhetoric, and operate to protect both men and women from those harms they are in fact most likely to suffer. 2
WOMEN S RIGHTS AS HUMAN RIGHTS Session 2 Women s rights as human rights Women s rights are commonly not classified as human rights. Women can experience sexual abuse in situations where other human rights are being violated, as political prisoners or members of persecuted ethnic groups. Human rights is a useful framework for seeking redress of gender abuse. Article 2 of the UDHR entitles all to the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Why are women s rights not addressed? Government s and human rights organisations offer many excuses as to why they need not address women s rights: Sex discrimination is too trivial or come after larger issues of survival that are of greater importance; Abuse of women is a cultural, private or individual issue and not a political matter requiring state action; Women s rights are not human rights per se; Abuse of women is considered inevitable that any consideration of it is futile. Why we need specific women s rights Ways in which being a female can be life threatening to reject argument that women s rights are trivial or secondary to concerns of life and death: Before birth: Amniocentesis is used for sex selection leading to the abortion of more female foetuses at rates as high as 99% in Bombay, India. During childhood: WHO reports that in many countries girls are fed less, breast fed for shorter period of time, taken to doctors less frequently, and die or are physically and mentally maimed by malnutrition at higher rates than boys. In adulthood: The denial of women s rights to control their bodies in reproduction threatens women s lives, especially where this is combined with poverty and poor health services. Sex discrimination combined with race, class and other forms of oppression, it constituted a deadly denial of women s right to life and liberty on a large scale throughout the world. Victims of abuse are chosen because of their gender the risk factor is being female. Violence against women is political; it results from the structural relationships of powers, domination and privilege between men and women in society. Violence against women is central to maintaining those political relations at home, work and in all public spheres. Linking women s right and human rights Four basic approaches to linking women s rights to human rights: Women s rights as civil political rights: Taking women s specific needs into consideration as part of the already recognised first generation political and civil liberties. Women s rights as socio-economic rights: This involves the plight of women with regard to the second generation human rights such as to food, shelter, healthcare and employments. Women s rights and the law: The creation of new legal mechanisms to counter sex discrimination. These efforts seek to make existing legal and political institutions work for women and expand the state s responsibility for the violation of human s rights. Feminist transformation of human rights: Transforming the human rights concept from a feminist perspective so that it will take greater account of women s lives. This relates women s rights and human rights, looking first at the violations of women s lives and then asking how the human rights concept can change to be more responsive to women. Fourth World Conference on Women (Beijing 1995) Beijing Declaration: 1. We, the Governments participating in the Fourth World Conference on Women, 3
2. Gathered here in Beijing in September 1995, the year of the fiftieth anniversary of the founding of the United Nations, 3. Determined to advance the goals of equality, development and peace for all women everywhere in the interest of all humanity, 4. Acknowledging the voices of all women everywhere and taking note of the diversity of women and their roles and circumstances, honouring the women who paved the way and inspired by the hope present in the world s youth, 5. Recognize that the status of women has advanced in some important respects in the past decade but that progress has been uneven, inequalities between women and men have persisted and major obstacles remain, with serious consequences for the well-being of all people 6. Also recognize that this situation is exacerbated by the increasing poverty that is affecting the lives of the majority of the world s people, in particular women and children, with origins in both the national and international domains, 7. Dedicate ourselves unreservedly to addressing these constraints and obstacles and thus enhancing further the advancement and empowerment of women all over the world, and agree that this requires urgent action in the spirit of determination, hope, cooperation and solidarity, now and to carry us forward into the next century. Mission Statement: The Platform for Action is an agenda for women's empowerment. It aims at accelerating the implementation of the Nairobi Forward-looking Strategies for the Advancement of Women and at removing all the obstacles to women's active participation in all spheres of public and private life through a full and equal share in economic, social, cultural and political decision-making. This means that the principle of shared power and responsibility should be established between women and men at home, in the workplace and in the wider national and international communities. Equality between women and men is a matter of human rights and a condition for social justice and is also a necessary and fundamental prerequisite for equality, development and peace. A transformed partnership based on equality between women and men is a condition for people-centred sustainable development. A sustained and long-term commitment is essential, so that women and men can work together for themselves, for their children and for society to meet the challenges of the twenty-first century. The Platform for Action reaffirms the fundamental principle set forth in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, that the human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights. As an agenda for action, the Platform seeks to promote and protect the full enjoyment of all human rights and the fundamental freedoms of all women throughout their life cycle. The Platform for Action emphasizes that women share common concerns that can be addressed only by working together and in partnership with men towards the common goal of gender* equality around the world. It respects and values the full diversity of women's situations and conditions and recognizes that some women face particular barriers to their empowerment. The Platform for Action requires immediate and concerted action by all to create a peaceful, just and humane world based on human rights and fundamental freedoms, including the principle of equality for all people of all ages and from all walks of life, and to this end, recognizes that broad- based and sustained economic growth in the context of sustainable development is necessary to sustain social development and social justice. The success of the Platform for Action will require a strong commitment on the part of Governments, international organizations and institutions at all levels. It will also require adequate mobilization of resources at the national and international levels as well as new and additional resources to the developing countries from all available funding mechanisms, including multilateral, bilateral and private sources for the advancement of women; financial resources to strengthen the capacity of national, subregional, regional and international institutions; a commitment to equal rights, equal responsibilities and equal opportunities and to the equal participation of women and men in all national, regional and international bodies and policy- making processes; and the establishment or strengthening of mechanisms at all levels for accountability to the world's women. Should there be a fifth world conference on women? Did not hold a fifth UN world conference in 2015. 4
Plans for a fifth world conference on women were shelved for fear that it could unravel established women s rights agreements. Not holding a global summit on accelerating the drive towards gender equality is a signal that we have lost faith that the institutions built to advance human rights will deliver for women. Still hold global summits for other issues such as climate changes, indigenous people s rights etc. A women s conference in 2015 would have mobilized opposition to women s rights. Those who are most marginalised and threatened would have had a global platform to make their experiences hears. Women s march on January 21 st in USA shows that people are horrified about leaders like Trump and their calls for a destruction of the institutions that promote tolerance and justice, and feminist movements are at the forefront of the resistance and gender equality is a foundational principle building open societies. 5
CEDAW Session 3 What is CEDAW? The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly (pg 61 in Blackstone s). Often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. The Convention provides the basis for realizing equality between women and men through ensuring women's equal access to, and equal opportunities in, political and public life -- including the right to vote and to stand for election -- as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms. Reporting procedure States parties have to submit a national report to the Committee within one year of accession or ratification of CEDAW and thereafter every 4 years or when the Committee requests. In the reports, States must indicate the measures they have adopted to give effect to the provisions of the CEDAW. The Committee discusses these reports with Government representatives and explores areas for further action by the specific country. Background to CEDAW Equality of rights for women is a basic principle of the United Nations. The Preamble to the Charter of the United Nations sets as one of the Organization's central goals the reaffirmation of "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women". Article 1 proclaims that one of the purposes of the United Nations is to achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to, inter alia, sex. The International Bill of Human Rights, combined with related human rights treaties, thus lays down a comprehensive set of rights to which all persons, including women, are entitled. However, the fact of women's humanity proved insufficient to guarantee them the enjoyment of their internationally agreed rights. Since its establishment, the Commission on the Status of Women (CSW) has sought to define and elaborate the general guarantees of non-discrimination in these instruments from a gender perspective. Originally established in 1946 as a sub-commission of the Commission on Human Rights, but quickly granted the status of full commission as a result of the pressure exerted by women's activists. The mandate of the CSW included the preparation of recommendations relating to urgent problems requiring immediate attention in the field of women's rights with the object of implementing the principle that men and women should have equal rights, and the development of proposals to give effect to such recommendations. Between 1949 and 1959, the Commission elaborated several conventions for the right of women, such as the Convention on the Political Rights of Women (1952). The approach these conventions reflected was fragmentary, as they failed to deal with discrimination against women in a comprehensive way. In addition, there was concern that the general human rights regime was not, in fact, working as well as it might to protect and promote the rights of women. Thus, the General Assembly, on 5 December 1963, adopted its resolution 1921 (XVIII), in which it requested the Economic and Social Council to invite the CSW to prepare a draft declaration that would combine in a single instrument international standards articulating the equal rights of men and women. Drafting of the declaration, by a committee selected from within the CSW, began in 1965, with the Declaration on the Elimination of Discrimination against Women ultimately being adopted by the GA on 7 November 1967. In 1972, the CSW saw the possibility to prepare a binding treaty. The following year, a working group was appointed to consider the elaboration of such a convention. In 1974, the CSW decided to prepare a treaty on discrimination against women. 6