Feminism and international law: Theory, methodology, and substantive reform

Human Rights Quarterly

Volumn 22, Issue 3, 2000, Pages 658-731

  Fellmeth, Aaron Xavier ^a,b,c,d  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b SORBONNE UNIVERSITÉ   (France)

^c YALE UNIVERSITY   (United States)

^d Firm's San Francisco Office   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

FEMINISM; INTERNATIONAL LAW; METHODOLOGY; REFORM PROCESS;

EID: 0033887233     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2000.0032     Document Type: Article

References (300)

1. This is not to say that the treatment of women's issues in international treaties has gone entirely unexamined. To the contrary, women's rights under international conventions are the subject of extensive analysis. For a bibliography cataloging developments and scholarship before 1990, see generally Rebecca J. Cook, The International Right to Nondiscrimination on the Basis of Sex, 14 YALE J. INT'L L. 161 (1989).
2. Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991).
3. Id. at 614-15.
4. See generally, e.g., FEMINIST SOCIAL THOUGHT: A READER (Diana Tietjens Meyers ed., 1997); ROSEMARIE TONG, FEMINIST THOUGHT: A COMPREHENSIVE INTRODUCTION (1989); WHAT IS FEMINISM? (Juliet Mitchell & Ann Oakley eds., 1986).
5. See generally, e.g., TOVE STANG DAHL, WOMEN'S LAW (1987); FEMINIST JURISPRUDENCE: THE DIFFERENCE DEBATE (Leslie Friedman Goldstein ed., 1992); FEMINIST JURISPRUDENCE (Patricia Smith ed., 1993); Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990).
6. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).
7. Reed v. Reed, 404 U.S. 71 (1971).
8. See Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387 (1984).
9. See, e.g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 104-05 (1987); Christine A. Littleton, Feminist Jurisprudence: The Difference Method Makes, 41 STAN. L. REV. 751, 754-63 (1989).
10. See, e.g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 104-05 (1987); Christine A. Littleton, Feminist Jurisprudence: The Difference Method Makes, 41 STAN. L. REV. 751, 754-63 (1989).
11. Geduldig v. Aiello, 417 U.S. 484 (1974).
12. Id. at 496 n.20.
13. In 1978, Congress statutorily overturned the Court's ruling by adopting the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k) (1994)).
14. See Linda J. Krieger & Patricia N. Cooney, The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality, 13 GOLDEN GATE U.L. REV. 513 (1983). But see Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV. L. & SOC. CHANGE 325, 370-74 (1984-85).
15. See Linda J. Krieger & Patricia N. Cooney, The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality, 13 GOLDEN GATE U.L. REV. 513 (1983). But see Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV. L. & SOC. CHANGE 325, 370-74 (1984-85).
16. See J. ANN TICKNER, GENDER IN INTERNATIONAL RELATIONS 15 (1992); Rosalind Delmar, What is Feminism, in WHAT IS FEMINISM, supra note 4, at 8. See also Adrian Howe, White Western Feminism Meets International Law: Challenges/Complicity, Erasures/Encounters, 4 AUSTL. FEM. L.J. 63, 66 (1995) ("Why are [feminists] bickering when the problem of masculinist hegemony, for example in the field of law, is so overdetermining [sic]?").
17. See J. ANN TICKNER, GENDER IN INTERNATIONAL RELATIONS 15 (1992); Rosalind Delmar, What is Feminism, in WHAT IS FEMINISM, supra note 4, at 8. See also Adrian Howe, White Western Feminism Meets International Law: Challenges/Complicity, Erasures/Encounters, 4 AUSTL. FEM. L.J. 63, 66 (1995) ("Why are [feminists] bickering when the problem of masculinist hegemony, for example in the field of law, is so overdetermining [sic]?").
18. See J. ANN TICKNER, GENDER IN INTERNATIONAL RELATIONS 15 (1992); Rosalind Delmar, What is Feminism, in WHAT IS FEMINISM, supra note 4, at 8. See also Adrian Howe, White Western Feminism Meets International Law: Challenges/Complicity, Erasures/Encounters, 4 AUSTL. FEM. L.J. 63, 66 (1995) ("Why are [feminists] bickering when the problem of masculinist hegemony, for example in the field of law, is so overdetermining [sic]?").
19. See, e.g., Nancy Hartsock, Feminist Theory and the Development of Revolutionary Strategy, in CAPITALIST PATRIARCHY AND THE CASE FOR SOCIALIST FEMINISM 56, 58 (Zillah R. Eisenstein ed., 1979);
20. Elizabeth Gross, What is Feminist Theory?, in FEMINIST CHALLENGES: SOCIAL AND POLITICAL THEORY 190, 196-97 (Carole Pateman & Elizabeth Gross eds., 1986); Charlesworth et al., supra note 2, at 613-14. For example, what sets "postmodernist" feminists apart from nonfeminist postmodernists is not methodology, but rather assumptions, strategies, and values.
21. Rosemarie Tong argues that there are seven broad feminist theories: liberal, radical, socialist, Marxist, existentialist, psychoanalytic, and postmodern. See generally TONG, supra note 4.
22. The term "postmodern" is deceptive. I find it difficult to distinguish the "postmodernist" critique of dominant "Western" discourse from the modernist use of social science and theory to identify and criticize ethnocentrism (e.g., anthropology), hidden power struggles (e.g., Marxism), and exclusionary theoretical orientations generally (e.g., liberal feminism). Most feminists apply these critiques without denying the possibility of some universal commonalities or meaningful boundaries.
23. Howe, supra note 14, at 71-72.
24. Actually, three techniques are commonly used, but the third, "consciousness raising," is less common and in my view, has no methodological use in social sciences. From some perspectives, this simply means that feminists sometimes openly air their real or perceived experiences of oppression. While this technique has value in conveying the feelings of the victim and possibly motivating political change, its problem is the one-sidedness and bias inherent in such expressions. This is not to dismiss all of its uses, merely to say that it has limited use as an analytical tool in social science analysis.
25. See SIMONE DE BEAUVOIR, THE SECOND SEX at xxvi (1957). See also Carol Gould, The Woman Question: Philosophy of Liberation and the Liberation of Philosophy, in WOMEN AND PHILOSOPHY: TOWARD A THEORY OF LIBERATION 5 (Carol C. Gould & Mark W. Wartofsky eds., 1976).
26. See SIMONE DE BEAUVOIR, THE SECOND SEX at xxvi (1957). See also Carol Gould, The Woman Question: Philosophy of Liberation and the Liberation of Philosophy, in WOMEN AND PHILOSOPHY: TOWARD A THEORY OF LIBERATION 5 (Carol C. Gould & Mark W. Wartofsky eds., 1976).
27. See generally Bartlett, supra note 5, at 837-49.
28. Some feminists, such as Robin West, actually venture into essentialism and metaphysics by assuming that all women have "true nature" upon which a feminist jurisprudence may be based. See, e.g., Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 4 (1988). Postmodernists and radical feminists, by contrast, often reject the idea of a core female identity.
29. See Hilary Charlesworth, Alienating Oscar? Feminist Analysis of International Law, in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW 1, 4 (Dorinda G. Dalimeyer ed., 1993) [hereinafter RECONCEIVING REALITY].
30. See generally Bartlett, supra note 5, at 849-63.
31. Since the 1940s, proponents of legal realism have advocated empiricism and seeking the power dynamics inherent in legal relationships and rules. Bartlett asserts that legal realists believe that "facts [are] too various and unpredictable for lawmakers to frame determinate rules." Id. at 853. This is not entirely accurate. Legal realists point out the fact that human discretion is inevitable because laws cannot predict every fact, and, as a result, real law is to be located in the structural matrix or dynamics of power relationships rather than words in books.
32. The focus on individual consequences causes some authors to formulate "feminist practical reasoning" as an abnegation of theory insofar as it denies any givens, including desirable goals. See, e.g., id. at 850-51.
33. Id. at 852.
34. Id. at 852-53 (quoting MARTHA CRAVEN NUSSBAUM, THE FRAGILITY OF GOODNESS 301-05 (1986)).
35. See id.
36. See Charlesworth et al., supra note 2.
37. Postmodernism entered jurisprudence partly by way of the Critical Legal Studies movement. When deployed by feminists, this approach criticizes not only the "male" aspects of the human rights discourse, but the "Western" feminist universalism as well.
38. See Charlesworth et al., supra note 2, at 628. See also Arati Rao, Home-Word Bound: Women's Place in the Family of International Human Rights, 2 GLOBAL GOVERNANCE 241, 244-45 (1996) (making same criticism of public/private distinction).
39. See, e.g., Frances Olsen, Constitutional Law: Feminist Critiques of the Public/Private Distinction, 10 CONST. COMMENTARY 319 (1993).
40. See Karen Knop, Re/Statements: Feminism and State Sovereignty in International Law, 3 TRANSNAT'L L. & CONTEMP. PROBS. 293, 296 (1993).
41. Charlesworth, supra note 23, at 9. See Lorenne M.G. Clark, Women and the State: Critical Theory - Oasis or Desert Island?, 5 CAN. J. WOMEN & L. 166, 167-68 (1992). However, Charlesworth later argues that women as such have nothing in common except "the political links [women] choose to make among and between struggles." Hilary Charlesworth, Feminist Methods in International Law, 93 AM. J. INT'L L. 379, 384 (1999) (citing Chandra Mohanty, Introduction: Cartographies of Struggle, in THIRD WORLD WOMEN AND THE POLITICS OF FEMINISM 1, 4 (Chandra Mohanty et al. eds., 1991)).
42. Charlesworth, supra note 23, at 9. See Lorenne M.G. Clark, Women and the State: Critical Theory - Oasis or Desert Island?, 5 CAN. J. WOMEN & L. 166, 167-68 (1992). However, Charlesworth later argues that women as such have nothing in common except "the political links [women] choose to make among and between struggles." Hilary Charlesworth, Feminist Methods in International Law, 93 AM. J. INT'L L. 379, 384 (1999) (citing Chandra Mohanty, Introduction: Cartographies of Struggle, in THIRD WORLD WOMEN AND THE POLITICS OF FEMINISM 1, 4 (Chandra Mohanty et al. eds., 1991)).
43. Charlesworth, supra note 23, at 9. See Lorenne M.G. Clark, Women and the State: Critical Theory - Oasis or Desert Island?, 5 CAN. J. WOMEN & L. 166, 167-68 (1992). However, Charlesworth later argues that women as such have nothing in common except "the political links [women] choose to make among and between struggles." Hilary Charlesworth, Feminist Methods in International Law, 93 AM. J. INT'L L. 379, 384 (1999) (citing Chandra Mohanty, Introduction: Cartographies of Struggle, in THIRD WORLD WOMEN AND THE POLITICS OF FEMINISM 1, 4 (Chandra Mohanty et al. eds., 1991)).
44. See Olsen, supra note 33, at 325-26.
45. See Hilary Charlesworth & Christine Chinkin, The Gender of Jus Cogens, 15 HUM. RTS. Q. 63, 72-73 (1993).
46. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/ 6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976).
47. See, e.g., Barbara Stark, The "Other" Half of the International Bill of Rights as a Postmodern Feminist Text, in RECONCEIVING REALITY, supra note 23, at 19; Shelley Wright, Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions, 12 AUSTL. Y.B. INT'L L. 241 (1992).
48. See, e.g., Barbara Stark, The "Other" Half of the International Bill of Rights as a Postmodern Feminist Text, in RECONCEIVING REALITY, supra note 23, at 19; Shelley Wright, Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions, 12 AUSTL. Y.B. INT'L L. 241 (1992).
49. See also Hilary Charlesworth, What Are "Women's International Human Rights"?, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 58 (Rebecca J. Cook ed., 1994).
50. See Knop, supra note 34, at 308-09. This may seem a somewhat bizarre argument, coming from a citizen of a representative democracy. As long as women have the right to choose candidates and vote in equal proportion to men, their interests should, at least theoretically, be equally represented on an international level. However, this point fails to take account of the role of economic and media power as components of political power. Women in the vast majority of countries have much less disposable income and media control than men, giving them unequal access to positions of power.
51. Id. at 321. I will discuss how international law has increasingly come to reject the extreme versions of state autonomy in Section IV, infra.
52. See Judith G. Gardam, The Law of Armed Conflict: A Feminist Perspective, in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY 419, 422-24, 430 (Kathleen E. Mahoney & Paul Mahoney eds., 1993).
53. See generally Nicholas Rose, Beyond the Public/Private Division: Law, Power, and the Family, 14 J.L. & SOC'Y 61, 67 (1987); Riane Eisler, Human Rights: Toward an Integrated Theory for Action, 9 HUM. RTS. Q. 287, 293 (1987) ("[A] universally established principle is that family relations are subject to both legal regulation and outside scrutiny.").
54. See generally Nicholas Rose, Beyond the Public/Private Division: Law, Power, and the Family, 14 J.L. & SOC'Y 61, 67 (1987); Riane Eisler, Human Rights: Toward an Integrated Theory for Action, 9 HUM. RTS. Q. 287, 293 (1987) ("[A] universally established principle is that family relations are subject to both legal regulation and outside scrutiny.").
55. I use the term "Western" for convenience although I believe that, generally speaking, there is paltry empirical or analytical value in lumping all persons of European heritage into a single blunt category.
56. See, e.g., KATHERINE O'DONOVAN, SEXUAL DIVISIONS IN LAW (1985); Frances Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983). Note especially the widespread support for state intervention in the family in cases of severe child abuse or neglect.
57. See, e.g., KATHERINE O'DONOVAN, SEXUAL DIVISIONS IN LAW (1985); Frances Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983). Note especially the widespread support for state intervention in the family in cases of severe child abuse or neglect.
58. See, e.g., Susan B. Boyd, Challenging the Public/Private Divide: An Overview, in CHALLENGING THE PUBLIC/PRIVATE DIVIDE: FEMINISM, LAW, AND PUBLIC POLICY 3, 6, 9 (Susan B. Boyd ed., 1997) (referring to Canada) [hereinafter CHALLENGING THE PUBLIC/PRIVATE DIVIDE]. Feminists proposing that housework be remunerated face a fundamental problem. Those feminists who believe women should take a more active place in economic, civic, and political life would argue that women should simply not choose to stay home and do housework. On the other hand, some feminists point out that, whatever women should do, they continue in fact to perform most housework. The ideal compromise might be the expansion of the number of community property states, in which all wages belong to husband and wife equally. Currently, however, only nine states in the United States (significantly, including California and Texas) have community property regimes.
59. Knop, supra note 34, at 295. In 1993, for example, a UCLA law professor claimed in Constitutional Commentary that sexual harassment is not as frowned upon by men in the United States as panhandling and that police and prosecutors continue to treat spousal abuse as a private matter. Olsen, supra note 33, at 323-24. While this was once widely true, and still holds in many other countries, in the present-day United States, public condemnation of domestic violence has increased dramatically since feminist activists brought the issue to public attention in the 1970s. Interview with Kate Killeen, Director, Domestic Violence Unit, Cal. Dist. Att'ys Assoc., San Diego, Cal. (20 Aug. 1999). The California Penal Code is indicative of the governmental attitude toward domestic violence since feminists drew attention to the issue in the 1970s. It states: "The Legislature hereby finds that spousal abusers present a clear and present danger to the mental and physical well-being of the citizens of the State of California." CAL. PENAL CODE § 273.8 (West 1999). This phrasing of the domestic violence law was enacted in 1985. The California evidence code also allows past acts of domestic violence to be admitted at trial to prove a propensity on the part of the abuser. Cal. EVID. CODE § 1109 (West 1999). As for the point about men's attitudes toward panhandling compared to spousal abuse, I am unable to locate any empirical evidence to support or refute this claim, and Olsen cites none.
60. 1 OPPENHEIM'S INTERNATIONAL LAW 846 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
61. See id. See also David Kennedy, Receiving the International, 10 CONN. J. INT'L L. 1, 6 (1994).
62. lus cogens is a body of peremptory norms of international law.
63. See Europa, the European Union's server (visited 1 May 2000) 〈http;//europa.eu.int/ index-en.htm〉 (for more information regarding the European Union).
64. Even official state speeches, seemingly directed to the domestic audience, are often acts of international diplomacy intended to influence the population of a foreign state. For example, during the First and Second World Wars before the United States joined the fray, the German and British governments commonly issued public pronouncements condemning the other side as an aggressor and iniquitous lawbreaker. These were not just attempts to rally public opinion behind the governments; they were also intended to influence American public opinion (and through the public, the government) to disdain or join the war, respectively. See Philip E. Jacob, Theory and Strategy of Nazi Short-Wave Propaganda, in PROPAGANDA BY SHORT WAVE 49, 75-76, 80-81, 88 (Harwood L. Childs & John B. Whitton eds., 1942); Bruno Foa, The Structure of Rome Short-Wave Broadcasts to North America, in PROPAGANDA BY SHORT WAVE, supra, at 151, 159. Their rhetoric aside, no state would have dreamed that this behavior might violate the target state's sovereignty.
65. See generally HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY 335-590 (1992) (discussing the roles of nonstate actors in the formation and enforcement of international law).
66. See, e.g., DAVID P. FORSYTHE, HUMANITARIAN POLITICS: THE INTERNATIONAL COMMITTEE OF THE RED CROSS (1977); INTERNATIONAL COMMITTEE OF THE RED CROSS, BASIC RULES OF THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS (1983).
67. See, e.g., DAVID P. FORSYTHE, HUMANITARIAN POLITICS: THE INTERNATIONAL COMMITTEE OF THE RED CROSS (1977); INTERNATIONAL COMMITTEE OF THE RED CROSS, BASIC RULES OF THE GENEVA CONVENTIONS AND THEIR ADDITIONAL PROTOCOLS (1983).
68. European Community Guidelines for Recognition of New States in Eastern Europe and the Former Soviet Union (16 Dec. 1991), 31 I.L.M. 1486 (1992). According to the leading proponent of this view, [i]nternational law is still concerned with the protection of sovereignty, but, in its modern sense, the object of protection is not the power base of the tyrant who rules directly by naked power or through the apparatus of a totalitarian political order, but the continuing capacity of a population freely to express and effect choices about the identities and policies of its governors. W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 871 (1990). Oddly, however, some feminists have claimed that states have increasingly demonstrated a reluctance to "condition the international status of the State on its respect for [civil and political] human rights, in particular the political rights central to notions of classical liberal democracy." See Knop, supra note 34, at 298.
69. See infra text accompanying notes 83-84.
70. See Rebecca J. Cook, Accountability in International Law for Violations of Women's Rights by Non-State Actors, in RECONCEIVING REALITY, supra note 23, at 93, 110-11.
71. For an excellent discussion of this subject, also mentioned by Professor Knop, see generally Myres S. McDougal & W. Michael Reisman, International Law in Policy-Oriented Perspective, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW 103 (R. St. J. Macdonald & Douglas M. Johnston eds., 1983).
72. Knop, supra note 34, at 333, 335.
73. See, e.g., Boyd, supra note 47, at 11 ("At the international level, only relations between states, or issues that states have agreed to submit to regulation through international treaty or contract, are legitimate subjects for 'public' international legal regulation."); Doris Elisabeth Buss, Going Global: Feminist Theory, International Law, and the Public/ Private Divide, in CHALLENGING THE PUBLIC/PRIVATE DIVIDE, supra note 47, at 360, 364 ("International law applies only to matters between recognized international actors, primarily nation states, and does not cover matters internal to a state."); Barbara Stark, International Human Rights Law, Feminist Jurisprudence, and Nietzsche's "Eternal Return": Turning the Wheel, 19 HARV. WOMEN'S L.J. 169, 171 (1996)
74. (claiming that all international law, except for human rights law, "is concerned with the behavior of States toward other States"). Cf. Catharine A. MacKinnon, Comment: "Theory is Not a Luxury," in RECONCEIVING REALITY, supra note 23, at 83, 90 ("Under international law, for the most part, only states can violate human rights, and only states can act to redress them.").
75. Professor Buss cites the example of certain aboriginals in Canada. See Buss, supra note 61, at 367. In totalitarian states as well, the private realm receives little protection from state interference.
76. See Charlesworth, supra note 23, at 11.
77. See, e.g., MACKINNON, supra note 9, at 137; Littleton, supra note 9, at 754-63.
78. Karen Engle, After the Collapse of the Public/Private Distinction: Strategizing Women's Rights, in RECONCEIVING REALITY, supra note 23, at 143, 146.
79. See Buss, supra note 61, at 368; Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643, 702-06 (1990). See Engle, supra note 65, at 146 (repeating the same argument).
80. See, e.g., Engle, supra note 65, at 151.
81. Karen Engle, Views from the Margins: A Response to David Kennedy, 1994 UTAH L. REV. 105, 107-08.
82. Knop, supra note 34, at 297.
83. Some authors have argued that public acts primarily harm men. See Charlesworth, supra note 23, at 10. However, one could argue that women suffer from state acts of oppression as much as or more than do men.
84. See Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647, 657-58 (1993).
85. In some views of an ideal world, perhaps, an international human rights body would enforce basic human rights worldwide. Meanwhile, the advent of collective security and the United Nations has moved the international legal system more in that direction than ever before. As UN Secretary-General Kofi Annan recently stated, the characterization of a matter as "domestic" or "internal" "does not give the parties any right to disregard the most basic rules of human conduct." Kofi Annan, Ditchley Foundation Lecture, London, England (26 June 1998), excerpted in 35(3) U.N. CHRON. 23 (1998), available in 1998 WL 16136273. Presumably, by "the parties," the Secretary-General intended to mean individuals as well as states. Czech President Vaclav Havel was more explicit when he said that the twentieth century had gradually brought "the human race to the realization that the human being is more important than the state." Associated Foreign Press, Human Rights Justify NATO Action Against Yugoslavia: Vaclav Havel, 29 Apr. 1999.
86. In some views of an ideal world, perhaps, an international human rights body would enforce basic human rights worldwide. Meanwhile, the advent of collective security and the United Nations has moved the international legal system more in that direction than ever before. As UN Secretary-General Kofi Annan recently stated, the characterization of a matter as "domestic" or "internal" "does not give the parties any right to disregard the most basic rules of human conduct." Kofi Annan, Ditchley Foundation Lecture, London, England (26 June 1998), excerpted in 35(3) U.N. CHRON. 23 (1998), available in 1998 WL 16136273. Presumably, by "the parties," the Secretary-General intended to mean individuals as well as states. Czech President Vaclav Havel was more explicit when he said that the twentieth century had gradually brought "the human race to the realization that the human being is more important than the state." Associated Foreign Press, Human Rights Justify NATO Action Against Yugoslavia: Vaclav Havel, 29 Apr. 1999.
87. Buss, supra note 61, at 375. See also Engle, supra note 65, at 150.
88. See Buss, supra note 61, at 374-75; Gardam, supra note 43, at 422-24, 430.
89. There might be one exception. Regional organizations of tightly-knit states might conceivably effect such a result. Specifically, the European Union (EU) might reach a level of integration in which a supranational body can detect and punish private abuses. However, the EU is a unique case and, moreover, its membership is not yet universal, even in Europe.
90. Cook, supra note 58, at 115.
91. United Nations, ECOSOC, Comm'n on the Status of Women, Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (Mar. 12, 1999), E/CN.6/1999/WG/L2, 38 I.L.M. 763 (1999) [hereinafter Optional Protocol]. See also Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (1980) (entered into force 3 Sept. 1981), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980) [hereinafter CEDAW].
92. Optional Protocol, supra note 77, arts. 1-2.
93. Id. arts. 8-10.
94. For example, if the Committee receives reliable information of grave or systematic violations of CEDAW by a state, the Committee must merely "invite" the state to cooperate in examination of the information and submit its observations. Id. art. 8(1). Committee members may not visit the offending state without its permission. Id. art. 8(2). Once it has made recommendations, the Committee cannot require states to respond to its inquiries; rather, it "may invite" the offending state to inform it of any measures taken in response to the Committee's recommendations. Id. art. 9(2).
95. Id. arts. 10(1), 19.
96. Charlesworth et al., supra note 2, at 629.
97. For this reason, sovereign states often delegate important tasks to local subunits. Most states employ the principals of federalism or subsidiarity to some degree in order to increase administrative efficiency.
98. W. Michael Reisman, Some Lessons from Iraq: International Law and Domestic Politics, 16 YALE J. INT'L L. 203, 208 (1991).
99. CEDAW, supra note 77.
100. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31, (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956) [hereinafter First Geneva Convention]; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 Aug. 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956); Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956) [hereinafter Third Geneva Convention]; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956) [hereinafter Fourth Geneva Convention].
101. See, e.g., CEDAW, supra note 77, arts. 6-7.
102. The European Court of Human Rights has held the Netherlands responsible for failure to enact criminal legislation to protect human rights against violations by private individuals in its territory. X & Y v. The Netherlands, 91 Eur. Ct. H.R. (ser. A) (1985). It has held Ireland liable for failing to make available civil remedies for private human rights violations. Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A) (1979).
103. Fourth Geneva Convention, note 86, art. 146.
104. Teson, supra note 71, at 659 (citation omitted).
105. Professor Knop actually made this point several years ago. See Knop, supra note 34, at 343.
106. Frances E. Olsen, International Law: Feminist Critiques of the Public/Private Distinction, in RECONCEIVING REALITY, supra note 23, at 157, 165.
107. However, Hilary Charlesworth claims that international legal discourse deploys a series of dichotomies such as legal/political, logic/emotion, order/anarchy, mind/body, and public/private that have a gendered coding - the former being "male" and the latter "female." See Charlesvvorth, supra note 35, at 382. It is entirely possible that, by inventing these gendered characterizations of the dichotomies, certain feminists are deploying their own personal stereotypes rather than criticizing stereotypes actually embedded in international legal discourse.
108. See, e.g., Ken Silverstein, The Women's Shill Caucus, MULTINAT'L MONITOR, Apr. 1997, at 25 ("Women senators have been just as ruthless on human rights issues, as seen in the cases of China and Nigeria. The chief apologist for the former is Dianne Feinstein, D-California, while the latter's prime sponsor is [Carol] Moseley-Braun [D-III.]. . . .").
109. Charlesvvorth et al., supra note 2, at 616.
110. See, e.g., MACKINNON, supra note 9, at 38-39; CAROL SMART, FEMINISM AND THE POWER OF LAW 75 (1989).
111. Note that a jurisprudence that addresses checks on the abuse of private power would fit within feminist concerns but would theoretically apply to all abuses stemming from inequality within a power matrix, including the abuse of children; the elderly; the handicapped; racial, ethnic, linguistic, or religious minorities; and others.
112. For example, some feminists have argued, or at least implied, that the notion of power as a political hierarchy ("power over") is a male conception of power, while a notion of increasing possibilities ("power to") better reflects Gilligan's ethic of care. See, e.g., Robin L. Teske, Power: An Interdisciplinary Approach, in RECONCEIVING REALITY, supra note 23, at 231, 234-35.
113. See GILLIGAN, supra note 6, at 164, 174. See, e.g., CYNTHIA FUCHS EPSTEIN, DECEPTIVE DISTINCTIONS: SEX, GENDER, AND THE SOCIAL ORDER 76-83 (1988).
114. See, e.g., Christina Sommers, Do These Feminists Like Women?, 21 J. SOC. PHILOSOPHY 66 (1990); Christina Sommers, Argumentum ad Feminam, 22 J. Soc. PHILOSOPHY 5 (1991).
115. See, e.g., Christina Sommers, Do These Feminists Like Women?, 21 J. SOC. PHILOSOPHY 66 (1990); Christina Sommers, Argumentum ad Feminam, 22 J. Soc. PHILOSOPHY 5 (1991).
116. MACKINNON, supra note 9, at 39.
117. GILLIGAN, supra note 6, at 2.
118. Christina Brooks Whitman, Feminist Jurisprudence (Review Essay), 17 FEMINIST STUD. 493, 499 (1991).
119. Peace Treaty Between the Holy Roman Emperor and the King of France and Their Respective Allies (Treaty of Westphalia), 24 Oct. 1648, available at 〈http://www.tufts.edu/ departments/fletcher/multi/texts/historical/westphalia.txt〉 (visited 1 May 2000).
120. U.N. CHARTER, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993 (entered into force 24 Oct. 1945).
121. One could argue that the Great Power oligopoly of the Security Council tends to undermine the equality and inclusiveness of the United Nations system. On the other hand, this very oligopoly renders the UN Charter model possible, as relatively few states are equipped and willing to act quickly and effectively worldwide as international peacekeepers and peace enforcers. A greater degree of inclusiveness in the Security Council, according to this argument, would undermine, or at least dilute, the effectiveness of collective security. In any case, the UN General Assembly (GA) is an important international lawmaking institution that typifies egalitarianism, inclusiveness, and respect for divergent opinions, even if the GA lacks many of the Security Council's concrete powers.
122. See generally SEYMOUR MAXWELL FINGER, AMERICAN AMBASSADORS AT THE UN (1988) (describing US techniques of diplomacy in the UN from Truman to Reagan).
123. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, U.N. Diplomatic Conf. of Plenopotentiaries on the Establishment of an Int'l Crim. Ct., U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute].
124. General Agreement on Tariffs and Trade, 30 Oct. 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194.
125. Agreement Establishing the World Trade Organization, 15 Apr. 1994, 33 I.L.M. 1144 (1994).
126. Knop, supra note 34, at 323-24. Professor Knop cites an unpublished manuscript by Moira McConnell. It strikes me as rather absurd to imply, as Knop does, that caretaking and accountability did not exist before feminism or that they form no significant part of the morality of men around the world. Some feminists have developed the sloppy habit of describing any caring behavior as automatically feminine. See, e.g., Stark, supra note 39, at 192 ("Human rights represent the . . . feminine half of the international regime agreed upon by the world powers in 1945.").
127. See Charlesworth et al., supra note 2, at 634-38. See, e.g., Gross, supra note 15, at 192. This is not an entirely common view; many or most feminists argue that women need more, not fewer, rights. See, e.g., Stark, supra note 61, at 193-95 (arguing that international human rights law should also embrace rights that would bring greater economic equality to women).
128. Some commentators have gone even further, claiming that rights discourse is counter-productive for women. Adrian Howe takes an absolutist position, challenging even the skeptical Charlesworth's "touching faith" that rights can sometimes help women achieve equality. Howe, supra note 14, at 73-74.
129. See Charlesworth et al., supra note 2, at 638.
130. Id.
131. See generally, EDWARD W. SAID, ORIENTALISM (1978).
132. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949) [hereinafter UDHR].
133. See Buss, supra note 61, at 361, 367, 371 ("Not only does [traditional feminist] analysis presume that sexual violence, as opposed to racial or ethnic violence, is the defining feature of all women's lives, it also assumes that violence against women necessarily takes place in the home."). See also Laura Nader, Num Espelho de Mulher: Cegueira Normativa e Questões de Direitos Humanos Não Resolvidas [In a Woman's Looking Glass: Normative Blindness and Unresolved Human Rights Issues], 5 HORIZONTES ANTROPOLÓGICOS, May 1999, at 61, 67 (1999) ("Ativistas do terceiro mundo argumentam que direitos a comida, educação, emprego e assistência social perderam o sentido por causa das condições geralmente impostas pelo Fundo Monetário Internacional [Third world advocates argue that rights to food, education, work and social assistance have been rendered meaningless due to conditions generally set by the International Monetary Fund]. . . ."). Christina Brooks Whitman has also cautioned against the "great temptation of legal thinking" to "hope that the interests of women . . . can be captured in a single narrative, or formula, or three- or four-part test to be applied to all cases." Whitman, supra note 103, at 502. Her warning, directed to the national level, applies a fortiori at the international level. Of course, this is not by any means to say that some interests are not universal. As I will argue below, international human rights law would not be possible without some generalizations about the interests of humans - a category broader than and inclusive of the interests of women.
134. Bartlett, supra note 5, at 855.
135. See Mohanty, supra note 35, at 1, 4.
136. The term "genital mutilation" is intentional; a "genital circumcision" that does not impair bodily function and poses no significant health risk might be considered barbaric by some, but probably would not rise to a violation of human rights except when the procedure is undertaken on children.
137. See Howe, supra note 14, at 75-76 (citing Chandra Mohanty, On Race and Voice: Challenges for Liberal Education in the 1990s, 1989-90 CULTURAL CRITIQUE 179, 180); Lama Abu-Odeh, Post-Colonial Feminism and the Veil: Considering the Differences, 26 NEW ENC. L. REV. 1527, 1529-31 (1992).
138. See Howe, supra note 14, at 75-76 (citing Chandra Mohanty, On Race and Voice: Challenges for Liberal Education in the 1990s, 1989-90 CULTURAL CRITIQUE 179, 180); Lama Abu-Odeh, Post-Colonial Feminism and the Veil: Considering the Differences, 26 NEW ENC. L. REV. 1527, 1529-31 (1992).
139. See Bartlett, supra note 5, at 872-73.
140. See Early Warning: Health, WORLD PRESS REV., May 1999, at 19; Felice Gaer, U.S. Delegate, Integration of the Human Rights of Women and the Gender Perspective - Item 13, Remarks to the U.N. Commission on Human Rights, 55th Sess. (13 Apr. 1999), available at 〈http;//www.state.gov/www/policy_remarks/1999/990413_gaer_geneva .html〉 (visited 1 May 2000). Of course, not all feminists would be satisfied with the pace at which governments act to eliminate gender oppression on their own initiative.
141. See Isabelle R. Gunning, Arrogant Perception, World Travelling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 COLUM. HUM. RTS. L. REV. 189, 224 (1992) (citing HANNY LIGHTFOOT-KLEIN, PRISONERS OF RITUAL 167 (1989)).
142. See Isabelle R. Gunning, Arrogant Perception, World Travelling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 COLUM. HUM. RTS. L. REV. 189, 224 (1992) (citing HANNY LIGHTFOOT-KLEIN, PRISONERS OF RITUAL 167 (1989)).
143. See Gaer, supra note 125.
144. The postmodern rejoinder would be that the laws prohibiting such cultural practices are often the result of Western pressure or the colonialist Western education received by the native elites. It might also be noted that legal prohibitions on culturally entrenched practices such as genital mutilation are often flouted, sometimes, ironically, as a reaction to the hegemonic act of outlawing the practice.
145. This criticism applies to standpoint epistemology as well, but on a personal rather than cultural level. While victims (female or otherwise) may be more apt to perceive details of abuse and may know more about the emotions accompanying such abuse, their perception of their own victimization biases them. To compound the problem, the assertion that only victims understand the reality of discrimination reinforces the bias by discounting the perspectives of "outsiders," who may be more objective or at least offer alternative or complementary insights.
146. Bartlett, supra note 5, at 876.
147. See, e.g., Obiora, supra note 123, at 56, 68.
148. See Nader, supra note 118, at 68.
149. Even Obiora admits that harm justifies intervention. Obiora, supra note 123, at 52. In fact, she really only takes issue with the exaggeration of the harm resulting from genital circumcision, arguing that it is a diverse set of practices, some of which are not harmful. Id. at 52-53. Nonetheless, she acknowledges that circumcision is "a delicate and risk-ridden procedure." Id. at 71.
150. Slavery, human sacrifice, forced marriages, and other atrocities may have a strong cultural basis. Consensus on minimum standards of human rights may be the most feasible where harmful practices have very few current adherents, or where those adherents have no advocates among the geopolitical elite. As such rituals become moribund, legal standards on human dignity may develop. Yet, when the enumeration of human rights outpaces the decline in such ritual practices, cultural clashes are inevitable.
151. See generally SAID, supra note 116.
152. The Kantian theory of international law, advanced by Tesón, supra note 71, that people are not socialized and that their choices are presumptively free and rational, rejects the vast weight of empirical evidence provided by the social sciences, in particular, ethnology and the social, cognitive, and developmental branches of experimental psychology. However, respect for human dignity and human rights does not require obeisance to a categorical imperative or espousal of a theory of "free will." The Kantian theory stymies itself in advocating that persons "respect . . . the considered choices of other rational persons," without psychologically putting oneself above that person and thereby violating the Kantian "ideal of equal dignity." Id at 671. The unaddressed problem is: Without implying that one's own rationality or judgment is superior to those of others, how can one judge that another person is "rational" or their choice "considered?"
153. Professor Gunning made this same point several years ago. Gunning, supra note 126, at 204-05. It should be mentioned at this point that certain authors, such as Catharine MacKinnon and Susan Estrich, have the habit of attributing less "free will" to women than to men. See generally Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635 (1983) (claiming that every act of sex is coercive against women by its very nature); Susan Estrich, Rape, 95 YALE L.J. 1087 (1986) (describing some rapes as involving acquiescence that is "coerced" by nonviolent or nonthreatening means). In other words, their arguments generally depend upon the proposition that women with self-destructive habits are victims of malign socialization, while men with habits that are either self-destructive or destructive of others are not. Assuming such a thing as "free will" exists, the fact that someone's actions appear to an outsider to be in his or her self-interest has no bearing upon whether that act would be a product of free will.
154. Professor Gunning made this same point several years ago. Gunning, supra note 126, at 204-05. It should be mentioned at this point that certain authors, such as Catharine MacKinnon and Susan Estrich, have the habit of attributing less "free will" to women than to men. See generally Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635 (1983) (claiming that every act of sex is coercive against women by its very nature); Susan Estrich, Rape, 95 YALE L.J. 1087 (1986) (describing some rapes as involving acquiescence that is "coerced" by nonviolent or nonthreatening means). In other words, their arguments generally depend upon the proposition that women with self-destructive habits are victims of malign socialization, while men with habits that are either self-destructive or destructive of others are not. Assuming such a thing as "free will" exists, the fact that someone's actions appear to an outsider to be in his or her self-interest has no bearing upon whether that act would be a product of free will.
155. See, e.g., GILLIGAN, supra note 6, at 13-20; Philip Goldberg, Are Women Prejudiced Against Women?, TRANS-ACTION, Apr. 1968, at 28-30. See also SUSAN A. BASOW, GENDER STEREOTYPES: TRADITIONS AND ALTERNATIVES (2d ed. 1986).
156. See, e.g., GILLIGAN, supra note 6, at 13-20; Philip Goldberg, Are Women Prejudiced Against Women?, TRANS-ACTION, Apr. 1968, at 28-30. See also SUSAN A. BASOW, GENDER STEREOTYPES: TRADITIONS AND ALTERNATIVES (2d ed. 1986).
157. Gaer, supra note 125.
158. This example comes from Laura Nader, who points out that 13.3 million boys are circumcised every year, compared to some 2 million girls. Nader, supra note 118, at 73-74.
159. Gaer, supra note 125.
160. One wonders whether a "rule of law" making adultery a capital crime, or the execution of a woman seeking divorce following a full jury trial with "due process and individual protections," would have satisfied the ambassador that human rights had been vindicated.
161. Obiora, supra note 123, at 67.
162. Obiora herself admits that circumcision is "a delicate and risk-ridden procedure." Id. at 71.
163. CEDAW, supra note 77, pmbl.
164. Id. art. 5.
165. Gunning, supra note 126, at 193.
166. See id. at 212.
167. See Gunning, supra note 126, at 213 ("How bizarre and barbaric must a practice like implanting polyurethane covered silicone into one's breasts be perceived by one not accustomed to the practice.").
168. See, e.g., Bartlett, supra note 5, at 857.
169. To some, this may seem destructive of theory insofar as it abandons objectivity. To the contrary, this approach makes objective theory possible by revealing its underlying assumptions, which can then be called into question on empirical or logical grounds.
170. Nader, supra note 118, at 62.
171. The reasons may range from dependency upon their abusers, to need for social acceptance, to a simple lack of good life choices.
172. See generally WOMEN AND POLITICS WORLDWIDE (Barbara J. Nelson & Najma Chowdhury eds., 1994) (publishing the results of a study in 43 countries that identifies four consistent themes of female concern in the above-mentioned spheres).
173. Charlesworth et al., supra note 2, at 621.
174. Charlesworth, supra note 35, at 381.
175. See Charlesworth et al., supra note 2, at 621-24.
176. Examples abound of one group at least partly advocating the interests of other groups, sometimes to their own detriment. For example, in the United States, many whites participated in the civil rights movement that led to legislation and court decisions fostering racial equality. Similarly, women are now empowered to vote because they were enfranchised by a majority vote of men. One measure of civilization may be the incidence of participation in advocacy for the interests of disempowered groups to which one does not belong.
177. There are many notable exceptions, such as Mary Robinson (former President of Ireland and now UN High Commissioner for Human Rights), Gro Harlem Brundtland (Director-General of the World Health Organization since July 1998), Violeta Chamorro (former President of Nicaragua), Margaret Thatcher (former Prime Minister of England), Tansu Ciller (former President of Turkey), Benazhir Bhutto (former Prime Minister of Pakistan), Edith Cresson (former Premier Ministre of France), Madeleine Albright (current US Secretary of State), and Charlene Barshefsky (current US Trade Representative). One in four of the members of the European Parliament are currently women. See Alan Osborn, The European Parliament: Past, Present and Future, EUROPE, May 1999, at 30, 33. Nonetheless, the proportion of women to men in political and diplomatic office remains abysmally low. For example, no woman has ever been the President or Vice-President of the United States, Président of France, Premier of the Soviet Union (or President of Russia), Premier of China, Prime Minister of Japan, or Secretary General of the United Nations. Some feminists would argue further that the fact that some women are involved in diplomacy "does not necessarily change the masculinist underpinnings of institutions dealing with international relations." J. Ann Tickner, Feminist Approaches to Issues of War and Peace, in RECONCEIVING REALITY, supra note 23, at 267, 273. This contention was addressed in Section III supra.
178. There are many notable exceptions, such as Mary Robinson (former President of Ireland and now UN High Commissioner for Human Rights), Gro Harlem Brundtland (Director-General of the World Health Organization since July 1998), Violeta Chamorro (former President of Nicaragua), Margaret Thatcher (former Prime Minister of England), Tansu Ciller (former President of Turkey), Benazhir Bhutto (former Prime Minister of Pakistan), Edith Cresson (former Premier Ministre of France), Madeleine Albright (current US Secretary of State), and Charlene Barshefsky (current US Trade Representative). One in four of the members of the European Parliament are currently women. See Alan Osborn, The European Parliament: Past, Present and Future, EUROPE, May 1999, at 30, 33. Nonetheless, the proportion of women to men in political and diplomatic office remains abysmally low. For example, no woman has ever been the President or Vice-President of the United States, Président of France, Premier of the Soviet Union (or President of Russia), Premier of China, Prime Minister of Japan, or Secretary General of the United Nations. Some feminists would argue further that the fact that some women are involved in diplomacy "does not necessarily change the masculinist underpinnings of institutions dealing with international relations." J. Ann Tickner, Feminist Approaches to Issues of War and Peace, in RECONCEIVING REALITY, supra note 23, at 267, 273. This contention was addressed in Section III supra.
179. Judgment, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, T. Ch. I, § 7.7 (¶ 38) (ICTR 2 Sept. 1998), available at 〈http://www.un.org/ictr/english/judgements/akayesu.html〉 (visited 1 May 2000), reprinted in 37 I.L.M. 1399 (1998) [hereinafter Akayesu]. It is important to note that the Tribunal included "sexual violence" (a broader term than "rape") as within its jurisdiction. The relevant part of the opinion states: The Tribunal considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. . . . The Tribunal defines rape as a physical invasion of a sexual nature, commuted on a person under circumstances which are coercive. . . . [S]exual violence, which includes rape, . . . is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. . . . The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion. Id.
180. See B.J. Kowalski, Regional Report: Venezuela: Protecting Women, WORLD PRESS REV., Nov. 1998, at 21.
181. See Women's Day in Kuwait, ECONOMIST (London), 22 May 1999, available in 1999 WL 7363179.
182. See UNITED NATIONS POPULATION FUND, THE STATE OF WORLD POPULATION 1997: THE RIGHT TO CHOOSE: REPRODUCTIVE RIGHTS AND REPRODUCTIVE HEALTH 14 (1997).
183. Charlesworth, supra note 23, at 6.
184. Charlesworth et al., supra note 2, at 615. International law scholars continued to propound the superannuated idea that "[t]he most basic principle of international law is the equal claim to integrity of all states, regardless of their political or social ideology." Wolfgang Friedmann, Intervention, Civil War and the Role of International Law, in 1 THE VIETNAM WAR AND INTERNATIONAL LAW 151, 151 (Richard A. Falk ed., 1968). The integrity of a fascist dictatorship, by this view, is entitled to as much respect as the government of a social democracy. The moral theory upon which this idea was based when written (over a decade after the foundation of the United Nations) remains a mystery, but underlying the political theory is the notion that respecting abstract legal concepts is more important than preserving human life and dignity, or that the former is somehow a precondition to the latter.
185. Of course, a higher floor and greater rights do not always result in greater equality. For example, income inequality can increase despite rising median or mean consumer purchasing power.
186. UDHR, supra note 117, art. 21(3).
187. CEDAW, supra note 77, arts. 7-8.
188. Id. art. 7.
189. Id. art. 8.
190. See Charlesworth et al., supra note 2, at 622 n.56; Knop, supra note 34, at 303.
191. See Tesón, supra note 71, at 654.
192. See supra note 35 and accompanying text.
193. See Knop, supra note 34, at 310.
194. Plessy v. Ferguson, 163 U.S. 537 (1896).
195. This point was not, however, the main, explicit reason the Supreme Court overthrew the "separate but equal" doctrine. See Brown v. Board of Education, 347 U.S. 483 (1954). Rather, the Court seemed to base its decision primarily on dubious social science evidence.
196. See, e.g., Rasna Warah, A Conference in Kigali, 35(3) U.N. CHRON. 16 (1998), available in 1998 WL 16136354 (noting that most of the more than 100 women who participated in a UN-sponsored conference, representing women from around the world, agreed that "while most statutory laws [are] nondiscriminatory, in practice, women [are] bound by traditional customary laws which [do] not recognize women's capacity to own or inherit land or property in their own names").
197. Charlesworth, supra note 35, at 386.
198. Binion, supra note 148, at 513. Binion does not, however, disclose what those challenges might be except that a feminist would not only hold states responsible for failing to protect women against human rights abuses, but would hold the abuser himself or herself liable for violations of human rights. This suggestion is unrelated to feminism; it predates the challenge to the
199. See, e.g., Violence Against Women Migrant Workers, G.A. Res. 51/65, U.N. GAOR, 51st Sess., Supp. No. 49, vol. 1, at 194, U.N. Doc. A/51/49 (1996); Traffic in Women and Girls, G.A. Res. 51/66, U.N. GAOR, 51st Sess., Supp. No. 49, vol. 1, at 195, U.N. Doc. A/51/49 (1996).
200. See Human Rights and Thematic Procedures, C.H.R. Res. 1997/37, U.N. ESCOR, Comm'n on Hum. Rts., 53d Sess., Supp. No. 3, at 123, U.N. Doc. E/1997/23-E/CN.4/ 1997/150 (1997).
201. Third Geneva Convention, supra note 86, art. 14; Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929, art. 4, 47 Stat. 2021, T.S. 846.
202. U.N. CHARTER preamble, arts. 1(3), 8.
203. UDHR, supra note 117, arts. 2, 16.
204. Convention for the Supression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature 21 Mar. 1950, 96 U.N.T.S. 271 (entered into force 25 July 1951).
205. Fourth Geneva Convention, supra note 86, art. 27.
206. First Geneva Convention, supra note 86, art. 18; Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, arts. 76-77, 1125 U.N.T.S. 3 (entered into force 7 Dec. 1978), reprinted in 16 I.L.M. 1391 (1977) [hereinafter Protocol I]; Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, art. 4, 1125 U.N.T.S. 609 (entered into force 7 Dec. 1978), reprinted in 16 I.L.M. 1442 (1977).
207. Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (ILO No. 100), adopted 29 June 1951 (entered into force 23 May 1953), available on International Labour Organization, Text of ILO Conventions (visited 1 May 2000) 〈http://ilolex.ilo.ch:1567/public/english/docs/convdisp.htm〉 [hereinafter ILOLEX].
208. Convention on the Political Rights of Women, 31 Mar. 1953, 27 U.S.T. 1909, 193 U.N.T.S. 135 (entered into force 7 July 1954) (entered into force for U.S. 7 July 1976).
209. Convention on the Nationality of Married Women, 20 Feb. 1957, 309 U.N.T.S. 65 (entered into force 11 Aug. 1958).
210. Convention on Consent to Marriage, Minumum Age for Marriage and Registration of Marriages, opened for signature 10 Dec. 1962, 521 U.N.T.S. 231 (entered into force 9 Dec. 1964).
211. Declaration on the Elimination of Discrimination Against Women, G.A. Res. 2263 (XXII), adopted 7 Nov. 1967, U.N. GAOR, 22d Sess., 1597th mtg., U.N. Doc. A/6880 (1967).
212. African Charter on Human and Peoples' Rights, adopted 26 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5 (entered into force 21 Oct. 1986), reprinted in 21 I.L.M. 58 (1982).
213. Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, adopted 20 Dec. 1993, U.N. GAOR, 48th Sess., 85th plen. mtg., U.N. Doc. A/RES/48/104 (1993).
214. The Girl Child, G.A. Res. 50/154, adopted 21 Dec. 1995, U.N. GAOR, 50th Sess., 97th plen. mtg., Agenda Item 10, U.N. Doc. A/RES/50/154 (1996).
215. See Division for the Advancement of Women, States Parties (visited 1 May 2000) 〈http://www.un.org/womenwatch/daw/cedaw/states.htm〉.
216. CEDAW, supra note 77, arts. 1-2, 9-13, 15-16.
217. Id. art. 6.
218. Id. art. 3.
219. Id. art. 5(a).
220. Id. art. 5(b).
221. Id. art. 7-8.
222. Id. art. 14.
223. Id. arts. 17-22.
224. Charlesworth et al., supra note 2, at 634.
225. Convention Concerning the Maximum Permissible Weight to be Carried by One Worker (ILO No. 127), adopted 28 June 1967 (entered into force 10 Mar. 1970), available on ILOLEX, supra note 206. For a review of gender-specific provisions in labor conventions, see generally Lance Compa, International Labor Standards and Instruments of Recourse for Working Women, 17 YALE J. INT'L L. 151, 156-57 (1992). It should be noted that certain radical feminists would consider these conventions patronizing in applying an unjustified distinction between men and women. Nonetheless, the conventions are evidence that the international community adopted legal rules that acknowledged the need to protect and advance women's interests.
226. This list omits many other attempts by the UN and other international organizations to advance women's rights, such as the UN Decade for Women, International Women's Year, the four World Conferences on Women, the 1985 Nairobi Forward-Looking Strategies for the Advancement of Women to the Year 2000, the World Survey on the Role of Women in Development series, and other projects. A fairly complete description of UN efforts to advance women's rights in the international arena can be found in UNITED NATIONS DEP'T OF PUB. INFO., THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN, 1945-1995 (1996).
227. Convention Concerning the Employment of Women on Underground Work in Mines of All Kinds (ILO No. 45), adopted 21 June 1935 (entered into force 30 May 1937), available on ILOLEX, supra note 206.
228. Convention Concerning Employment of Women During the Night (ILO No. 4), adopted 28 Nov. 1919 (entered into force 13 June 1921) available on ILOLEX, supra note 206. This Convention was revised twice. See Convention Concerning Employment of Women During the Night (Revised 1934) (ILO No. 41), adopted 19 June 1934 (entered into force 22 Nov. 1936), available on ILOLEX, supra note 206; Convention Concerning Night Work of Women Employed in Industry (Revised 1948) (ILO No. 89), adopted 9 July 1948 (entered into force 27 Feb. 1951), available on ILOLEX, supra note 206.
229. Convention Concerning Night Work (ILO No. 171), adopted 26 June 1990, art. 2 (entered into force 4 Jan. 1995), available on ILOLEX, supra note 206.
230. See, e.g., Compa, supra note 226, at 161 ("[I]f women are to be truly empowered in the workplace, international labor standards must promote gender equality even when doing so would conflict with existing protective standards.").
231. See Rao, supra note 32, at 243-44.
232. UNITED NATIONS, THE WORLD'S WOMEN 1970-1990: TRENDS AND STATISTICS (1991).
233. In fact, international organizations such as the United Nations Development Programme (UNDP), the Economic and Social Council (ECOSOC), and Committee on the Elimination of Discrimination Against Women (CEDAW), have made considerable progress in cataloging wealth and gender inequalities and bringing them to public attention.
234. For example, consider the UN report that men own ninety-nine percent of all the world's property. UNITED NATIONS, supra note 233. See also United Nations, Report on the World Conference of the United Nations Decade for Women, Copenhagen, Denmark (July 14-30, 1981). This atrocious imbalance was not caused or perpetuated by international economic or human rights law any more than it was caused or perpetuated by international maritime law. It is beyond the scope of both.
235. Several feminists have made passing comments on enforcement issues. Professor MacKinnon, for example, has stated with wild exaggeration that states "ignore" violations of women's human rights in wartime and "legally rationalize," "wink at" or "condone" such atrocities as mass rape or murder of women. MacKinnon, supra note 61, at 86. See also Charlesworth, supra note 35, at 385 ("Rape has been understood as one of the spoils of the victor, serving also to humiliate the vanquished."). MacKinnon then actually goes on to state that international law and its institutions condone genocidal rape. See MacKinnon, supra note 61, at 92.
236. Id. at 353.
237. Fourth Geneva Convention, supra note 86, art. 27, ¶ 2.
238. See, e.g., Charlesworth, supra note 35, at 385-88 (claiming that rape "has been understood" as legitimate "spoils" of war).
239. UNITED NATIONS DEVELOPMENT PROGRAMME (UNDP), 1995 HUMAN DEVELOPMENT REPORT 45.
240. Gardam, supra note 241, at 350.
241. Fourth Geneva Convention, supra note 86, art. 27.
242. Protocol I, supra note 205, art. 76.
243. The fact that, in almost every war, some rapes occur does not create a presumption that rape is legal under ius in bello. Isolated acts of soldiers do not form customary international law, unless sanctioned or regularly permitted by the state.
244. In fact, for the first time in history, an international tribunal recently has criminally convicted a defendant for sexual assault. See Akayesu, supra note 171.
245. See Gardam, supra note 241, at 358.
246. See id. at 350.
247. One political scientist has concluded that, although most Americans consider the risk of casualties "a crucial, perhaps the most important, factor affecting their support of a decision to use armed force," Americans will tolerate casualties in some situations. James Burk, Public Support For Peacekeeping in Lebanon and Somalia: Assessing the Casualties Hypothesis, 114 POL. SCI. Q. 76 (1999). Regardless of whether the public of any given country supports participation in a military action in spite of casualties, however, the relevant question is whether political elites believe the public will tolerate casualties. The beliefs of these elites may be influenced by social science research such as Burk's. Social theorist Anthony Giddens has referred to the influence of social science research findings on the subject matter of the research as "reflexivity." ANTHONY GIDDENS, THE CONSEQUENCES OF MODERNITY 36-45 (1990).
248. One political scientist has concluded that, although most Americans consider the risk of casualties "a crucial, perhaps the most important, factor affecting their support of a decision to use armed force," Americans will tolerate casualties in some situations. James Burk, Public Support For Peacekeeping in Lebanon and Somalia: Assessing the Casualties Hypothesis, 114 POL. SCI. Q. 76 (1999). Regardless of whether the public of any given country supports participation in a military action in spite of casualties, however, the relevant question is whether political elites believe the public will tolerate casualties. The beliefs of these elites may be influenced by social science research such as Burk's. Social theorist Anthony Giddens has referred to the influence of social science research findings on the subject matter of the research as "reflexivity." ANTHONY GIDDENS, THE CONSEQUENCES OF MODERNITY 36-45 (1990).
249. In Woody Allen's film DECONSTRUCTING HARRY (Fine Line Features 1998), atheist Harry (played by Allen) has an interesting exchange of nationalistic versus universalistic views with his more orthodox Jewish sister. Harry asks her whether she feels worse when a Jew in Israel dies than when someone else dies. She replies that she does, but she cannot help it, because the Jews are "her people." A frustrated Harry retorts: "They're all your people!"
250. See UNITED NATIONS POPULATION FUND, supra note 174, at 3, 24. In February 1999, a Malian woman was sentenced to eight years in prison in a French court for circumcising some forty-eight girls. See 28 Sentenced in France for Genital Cutting, DALLAS MORNING NEWS, 18 Feb. 1999, at 10A. See also Female Genital Mutilation: Is it Crime or Culture?, ECONOMIST (London), 13 Feb. 1999, at 45.
251. See UNITED NATIONS POPULATION FUND, supra note 174, at 3, 46.
252. See Julie Jimmerson, Female Infanticide in China: An Examination of Cultural and Legal Norms, 8 PAC. BASIN L.J. 47, 65-66 (1990); Michael Weisskopf, China's Birth Control Policy Drives Some to Kill Baby Girls, WASH. POST, 8 JAN. 1985, at A1.
253. See Early Warning: China, WORLD PRESS REV., Mar. 1999, at 18.
254. UNITED NATIONS POPULATION FUND, supra note 174, at 3, 42.
255. See Steven Shabad, Regional Report: Pakistan,'Honor Killings', WORLD PRESS REV., June 1999, at 23.
256. See CÓDIGO CIVIL art. 114 (Guat.).
257. See Wars Increase Sexual Violence Against Women, FT. WORTH STAR-TELEGRAM, 23 Nov. 1996, at 24.
258. See U.N. Troops Frequented Sex Slave Den, Report Claims, TORONTO STAR, 2 Nov. 1993, at A2; Francis Harris, International: Peacekeepers Accused of Using Bosnian Sex Slaves, DAILY TELEGRAPH, 2 Nov. 1993, at 14.
259. See, e.g., Christine M. Chinkin, Peace and Force in International Law, in RECONCEIVING REALITY, supra note 23, at 203, 207 (repeating allegations concerning the UN Transitional Authority in Cambodia).
260. 19 U.S.C.A. § 2462(b)(2)(G), (c)(7) (West 1999).
261. 22 U.S.C.A. § 2191a(a) (West Supp. 2000).
262. Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (codified as amended in scattered sections of 19 U.S.C.).
263. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 (codified as amended in scattered sections of U.S.C.).
264. 19 U.S.C.A. § 2702(b)(7), (c)(8) (West 1999).
265. Compa, supra note 226, at 158.
266. Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (codified as amended in scattered sections of 19 U.S.C.).
267. See Chinkin, supra note 253.
268. See Coco, supra note 142, at 103.
269. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, arts. 1(1), 19(2), & 7 (respectively), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
270. See China Signs UN Human-Rights Agreement; Activist Detained on Same Day in Wuhan, GLOBE & MAIL (Toronto, Can.), 6 Oct. 1998, at A16.
271. Binion, supra note 148, at 522 n.45.
272. This is not at all to say that these subjects are not usually worthy for the formation of international law. Rather, the relative allocation of international resources reflects governmental priorities. One wonders why, given fixed time and funds, a government would negotiate a double taxation treaty with a minor trading partner, resulting in marginal economic benefits, instead of devoting those resources to monitoring compliance with, and enforcing, international human rights treaties such as CEDAW.
273. International Cocoa Agreement of 1993, 16 July 1993, U.N. TDBOR, U.N. Doc. TD/ COCOA.8/17/Rev.1 (1993), 1766 U.N.T.S. 3, 81 (provisionally entered into force 22 Feb. 1994), available at 〈http://www.icco.org/agreement.htm〉 (visited 1 May 2000); International Cocoa Agreement of 1986, 25 July 1986, U.N. TDBOR, U.N. Doc. TD/ COCOA.7/22 (1986), 1446 U.N.T.S. 103 (provisionally entered into force 20 Jan. 1987); International Cocoa Agreement of 1980, 19 Nov. 1980, U.N. TDBOR, U.N. Doc. TD/COCOA.6/7/Rev.1 (1982), 1245 U.N.T.S. 221 (provisionally entered into force 1 Aug. 1981); International Cocoa Agreement of 1975, 20 Oct. 1975, 1023 U.N.T.S. 253 (entered into force 7 Nov. 1978); International Cocoa Agreement of 1972, 21 Oct. 1972, 882 U.N.T.S. 67 (provisionally entered into force 30 June 1973).
274. See supra notes 109-10 and accompanying text.
275. U.N. Convention on the Law of the Sea, opened for signature 10 Dec. 1982, Annex VI, U.N. GAOR, U.N. Doc. A/CONF.62/122 (entered into force 16 Nov. 1994), reprinted in 21 I.L.M. 1261, 1345 (1982).
276. International Cocoa Agreement of 1972, supra note 283, art. 5. More information on the International Cocoa Organization may be harvested at its website, 〈http://www.icco.org〉 (visited 1 May 2000).
277. See Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, U.M. GAOR, U.N. Doc. A/ CONF.177/20 (1995), reprinted in REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 Oct. 1995).
278. The formation of the International Criminal Court and the ad hoc tribunals in Rwanda and the Former Republic of Yugoslavia stand as excellent examples of incipient international institution building in the realm of human rights law and humanitarian law. However, none of these tribunals is empowered to call states to account for violations of international law.
279. CEDAW, supra note 77, pmbl.
280. Cook, supra note 58, at 93, 103.
281. Id. at 108.
282. Id. at 114.
283. Id. at 112.
284. See id.
285. See Charlesworth et al., supra note 2, at 629.
286. See Knop, supra note 34, at 310.
287. See Gunning, supra note 126, at 239.
288. Tesón, supra note 71, at 662.
289. See id. at 656. The Westphalian theory of international law clashes with the new focus on human rights insofar as the theory assumes states to be the fundamental responsible international actors, while the modern consensus increasingly favors the notions that only democratic governments possess political legitimacy in the world public order, and that human rights norms demand direct accountability by individuals and corporations for their actions.
290. ICC Statute, supra note 108, art. 1.
291. This is a much stronger role than that currently being proposed for the Committee on the Elimination of Discrimination Against Women. See supra text accompanying notes 77-81.
292. See Gunning, supra note 126, at 244-45.
293. Id. at 245.
294. Id. at 246 (emphasis added).
295. Tesón, supra note 71, at 655.
296. International Religious Freedom Act of 1998, Pub. L. No. 105-292, 112 Stat. 2787 (codified at 22 U.S.C.A. §§ 6401-81 (West Supp. 2000)).
297. available in 1998 WL 16136381. In 1993, Canada became the first country to recognize gender persecution as grounds for asylum. Richard C. Reuben, New Ground for Asylum: Threatened Female Genital Mutilation is Persecution, 36 A.B.A. J. 82 (1996).
298. UNITED NATIONS DEP'T OF PUB. INFO., UNIVERSAL DECLARATION OF HUMAN RIGHTS 4 (1988).
299. See generally American Bar Association Special Task Force of the Section of International Law and Practice, Report on Women's Human Rights, 30 INT'L LAW. 209 (1996).
300. UDHR, supra note 117, art. 16.