Feminism and International Law: Theory, Methodology, and Substantive Reform Author(S): Aaron Xavier Fellmeth Source: Human Rights Quarterly, Vol

Feminism and International Law: Theory, Methodology, and Substantive Reform Author(s): Aaron Xavier Fellmeth Source: Human Rights Quarterly, Vol. 22, No. 3 (Aug., 2000), pp. 658-733 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/4489298 Accessed: 27-09-2017 08:40 UTC

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Feminism and International Law: Theory, Methodology, and Substantive Reform

Aaron Xavier Fellmeth*

CONTENTS

I. Introduction ...... 659 II. Background to Feminist Jurisprudence ...... 662 III. Feminist Conceptual Challenges to International Law ...... 667 A. The Public/Private Distinction and the State-Centric Model ... 668 1. The Public/Private Critique and Its Uses ...... 668 2. Significance of the International Public/Private Divide for Women ...... 675 3. The State as Protector of Women's Human Rights ...... 680 B. The Westphalian Model and the UN Charter Model Through a Feminist Optic ...... 681 1. Masculine and Feminine Ethics in International Law .... 684 2. "Rights" Discourse and Feminism ...... 686 C. The Postmodern Feminism and International Human Rights Law ...... 688 1. The Challenge to Feminist Theories of Human Rights ...688

* Aaron Xavier Fellmeth received a B.A. in Social Sciences from the University of California at Berkeley in 1993, focusing on psychology and anthropology of law. After studying briefly at the University of Paris (Sorbonne), he enrolled in the Yale Law School (J.D. 1997) and Yale Graduate School (M.A. 1997-International Relations). At Yale, he was Editor-in-Chief of The Yale Journal of International Law and a senior editor of The Yale Law Journal. From 1997- 2000 he practiced foreign trade law in the San Francisco office of a large international law firm. The author would like to express his gratitude to Linda J. Demaine, Robert C. Fellmeth, Amy Haddix, Laura Nader, Bijal Patel, and W. Michael Reisman for their thoughtful comments on an earlier draft of this paper.

Human Rights Quarterly 22 (2000) 658-733 @ 2000 by The Johns Hopkins University Press

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2. Reconciling Respect for Culture and Respect for People Under International Law ...... 696 IV. Feminist Procedural Challenges to International Law ...... 698 A. Unequal Representation in International Organizations ..... 698 B. Is International Law Procedurally Biased? ...... 701 C. Solutions to Gender Inequality in International Rule Making ...... 704 V. Feminist Substantive Challenges to International Law ...... 707 A. Gender Bias and Human Rights ...... 707 B. Gender Bias in lus in Bello ...... 713 VI. Nonenforcement of Women's Rights ...... 716 A. Enforcement Against Public Violations of Women's Human Rights ...... 716 B. Enforcement Against Private Violations of Women's Human Rights ...... 722 C. Priorities of the World Community and International Law ... 725 D. Solutions to Gender Bias in International Law ...... 728 VII. Conclusions ...... 730

I. INTRODUCTION

Until recently, international law went unexamined by feminist legal scholars.' While feminists have applied manifold theories of jurisprudence to the formal and informal legal systems of the United States and many other countries from New Guinea to Saudi Arabia, rarely have they directed their attention to the procedures and substance of the international legal system. Among those authors who have studied the subject, most tend to concen- trate solely on women's rights as an aspect of international human rights law, although a few, such as Judith Gardam and Robin Teske, have ventured into international humanitarian law and the law governing the conduct of armed conflict (ius in bello). Yet the broadest treatment of the subject remains the first. In 1991, Hilary Charlesworth, Christine Chinkin, and Shelley Wright jointly attempted a general feminist critique of international law in The American Journal of International Law.2 Their purpose was to

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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 660 HUMAN RIGHTS QUARTERLY Vol. 22 show that "the structures of international lawmaking and the content of the rules of international law privilege men; if women's interests are acknowledged at all, they are marginalized. International law is a thoroughly gendered system."3 Their argument posits that international law is perva- sively "gendered" or, more specifically, "male gendered," conceptually, procedurally, and substantively-assertions that have been repeated by feminists many times since. I take for granted that women everywhere suffer from some degree of gender oppression in one form or another, that the distribution of power and economic resources worldwide enormously favors men, and that the laws of most states are strongly gender biased in both substance and enforcement. These injustices are so overt and widespread that it is difficult to peruse any conventional news source without finding evidence of them. However, gender inequalities do not necessarily speak to a significant gender bias in international law. The purposes of this article are to analyze the claims, advanced by feminists, that international law disfavors women's interests and viewpoints conceptually, procedurally, and substantively; to identify the obstacles to international law recognizing women's voices and protecting their interests; and to suggest possible solutions. This article is divided into five main sections. I will first provide a general background to feminist jurisprudence in Section II. Much more complete introductions to feminist thought4 and jurisprudence5 are readily available; the purpose of this overview is merely to provide the uninitiated with some idea of how the feminist movement has been applied to jurisprudence. Section III of the article discusses feminist challenges to the conceptual underpinnings of international law. In that section, I analyze the three conceptual critiques of international law. I will first address the argument that the existence of states as the main subject of international law fails to reflect women's viewpoints and protect their interests. I will argue that feminists "overstate" the role of sovereign states in international law and that, to the extent that states do play an important role in international law, historical power dynamics and not gender bias explain their existence. Moreover, I will contend that neither the concept of states nor their practical consequences themselves reflect a "male voice" or inherently ignore

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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 661 women's interests. Section 11l.B critiques international law from a perspective provided by Carol Gilligan's In a Different Voice.6 I will analyze how international law reflects an "ethic of justice" and an "ethic of care," and conclude that the world public order has increasingly come to reflect the latter. Section III.C reviews the criticism advanced by several feminists that international human rights law is colonialist and ethnocentric, and explains why I believe a universal human rights law is compatible with feminism. In Section IV, I discuss feminist challenges to international legal procedures. Specifically, feminists have claimed that the alleged bias in the substance of international law results from feminist underrepresentation in states and international organizations. I will argue that, while it is unquestionably a desirable goal to have equal representation in state governments and nongovernmental organizations (NGOs), international law does not prohibit or discourage equal representation. On the contrary, it encourages equal representation through several international law conventions. More- over, women are always free to form their own NGOs and act as the representatives of those NGOs, and many have. Section V of this article addresses two feminist challenges to the substance of international law: the claim that international human rights law is biased or unrepresentative of women's interests, and the claim that the law governing the conduct of war (ius in bello) is gender biased and that women suffer disproportionately in war. The first claim, I will argue, ignores vast progress in both customary law and treaty law in defining and protecting women's interests since 1945. The second claim identifies a serious problem in international law, but it is a problem that stems, not from gender bias, but from intrastate practices and the practical consequences of power politics. It is entirely conceivable that if women continue to suffer disproportionately in war even at this point in history, these unequal effects can change through only slight adjustments in ius in bello. Finally, in Section VI, I identify what I believe to be the source of gender bias in international law and the obstacles to equal treatment and representation. I will argue that the focus of international lawmaking is skewed toward advancing the perceived economic interests of states and corporations, which in turn diverts attention and resources from the enforcement of existing human rights standards generally, particularly women's rights, through institution building and through states holding each other accountable for concrete advancements in protecting women's human rights. In summary, I will argue that international law is gendered neither conceptually nor procedurally, and that most of its substance exhibits no gender bias. International law does formally account for most (but not all) of

6. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 662 HUMAN RIGHTS QUARTERLY Vol. 22 the human rights concerns that are unique to women and, moreover, has increasingly accounted for women's experiences in its creation and admin- istration, even if it does not perform this function perfectly. While Charlesworth and her colleagues offer several interesting insights into the suffering and underrepresentation of women internationally, their criticism really applies to the overwhelming economic, political, and social gender inequality in states, not in the international law system. Rather, compared to the legal systems of states, international law is sensitive to the concerns of women and is a progressive force for advancing women's interests. Hence, it has increasingly addressed the substantive concerns of women and procedurally adopted an arguably more feminine "ethic of care." However, in two areas, international law has not lived up to the legitimate expecta- tions of women: in its disproportionate concentration on economic issues, and in its failure to provide for systemic support for the enforcement of women's human rights. Notwithstanding the wealth of conventions and the growth of customary law protecting women's interests, the disparity between the attention to and enforcement of international trade and finance law, in a manner disproportionately benefitting men, and the inattention to human rights law enforcement, which harms women, reveals the truly consequential gender bias of the international legal system.

II. BACKGROUND TO FEMINIST JURISPRUDENCE

Prior to the recent feminist focus on international law, feminists approached domestic legal systems with the basic assumption that the underlying purpose of feminist activism should be equal treatment of men and women under law and in the law. The seminal court case was Reed v. Reed,7 in which the US Supreme Court annulled a state law granting males automatic preference over females in the appointment of estate administrators. After their victory in Reed, feminists began to challenge a wide variety of laws that evinced direct and indirect discrimination against women. Their method analyzed how substantive legal theories applied to fact scenarios to disadvantage women. Frances Olsen, for example, advocated very prag- matically that feminists should challenge those laws that currently have the most pernicious effects on women.8 At the core of this mode of feminist critique is an attack on specific legal fictions drawing a boundary between men and women. Legal rules predicated on male/female differences could

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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 663 be viewed as founded upon self-fulfilling prophecies. When the law treats men and women unequally, they become unequal by that very fact. More recently, certain radical feminists have come to attack the "patriarchal" state and its legal apparatus altogether as products and perpetuaters of male oppression.9 This was in some cases a perhaps nihilistic response to the frustrating impossibility of true neutral legality in the face of certain biological differences between men and women, such as pregnancy and the disparity in general physical size and strength. For example, in 1974, feminists challenged the fact that California disability law covered virtually every medical condition, including several voluntary medical procedures, but did not cover pregnancy.10 The Supreme Court upheld the law as nondiscriminatory, however, because, on its face, it did not discriminate against women." According to the Court's reasoning, the law excluded the condition of pregnancy; both men and women can be non-pregnant; ergo, the law does not discriminate between men and women. The fact that only women do in fact become pregnant apparently did not influence the Court. This reasoning opened the absurd possibility of lupus or breast cancer being excluded without raising an issue of discrimination, as both men and women can be free from lupus and breast cancer. If one ignores the effects of the law and assumes that men and women are equal in every way, the Court was undoubtedly correct. However, equality does not mean "identicality." There is an unbreakable link between gender and such conditions as pregnancy and lupus.12 In response to these setbacks, some feminists determined that the equality that women had achieved in some countries resulted in an equality on men's terms. Women being treated as equal to men too often meant women conforming to men's standards of cognition and behavior, health and illness, achievement and failure. To the extent that difference was recognized, perceived female traits, such as putting family before work, humanity before power, ecology before profit, or cooperation before justice, were considered weaknesses in women rather than legitimate differences in perspective. Feminists realized that "equality" meant that women do not benefit when their needs are less than men's, but that they suffer when their needs are greater. Most feminists now recognize that women have at least some different

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. Geduldig v. Aiello, 417 U.S. 484 (1974). 11. Id. at 496 n.20. 12. 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)).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 664 HUMAN RIGHTS QUARTERLY Vol. 22 needs than men and that equality of treatment does not necessarily mean equality in the types or amounts of resources that a society allocates to programs and causes that benefit one gender more than the other.13 It is not just biological differences that mandate different treatment. Well-known facts of social inequality-such as the higher incidence of female poverty, the wage differential, the corporate "glass ceiling," the tendency for husbands to beat their wives more often and more severely than wives beat their husbands-all mean that equal laws in the books do not necessarily lead to equal results. For example, laws that mandate a minimum wage may raise general wage levels, but they do not fully redress the fact that women are generally paid less for equal work. One thread tying all feminist literature together is a recognition of a general and undesirable male hegemony that disadvantages women, a commitment to the equality (however defined) of women and their perspectives as an empirical or normative matter, and concentration on the methods of bringing about de facto as well as de jure gender equality (again, however defined).14 Feminism does not necessarily posit the superiority, or, for that matter, the existence, of an alternative "voice" shared by most or all women. It does posit the existence of nearly universal oppression or subordination of women. However, one should not equate this broad agreement among feminists with homogeneity in jurisprudential approaches. Feminism is not a single "theory," "school," or "methodology" of social commentary,'" but rather a genre.'6 This is not to say that feminist theories can only survive within a "postmodernist" theoretical framework that denies all objectivity or possi-

13. 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). 14. 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]?"). 15. 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); 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. 16. Rosemarie Tong argues that there are seven broad feminist theories: liberal, radical, socialist, Marxist, existentialist, psychoanalytic, and postmodern. See generally TONG, supra note 4.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 665 bility of universalism.'7 Feminists of any theoretical orientation need not abandon their core concerns or arguments merely because those arguments assume certain cultural or universalistic philosophical values. No feminist need happily acknowledge her complicity with "masculinism" or imperialism and "struggle" with "her ensuing crisis of self-legitimation."'8 The fact that a jurisprudential (or other) theory might be ethnocentric, masculinist, or otherwise biased does not make it per se useless or wrong from either an epistemic or broadly theoretical point of view. It merely means that it will neither express all meaningful observations or perspectives, nor formulate an empirically based Weltanschauung. Notwithstanding the general diversity of feminist theories, feminists generally favor two primary feminist techniques of social science analysis not commonly used in these male-dominated disciplines.'9 First, feminists "ask the woman question"; that is, they question how legal rules or practices affect women as a class or fail to account for women's perspectives.20 In other words, they seek to expose hidden assumptions and biases in seemingly neutral legal rules, as well as the real-world impact of those rules on women.21 This method is perhaps the most popular insofar as feminists of many different schools agree on its value. However, a minority of dissenters argue that "asking the woman question" assumes a false gender-based homogeneity of perspectives or concerns. In other words, "asking the woman question" pretends that any given legal rule impacts women in roughly the same way, regardless of race, ethnicity, class, religion, disability, or other factors. Of course, almost all rules will tend to affect some women differently than others; feminism itself presupposes that women are homog- enous in some significant respects, or else the term "feminism" loses its

17. 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. 18. Howe, supra note 14, at 71-72. 19. 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. 20. 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). 21. See generally Bartlett, supra note 5, at 837-49.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 666 HUMAN RIGHTS QUARTERLY Vol. 22 meaning entirely.22 At the very least, that homogeneity includes the shared experience of male oppression, even if it is manifested in many different ways.23 The second feminist analytical method is known as "feminist practical reasoning." According to one proponent, such reasoning values individual- ized fact-finding over bright-line rules, reasoning from context, and ac- counting for the perspectives of the powerless.24 Feminist jurisprudence teaches respect for diverse perspectives because feminism itself is an "other" perspective, and it focuses on real-world experiences of women because the abstract theories characteristic of male-dominated economics, sociology, or political science often generalize about social conditions or effects, ignoring gender-based disparities. Most feminists share this induc- tive, contextual methodology focusing on women's perspectives and experiences. The uniquely "feminist" aspect of feminist practical reasoning is its focus on the excluded "other," not its methodology.25 Rules are abhorrent per se because they operate deductively and gloss over individual pain.26 For example, Katharine Bartlett objects to bright-line laws requiring minors to obtain parental consent before seeking an abortion because of the "actual accounts of the wrenching circumstances" of a minor.27 Bartlett recognizes the value of rules as "necessities because we are not always good judges," that is, because sometimes the collective judgment of society is superior to that of many individuals.28 However, she deplores their unnecessary uniformity, which prevents society from dealing with individual circumstances that may cause needless suffering.29

22. 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. 23. See Hilary Charlesworth, Alienating Oscar? Feminist Analysis of International Law, in RECONCEIVING REALITY: WOMEN AND INTERNATIONAL LAW 1, 4 (Dorinda G. Dallmeyer ed., 1993) [hereinafter RECONCEIVING REALITY]. 24. See generally Bartlett, supra note 5, at 849-63. 25. 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. 26. 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. 27. Id. at 852. 28. Id. at 852-53 (quoting MARTHA CRAVEN NUSSBAUM, THE FRAGILITY OF GOODNESS 301-05 (1986)). 29. See id.

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The problem with denying underlying theory is that it gives no basis for the selection of relevant facts. If nothing is a "given," nothing can be taken away. As for bright-line rules, they are commended not only because people "are not always good judges," but they also carry the benefit of predictabil- ity and projecting social control into the future. Legal systems usually aspire to exert ex ante preventative control as well as ex post justice. Regardless of whether one believes the deterrent is effective or desirable for any particular law, the broad social impact must be considered. For example, the intent of the law requiring minors to seek parental consent before obtaining an abortion is at least partly designed to influence young girls to abstain from sex or to use birth control. By weakening the rule, Bartlett would undermine its deterrent value. Bartlett may not find such deterrence of sufficient value or efficiency to warrant support for the particular rule, but the broader purposes and consequences are properly weighed. The rejection of rules also leads to immense administrative costs. Intensive fact finding for each problem case can be extremely inefficient. Rules lower administrative costs by establishing heuristics that streamline dispute resolution and social control. Of course, feminists often take issue with the ways in which legal systems favor the reduction of administrative costs over the prevention of suffering by women. However, this disagreement does not seem to stem so much from disagreement about the utility of rules per se so much as a difference about where a particular rule should stop and administrative or judicial discretion should begin.

III. FEMINIST CONCEPTUAL CHALLENGES TO INTERNATIONAL LAW

Although a few feminists have applied these techniques to the study of international law since 1991, the only feminist authors who have expressly attempted to advance a broad feminist theory of international law are Charlesworth, Chinkin, and Wright.30 Since the publication of their critique, feminists have increasingly challenged the conceptual, procedural, and substantive aspects of international law. Most feminists who have challenged international law have claimed that international law is biased against women in its very conception. However, different schools of feminism may claim bias on different grounds. Radical feminists attack the very existence of states as subjects and objects of international law, claiming that the concept of the state results from a false dichotomy between "public" and "private" realms of life that privileges men and perpetuates their power over women. Liberal feminists may join in this criticism, but they may also

30. See Charlesworth et al., supra note 2.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 668 HUMAN RIGHTS QUARTERLY Vol. 22 claim that international law espouses a masculine "ethic of justice" that devalues women's approaches to the same problems through an "ethic of care." In this view, international law is in its conception a product of male thinking that does not speak for women. Finally, postmodern feminists claim that international human rights law is a product of colonialist thinking that fails to account for the diversity of women's experiences.31 In this section, I will examine each of these arguments in turn.

A. The Public/Private Distinction and the State-Centric Model

1. The Public/Private Critique and Its Uses

Liberal political theories based upon human equality necessarily hold that violations of human rights should be deterred and punished regardless of whether the violator is a state or a private individual. In actual human experience, violations of human rights norms result in suffering and are an affront to human dignity regardless of who commits them. That human rights law seeks gender neutrality is not in doubt, but the means of achieving such equality are debated within and without feminist circles. Some feminists assert that torture, assault, murder, and other forms of oppression against women are more commonly classified as "private" matters for resolution by the individuals involved, but violence against men is more often classified as a "public" matter suitable for state intervention. Feminists largely agree that the means of achieving human equality must change from traditional methods, which are based upon a sacred schism between the "public" and the "private." In this view, men fear state oppression more than private oppression, and this accounts for the public/ private distinction. It posits a hierarchy of oppressions: men fear oppression by the state, while women fear oppression by men. This is not to say that women do not also fear oppression by the state. Rather, women are subjected to more layers of oppression than men. Women do not benefit from the dichotomy because they are oppressed in both spheres. Rather, men have maintained the distinction to allow them to perpetuate their oppression of women in the "private" sphere. Most feminists who have written on the subject domestically seem to advocate abolishing or diminishing the public/private distinction within the state. Recently, some feminists have advanced this argument on an interna-

31. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 669 tional scale. International law, in some circumstances, forbids states to violate the rights of their own citizens, but it has historically focused less on nongovernmental individual behavior than on preventing states from violating the rights of other states.32 The focus of international law on state behavior means less to women than to men because women, as a class, have less social, economic, and political power within every, or almost every, country. Why, then, are only states, and not individuals, held responsible for violations of human rights under international law if not to protect the patriarchal order within the state, just as the notion of family privacy protects the patriarchal order within the home? Generally, feminist authors have criticized the public/private distinction as a tool used by men to preempt public (governmental) intervention in their private injustices.33 Women as individuals suffering from "private" wrongs are "analytically invisible" to international law because the state alone represents them on an international level.34 According to this theory, "[t]he sovereign state is simply irrelevant to most women's experience; they may well have more in common with each other because of gender than because of nationality."35 "Public" and "private" classes are not considered to be useful analytic distinctions for policymaking, but are instead manipu- lative means of the powerful (i.e., adult men) to obtain or retain freedom.36 These feminists question the rationale whereby international human rights law protects people from torture by the state, while women much more commonly than men suffer from domestic violence, rape and molestation, and other pervasive "private" violations of human rights.37 Similarly, they question why treaties like the International Covenant on Economic, Social and Cultural Rights38 provide economic rights to remuneration for production

32. 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). 33. See, e.g., Frances Olsen, Constitutional Law: Feminist Critiques of the Public/Private Distinction, 10 CONST. COMMENTARY 319 (1993). 34. See Karen Knop, Re/Statements: Feminism and State Sovereignty in International Law, 3 TRANSNAT'L L. & CONTEMP. PROBS. 293, 296 (1993). 35. 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)). 36. See Olsen, supra note 33, at 325-26. 37. See Hilary Charlesworth & Christine Chinkin, The Gender oflus Cogens, 15 HUM. RTS. Q. 63, 72-73 (1993). 38. 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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 670 HUMAN RIGHTS QUARTERLY Vol. 22 but not for reproduction or housework.39 They believe that the concept of state sovereignty necessarily supports structural inequality between men and women and is complicit in systematic male oppression and violence against women.40 Some feminists also criticize state sovereignty on practical grounds. They claim that the state cannot represent women's needs on an international level because women are not represented adequately at the state level.41 Obviously, this problem is best addressed by somehow increasing equal representation in the state halls of power. Others argue that the state represents a male concept of autonomy and disconnectedness, and does not reflect the female's vision of herself as "connected to others through a web of relationships."42 This view advances the extreme proposition that men generally do not value and identify with human relationships as much as women, and takes issue with the radical feminist notion that men and women are not fundamentally different. A final justification for abolishing state sovereignty relates to armed conflict; "public" international conflicts and "private" internal conflicts both harm women at least equally. The public/private distinction simply does not reflect women's actual experiences of war.43 Many objections have been raised to the feminist characterization of state sovereignty. Most fundamentally, the boundary between "public" and "private" is subject to some degree of arbitrary line-drawing along a spectrum. The public/private divide is complicated by the basic political/ philosophical controversy over the optimum degree of governmental intervention in personal affairs. The line between public and private is blurry and constantly shifting in each state; thus, the public/private critique

39. 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). 40. 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). 41. 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. 42. Id. at 321. I will discuss how international law has increasingly come to reject the extreme versions of state autonomy in Section IV, infra. 43. 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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 671 must account for the fact that a strong distinction between public and private spheres in law has always been dubious.44 Many recent critiques of the distinction rely upon social trends twenty or thirty years old as the basis of their analysis (e.g., police and prosecutorial disdain of enforcement against domestic violence). More current feminist scholars have acknowledged that the legal regimes in Western45 countries no longer consider the family a sacred realm to remain free of state interference,46 even while they declaim such practices as failing to pay women for housework based upon a false distinction between the family and the market.47 However, these latter complaints, if valid, lead to no revolutionary conclusions. They do not require questioning the benefits of balancing state intervention or noninter- vention in any given case. On the contrary, they reinforce the view of the state as a potential guardian of women's rights. Feminists rightly complain of false distinctions within states that operate to the detriment of women, but abolishing the distinction would not necessarily result in greater advantages to women. On an international level, contemporary feminist analysis often "resur- rects the older idea of international law as governing relations between sovereign States, leaving unexplored contemporary international legal methodologies that encompass other participants, interactions, and trends."48

44. 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."). 45. 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. 46. 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. 47. 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. 48. 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,

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Presumably, feminist authors who are unversed in the complexities of international law refer to standard treatises on the subject, which often oversimplify the structure of the world public order. The ninth edition of Oppenheim's International Law, widely considered the standard English treatise on international law, states that "[i]nternational law is no longer-if it ever was--concerned solely with states. Many of its rules are directly concerned with regulating the position and activities of individuals; and many more indirectly affect them."49 Nonetheless, the authors (Robert Jennings and Arthur Watts) then assert that states are the "primary subjects" of international law and individuals have not become subjects of international law.50 This qualification misstates the current position of international law. International law has significant internal effects in legal fields as diverse as human rights, international trade, immigration, refugees, ius in bello, ius cogens,s' piracy, and determination of nationality. Indeed, through the operation of international law, all of the states of Western Europe (except Switzerland, Norway, and a few microstates) have delegated a substantial portion of their internal sovereign competencies to the Council, Commis- sion, Parliament, courts (European Court of Justice and European Court of Human Rights), and banks of the European Union, an international governance body.52 The state-centric model also neglects the ways that states interfere with each others' domestic relations through means sanctioned by international law, such as diplomacy, embargoes, or grants and withdrawals of aid.53 And the state-centric view also ignores the very

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. 49. 1 OPPENHEIM'S INTERNATIONAL LAW 846 (Robert Jennings & Arthur Watts eds., 9th ed. 1992). 50. See id. See also David Kennedy, Receiving the International, 10 CONN. J. INT'L L. 1, 6 (1994). 51. lus cogens is a body of peremptory norms of international law. 52. See Europa, the European Union's server (visited 1 May 2000) (for more information regarding the European Union). 53. 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

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 673 significant role in the formation of international law played by nonstate actors such as indigenous communities, multinational corporations, the media, and "private" NGOs,54 such as the International Committee of the Red Cross, which had a crucial role in the development of international humanitarian law.55 Equally important, this traditional view of state sovereignty fails to reflect the shift in the basis of state sovereignty that has taken place since 1945. States increasingly act, as the United States did in Grenada and Haiti (the latter with approval of the UN Security Council) to reverse counter- democratic military coups, or as NATO did in Kosovo to prevent ethnic cleansing of Albanians by Serbs, on the assumption that sovereignty proceeds from the will of all of the people, and not from the mere fact that a particular government happens to have de facto rule over the country. Furthermore, this is evident, for example, in the European Union's guidelines for recognition of new states, which make democracy and respect for human rights a precondition to the recognition of a new state government.56 By encouraging political and civic freedoms within states, international law fosters the norms and institutions that diminish the need for actual

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. 54. 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). 55. 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). 56. 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 demon- strated 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 674 HUMAN RIGHTS QUARTERLY Vol. 22 intervention to protect human rights. If international law guarantees women the right to vote, the state will be much more likely to protect women's interests. Democratic societies that guarantee fundamental political and civic rights, they would argue, will also tend to protect their citizens against other violations of human rights, such as rape, private torture, domestic violence, or undisclosed medical experimentation. This position stems from the perception (discussed below) that the international legal system has limited resources and must assign priorities.57 In any case, as Rebecca J. Cook has pointed out, a state government may object on grounds of sovereignty to being held responsible for violations of human rights, but it will virtually never claim that sovereignty entitles it to violate human rights under international law, even within its own territory.58 This makes claims of sovereignty an obstacle to the actual enforcement of human rights law, but not to its development as an enforceable legal doctrine. Finally, the feminist critique of statehood ignores the limitations of sovereignty within the state itself. Those authors who begin their critique of statehood from the assumption that the world order is composed of unitary states interacting like bricks (i.e., states) forming a house (i.e., a world public order), with no actual interpenetration, fail to understand the political realities underlying the international legal system.59 As Karen Knop explained:

[I]t is clear that whatever the analogic conventions of international law, the State is not a unified self. It encompasses a variety of groups and performs a variety of functions. . . . International law deals with this issue of 'fit' between State and population by giving peoples the right of self-determination, most often realized as statehood .... By fetishizing sovereignty, international law has ignored what is actually happening in the international legal community, who the actors really are [sic], and what each one does.60

Presumably, Professor Knop did not intend to reify international law, but rather meant to say that proponents of positivistic theories of international law do the fetishizing. In other words, the problem with state sovereignty is not that international law "fetishizes" it, but rather that many scholars use it as a crutch to oversimplify the structure of international relations. Unfortu- nately, many feminists who seek to criticize the perceived public/private

57. See infra text accompanying notes 83-84. 58. 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. 59. 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). 60. Knop, supra note 34, at 333, 335.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 675 divide on an international level have based their comments on the overly simplistic "bricks forming a house" model.61

2. Significance of the International Public/Private Divide for Women

Even if there were a strong distinction on the international level, however, some feminists would take issue with the assumption that the Western concept of the public/private divide troubles women worldwide, or even most women in the West. In the first place, the criticism of the construct cannot be valid in those societies in which the public/private divide barely exists.62 In those in which it does, the state is hardly "irrelevant" to most women. Women use the apparatus of the state domestically when they call upon it for economic assistance, or for protection from violence or discrimination. In real representative democracies, women have the same basic political tools as men (e.g., the rights to vote, assemble, and speak freely), although they may not have the same means of mass influence (e.g., disposable income and access to the media). More problematic to any feminist criticism of the concept of states is the observation that, even where the state structures break down, patriarchy still flourishes.63 If removal of the state does not diminish patriarchy, women have little complaint against the concept of the state per se. Internationally, the state may or may not be an equally relevant source of protection and empowerment for women as it is for men. To claim that the state is simply irrelevant is to claim that gender overshadows nationality and culture-a highly contentious assertion among women and men alike, and particularly when coming from feminists who claim that gender itself is a construct of culture.64 Karen Engle has claimed that when feminists

61. 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) (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."). 62. 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. 63. See Charlesworth, supra note 23, at 11. 64. See, e.g., MACKINNON, supra note 9, at 137; Littleton, supra note 9, at 754-63.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 676 HUMAN RIGHTS QUARTERLY Vol. 22 complain that international law has excluded regulation of the "private" (i.e., intrastate) sphere, they really mean to say that international law excludes women: "Paradoxically, we [feminists] are often the ones who attach the label 'private' to women's activity that we see as omitted."65 More broadly, it is certainly possible, as Rebecca J. Cook and Doris Buss have argued, that, in some if not most cultures, the private world is a woman's refuge from unwanted public interference.66 The alignment of private power determines the desirability of state intervention, and, in some cases, women have achieved the power they desire. Feminists in the United States and Ireland, for example, have sought to put women's reproductive choices beyond state jurisdiction precisely for this reason. Eliminating all distinction between acts that should be subject to state regulation and acts that are purely private, as some feminists have advocated,67 exposes women as much as men to unwanted intrusions upon their personal liberty, and subjects them to the cultural patriarchy that democratic governments seek to moderate. For this reason, in spite of her earlier and confused claim that the distinction between public and private should be collapsed, Professor Engle has correctly argued that international law can offer women protection unavailable in the private sphere or in the domestic law of their respective countries.68 Similarly, Professor Knop has cautioned that the diversity of women's experiences with the internal aspects of the public/private divide "suggests that a single strategy or theory concerning [the international aspects of state sovereignty] may be neither possible nor desirable."69 International law is a potentially powerful tool for feminists to influence the state to protect them from individual abuses. Nonetheless, this does not explain why human rights law deems the injuries typically suffered by women to be "domestic" (private) as opposed to state torture or other "public" acts that are visited upon both men and women.70 To the extent that international law does abrogate direct jurisdiction over individuals who harm others, it is not at all clear that international law is always the most practical or appropriate means of preventing or punishing such transgressions. Accordingly, the criticism of the public/

65. Karen Engle, After the Collapse of the Public/Private Distinction: Strategizing Women's Rights, in RECONCEIVING REALITY, supra note 23, at 143, 146. 66. 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). 67. See, e.g., Engle, supra note 65, at 151. 68. Karen Engle, Views from the Margins: A Response to David Kennedy, 1994 UTAH L. REV. 105, 107-08. 69. Knop, supra note 34, at 297. 70. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 677 private distinction may have merit on a domestic level in many states (for example, when speaking of state overprotection of "families" as autono- mous units to the detriment of less powerful family members),71 but it is questionable on an international level.72 Rather, when private individuals commit violations of human rights against other private individuals in the same state, the international system may not be the most efficient or effective way to regulate their conduct. The extreme claim that the concept of state sovereignty supports male oppression of women implies that, if state sovereignty were removed, it would facilitate eliminating the oppression of women. The question never answered is, in the absence of states, who would then exert the power to overcome gender oppression throughout the world? Some feminists would object to eliminating the state in favor of international governance because it would substitute one patriarchal institution (an international agency) for another (the state). They would argue that Charlesworth's critique wrongly assumes that state sovereignty is the key reason for women's exclusion from the attention of international law and that all women desire and would benefit from a different kind of sovereignty. It moreover "constructs patriarchy-and the nation-state-as a monolithic entity equally benefitting men at the expense of women . . . a sort of international male conspiracy."73 The response to violations of women's rights, in this view, should be decentralized and sensitive to the cultural context of the claim of violation. Feminists who seek the elimination of the public/private distinction might equally reject a purely individual approach as anarchic, lacking any mechanism to prevent women's continued oppression through men's current superior organization, or economic or physical power. To the extent that the public/private distinction applies to the international legal system, it is largely for reasons of practicality, not to perpetuate gender oppression. It is surely true, as Gardam argues, that many "national"

71. See Fernando R. Tes6n, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647, 657-58 (1993). 72. 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. 73. Buss, supra note 61, at 375. See also Engle, supra note 65, at 150.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 678 HUMAN RIGHTS QUARTERLY Vol. 22 versus "international" distinctions (between, in her example, international and internal conflicts) do not necessarily reflect the experiences of women (or noncombatants generally).74 But internal military conflicts do not always concern the international community. International intervention in certain "internal" conflicts may lead to a cycle of military escalation and local resentment at the intervention. On the other hand, the concept of collective security is slowly narrowing the distinction between international and internal conflicts, and the international community is increasingly interven- ing in various ways in the internal affairs of states in the hope of preventing or punishing human rights violations on a massive scale. This occurred when the international community embargoed South Africa in an (ultimately successful) attempt to influence the South African government to abolish apartheid. It also occurred when NATO intervened in the conflicts in the former Yugoslav republics in 1992, and in Kosovo in 1999. Of course, these are isolated instances. Even if state governments allowed an international authority to enter their territory to detect and punish domestic violence, international organizations could not set up and operate the machinery to detect and punish human rights abuses on an individual level, except for the most serious and widespread abuses (e.g., genocide, mass torture or rape, etc.).75 Professor Cook has argued that international institutions should not be allowed to adjudicate private allegations of human rights violations committed by non-state actors:

International institutions with jurisdiction to compel state accountability will exhaust their credibility, and the administrative, investigational and judicial capacities of their personnel, if they try to accommodate a flood of complaints of international human rights violations against states arising from conduct of non-state agencies, including private individuals. Grievances that have substance in themselves, and that properly implicate state accountability and even responsibility, may nevertheless prove cumulatively dysfunctional if they so burden the limited machinery of international adjudication that the system is made to appear incapable of effective functioning. This might cause demoral- ization of tribunal personnel, and loss of confidence and belief in adjudication among the international community.76 Cook's argument is persuasive, if overstated. An international institution could monitor, collect evidence, and respond to states guilty of gross

74. See Buss, supra note 61, at 374-75; Gardam, supra note 43, at 422-24, 430. 75. 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. 76. Cook, supra note 58, at 115.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 679 violations of human rights, or chronic neglect of private violations of human rights, without necessarily offering or pursuing a remedy resulting in the dire consequences that Cook foresees. In fact, the UN Economic and Social Council's draft optional protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) foresees precisely this role for the Committee on the Elimination of Discrimination Against Women.77 The protocol would confer jurisdiction on the Committee to respond to individual or group allegations of violations that CEDAW rights have been violated.78 After hearing both sides, the Committee can investi- gate "grave or systemic violations" by a state, make recommendations to the state, and request information on how the state has implemented its recommendations.79 Unfortunately, adherence to the draft protocol is optional, its provisions are entirely precatory and nonbinding,80 and states may deny the jurisdiction of the Committee or denounce the protocol at will and without any significant sanction.81 If more powerful investigatory and publication capabilities were con- ferred upon the Committee, it could bring women's issues to the attention of a wider audience than can local actors. Yet, Cook's argument properly applies to international responses to individual complaints or the kind of enforcement of individual rights that is traditionally within the jurisdiction of states. Put simply, international organizations can perhaps monitor and influence the roughly 200 states of the world, but they certainly cannot monitor the approximately five billion individuals who would theoretically become empowered to raise complaints. This is not a question of whether the international legal system is "juridically narrow," as some claim;82 it is a question of what is possible and minimally efficient.83 As one commentator

77. 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/L.2, 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]. 78. Optional Protocol, supra note 77, arts. 1-2. 79. Id. arts. 8-10. 80. 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). 81. Id. arts. 10(1), 19. 82. Charlesworth et al., supra note 2, at 629. 83. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 680 HUMAN RIGHTS QUARTERLY Vol. 22 has noted, "evil abounds in all shapes and sizes and one has to assign priorities. The international political system condemns unlawful violence within as well as between states, but the system is still most threatened by transboundary violence, the destruction of one territorial unit by another."84

3. The State As Protector of Women's Human Rights

It might be argued that the best balance between pragmatism and idealism appears in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)85 and in the 1949 Geneva Conventions.86 In those instruments, states hold each other accountable for failure to meet their obligations to protect women's human rights. While states are not usually responsible for acts of their private citizens, they can owe a duty under international law to protect private individuals against harm by other private individuals (e.g., the duty under international law to protect diplomats). CEDAW does not impose this precise type of duty on states; rather, it requires states to "take all appropriate measures" to protect women against harms unique to them as well as discrimination against them.87 Appropriate measures may include, for example, protective or compensating legislation, or prosecution of private individuals or corporations that violate women's human rights. A state that fails to use its available police powers and courts to prevent and punish violations of women's human rights within its territory would be in violation of its obligations under CEDAW and certain other human rights conventions to which it may be a signatory.88 The Fourth Geneva Convention of 1949 takes a similar approach, but

84. W. Michael Reisman, Some Lessons from Iraq: International Law and Domestic Politics, 16 YALE J. INT'L L. 203, 208 (1991). 85. CEDAW, supra note 77. 86. 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 (111) 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]. 87. See, e.g., CEDAW, supra note 77, arts. 6-7. 88. 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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 681 imposes more specific obligations. It requires signatories "to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches" of the Convention (e.g., wilful killing, torture, or inhuman treatment), to prosecute offenders, and to "take measures necessary for the suppression" of all other breaches of the Convention.89 As Fernando Tes6n has argued, any liberal theory of international law, feminist or not, "must . . . postulate an affirmative obligation in international law on the part of the state to have a reasonably effective legal system in which assaults against life, physical integrity, and property are not tolerated."90 CEDAW imposes this duty on states with respect to women's human rights, thus making states primarily responsible for protecting individuals under international law instead of delegating the duty to an international organization. I will examine this approach to protecting women's interests through international law more closely in Sections V.A and VI.D.

B. The Westphalian Model and the UN Charter Model Through a Feminist Optic

What feminists still have not shown is how feminism "challenges" international law in any fundamental way."9 Some feminists have proposed that "to criticize the exclusion of women from international law is to criticize international law itself."92 But this claim is a non sequitur. The force of the feminist critique of international law is that it raises empirically verifiable concerns regarding the lack of equal representation and equal protection in and under international law. Simply put, international law is largely "of the men, by the men, and for the people." However, feminists have not yet crafted any unique jurisprudential theory of world public order on the level of positivism, natural law theory, legal realism, etc. Perhaps the greatest obstacle to creating a feminist jurisprudence is the requirement that it recognize some difference in the way men and women conceive of and interact with the world; some feminists, such as Catharine MacKinnon and Hilary Charlesworth, simply do not accept this notion." Certainly, the

89. Fourth Geneva Convention, note 86, art. 146. 90. Tes6n, supra note 71, at 659 (citation omitted). 91. Professor Knop actually made this point several years ago. See Knop, supra note 34, at 343. 92. Frances E. Olsen, International Law: Feminist Critiques of the Public/Private Distinction, in RECONCEIVING REALITY, supra note 23, at 157, 165. 93. 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

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 682 HUMAN RIGHTS QUARTERLY Vol. 22 experience in the United States shows that women in positions of legislative power are not necessarily better advocates of or more receptive to human rights issues than are men.94 Charlesworth et al. claim not to seek to identify a "distinctive feminine morality" and apply it to international law, but rather to examine how international law ignores women's experiences." This raises a fundamental dilemma undermining radical feminist theories of jurisprudence. Without a distinctive feminist morality or perspective, Charlesworth et al. cannot fulfill their asserted purpose of a fundamental theoretical critique of the international legal order. To advocate a different theoretical orientation than those currently prevailing requires the adoption of such a differing morality, but many feminist authors flatly deny a general difference in gender-based morality.96 If that is the case, feminism cannot be a "theory" per se, but a group of gender-based concerns. Of course, this in no way diminishes the value of struggling to change the world public order better to correspond with feminist notions of equality; it merely fails to develop a feminist "jurisprudence" as such.97 However, many feminists do believe that real gender differences exist, for example, that women and men have different fundamental attitudes and behaviors ("ethics"), and some believe that certain such differences are more or less universal among women." As stated above, some feminists claim that gender is more important to one's world view than ethnicity or nationality. This section will expand on the work of feminists by offering a critique of international law as a product of a putatively masculine or feminine ethic. It is important to emphasize that many feminists may accept that there are

"female." See Charlesworth, 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. 94. 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-Ill.] .. "). 95. Charlesworth et al., supra note 2, at 616. 96. See, e.g., MACKINNON, supra note 9, at 38-39; CAROL SMART, FEMINISM AND THE POWER OF LAW 75 (1989). 97. 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. 98. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 683 generally broad differences between male and female ethics, but disagree with the particular characterization of objectivity, rationality, abstractness, and rule- and justice-orientation, as "masculine," and subjectivity, emotional- ity, consensus-orientation, and cooperativeness as "feminine." These characterizations mainly come from the empirical research of Carol Gilligan.99 Many women would find it insulting to be called irrational or less concerned with justice than harmony. But the issue is not whether men and women currently exhibit some behavioral differences across gender in most societies. They unquestionably do, although these differences are not as extreme and polar as the description above implies. The issue is whether a difference should be acknowledged and whether the primacy of the masculine ethic should give way partly or entirely to the feminine ethic. Few doubt that the main source of the difference is socialization (which Gilligan readily admits) or that Gilligan's findings do not necessarily apply outside of the United States, where her research was conducted. One need only recognize that the "ethic of justice" and "ethic of care" present alternative deontological approaches that, while not mutually exclusive, are on opposite sides of a socially constructed spectrum, and that women's approaches to problems currently tend to favor the latter ethic, at least within the United States. Some feminists, mostly liberal, celebrate the difference in ethics and advocate moving the legal system and other social institutions toward a feminist ethic.100 These feminists believe that the coldly logical, rule-based, masculine approach to dispute resolution and social control is overvalued and overrepresented. Society could benefit from a less antagonistic ethic. Others, mostly radical and "postmodern" feminists, either deny the existence of any difference, or else argue that to acknowledge the difference is to perpetuate a gender hierarchy. Professor MacKinnon, for example, claims that, "[f]or women to affirm difference, when difference means dominance, as it does with gender, means to affirm the qualities and characteristics of powerlessness."101 There are two responses to this critique of the liberal view. First, positing a primarily feminine ethic of care does affirm difference, but does not necessarily affirm a meaningful difference based on gender. Gilligan was more circumspect than her critics imply. Obviously, men sometimes use an ethic of care and women sometimes employ an ethic of justice; Gilligan argued that the use of differing ethics is a question of degree and context. In her words: "The different voice I describe is characterized not by gender but

99. 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). 100. 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). 101. MACKINNON, supra note 9, at 39.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 684 HUMAN RIGHTS QUARTERLY Vol. 22 theme."102 Neither sex has a monopoly on either ethic. Second, the assumption that to affirm difference is to subordinate women skips a logical step. One cannot reasonably assume that in all contexts, the feminine "ethic of care" is inferior to the masculine "ethic of justice," when neither properly operates alone as a single lens.

1. Masculine and Feminine Ethics in International Law

In spite of the lack of international applicability, there is perhaps reason to use the "ethic of care" and "ethic of justice" themes for purposes of abstracting approaches to alleviating real world discrimination. In other words, the fact that the characteristics associated with femininity and masculinity should be construed as largely socialized, not essentialist, means that they are merely two alternative deontological viewpoints. Without claiming that Gilligan's dichotomy characterizes masculinity and femininity in all places for all people, one can accept that the two ethics offer alternative ways of coping with the world, each of which (or some combination of which) may be valuable for understanding or resolving particular problems, including problems of international law. One can borrow Gilligan's perspective to challenge the assertion that her findings have "not proven to be very useful for . . . generating legal theory."'"1 Specifically, one can distinguish between the traditional international law established by the Treaty of Westphalia,104 in which the preservation of state sovereignty was paramount, and the new world public order set into motion by the UN Charter in 1949.105 Through the United Nations, states established a world order more firmly based upon collective security and respect for democracy and human rights. While the Westphalian and UN Charter models of international law coexist uneasily in contemporary politics (the former favored by nationalists, the latter by internationalists), the UN Charter model presents an interesting example of Gilligan's ethic of care as applied to international law. Engagement, mutual aid, and care for individuals characterize the UN Charter model much more than the Westphalian model. The Westphalian model emphasized autonomy and the aggregation of power for state self-preservation. On the other hand, the very

102. GILLIGAN, supra note 6, at 2. 103. Christina Brooks Whitman, Feminist Jurisprudence (Review Essay), 17 FEMINIST STUD. 493, 499 (1991). 104. Peace Treaty Between the Holy Roman Emperor and the King of France and Their Respective Allies (Treaty of Westphalia), 24 Oct. 1648, available at (visited 1 May 2000). 105. U.N. CHARTER, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993 (entered into force 24 Oct. 1945).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 685 idea of collective security upon which the United Nations is founded connotes inclusiveness, cooperation, and some degree of equality.106 Although the International Court of Justice (ICJ) might be called a "masculine" institution in its emphasis on objectivity, justice, and adversary procedures, dispute resolution in the United Nations usually occurs through behind-the-scenes diplomacy, collaboration, and persuasion107-techniques more characteristic of the ethic of care. The continuing emphasis on human rights law and humanitarian law (as evidenced, for example, by the foundation of the International Criminal Court (ICC) at the Hague)o08 in the United Nations also indicates a greater emphasis on the ethic of care. One might add two other examples of international law moving toward an ethic of care since 1945. The first is that international trade law is increasingly inclusive. No longer is trade solely a matter for bilateral negotiations. For example, well over half the states of the world adhere to the General Agreement on Tariffs and Trade (GATT)'09 and the World Trade Organization (WTO) Agreement.110 In addition, certain regional organizations, most significantly the European Union (EU), tend to emphasize consensus, cooperation, and equality. Both the GATT and the EU regimes exemplify the increasing role of the ethic of care in the transition from the Westphalian model to the UN Charter model in international law. This dramatic change has also affected the substantive rules in many other areas of law. At least one feminist has privately claimed that international environmental law has become more representative of the ethic of care as well. The concept of global trust or environmental stewardship, in this view, embodies the feminist morality of "caretaking and accountability, presumably

106. 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. 107. See generally SEYMOUR MAXWELL FINGER, AMERICAN AMBASSADORS AT THE UN (1988) (describing US techniques of diplomacy in the UN from Truman to Reagan). 108. 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]. 109. General Agreement on Tariffs and Trade, 30 Oct. 1947, 61 Stat. A-1 1, T.I.A.S. 1700, 55 U.N.T.S. 194. 110. Agreement Establishing the World Trade Organization, 15 Apr. 1994, 33 I.L.M. 1144 (1994).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 686 HUMAN RIGHTS QUARTERLY Vol. 22 to ourselves and future generations."1' Of course, power and ideas of justice continue to play a vital role in the world public order, but they are tempered more than ever with inclusion and consensus.

2. "Rights" Discourse and Feminism

On the other hand, international law after 1945 is still characterized by the language of rights, which some feminists, including Charlesworth, Chinkin, and Wright, seem to think are at least partly detrimental to women.112 These authors have described rights discourse as characterized by a masculine voice that is too abstract and absolute to represent women's approaches to competing needs. Several arguments impugn the value of the concept of rights. According to one, "women's rights" are an inadequate solution to female oppression because women's rights sometimes compete with the "rights" of men, which means that women's needs or desires may not always prevail over men's. For example, religious rights or cultural beliefs may lead to continued oppression of women in fundamentalist societies, and protection of family rights might preserve the unequal power structure within the family in traditional societies. Another, broader argument is that rights discourse is simplistic and fails to solve the fundamental societal imbal- ances that give rise to the need for rights in the first place. After all, rights are only necessary when the rights holder does not have enough power (economic, political, or otherwise) to protect her own interests without public intervention."3 The claim that rights discourse is inadequate because it can put women's rights at odds with men's rights has little persuasive appeal in itself. Needs and desires never exist in a vacuum. It will always be necessary, no matter what discourse applies, to account for the needs of others. One

111. 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."). 112. 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). 113. Some commentators have gone even further, claiming that rights discourse is counterproductive 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 687 obviously cannot dismiss women's rights as a solution to inequality simply because it means that women's claims will not always and invariably prevail over other claims. Only a philosophy that elevated women's needs to supreme importance would override the necessity to balance interests. On the other hand, outright empowerment would perhaps serve women better than a discourse of rights if that empowerment were sufficiently complete, and particularly if such empowerment were equally distributed among all women. When women hold as many political and economic positions of power as men, their needs will undoubtedly be addressed as well as men's needs. But to claim that states can merely put women in positions of economic and political power assumes away legitimate disagreement-among feminists as well-on the best means of achieving equality. Neither affirmative action nor equality by fiat command consensus as methods of empowerment that are beneficial to women. In a world of competing desires and needs for limited resources, some criteria must be established to determine how to balance these needs. In democracies, "rights" are the hitherto preferred means of establishing certain interests as fundamental. Any discourse that rejects "rights" must substitute another form of interests and proclaim that, among such interests, none are fundamental (i.e., none are "rights"). I would reject this approach because some human interests are too valuable to be crudely weighed with materialistic or other factors; some human and state interests should be considered sacrosanct, as international law recognizes through ius cogens. Moreover, the practical implementation of direct empowerment is problematic. On an international level, consider the example of an extreme, fundamentalist Islamic regime, such as the Taliban in Afghanistan. To prevent the personal and political empowerment of women, the Taliban disallows the education and employment of women. International norms favoring the direct political and economic empowerment of women cut to the heart of the problem, but how can the international community convince the Taliban to implement a program of direct empowerment? The clear delineation and protection of a set of women's rights deemed the "minimum" for a legitimate government at least puts some pressure on the Taliban to recognize and enforce these rights as a precondition to international legitimacy. The real problem is not with rights discourse per se, but with the inequalities that lead to underenforcement and nonenforcement of generally recognized women's rights. Enforcement is obstructed by the pervasive- ness of inequality and by the limited resources allocated to human rights enforcement. Yet, critics of rights offer no alternatives, preferring at best to point out that rights have at least great symbolic value,114 and concluding

114. See Charlesworth et al., supra note 2, at 638.

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(quite reasonably) that the solution is to rethink the rights discourse "so that rights correspond to women's experiences and needs.""1 Thus, most feminists have concluded that rights discourse generally benefits women, despite what some view as their inevitable "male" ethic.

C. The Postmodern Feminism and International Human Rights Law

1. The Challenge to Feminist Theories of Human Rights

Although the vast majority of states seem to accept the proposition that women need and should have human rights protection beyond that accorded to men, they often disagree bitterly about the scope of the rights. Cultural and religious beliefs in many states disfavor formal entitlements that most human rights activists take for granted, such as the rights to seek education and employment, to own property, to free speech, to marital choice and equality, and to religious freedom. Representatives of these states often claim that CEDAW and the similar women's rights instruments represent "Western" conceptions of women's rights that are ethnocentric and inapplicable to their cultures. They may indeed feel this way about human rights generally, although they may nonetheless acknowledge human rights against large-scale atrocities such as slavery or genocide. In this view, "Western" conceptions of human rights (including women's rights) constitute a hegemonic or neocolonialist discourse."16 Some claim that human rights discourse is innocent but ignorant ethnocentrism; others declare that it is a cynical seizing of moral high ground to obscure an attempt to exercise international influence or imperialism. That ethnocentric philosophical beliefs are at the root of CEDAW and other human rights instruments cannot be denied. The concept of individual human rights is rooted in the thought of such European philosophers as Immanuel Kant and John Locke. Most of the earliest human rights instruments, including the UN Charter and the Universal Declaration of Human Rights (UDHR),117 were drafted without the participation of the colonized cultures in Africa, the Middle East, and Asia. The preponderant influence of European thought and belief in human rights law has led some human rights advocates to assume perhaps too much about the universality of the current international law of human rights. Even non-Western advocates of human rights sometimes

115. Id. 116. See generally, EDWARD W. SAID, ORIENTALISM (1978). 117. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (111), 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].

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 689 cringe at the occasional displays of cultural insensitivity by their Western counterparts. However, it is important to avoid a simplistic view of hegemony and ethnocentrism. The term "ethnocentric" refers to the tendency to view other cultures in terms of one's own. The main problems of ethnocentrism are ignorance and parochialism that lead to cultural arrogance. It is certainly fair to fault ethnocentric theories on the grounds that their authors lack the ability or interest to gaze into their own motivations, biases, and mental heuristics to discover how their cultural and personal experiences have created or influenced their values. This is a fault characteristic of human beings in general, of course, and a weakness that, to achieve their full intellectual and moral potential, all people should ideally transcend. It is also a weakness that sometimes causes liberal feminists to assume that oppression of women qua women is more of a universal concern than other kinds oppression. As Professor Buss has argued, cultural, racial, class, religious, political, and other forms of oppression may beleaguer women more pressingly in other countries."8 Another criticism of ethnocentrism, however, and the view that many deconstructivists and cultural relativists share, is that any attempt to impose one's personal or cultural values on another person of a different culture is arrogant and therefore necessarily arrives at wrong results. These feminists "insist that no one community is legitimately privileged to speak for all others,""9 and this applies to cultural communities as much as (or more than) it pertains to "gender communities." International feminism, in this view, is not a movement, but a politically expedient alliance between

118. 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 Quest6es de Direitos Humanos Njo Resolvidas [In a Woman's Looking Glass: Normative Blindness and Unresolved Human Rights Issues], 5 HORIZONTES ANTROPOLOGICOS, May 1999, at 61, 67 (1999) ("Ativistas do terceiro mundo argumentam que direitos a comida, educaCao, emprego e assistencia social perderam o sentido por causa das condi?6es geralmente impostas pelo Fundo Monetario 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 Christina Fund] 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. 119. Bartlett, supra note 5, at 855.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 690 HUMAN RIGHTS QUARTERLY Vol. 22 communities of women.120 It is colonialist, these theorists say, to treat non- Western women as undifferentiated victims of their own cultural practices or beliefs, such as genital mutilation,121 foot-binding, wearing of the veil, or overarching social subservience of women.122 Some feminist writers even accuse Western feminists of hypocrisy by propounding inclusive ideals of global sisterhood while stigmatizing cultural differences.123 This assertion simultaneously challenges the liberal feminist view of universal human rights and the holistic radical argument that all societies are patriarchal and women are all thereby oppressed regardless of whether they believe that they are oppressed. It has, in some cases, led certain feminist authors to adopt the bombastically yclept "standpoint epistemology," which posits that victims of gender discrimination have a unique insight into reality that nonvictims cannot perceive.124 Liberal feminists would point out that a major practical problem with this view is that it ignores local action by cultural insiders to eliminate their own detrimental cultural practices. In the end, it was not Westerners, but Sun Yat-sen and other Chinese intellectuals who began, and the Ch'inese Communist Party that finally achieved, the eradication of the cultural practice of foot-binding. Similarly, female genital mutilation is illegal in Egypt and has recently been outlawed in Togo, C6te d'lvoire, and Senegal- by the efforts of local governments and organizations of African women who oppose the practice, not by Westerners.125 There are organized groups of African women, nationally and regionally, who oppose the practice of genital mutilation, such as the Somali Democratic Women's Organization or the Association of African Women in Research and Development.126

120. See Mohanty, supra note 35, at 1, 4. 121. 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. 122. 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 ENG. L. REV. 1527, 1529-31 (1992). 123. See, e.g., L. Amede Obiora, The Little Foxes that Spoil the Vine: Revisiting the Feminist Critique of Female Circumcision, 9 CAN. J. WOMEN & L. 46, 49 (1997). 124. See Bartlett, supra note 5, at 872-73. 125. 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 (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. 126. 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)).

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Similarly, the African feminists and governments of Uganda, Malawi, and Nigeria have recently obtained broader property rights for women.127 It is therefore somewhat misleading to attribute the development of universal human rights to a neocolonialist discourse or the imposition of Western cultural values.128 The postmodernist position oversimplifies moral issues and ignores its own implicit hierarchy of values. Some authors automatically equate universalism with ethnocentricity.129 But one can appreciate the dangers of ethnocentrism without abandoning the belief in a minimum set of human rights applicable worldwide. To advocate cultural relativity is to assert the existence of a single supreme moral value: respect for the culture of others. Those who assert the ethnocentricity of the concept of universal human rights are also asserting that the value of respect for other cultures is more important than any given human rights claim. Yet, it hardly seems convincing to say that respect for other cultures should take precedence over, say, the right to seek an education, or the right against arbitrary deprivation of life or liberty. The postmodern critique merely reifies culture. The criticism of cultural arrogance loses its theoretical edge when it hierarchizes respect for the culture of others over respect for women's bodily integrity, intellectual development, and happiness. Indeed, to commit oneself totally to cultural relativism would be to abandon any theoretical perspective or commitment to values other than respect for other cultures. The irony, liberal feminists might say, is that postmodernists pride themselves on problematizing and deconstructing precisely the kind of unexamined hierarchization that they themselves assume when criticizing universal human rights as inevitably ethnocentric. Another problem with holding universal human rights subservient to cultural practices is that it is exclusionary. Instead of arguing about the content or validity vel non of any particular human right, postmodernists might actually attempt to recharacterize the inclusivity of feminism as a kind of cultural relativism and, paradoxically, to exclude "outsiders" from participation in formation and enforcement of these rights.130 Liberal

127. See Gaer, supra note 125. 128. 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. 129. See Gunning, supra note 126, at 193 (citing MARILYN FRYE, THE POLITICS OF REALITY 52 (1983)). 130. 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

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 692 HUMAN RIGHTS QUARTERLY Vol. 22 feminists might apply in the cultural sphere Bartlett's criticism of standpoint epistemology: "This adversarial position hinders feminist practice. It impedes understanding by would-be friends of feminism and paralyzes potential sympathizers.""' One African author, for example, argues that, no matter how laudable a social goal, activists should not pursue it unless it affects them personally.132 This emotive reaction stems from a sense of resentment at perceived neocolonialism. Human rights activists and liberal feminists would counter that this contention could not be more divisive or counterproductive to a meaningful dialogue. Because universal human rights by definition transcend individual citizenship or cultural membership, their support can and should come from anyone, anywhere.133 Thus, the weakness of this argument is that it ignores the theory that universal rights are necessary precisely because it is widely agreed-even outside of the West-that no cultural practice is so inherently valuable as to justify the harm done to the victims of human rights violations.'34 At least one scholar has pointed out the methodological problem inherent in postmodernism as well; its critical epistemology leaves postmodern feminists "in the awkward position of maintaining that gender oppression exists" while denying that evidence could ever prove it.'35 Yet, this criticism could be taken further. "Postmodern feminism" could be seen as an oxymoron. To be "feminist" is to assume the existence of a meaningful objective category, which is precisely what postmodernists and deconstructivists call into question. If all women do not have some important interests in common, then the term "feminism" is as meaningless as "international human rights" would be if all human beings did not have some interests in common. That an irreducible core of human rights extends to both genders'36 does not refute the contentions of Edward Said and others who criticize

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. 131. Bartlett, supra note 5, at 876. 132. See, e.g., Obiora, supra note 123, at 56, 68. 133. See Nader, supra note 118, at 68. 134. 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. 135. Deborah L. Rhode, Feminist Critical Theories, 42 STAN. L. REV. 617, 620 (1990). 136. 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.

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Western human rights discourse as inherently hegemonic.137 It is certainly true that international notions of human rights could be more inclusive, but that does not necessarily subordinate the current human rights standards to cultural practices. Culture may be a system of shared values, but it can also be a tool of domination, patriarchal and otherwise. As Laura Nader has explained, the "romantic notion of culture" has caused even anthropologists sometimes to overlook the coercive power of legal ideologies.138 We are all "victims" of our own traditions and cultural beliefs in a broad sense;39 culture strongly defines the limits of how we think about ourselves and the world around us.140 Culturally entrenched practices that are oppressive often do not appear particularly problematic to either the oppressor or oppressed. In fact, social psychologists have shown that women in the United States often stereotype and discriminate against other women based on their gender.'14 Finally, the accusation of neocolonialism ignores criticism by American feminists of oppressive practices toward women in their own cultures, such as the malignant cultural influences resulting in the widespread "enhancing"

137. See generally SAID, supra note 116. 138. Laura Nader, Controlling Processes: Tracing the Dynamic Components of Power, 38 CURRENT ANTHROPOLOGY 711, 712 (1997). 139. The Kantian theory of international law, advanced by Tes6n, 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?" 140. 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 nonvio- lent 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. 141. 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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 694 HUMAN RIGHTS QUARTERLY Vol. 22 use of breast implants,142 pierced body parts, or needlessly painful high heeled shoes. Indeed, only recently, the US Delegate to the UN Commis- sion on Human Rights, Felice Gaer, speaking on the human rights of women, publicly acknowledged that human rights abuses occur in the United States.143 Many scholars realize that people of all backgrounds are often unconscious of their own culturally destructive practices. One scholar, for example, pointed out the lack of public criticism of male circumcision as a medically unnecessary and barbaric violation of a baby's bodily integrity.144 Indeed, it is this very cultural blindness that makes inclusive, international dialogue so valuable. Human rights discourse, to be effective, must encompass cultural outsiders as well as cultural insiders.145 The perils of a unilateral discourse reveal themselves in many ways. For example, in the speech (just mentioned) before the UN Commission on Human Rights, Ambassador Gaer condemned "honor killings." Honor killings are murders of women who commit adultery or seek divorce; they are perpetrated by their male relatives who seek to avenge the family honor. Gaer noted that relativists often try to justify abuses of women on cultural or religious grounds, but she referred to the killings as "criminal acts, outside the rule of law, due process, and individual protections. As such, they are the legitimate concern of the human rights community."146 Justified though her criticism of cultural relativism is, the ambassador's ethnocentricity reveals itself in the words "as such," which imply a belief that a legal system emulating the United States' views of rule of law, due process, etc., automatically guarantees a result that is not abusive to women.'47 Insularity in legal views impede diplomatic and cross-cultural efforts to achieve agreement upon and implementation of desired human rights protections. It is correct, however, to assert that a social practice is not entitled to deference merely because it is a cultural tradition. One must ask, with Gayle Binion, why race-based "slavery and apartheid are so roundly condemned despite their entrenchment in culture, while women who live

142. See generally, e.g., Linda Coco, Silicone Breast Implants in America: A Choice of the "Official Breast?", ESSAYS ON CONTROLLING PROCESSES 103 (Laura Nader ed., 1994). 143. Gaer, supra note 125. 144. 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. 145. See id. at 68 (quoting Berta E. Hernandez-Truyol, Women's Rights as Human Rights- Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, 673 (1996)). 146. Gaer, supra note 125. 147. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 695 under purdah-the denial of the right to vote, travel, work, drive, own property, or control their own fertility-are seen as voluntary participants in their 'cultures."'148 Consider the African scholar who attempts to defend female genital circumcision on the grounds that, if circumcision were such a harmful practice, it would not continue: "Even base beasts are capable of perceiving danger. If self-preservation is a basic instinct, it stands to reason that the value and utility attached to circumcision are predicated on its burdens not exceeding its benefits."149 Cultural beliefs can bias even the highly educated to the point where they attempt to justify a medically unnecessary and generally risky (indeed, sometimes deadly)150 practice with the absurd claim that people (or animals) are generally capable of perceiving danger. Doubtless this ability to perceive danger would have saved many a medieval European invalid from death by systematic bleeding, or many a Chinese girl from foot-binding. One reason it has not is that intellectual elites sometimes allow themselves to become instruments in their own cultural oppression and the oppression of others by failing to examine the power relationships and unjustified assumptions that educate their own belief systems. Western views of human rights may be ethnocentric to some degree, but they may nonetheless contribute greatly to a universal philosophy of human dignity worthy of legal protection on an international scale. Whether traditions and cultural beliefs are undesirable because they disadvantage women relative to men can only be answered with reference to some set of values, and the international community must decide which values to privilege. Non-deontological perceptions of particular practices are largely irrelevant-virtually everyone, Western and otherwise, now accepts that slavery is an evil and a human rights violation even though it was deeply rooted in the cultures of the slaveholders. The same can be said of foot- binding in China and many other harmful cultural practices. Cultural change is inevitable if states agree to protect minimum standards of human rights, as the preamble to CEDAW implies."15 In fact, CEDAW explicitly elevates its conception of women's human rights above cultural values, affirmatively requiring that signatories "take all appropriate measures to modify the social and cultural patterns of conduct of men and women" to eliminate prejudices and customary practices that perpetuate gender-based stereotypes or the idea of gender inferiority.'52

148. Gayle Binion, Human Rights: A Feminist Perspective, 17 HUM. RTS. Q. 509, 521 (1995) (emphasis in original). 149. Obiora, supra note 123, at 67. 150. Obiora herself admits that circumcision is "a delicate and risk-ridden procedure." Id. at 71. 151. CEDAW, supra note 77, pmbl. 152. Id. art. 5.

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2. Reconciling Respect For Culture and Respect for People Under International Law

The international legal regime must balance respect for cultural traditions with other values, just as a state government must balance individual freedom with notions of the common public good. Some authors, such as Isabelle Gunning, have argued that, as a result, the development of laws designed to eradicate culturally-entrenched practices that are harmful to women "must be the result of a multicultural dialogue and consensus.""' In Gunning's view, the problem is not that feminists sometimes condemn foreign cultural practices, but rather how they do it and the solutions they propose. She points out the importance of feminists recognizing and condemning detrimental practices in their own cultures, including those pointed out by women of other cultures.'154 Feminists who criticize genital mutilation should not stop there. They should imagine the revulsion an African woman feels at breast implant surgery or the prevalence of bulimia in the United States.'55 Certainly, a multicultural dialogue is a necessary precondition to the formation of an international legal order defining and protecting human rights. However, human rights activists might reasonably take issue with the necessity of a "consensus" on each individual right. Western feminists like Gunning who advocate consensus on human rights issues almost inevitably mean "consensus on Western terms." It is often taken for granted that questioning the practice (in Gunning's case, unnecessary female genital surgery) will result, when the dialogue is over, in abandonment of the questioned practice. It is perhaps more honest and helpful to admit from the outset that feminists may take the position that, however beneficial or harmless a cultural practice may seem to its practitioners, it may be in fact detrimental to their health, safety, longevity, or human dignity. As discussed above, one may participate in one's own oppression,'56

153. Gunning, supra note 126, at 193. 154. See id. at 212. 155. 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."). 156. The obvious example is certain cults, but I prefer the following gem of self-delusion, culled from a Canadian newspaper story on born-again Christian women in Texas: Marianne [housewife of a wealthy developer and executive director of the Christian Coalition] ... counsels young married women from her church, chiefly in the ways of submission. "I say to them, 'I know you don't want to hear this, but you'll like yourself when you do it.' I know that this is an offence to some women, it's so pervasive this thinking that we're just as powerful as our husbands, but I look at it differently. I am just as powerful as Lou but in different ways. There is just one head of our household, otherwise there will be conflict. . . . Even if I don't like it sometimes, I submit. And I don't think I'm being a doormat, either." [Marianne's friend Gail], an attractive bouncy woman of 38 who grew up in a Catholic family as one of five children, . . . whispers her story ... : "I learned how to get things for myself. I put

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 697 just as it is possible to rebel against one hegemonic oppression by adopting an entirely different oppressive practice. In the United States, for example, teenage girls commonly rebel against parental authority by defacing their bodies with makeup, tattoos, piercings, uncomfortable high-heeled shoes, and elaborate hair designs. They may believe their acts are an assertion of autonomy. An outsider may view their behavior as submission to a cultural hegemony (perhaps through peer conformity) that places greater value on women's physical appearance than on their intellectual independence. The determination of what constitutes a human rights violation should not be based solely on the perceptions of cultural insiders, nor on the ad hoc theories of harm of outsiders. Feminists, particularly postmodernists, have often acclaimed the benefits of openly revealing one's "positional partiality" by setting forth which moral and political choices underlay that partiality.'57 People are capable (although sometimes only with great effort) of recognizing their own moral and political values proceeding from their cultural derivation. By explicitly acknowledging one's own positional partiality, it is possible critically to evaluate the values upon which a universal philosophy of human rights is based.'58 These values can then form the basis of what Nader has called "a broad gauged philosophy about human suffering, one that cuts across positions that are at cross purposes." 59 Such a philosophy would itself result from a multicultural dialogue-a multilogue-that allows those of all cultural backgrounds to recognize practices that are detrimental to themselves as well as others. "The prospects for improving human rights are linked to the prospects for cultural reconstruction, which depend upon an open process of communication, free from dogmatic interference."'60 For a large variety of women's concerns, a broad, favorable international consensus already exists. As CEDAW demonstrates, the vast majority of state governments agree (at least publicly) that the need to protect the health, safety, and bodily integrity of women overrides the cultural value of

myself through college, got a good job, I was very rational. But I frightened my husband because I could think so clearly. Parts of my marriage were so dark and despairing, no hope. Marianne taught me the Word: 'Wives, submit unto your husbands.' She'd call to check and I learned to let him lead, to submit. We assumed the positions that the Lord wanted us to have and my marriage grew so rich and deep. I know that it will only get richer and the blessings will continue to flow in ways I can't even imagine." Elizabeth Nickson, That Old-Time Religion, GLOBE & MAIL (Toronto), 27 Feb. 1999, at D1. 157. See, e.g., Bartlett, supra note 5, at 857. 158. 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. 159. Nader, supra note 118, at 62. 160. Id. at 68.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 698 HUMAN RIGHTS QUARTERLY Vol. 22 forced marriages, clitoral circumcision, or suttee (widow-burning). Similarly, many Western elites agree that the widespread crisis of domestic violence in their countries should be stopped even though the victim in any given case may not desire government intervention. Personal freedom and diverse cultural practices are inherently valuable, surely, but women who voluntar- ily engage in genital mutilation or suttee, or who tolerate severe violence from their husbands or lovers, may have reasons for their choices;16' they simply have not accurately judged their own interests as human beings. They have consciously or unconsciously become willing victims of the worldwide economic, political, reproductive, and social disempowerment of women.162 The American or European elites (e.g., news media, government representatives, etc.) often express the simplistic view that Western women are "free," while women from nonindustrial societies are submissive objects of repression. Yet, many Westerners and non-Westerners who focus on the disempowerment also believe that the oppression may be heavier in some places than others, and that it is ultimately intolerable in all its forms. This agreement is the precondition for the minimum standards of universal human rights, as set forth in the UDHR, CEDAW, and related instruments.

IV. FEMINIST PROCEDURAL CHALLENGES TO INTERNATIONAL LAW

A. Unequal Representation in International Organizations

Apart from their arguments that international law is biased in substance, Charlesworth and her colleagues argue that "[t]he structure of the international legal order reflects a male perspective and ensures its continued dominance."'63 They point to the "invisibility" of women in states and international organizations and "the vocabulary of international law, which generally makes women invisible."'64 States, they argue, are patriarchal structures, and, since international law binds and is created by states, international law must be patriarchal.'6' Technically, Charlesworth et al. point to nothing in the international legal order that contributes to male dominance per se; rather, they show that women are no more represented in public international organizations than they are in the states that comprise

161. The reasons may range from dependency upon their abusers, to need for social acceptance, to a simple lack of good life choices. 162. 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). 163. Charlesworth et al., supra note 2, at 621. 164. Charlesworth, supra note 35, at 381. 165. See Charlesworth et al., supra note 2, at 621-24.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 699 the organizations' membership. Because states generally choose their own representatives in these organizations, international law is procedurally structured to prevent the empowerment of women in advance of their empowerment within the states themselves. It is certainly true that, at least in the early years of convention drafting, women participated little in the formation of international law. However, even were it granted that international law did speak from a voice that is unrepresentative of women's experiences, the conclusion does not necessarily follow that women are treated unequally by that law.'66 For example, although women did not significantly participate in the drafting of the UDHR, many of the proposals advanced by women's NGOs, such as the International Council of Women, ultimately found there way into various human rights instruments.'67 This argument therefore advances, not one, but two separate potential categories of feminist criticism of the international legal order: (1) that it fails to represent women's experiences because of their absence from decision-making processes-a criticism of the structure of international rule making-and (2) that women are not in fact treated equally by the international legal order-a criticism of the substance of international law. This section will discuss the former claim, and the following (Section V) will discuss the substantive issues. Charlesworth et al. argue that the substantive bias that they perceive follows from a procedural bias, specifically, inadequate female representation in states and international organizations:'68

166. 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. 167. See W. Michael Reisman, Private International Declaration Initiatives, in ACTES DU COLLOQUE INTERNATIONAL D'OUVERTURE: LA DECLARATION UNIVERSELLE DES DROITS DE L'HOMME, 1948-98, 2d Sess., at 79, 115 (1998). 168. 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, President of France, Premier of the Soviet Union (or President of Russia), Premier of China, Prime Minister of Japan, or Secretary General of the United

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Long-term domination of all bodies wielding political power nationally and internationally means that issues traditionally of concern to men become seen as general human concerns, while 'women's concerns' are relegated to a special, limited category. Because men generally are not the victims of sex discrimination, domestic violence, and sexual degradation and violence, for example, these matters can be consigned to a separate sphere and tend to be ignored.169

Notwithstanding women's increased participation in international rule- making, Charlesworth et al. argue that the tendency to treat "women's problems" as an issue separate from "general human rights law" is evident even in well-meaning efforts to recognize and protect women's rights. Of

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. 169. Charlesworth et al., supra note 2, at 625. Professor Knop has pointed out that there are three separate arguments advanced by feminists for some means of imposed equal representation, as opposed to a formally democratic process based on equality of opportunity: the equality response, the difference response, and the collective autonomy response. See Knop, supra note 34, at 303. The "equality response" rejects equality of opportunity by arguing that "opportunity" is judged according to criteria set exclusively by men. In the words of one author: "Equality can be achieved only through rules that take account of the different needs and characteristics of women." Id. at 304 (citing Christine A. Littleton, Equality Across Difference: A Place for Rights Discourse?, 3 Wis. WOMEN'S L.J. 189 (1987)). As applied internationally, this argument is based upon a perception that female diplomats somehow have different needs than male diplomats because, for example, husbands of female diplomats might be less flexible about the location of the diplomat's posting than are the wives of male diplomats. See id. at 305. One response to this argument is that the husbands of some diplomats will be unable to obtain a good job at their posting, just as the wives of some diplomats will be unable to obtain such a job. The number of traditional (one worker) households in the United States has long been decreasing. Some flexibility for the needs of spouses is always helpful, but if the needs of spouses are taken into account, practical exigencies will ultimately demand that diplomats are chosen not only upon their abilities, but based upon the ability of their spouses to obtain jobs in their likely posting place-a less than desirable selection criterion. The "difference response" is based upon Gilligan's finding that men and women have different reasoning processes, experiences, and interests, and therefore concludes that men cannot truly speak for women. Id. at 305-06. Male diplomats have one way of handling problems, female diplomats have another, and only an impoverished international law would reflect only one ethic. While some feminists might favor this theory, radical feminists who deny any real difference between men and women would object. The "collective autonomy response" views women as a group with many homog- enous interests that deserves representation as such. Id. at 306. In this view, women constitute the equivalent of a huge, decentralized state. While any feminist theory must assume women to have some common interests, many feminists would object that the notion that women have some kind of "collective autonomy" has no empirical support, is unnecessarily divisive, and inevitably denigrating to women. Postmodernists would particularly criticize the response as unduly homogenizing of women.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 701 course, they are not the first to point this out,170 but the disparity speaks to a tendency to view men's concerns as more serious, and more of an appropriate subject for international human rights law, than women's concerns regardless of whether international intervention offers the most effective and efficient remedies. For example, no international legal authority had ever defined "rape" until Trial Chamber I of the International Criminal Tribunal for Rwanda did so in 1998,171 almost one hundred years after the first Hague Peace Conferences on the international law of war, despite the prevalence of rape as an organized tactic of war. Feminists argue that greater female representation in international organizations would help remedy these conceptual and substantive deficiencies.

B. Is International Law Procedurally Biased?

Because states choose their own representatives in international organizations, criticism of international law as procedurally biased seems misdi- rected. Criticism should instead be directed at the internal political processes and cultural obstructions within states themselves. Increased equality of women's rights and representation within states presages greater representation in international policy-making institutions. Fortunately, most states have begun to make progress in increasing the representation of women. Indeed, arguments that women's concerns are not taken seriously by international law for procedural reasons conflict with the increase in international attention to women's human rights and gender inequality, including formal rule-making. For example, in the twentieth century, many South American states have finally come to acknowledge that domestic violence is unacceptable; in 1998, Venezuela ended its status as the last South American state in which domestic violence and sexual harassment

170. See, e.g., V. Spike Peterson, Whose Rights?: A Critique of the "Givens" in Human Rights Discourse, 15 ALTERNATIVES 303, 305 (1990). 171. Judgment, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, T. Ch. I, ? 7.7 (? 38) (ICTR 2 Sept. 1998), available at (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, committed 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 702 HUMAN RIGHTS QUARTERLY Vol. 22 were legal.172 In 1999, the emir of Kuwait enfranchised women for the first time.173 More generally, a 1997 UN report asserts that a growing number of countries have incorporated reproductive rights into their constitutions and legal codes.174 Internationally, human rights treaties have increasingly addressed women's issues. These steps toward abatement of gender discrimination within states will continue to lead to greater representation of women in domestic and international politics. Yet, Professor Charlesworth trivializes the human rights instruments, repeating the argument that they create a "specialized branch" of "women's human rights law" that marginalizes women's concerns.175 Had women obtained equal representation in diplomatic posts, human rights law (and other branches of international law) would integrally and equally reflect men's and women's viewpoints. Charlesworth's argument overplays the segmentation of human rights law. Certainly, any modern international lawyer who draws an arbitrary line between "women's human rights" and human rights generally is making a distinction not reflected in the legal doctrine. It would be a mistake to reify international law by claiming that the law itself has created a false distinction. If some feminist international lawyers specialize in women's human rights law, it would be odd to blame the international legal system for the creation of a specialized branch of "women's human rights law." The vestigial gender segmentation in human rights law derives from historical formation, not formal taxonomy. Most human rights instruments were developed before feminists successfully brought women's concerns to the attention of the international community. The resulting specialized instruments represent "catching up" that could not be done post hoc in instruments executed long ago. The Westphalian system of international law that prevailed before the Second World War was based upon a notion of state sovereignty that protected the prerogatives of ruling elites from each other. This system, like any true legal system, was inherently conservative. Its intended purpose was to preserve and protect power relationships, not to revolutionize continu- ally. The Westphalian system, as Charlesworth and her colleagues suggest, codified the basic order "in which men of all nations have used the statist

172. See B.J. Kowalski, Regional Report: Venezuela: Protecting Women, WORLD PRESS REV., Nov. 1998, at 21. 173. See Women's Day in Kuwait, ECONOMIST (London), 22 May 1999, available in 1999 WL 7363179. 174. See UNITED NATIONS POPULATION FUND, THE STATE OF WORLD POPULATION 1997: THE RIGHT TO CHOOSE: REPRODUCTIVE RIGHTS AND REPRODUCTIVE HEALTH 14 (1997). 175. Charlesworth, supra note 23, at 6.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 703 system to establish economic and nationalist priorities to serve male elites, while basic human, social and economic needs are not met.""76 But the Westphalian system was not gender driven per se; there is no strong evidence that women would have done things differently. Not every head of state during the formative years of international law was male. Most powerful states were, during the most formative years of international law, ruled at least partly by women at one time or another: from Queens Victoria and Elizabeth in England to Mary Stuart, Queen of Scots; from Queen Maria Theresa of Hungary and Bohemia to Catherine the Great of Russia; from Queen Isabella of Spain to the Empress Dowager Cixi of China.'77 The purpose of the Peace of Westphalia was to protect elite power, not male power per se, although the protection of male power was necessarily the result of protecting elite power. Thus, there followed a considerable neglect of women's concerns prior to the Second World War. With the conclusion of the Second World War came the UN Charter and the 1948 UDHR, which together began to rework the de jure relationship between state and individual. International law no longer solely serves whatever elite group is in power to exploit its subjects unhindered by other states. International law now recognizes and protects individual human rights, and defines women's economic, political, and human rights to the same extent as men's rights. In raising such a universal floor, international law necessarily elevates the status of those suffering from the

176. 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. 177. However, it should be noted that some of these countries, such as Hawai'i, never took a significant part in the formation of international law. Even China played a very minor role in its formation until after the First World War. Until 1912, China was an empire that regarded all states as, at best, tributary barbarians until forced to recognize foreign sovereignty literarily at gunpoint. International law was introduced through Henry Wheaton's classic Elements of International Law and spread as a means to deal with Europeans. HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW (2d ann. ed. 1863). China was not strong enough as a sovereign state to participate in the formation of international law until it entered into alliances with Germany, the Soviet Union, and the United States; fought off Japanese imperialism; and gained a seat on the United Nations Security Council.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 704 HUMAN RIGHTS QUARTERLY Vol. 22 greatest oppression, including women.178 The 1948 UDHR also respects every people's right to self-determination,179 which states have increasingly taken to mean a right to the political procedures of democracy. The new focus on democracy and a basically Kantian view of human dignity represents a revolutionary change from international law's traditional role, a change that has been applauded by human rights activists. Thus, although women are certainly underrepresented in diplomatic posts and international organizations, it does not necessarily follow that the underrepresentation has resulted in detrimental bias against women or that women have been unable to advance their international agendas. More- over, neither international law itself nor the structure of the world public order presents an obstacle to equal representation of women. In the last several decades, international law has progressed greatly in recognizing the needs of women, and women have increasingly represented their states in domestic politics, diplomatic posts, and international organizations. The slow progress of equal representation results from state and cultural obstacles unconnected with international law or the world public order.

C. Solutions to Gender Inequality in International Rule Making

The question remains how best to advance toward the goal of equal representation in diplomatic posts and international organizations. CEDAW adopts an "equal opportunity" approach by directly endorsing and promoting greater political representation of women.180 Article 7 requires signatories to ensure equal opportunity for women to participate in the political life of the state, including forming policy and holding public office.18' Article 8 provides that signatories must guarantee women an equal opportunity to represent their respective governments at an international level and to participate in the work of international organizations.182 These goals are obviously shared by feminists, and need no further justification than the inherent desirability of proportional political representation. Some feminists would argue that CEDAW does not go far enough; the solution is for international law affirmatively to require expansion of the extremely small number of women politicians, diplomats, and international

178. 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. 179. UDHR, supra note 117, art. 21(3). 180. CEDAW, supra note 77, arts. 7-8. 181. Id. art. 7. 182. Id. art. 8.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 705 civil servants-what might be a top-across approach.183 According to this argument, the "equality of opportunity" guaranteed by classical liberal political theory is not enough; equal representation must be guaranteed. States generally are free to choose their international representatives, but, somehow, they must be constrained to appoint or elect representatives equally from both genders.184 Yet, as desirable as equal representation may be, it is very unlikely that states will agree to rewrite CEDAW's Article 7 to require states to ignore democratic procedures and implement quotas to appoint women to positions of political power, as some believe feminism would require.'85 This approach would encounter overwhelming resistance from the vast majority of states. However, assuming that women were to obtain equal representation, they would encounter obstacles to advancing women's interests internationally. Their ability to advocate would be dampened by the structure of political systems of the powerful states, particularly in hybrid plutocracies such as the United States and Mexico. Although it is certainly conceivable that a female President with a majority of women in the Senate would conduct a substantially different foreign policy,'86 one wonders how much money businesses (even those controlled by women) would contribute to the campaign treasuries of politicians who favored human rights over their international business interests.'87 In response, liberals might note that money does not decide every electoral issue. For example, businesses may accept increased taxes that pay for enforcement against spousal abuse. In addition, women in public office would receive support from voters who favor feminist views on equal rights, child care, welfare, education, and abortion. However, even if support for these positions does not erode as the

183. See Charlesworth et al., supra note 2, at 622 n.56; Knop, supra note 34, at 303. 184. Some feminists would oppose reliance on equal representation alone by citing Carrie Menkel-Meadow's finding that women in law do not bring significant innovation to the profession, but rather are assimilated into its traditional (male) culture. See Carrie Menkel-Meadow, Exploring a Research Agenda of the Feminization of the Legal Profession: Theories of Gender and Social Change, 14 LAW & Soc. INQUIRY 289, 313 (1989). They cite these findings to dispute the assertion that more women in politics means new perspectives more favorable to women. 185. See Tes6n, supra note 71, at 654. 186. See supra note 94 and accompanying text. For a more general argument that world politics would be different if more women were in power, see Francis Fukuyama, Women and the Evolution of World Politics, FOREIGN AFF., Sept./Oct. 1998, at 24. But see Barbara Ehrenreich & Katha Pollitt, Fukuyama's Follies: So What If Women Ruled the World?, FOREIGN AFF., Jan./Feb. 1999, at 118 (taking a contrary position); J. Ann Tickner, Why Women Can't Run the World: International Politics According to Francis Fukuyama, 1 INT'L STUD. REV. 3 (1999). 187. On methods big businesses use to control US foreign policy, see generally Jennifer Shecter, Showing They Care, MULTINAT'L MONITOR, Sept. 1998, at 30.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 706 HUMAN RIGHTS QUARTERLY Vol. 22 accompanying realities of taxation and other sacrifices become more apparent, the level of public commitment to sacrifice for the interests of foreign women becomes more dubious. Experience shows that the belief of some feminists that women have more in common with each other by virtue of their gender than by virtue of their nationality is not shared by most women.188 Realists must ask themselves how long voters-men or women- would expend significant resources to enforce the rights of Afghani women to choose not to wear veils? Even putting aside the problem that the more aggressive women self-select for political office, consider that a woman in office is subjected to the same constraints as a man. As long as the outcomes of political campaigns are governed by campaign spending, women must be responsive on some level to the narrow interests who fund their campaigns, just as with men.1"9 This is not to say that women may not bring different perspectives to the formation of international law by states, merely that their effects will be dampened by unfortunate practical considerations. On the other hand, women generally play greater roles in NGOs than in states,'"90 and NGOs themselves play a very substantial role in the formation of international law, by initiating discussion on topics within the scope of their interests, drafting and proposing conventions, lobbying, providing expertise to governments, and assisting on-the-ground implementation of international remedies for human rights abuses and humanitarian catastro- phes.191 NGOs have traditionally had strong representation at the UN conferences on women's issues. Women's roles in NGOs have proven empowering to them and have resulted in a very significant influence on international human rights law and in other areas.'92 Thus, continued and increased participation of women in NGOs, and increased pressure by NGOs on states to eliminate barriers to equal representation, may be the best international strategy to increase women's participation in the formation of international law.

188. See supra note 35 and accompanying text. 189. For an illuminating discussion of the pork-barrel pressure upon politicians to respond to the desires of the defense contractor lobby, see generally PHILIP J. SIMON, ToP GUNS: A COMMON CAUSE GUIDE TO DEFENSE CONTRACTOR LOBBYING (1987). 190. See Knop, supra note 34, at 310. 191. The US Ambassador to the United Nations, Richard C. Holbrooke, holds a similar view: I entered the State Department in 1962 ... and one of the most striking changes over those many years has been the decline of governments [sic] and the growth [in] importance of NGOs. NGOs are much more effective now in pressuring for their goals, and governments, which used to have little use for them, cannot [now] ignore them. Words from the Top: An Interview with Richard C. Holbrooke, INTER DEPENDENT (U.N. Assoc. of the U.S.A.), Winter 2000, at 7, 7. 192. A note recently published in the Columbia Law Review discusses the successes of women's NGOs in remedying human rights abuses in a number of countries. See generally Afra Afsharipour, Note, Empowering Ourselves: The Role of Women's NGOs in the Enforcement of the Women's Convention, 99 COLUM. L. REV. 129 (1999).

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Less optimistically, the increase in formal egalitarian rule-making within states may belie a serious enforcement problem. Statutes and common law rules of many or most countries may not formally discriminate between genders, but the implementation may result in discrimination against women. For example, in the United States, the racial "separate but equal" doctrine, formally nondiscriminatory though it was,193 eventually crumbled because separation facilitated discrimination in practice.194 This disparity between "law in the books" and "law in action" is apparent in the politics of gender in most countries.19" And, as I will argue in Section V below, this same problem remains the main barrier to the international legal system adequately addressing women's issues.

V. FEMINIST SUBSTANTIVE CHALLENGES TO INTERNATIONAL LAW

A. Gender Bias and Human Rights

Entwined with the criticism of the world public order as a forum in which women are inadequately represented is the claim that the substantive rules of international law favor men's perspectives and interests, particularly in the realm of human rights law. Several feminists have claimed that the protection offered by international human rights law is "androcentric,"'96 and that "[fleminist jurisprudence provides very substantial challenges to human rights law."'97 They criticize the substantive rules of human rights law as gendered for several reasons, the most common being that women's human rights are ignored or limited compared to men's human rights.

193. Plessy v. Ferguson, 163 U.S. 537 (1896). 194. 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. 195. 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"). 196. Charlesworth, supra note 35, at 386. 197. 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 public/private divide and is inherent in the UN Charter model of human rights. Binion's misconceptions about feminist challenges to human rights law may also be related to her misconception of international law as being merely politics or litigation in courts. Cf. id. at 514 (criticizing reliance on law to protect women's rights because of the limitations of litigation).

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This claim was behind the times when advanced by Charlesworth et al. in 1991, and is superannuated a fortiori in the year 2000. In the past few years, the General Assembly has passed a significant number of resolutions affirming the importance of women's rights.'98 The Commission of Human Rights has also focused increasingly on women's rights, specifically referring to women's rights in more than half of its resolutions at the fifty-third session and requesting all of its working groups, and many of its rapporteurs, to emphasize governmental accountability for gender-specific abuses.'99 There are a multitude of international instruments that affirm women's rights, including: the 1929 and 1949 Geneva Conventions, which require combatants to treat women prisoners of war "with all regard due to their sex" and equally to male prisoners in all other respects;200 the UN Charter, which was the first international instrument to establish women's full equality and equal right to participate in the United Nations;201 the 1948 UDHR;202 the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others;203 the Fourth Geneva Convention, which forbids the assault, rape, or forced prostitution on women;204 the First Geneva Convention and the 1977 Geneva Protocols, which require combatants to treat expectant mothers with a "particularly high degree" of protection and respect, including removing them from any areas of combat;205 the 1951 Convention Concerning Equal Remuneration

198. 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). 199. 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). 200. 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. 201. U.N. CHARTER preamble, arts. 1(3), 8. 202. UDHR, supra note 117, arts. 2, 16. 203. 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). 204. Fourth Geneva Convention, supra note 86, art. 27. 205. 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 1), 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).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 709 for Men and Women Workers for Work of Equal Value;206 the 1953 Convention on the Political Rights of Women;207 the 1957 Convention on the Nationality of Married Women;208 the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages;209 the 1967 Declaration on the Elimination of Discrimination against Women;210 the 1979 CEDAW;211 the 1981 African Charter on Human and People's Rights;212 the 1993 Declaration on the Elimination of Violence against Women;213 and the 1995 General Assembly Resolution on the Girl Child.214 CEDAW is perhaps the most prominent of all. As of 1999, CEDAW has been ratified by over 160 states.215 Signatories to that convention undertake to eliminate and penalize all practices that have as their purpose or effect discrimination against women in political, social, economic, cultural, and other spheres,216 including such pernicious practices as trafficking in women and exploitation of prostitution.217 This commitment applies to preventing discrimination by public officials, private individuals, businesses, and organizations. CEDAW also imposes positive obligations on

206. 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) [hereinafter ILOLEX]. 207. 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). 208. Convention on the Nationality of Married Women, 20 Feb. 1957, 309 U.N.T.S. 65 (entered into force 11 Aug. 1958). 209. 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). 210. 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). 211. CEDAW, supra note 77. The anagram CEDAW also is used to refer to the Committee on the Elimination of Discrimination Against Women, which was established by the Convention in 1982 to monitor its enforcement. For a superb discussion of the work of the Committee, see generally Andrew C. Byrnes, The "Other" Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women, 14 YALE J. INT'L L. 1 (1989). 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) . 216. CEDAW, supra note 77, arts. 1-2, 9-13, 15-16. 217. Id. art. 6.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 710 HUMAN RIGHTS QUARTERLY Vol. 22 signatories to promote: "the full development and advancement of women" ;218 cultural and social change to eliminate prejudices and stereotypes,219 an understanding of maternity and the common responsibility of men and women to raise children;220 and equal opportunity to participate in the national and international political life of the state.221 Article 14 deals with the particular needs of rural women, who often suffer from an oppressive combination of discrimination and disempowerment.222 Part V establishes the Committee on the Elimination of Discrimination of Women.223 Despite these apparently strong protections, Charlesworth and her colleagues dismiss CEDAW as an "ambiguous offering."224 It is certainly not ambiguous relative to the previous silence in international law on the issues. On the other hand, CEDAW generally obliges states only to take "all appropriate measures" to ensure the observance of human rights, but does not set forth specific mandatory measures or predictable penalties for states that fail to take positive action to implement the Convention. Although some vagueness in these provisions is unavoidable, the abject failure of the international legal regime to protect women against violations of their rights under the Convention indicates that the problem is not in CEDAW itself but in states' lack of political will to ensure observance of the Convention through institution building and diplomatic pressure.225 Outside of the conventions designed specifically to address women's concerns, many general human rights instruments have particular provisions targeted at women's issues. For example, the 1967 Convention Concerning the Maximum Permissible Weight to be Carried by One Worker, for example, limits the amount of weight females can be required to carry to levels "substantially less" than those carried by men.226 On a broader level,

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. It should be noted, however, that the dynamics of diplomatic pressure and persuasion are not simple. Some states are more susceptible to pressure and persuasion than others. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS 1-6, 117-19, 207-09 (1998), and some NGOs and states more than others have greater influence over particular states. 226. 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 Instru- ments 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.

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in 1993, the World Conference on Human Rights in Vienna integrated violence against women and other women's rights into the overall UN human rights agenda, thus achieving precisely what Charlesworth and her colleagues advocated, although not through the optimal method (greater female representation).227 It should also be noted that, although there remains some tension between protecting women's special needs and providing equal treatment to men and women, the international legal community has begun to abandon the archaic and unnecessarily patronizing practice of differentiating between "male type of work" and "female type of work" in trying to protect women's interests, as exemplified by the 1935 Convention Concerning the Employment of Women in Underground Work in Mines of All Kinds228 or the 1919 Convention Concerning Employment of Women During the Night.229 For example, in 1990, the International Labor Organization (ILO) revised the Convention on Night Work to require equal treatment.230 Nonetheless, most feminists would argue that this does not necessarily justify abandoning all labor conventions that grant special protections designed for women's particular needs.23' Some feminists argue that to treat human rights as equally applicable to men and women ignores the fundamental disparity in their economic and social power.232 According to the United Nations, women receive only ten percent of world income and hold roughly one percent of world property,233 and this disparity in wealth is not being redressed very quickly. The global

227. 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). 228. 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. 229. 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. 230. 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. 231. See, e.g., Compa, supra note 226, at 161 ("[l]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."). 232. See Rao, supra note 32, at 243-44. 233. UNITED NATIONS, THE WORLD'S WOMEN 1970-1990: TRENDS AND STATISTICS (1991).

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"feminization of poverty" points to an underlying bias in human rights law. In this view, international law has created a "hierarchy of values" in which civil and political rights are treated as more important than social and economic rights.234 This argument fingers a significant shortcoming in international human rights law. While CEDAW aspires to guarantee equality of opportunity to all women, the wealth disparity has not substantially improved since CEDAW's entry into force. It should be noted that international law does not display gender bias in privileging political and civil rights over economic rights; greater political power tends to lead to greater economic power. The core economic rights necessary to exploit political power to achieve greater wealth, such as the right to own property and be gainfully employed, are protected by CEDAW. Nonetheless, I agree that international human rights law should require states to restructure their property laws to favor greater wealth equality. Of course, at root, this particular criticism does not attack the international legal system; it really attacks the economic, political, and cultural hierarchy within states themselves. After all, if women and men had equal economic, media, and political power within every state, then theoretically, an international guarantee of equal human rights for men and women would be moot, except to the extent that it furthered the continuation of this equality. While the international legal system has had little role in abating wealth inequality within states, and arguably permits some forms of gender inequality, it cannot reasonably be considered a significant cause of the inequality.235 The cause of the inequality, rather, is the entrenched wealth concentrations and discrimination within states.236 This does not foreclose aspirational arguments that human rights law should encompass a positive right to property redistribution, but it does discredit arguments that human rights law currently has some role in creating inequality. In this subsection, I have argued that international human rights law should be structured to encourage greater wealth equality for women, but

234. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Towards a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Buss, supra note 61, at 362. 235. 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. 236. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 713 that it otherwise sets high standards of human rights protection of women. Some of the legal instruments since 1945 are declarative of a right to equality, and others would correct gender-based discrimination and disadvantage.237 Significantly, however, most of these international instruments are "framed as policy initiatives rather than as measures pursuant to human rights standards."238 Again, as with CEDAW, the instruments fail to create effective enforcement institutions.239 Nevertheless, progress has been made in setting minimum standards for state practices and should be acknowledged by any realistic assessment of women's human rights under international law.

B. Gender Bias in lus in Bello

The only other detailed attacks against international law on the substantive grounds outside of human rights law address alleged gender bias in ius in bello-the international law governing the conduct of armed conflict.240 Judith Gardam has published critiques of the supposed gender neutrality of international humanitarian law based on her claim that civilians, especially women, suffer disproportionately.241 She calls humanitarian law "gendered" because she believes that the distinction between combatants and noncombatants is inherently gendered. Gardam then tries to substantiate her claim of clear "gender bias in the development and content of the rules of armed conflict."242 As evidence, she cites the fact that rape was not explicitly

237. Natalie Kaufman Hevener, in an original and thoughtful article, has classified human rights treaties affecting women under three classifications: protective, corrective, and nondiscriminatory. Natalie Kaufman Hevener, An Analysis of Gender Based Treaty Law: Contemporary Developments in Historical Perspective, 8 HUM. RTS. Q. 70 (1986). 238. Donna Sullivan, The Public/Private Distinction in Human Rights Law, in WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES 132 (Julie Peters & Andrea Wolper eds., 1995). 239. It should be noted that some commentators have also drawn attention to the troubling practice of allowing reservations to the human rights conventions. See generally Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimina- tion Against Women, 85 AM. J. INT'L L. 281 (1991); Cook, supra note 66. 240. 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. 241. Judith Gardam, Gender and Non-Combatant Immunity, 3 TRANSNAT'L L. & CONTEMP. PROBS. 345 (1993). 242. Id. at 353.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 714 HUMAN RIGHTS QUARTERLY Vol. 22 prohibited in an international legal instrument until the Fourth Geneva Convention in 1949.243 In effect, she claims that ius in bello is biased against women conceptually (i.e., in its combatant-noncombatant distinction), in substance, in interpretation, and in enforcement. This claim has been echoed and amplified by others.244 Although women currently make up only two percent of military personnel,245 and civilians may suffer more in wars, there is little evidence that the issue is gender bias per se in international law. Gardam's first claim-that the combatant-noncombatant distinction is gender biased- overlooks the fact that international law in no way prohibits women from assuming the role of combatants. (Indeed, she herself admits that "barriers in many States to women's participation in the military are being lifted."246) It is possible that many women, when given the choice between the roles of combatant and noncombatant, will choose the latter. Another reason not to read gender bias into the distinction between combatants and noncombatants is that the claim becomes absurd when applied to other distinctions commonly made by states. For example, one could claim that the combatant- noncombatant distinction is inherently age-biased because men older than thirty-five years are generally not enlisted as soldiers in the United States. Does ius in bello therefore discriminate against older men? Gardam's second point raises similar potential objections. The evidence she cites, that no international legal instrument outlawed rape until 1949, does not apply to the current state of international humanitarian law. In the first place, the lack of treaties does not address whether customary law forbade rape. Did the majority of countries during the First World War, for example, believe that rape was permissible under international law?247 Even after 1949, Gardam denies that Article 27 of the Fourth Geneva Conven- tion248 and Article 76 of Protocol 1249 (forbidding rape) has become customary law because of contrary practice by some states. This seems unlikely; rape is clearly contrary to the customary international law of war and human rights law as well, and the prohibition on rape is now largely recognized to apply in "internal" conflicts as well as international conflicts.250 Gardam's claim that most states "constantly" practice rape in

243. Fourth Geneva Convention, supra note 86, art. 27, ? 2. 244. See, e.g., Charlesworth, supra note 35, at 385-88 (claiming that rape "has been understood" as legitimate "spoils" of war). 245. UNITED NATIONS DEVELOPMENT PROGRAMME (UNDP), 1995 HUMAN DEVELOPMENT REPORT 45. 246. Gardam, supra note 241, at 350. 247. On this point, see generally Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT'L L. 424 (1993). 248. Fourth Geneva Convention, supra note 86, art. 27. 249. Protocol I, supra note 205, art. 76. 250. For an interesting discussion of moribund distinction between international and internal armed conflict, see generally Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 TEX. INT'L L.J. 237 (1998).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 715 warfare is highly dubious.251 No state openly sanctions rape, and there is no evidence that the political elites of more than a few inveterately lawless states might believe rape to be a legal tactic of warfare. In any case, the fact remains that rape has been formally outlawed for fifty years.252 The barbaric practices of earlier ages do not show that bias exists in the present age. In short, there are many grounds upon which one could challenge Gardam's claim that international law itself is formally biased, substantively or conceptually. While others have marshaled convincing evidence that women civilians do suffer disproportionately in armed conflicts,253 the reason, as Gardam points out in her third argument, is that more women than men are usually noncombatants,254 and states generally value the lives of their soldiers of whatever gender more than the lives of "enemy" or even neutral civilians of whatever gender.255 States have tended to construe the discrimination and proportionality requirements of ius in bello narrowly to serve their ends of minimizing the loss of military lives, even at an increased cost in civilian lives. Without international consensus to punish states (by mandatory indemnity or otherwise) for this kind of skewed calculus, the practice is unlikely to change. The reasons are political. Men and women can tolerate watching "enemy" civilians be slaughtered if they are con- vinced that the cause justifies it, but they are unlikely to tolerate seeing many soldiers of their nationality die unless the survival of their state, race, or a deeply held ideological belief is perceived to be at stake.256 Pragmati- cally, elites may determine that the death of a certain number of civilians will have a less negative impact on their political goals than the death of an equivalent number of their combatants.

251. 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. 252. 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. 253. See Christine M. Chinkin, A Gendered Perspective to the International Use of Force, 12 AUSTL. Y.B. INT'L L. 279 (1992). 254. See Gardam, supra note 241, at 358. 255. See id. at 350. 256. 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).

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From a philosophical standpoint, it is hard to justify the distinction between soldiers of a common nationality and civilians of another,257 but when political psychology and philosophy do battle in a democracy, philosophy almost always loses. Without institutions in place to flesh out and monitor norms of proportionality, discrimination, and military necessity, and to influence states to conform to those norms, women will continue to suffer disproportionately in armed conflicts.

VI. NONENFORCEMENT OF WOMEN'S RIGHTS

A. Enforcement Against Public Violations of Women's Human Rights in spite of the many legal instruments catering to women's concerns, discussed above in Section V.A, the current world public order is not structured in such a way that the many international prescriptive standards formally protecting women's interests truly serve women's basic needs on a practical level. As indicated above, the most empirically supported feminist criticism of international law is not that its rules or procedures are biased against women, but that the international community has failed to actualize the standards set forth in the various human rights and humanitarian law instruments. Human rights law, including laws affecting women, receive less attention than many less important international rules. It is surprising that gender-biased states could agree on such an egalitarian body of law, so it was not entirely unpredictable that the same states would not consistently comply with the law. International law, like most law, relies primarily upon self-enforcement. Rare is the legal system that proves so effective at external coercion that it can always ensure consistent compliance with its rules. Accordingly, the historical record of state self-enforcement in international human rights norms leaves much to be desired, particularly as they relate to women. The promises have been made, but their fulfillment remains a remote aspiration. This fulfillment is the strategically opportune focus for feminists interested in advancing women's interests through international law. In previous sections of this article, I have described the UN Charter model as both considerably more reflective of the female experience and more respectful of women's concerns than the Westphalian model. More-

257. 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!"

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 717 over, international human rights law sets high standards for the protection of women's interests. Yet, suttee continues in India. Female genital mutilation continues, primarily in Africa; worldwide, approximately 120 million girls and women have suffered genital circumcision and possibly mutilation, with some two million more at risk every year.258 The selling of girls for sexual slavery continues, primarily in Southeast Asia, with some two million girls between the ages of five and fifteen introduced into the sex market every year.259 The neglect, malnutrition, murder, selective abortion, abandonment, and much higher mortality rate of baby girls continues in the People's Republic of China (PRC)260 and elsewhere. In the PRC, some ten percent of girls who should have been born in the 1990s were either aborted or killed.261 More broadly, at least 60 million girls are missing from the world population due to sex-selective abortion or intentional systematic neglect.262 By some reports, "honor killings" are actually increasing in Pakistan-women are murdered by their husbands for going shopping, talking to an unrelated man, or other trivial acts. The men are rarely tried, and, even when convicted, they are given lenient sentences.263 Sexist laws continue in force in many countries; Guatemalan law, for example, still grants husbands the right to prohibit their wives from working outside the home.264 The use of rape as a method of armed conflict continues. In the Rwandan civil war from 1994 to 1995, for example, reports of mass rape placed the number of women and girl victims within a range of 15,700 to over 250,000.265 Similar tragedies occurred during the civil war in the former Yugoslavia in 1993. There were even unconfirmed reports of UN peacekeepers forcing Muslim women into prostitution during that conflict,266 reports that echo and amplify earlier stories of peacekeepers

258. 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. 259. See UNITED NATIONS POPULATION FUND, supra note 174, at 3, 46. 260. 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 Al. 261. See Early Warning: China, WORLD PRESS REV., Mar. 1999, at 18. 262. UNITED NATIONS POPULATION FUND, supra note 174, at 3, 42. 263. See Steven Shabad, Regional Report: Pakistan,'Honor Killings' WORLD PRESS REV., June 1999, at 23. 264. See CODIGO CIVIL art. 114 (Guat.). 265. See Wars Increase Sexual Violence Against Women, FT. WORTH STAR-TELEGRAM, 23 Nov. 1996, at 24. 266. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 718 HUMAN RIGHTS QUARTERLY Vol. 22 harassing women and frequenting prostitutes during missions in other countries.267 For all the richness of the English language, there is no precise word for this kind of ubiquitous, incomprehensible barbarity. Even in the United States, which prides itself on its observance of human rights, when the federal government has undertaken to link workers rights or related concerns with trade laws (for example, through the Generalized System of Preferences,268 Overseas Private Investment Corpora- tion,269 the 1974 Trade Act,270 the 1988 Omnibus Trade and Competitiveness Act,271 or the Caribbean Basin Initiative272), the laws do not contain antidiscrimination provisions that would benefit female workers.273 Further- more, despite offers from the ILO to provide technical assistance, the United States made no effort to protect women's labor and health rights in the Uruguay Round negotiations of the GATT, or the GATT Implementation Act.274 As for international law itself, it may require the punishment of combatant rapists, torturers, and other violators of humanitarian law, but it has not yet required states to provide compensation and support services for the victims.275 This neglect contributes to the disproportionate suffering of women civilians in war.276 More broadly, women are far more likely than men to become socialized into practicing pointless indignities or self-destructive behavior that the human rights regime does not currently encompass. Female prostitution and pornography are extremely common throughout the world. In the United States, women continue to be culturally persuaded of the need to seek cosmetic facial surgery, liposuction, and breast surgery. It has been estimated that 2-3 million women in the United States have had silicone gel implanted into their breast-four in five purely for breast enlargement.277 In Turkey and Japan, women commonly undergo the painful procedure of having their

267. 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). 268. 19 U.S.C.A. ? 2462(b)(2)(G), (c)(7) (West 1999). 269. 22 U.S.C.A. ? 2191a(a) (West Supp. 2000). 270. Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (codified as amended in scattered sections of 19 U.S.C.). 271. 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.). 272. 19 U.S.C.A. ? 2702(b)(7), (c)(8) (West 1999). 273. Compa, supra note 226, at 158. 274. Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (codified as amended in scattered sections of 19 U.S.C.). 275. See Christine Chinkin, Rape and Sexual Abuse of Women in International Law, 5 EuR. J. INT'L L. 326, 337 (1994). 276. See Chinkin, supra note 253. 277. See Coco, supra note 142, at 103.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 719 pubic hair waxed and pulled out because it is considered unattractive. Examples of women's acculturation to self-destructive habits abound. International neglect of women's suffering reflects an international neglect of human rights enforcement generally. States often fail to take human rights law seriously unless it suits the immediate interests of their political elites. For example, on 5 October 1998, the member states of the United Nations allowed the PRC to sign the 1966 International Covenant on Civil and Political Rights, which establishes, inter alia, the people's right to self-determination, freedom of expression, and freedom from torture and cruel or degrading punishment.278 The same day, Chinese authorities detained Qin Yongmin for three hours and threatened him with prosecution if he persisted in his attempt to register a human rights monitoring group.279 The other signatories took no action. This inaction is symptomatic of the tendency of some governments to "sign everything and do nothing," to paraphrase a complaint of a feminist activist in Nepal.280 The neglect of human rights law results partly from the emphasis of industrialized states on dollar diplomacy rather than the spread of democracy and respect for human dignity. The international law standards are clear, but, unfortunately, so are the priorities of most states. Thus, an incisive feminist criticism of the world public order is that women's human rights are under-enforced, not because of androcentrism, worldwide misogyny, or even limitations on international resources, but rather because international resources are currently misallocated. The proliferation of treaties on antitrust cooperation, intellectual property rights, continental shelves, customs duties, double taxation, and other economic concerns that primarily benefit men means less concentration on human rights issues of great concern to women.281 Economic treaties typically neglect women's wealth inequality and their specific interests, and domestic implementation laws of these treaties follow the trend. For example, as one author has emphasized, worker's rights-related US trade law ignores principles of equality of opportunity and treatment, and it also misses an

278. 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). 279. See China Signs UN Human-Rights Agreement; Activist Detained on Same Day in Wuhan, GLOBE & MAIL (Toronto, Can.), 6 Oct. 1998, at A16. 280. Binion, supra note 148, at 522 n.45. 281. 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.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 720 HUMAN RIGHTS QUARTERLY Vol. 22 opportunity to benefit female workers in the export sector of economically less-developed countries.282 More broadly, economic treaties proliferate far beyond women's rights and other human rights treaties. For example, an electronic search of multilateral treaties deposited with the United Nations found only three treaties concerning the status of women and fourteen treaties on human rights generally. In contrast, the search discovered sixty-seven treaties on such economic subjects as international trade and economic cooperation, commercial exploitation of the sea, and commodities (e.g., the International Cocoa Agreements of 1972, 1975, 1980, 1986 and 1993283). What makes this result even more surprising is that human rights conventions are usually multilateral and not bilateral, unlike many economic treaties. This is not to say that there are not adequate prescriptive norms protecting women's human rights; rather, the concentration on treaties dealing with economic issues illustrates the values and priorities of the states that negotiated them. Perhaps most importantly, economic treaties, unlike human rights treaties, generally have some teeth. The Uruguay Round of the GATT resulted in a generally effective institutionalized enforcement authority-the WTO.284 The UN Conference on the Law of the Sea resulted in the formation of another institutionalized enforcement authority-the International Law of the Sea Tribunal stationed in Hamburg, Germany.285 Even the International Cocoa Agreement of 1972 established an institute to administer the law- the International Cocoa Organization.286 This is not to say that courts or tribunals themselves are adequate institutions for the enforcement of international law, but they do demonstrate the commitment of states to institution building in these fields of law. What enforcement authority

282. See generally Karen F. Travis, Women in Global Production and Worker Rights Provisions in U.S. Trade Laws, 17 YALE J. INT'L L. 173 (1992). 283. 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 (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). 284. See supra notes 109-10 and accompanying text. 285. 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). 286. International Cocoa Agreement of 1972, supra note 283, art. 5. More information on the International Cocoa Organization may be harvested at its website, (visited 1 May 2000).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 721 resulted from the UN 1995 Fourth World Conference on Women in Beijing?287 When the PRC violates Microsoft's rights under the GATT or any of the US-PRC intellectual property treaties or agreements, the US government promptly growls in indignation, leaps to Microsoft's aid, and ceremo- niously applies Section 301 sanctions.288 This is an economic issue with relatively trivial human consequences. Yet, when Thai skin traders kidnap hundreds of prepubescent Cambodian girls and sell them for the pleasures of American sex tourists, the US government may suggest a conference on the subject. To be effective, international law requires institutions to exert pressure on violators, or at least the formulation of systemic norms that result in some kind of sanctions to alter the cost-benefit calculus in favor of observance of international law. Until the international community agrees on these measures, one must ask whether the women's rights codified since 1945 are law in the same sense that the GATT is law, or whether they are just a convenient way to shut up feminists and human rights activists while the "big boys" (and increasingly "girls") make their financial deals. In spite of the dedication of many individuals and NGOs to eliminate human rights abuses, state governments only sporadically show real concern and can rarely muster the political will to commit to a concrete international human rights enforcement regime.289 One of the most telling ironies is that CEDAW was enacted, according to its preamble, because the state parties to the convention were concerned that, in spite of a significant number of UN treaties and conventions promoting equal opportunity and equal rights for women, "extensive discrimination against women continues to exist."290 The parties apparently decided that the solution to the problem of real world violations of treaty-based rights was to create more treaty- based rights.

287. See Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, U.N. 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). 288. For an explanation of Section 301 sanctions, see Alan C. Swan, "Fairness" and "Reciprocity" in International Trade Section 301 and the Rule of Law, 16 ARIZ. J. INT'L & COMP. L. 37 (1999). 289. 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. 290. CEDAW, supra note 77, pmbl.

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B. Enforcement Against Private Violations of Women's Human Rights

As discussed in Section III.A.3 above, CEDAW requires states to take "all appropriate means" to protect women's human rights. The interpretation of this exhortation is, of course, highly subjective. A covenant to take "all appropriate means" is stronger than an undertaking to "respect" certain rights, insofar as states commonly claim observance of the treaty provisions through precatory language without actual institutional action, but not as strong as an undertaking to "secure" or "ensure observance of" such rights, which may engage state responsibility before an international tribunal.291 CEDAW could be improved by a new formulation of the standard under which states agree to hold each other accountable for failing adequately to protect women against domestic violence, forced prostitution, grossly disproportionate poverty, and other women's human rights violations and to punish their abusers on a systemic level. Professor Cook argues that states holding each other responsible to "secure" or "ensure observance of" such rights would be ideal, but a suitable compromise may be to hold states "accountable" for such violations.292 She makes a compelling case for a standard of "due diligence" that "reasonably reflect[s] state capacity for observance and avoid[s] doctrinaire or rhetorical absolutism."293 And I would add that "state capacity for observance" can be increased through wealthier states providing technical and economic assistance to less wealthy states. Interestingly, Cook also believes that the standards should not be enforced by international institutions:

The challenge is to establish evidence of a quality that obliges a response through credible international tribunals or agencies. Relatively few international agencies have the legal authority to compel states to respond to accusations of human rights violations committed against their own nationals originating in behavior of non-state authorities. Fewer have legal authority and practical capacity to conduct investigations into such accusations by entering states in question and compelling or otherwise requiring evidence regarding such accusations.294

Cook believes it is more promising for states to enforce international human rights obligations by requiring their own internal institutions to study and react to human rights violations and to ensure the availability of civil and

291. Cook, supra note 58, at 93, 103. 292. Id. at 108. 293. Id. at 114. 294. Id. at 112.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 723 criminal remedies.295 Or in the words of a popular bumper sticker: "Think globally, act locally." Cook's solution perpetuates the public/private distinction that many feminists condemn as a "repressive system of control over women."296 Putting aside that criticism, feminists may be more open to Cook's solution if undertaken in greater cooperation with those NGOs in which women may have greater influence and more equal representation.297 Yet, Cook's preferences would seem to result in only minor changes to the existing system. States would simply take a more active interest in each others' internal neglect of women's human rights and would hold each other more directly accountable for failure to punish, deter, and remedy private violations of human rights. While these are very attractive recommendations, how this accountability would play out would presumably be an entirely political choice by states, as it is now. Individuals would be required to exhaust local remedies before pursuing a remedy at an international level.298 This would be a very pragmatic and probably effective solution to the accountability problem. In addition, this view does not appear to preclude at least the supplementary establishment of an independent international institution charged with investigating states that exhibit a consistent failure to enforce such rights, and with the further power to declare a state in violation of its treaty obligations if the evidence so warrants. Nor would it seem to preclude an international criminal court with direct, concurrent jurisdiction over individuals who participate in certain atrocities such as genocide or terrorism. In the short run, any such system of self-monitoring encounters a threshold problem. First, one must distinguish between the willingness and the ability of states to comply with such a rule. Some feminists, such as Professor Gunning, doubt that states have this kind of control over private acts.299 Cook's argument responds to this concern by requiring states to

295. See id. 296. See Charlesworth et al., supra note 2, at 629. 297. See Knop, supra note 34, at 310. 298. Cook, supra note 58, at 114-15. Cook does not state what such a remedy would entail or how an individual might seek it, although presumably she would find a place for international institutions at this level of appeal, serving perhaps as a worldwide version of the European Court of Human Rights ("ECHR"). The ECHR offers precedents for this approach. For example, the Court has recently found Italy to have violated Article 6(1) of the European Convention on Human Rights by its failure to honor its citizens' right to a fair trial within a reasonable time. The court cited a pattern of over 1400 reported violations of this duty. Bottazzi v. Italy, Eur. Ct. H.R., Case No. 34884/97 (July 28, 1999), available at (visited 1 May 2000). 299. See Gunning, supra note 126, at 239.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 724 HUMAN RIGHTS QUARTERLY Vol. 22 comply to the extent of their ability. On the other hand, it is clear that many states simply are not willing to enforce the human rights laws to which they have formally agreed in international charters and treaties because international rules constraining state behavior shift power away from state elites. If states were willing to agree to be held concretely responsible for implementing protections against discrimination and abuse of women, then an international regime with such a norm would be much less necessary. Absent a broad willingness to adhere to a treaty with teeth, well-intentioned states have no timely means of creating international law that forces less liberal states to protect women's rights. As Tes6n notes, governments often have been "the most egregious culprits in violating human rights."300 A strategy of continual pressure by the international community and NGOs is likely to be effective in the long run and is consistent with the trend toward abandoning the antiquated Westphalian notion of sovereignty in favor of responsibility to the international community characteristic of the UN Charter model.301 The recent proposal for the establishment of the ICC, with concurrent jurisdiction over individuals, reflects this trend.302 I would argue that in addition to Cook's recommendations, the establishment of an effective and independent supranational institution to gather and publish compliance information, recommend enforcement procedures, and adjudicate state compliance with human rights norms would serve women best on an international level.303 On the question of enforcement styles, Professor Gunning proposes that states should take a non-punitive approach designed to change abusive cultural practices slowly through education and dialogue.304 She argues that such an approach avoids a confrontation that would be likely to harden local resistence to perceived neocolonialism-a major psychological road- block to ending culturally entrenched practices. Gunning's approach would also assist the human rights community in understanding the cultural context of the perceived human rights violation, so that steps could be taken to prevent any serious cultural dislocation caused by ending the practice.

300. Tes6n, supra note 71, at 662. 301. 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. 302. ICC Statute, supra note 108, art. 1. 303. 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. 304. See Gunning, supra note 126, at 244-45.

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For example, cultures that practice genital mutilation could substitute simulating rituals in which no actual cutting was performed. Gunning's self- limitation wold eschew state "enforcement" as such. However, historically, change occurs more reliably when both education and the force of law operate coextensively. The civil rights movement in the United States illustrates this synergy. In any case, liberal feminists would argue that preventing human rights violations is not a matter of a "search for shared values . .. [and] consensus" or a continuous "dialogue at all levels of complexity."30s The point is to eradicate the practice quickly before more girls get their genitals mutilated, burn on their husband's funeral pyre, grow up illiterate and unskilled, or spend more years governed by authorities they did not participate in electing. A more "postmodern" view is that Gunning's proposal may be viewed by some as a stealthy form of neocolonialism. Far from respecting the culture of foreign women, in this view, Gunning proposes to demolish its practices by "persuasion" rather than outright illegality. Indeed, Gunning herself speaks of "the process of creating shared values."306 Needless to say, those values are predetermined to be the ones currently favored by the human rights community. Can one imagine "creating the shared value" of revering genital mutilation? Nonetheless, Gunning's point is well taken. Persuasion and education, legally imperialistic though it may be, is a necessary supplement to (though not, as Gunning argues, a replacement for) outlawing the practice as a violation of international human rights norms. Parochialism may more often be to blame for negative reactions to international human rights law than disagreement over the value of the condemned practice itself, and parochialism can and should be countered by education and exposure to different ideas.

C. Priorities of the World Community and International Law

In response to the feminist claim that international law is "thoroughly gendered" in substance, Tes6n points to the rules governing such subjects as state criminal jurisdiction or ocean fishing rights.307 He asks how such rules could be anything but gender neutral. On the surface, the international law governing, say, state jurisdiction over salmon fisheries or the definition of an inland waterway does not damage women in any way, and it is hard to

305. Id. at 245. 306. Id. at 246 (emphasis added). 307. Tes6n, supra note 71, at 655.

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 726 HUMAN RIGHTS QUARTERLY Vol. 22 imagine that perspectives on this issue would differ by gender. Most women probably have even less interest than men in the issue of how close an island should be to a coastline to make the sea between them an inland waterway. However, the very concentration of the international agenda on such economic or procedural issues has operated significantly to exclude enforcement of women's rights. This observation derives from a basic truth about human values: We manifest our priorities not so much by what we say about a subject as by which subject we think about and act upon. It is the agenda, who is "at the table" and what is upon it, that drives political and social change. Consider that, not long ago, the United States enacted a law slapping sanctions on states that deny religious freedom to their populace.308 When has it ever enacted legislation sanctioning gross violators of women's rights abroad? Most international law is itself gendered neither in substance nor procedure, but it is gendered in its focus and lack of compliance institutions. Returning to the question of whether women's rights are "law" in the same sense as the GATT, the answer is largely "no." The treaties set standards, some of which are regularly observed, but many of these standards lack the serious possibility of sanctions against violators. Most states apparently do not believe that neglect of the obligations imposed by CEDAW will result in significant international political costs. The widespread abuse of women and repression of basic human rights for women therefore continues in many states. Note that some steps have recently been taken to improve enforcement through dissemination of information and institution building,309 and that some states have also taken remedial

308. 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)). 309. As noted above, the statute of the International Criminal Court defines rape, sexual slavery, enforced prostitution, forced pregnancy or sterilization, and any other form of sexual violence as a crime against humanity and a war crime within its jurisdiction. ICC Statute, supra note 108, arts. 7(1)(g), 8(2)(b) & (e). This is a significant positive step. The World Health Organization (WHO) has set up a database on the global prevalence of domestic violence, rape, and sexual assault; it conducts seminars on the health aspects of violence against women for young doctors and gynecologists from developing countries; and it conducts studies on the prevalence of domestic violence, its health consequences, and potential protections against such violence. See Tomris Turmen, The Health Dimension, 35(1) U.N. CHRON. 18 (1998), available in 1998 WL 16136140. The International Labor Organization (ILO) has an ongoing Equality for Women Program with a significant though not impressive annual budget (mostly funded by the Netherlands, Denmark, and Norway, it seems), as well as many other ongoing women's programs, and has sponsored many regional conferences on working women's issues. See Compa, supra note 226, at 155-56. For example, the Program for Employment Promotion for Women establishes information networks to enable women to take advantage of the employment and income opportunities created by economic reform or changes in state government policies to address women workers' needs. Also recently, the United Nations Development Fund for Women (UNIFEM), which has sponsored projects on women's needs since 1976, launched a $1.2 million trust

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 727 international action,310 but these measures have largely been symbolic or relatively marginal in effect. This failure of the international community to enforce women's human rights law reflects the dereliction of human rights law enforcement generally, particularly the rights of children who are even more vulnerable to abuse and the deprivations of poverty than are women. The gender bias in the focus and enforcement of international law echoes the lamentably distorted values of the political elites in most states. A fundamental obstacle to prevention of suffering by women and an increase in their representation at domestic and international levels has been the tendency for states and international organizations to spend their time and resources on drafting and signing new international instruments instead of enforcing the surprisingly enlightened ones that already exist. Although the international triumph of capitalism over what was labeled "world communism" may lead to greater general freedom and prosperity, it has also contributed an unnecessary obsession with wealth and an underemphasis on the protection of human rights. There are now about two dozen significant international instruments purporting to protect the rights of women or remedy gender-based inequalities. But rights mean little without corresponding remedies, and remedies are unlikely without institutions.

fund dedicated to eliminating violence against women. While UNIFEM will contribute to some 23 projects in 18 countries, see Shattering the Silence of Violence Against Women, 35(1) U.N. CHRON. 15 (1998), available in 1998 WL 16136137, the amount of money involved is insultingly small. Few major countries have contributed; the United States does not stand among them. (Currently, the contributors are Australia, Denmark, Italy, Japan, South Korea, Malta, Mauritius, and the Netherlands. See id. at 17.) Sadly, the projects do not promise to be overwhelmingly effective. For example, one project in the Philippines will produce a thirty-minute educational video on the rights of migrant female workers. See id. at 16. 310. The US Agency for International Development (USAID), which offers grants and loans to developing countries, has launched a Women's Political Participation program and a Women's Legal Rights Initiative. The former provides political leadership training, civic education, and technical training to women living in "transitional and consolidating democracies." See ABA Sec. of Int'l Law & Prac. & the Standing Comm. on World Order Under Law, Reports to the House of Delegates, 30 INT'L LAW. 867, 880 (1996). The latter encompasses international efforts to gather and disseminate information on women's legal rights and to help NGOs correct weaknesses in the enforcement of women's legal rights, as well as a program designed to strengthen legal literacy, integrate gender issues into law school curricula and judicial training, support legal clinics, and persuade legislators to provide more gender-equitable laws. See id. USAID will also contribute about $150 million (dedicated specifically for women) to the World Bank's microenterprise fund. See id. at 881. Domestically, many states have begun to reform their sexist laws. In 1989, for example, Ecuador struck from its books a law that gave the husband the right to force his wife to live with him, regardless of how abusive he was. See Aparna Mehrotra & Rini Banerjee, Where Battery Begins at Home, 35(4) U.N. CHRON. 38 (1998), 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).

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The UN handbook edition of the UDHR states: "These rights [contained in the Declaration] belong to you. They are your rights."3" Are they? In purdah states, women have no right to vote, independently own property, work outside the home, or choose a spouse.312 If a girl is forced by her family to marry when she prefers not to marry, and if the state refuses to protect her, to whom can she complain that her rights under Article 16 of the Declaration have been violated?313 What international institution will intervene to remedy the violation? This is a query that international lawyers can answer with utter certainty: none. Claiming that someone has a "right" that will not be enforced is demeaning to the standards set by international law. Much worse, it is destructive to the ostensible holder of the right. A feminist critique of international law should emphasize that: (a) if violations of human rights disproportionately affect women; (b) if the massive economic disadvantage women suffer worldwide means that violations of trade, investment, and other economic law under international law do not affect them nearly as much as they affect men; and (c) if international economic law is enforced much more uniformly than international human rights, the logical conclusion is that international law is, in focus and resource allocation, a thoroughly gendered system.

D. Solutions to Gender Bias in International Law

The development of the UN Charter model will gradually lead to stronger enforcement of and focus on women's human rights. But that is a process of accretion, too slow considering the urgency of the issues at stake. The quick solution to this problem is not as simple as it might initially appear. Paradoxically, political elites of the states with the resources and motivation to encourage more effective enforcement of women's rights internationally often perceive themselves as having the biggest stake in maintaining the elements of the Westphalian system, particularly in state-level autonomy or regional hegemony, that would preclude better international enforcement of human rights. As long as the elites of those states believe that "the business of politics is business," the First World's motivation to protect women's rights and foster equality might be adequate to satisfy minimum levels of progress, but it will hardly be optimal.

311. UNITED NATIONS DEP'T OF PUB. INFO., UNIVERSAL DECLARATION OF HUMAN RIGHTS 4 (1988). 312. See generally American Bar Association Special Task Force of the Section of Interna- tional Law and Practice, Report on Women's Human Rights, 30 INT'L LAW. 209 (1996). 313. UDHR, supra note 117, art. 16.

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This principle leads politicians to expend funds in support of business expansion overseas rather than in fostering human rights abroad. The political payoffs for the former are vastly greater than for the latter. Instead, it pays simply to complain about human rights violations, as states often do in Burma, Tibet, the PRC, or Nigeria, without letting such trivial matters interfere with what is really important-the promotion of trade and business abroad. Thus, when (in the mid-i 990s) the United States threatened to deny the PRC "most-favored-nation" status unless it lived up to its commitments to observe human rights, the PRC had merely to threaten to expel US businesses to cause President William Clinton unceremoniously to accede. Charlesworth et al. imply that the failure to enforce women's human rights is the result of a male conspiracy to maintain power at the expense of women. The evidence indicates that the more likely culprits are entrenched conservative attitudes in the less cosmopolitan sectors of the world populace, and powerful businesses demanding that their interests be served by politicians at all costs. As discussed in Section IV above, a top-down approach is unlikely to have any effect on attitudes in the short run, even assuming political elites can be persuaded by other elites to change their attitudes. Political elites may tend to resist an expansion of women's representation in power structures because it impedes them from rewarding their (usually male) associates. They may resist greater enforcement of human rights law because it endangers their political position, undermines the state power upon which their own positions are based, and brings them few political or financial rewards. The solution to advancing women's interests through international law is therefore not to implement quotas on women's representation in states, nor to abolish states themselves. Rather, the optimal solution combines:

* greater women's representation in states through democratic procedures and education of the electorate to eliminate gender bias; * continued women's participation in detection of human rights abuses and development of human rights law through NGOs; * increased state-to-state and continued NGO-to-state pressure to comply with democracy and human rights standards to the extent of their ability and to protect women against private abuses despite the economic retaliation such pressure may cause; * increased emphasis in human rights law on promoting wealth equality for women;

* formation of an international compensation regime for victims of injuries incurred contrary to ius in bello;

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* wealthy states providing dedicated economic and technical assistance to ensure that resources are available to less wealthy states to enforce women's human rights; and

* the formation of an international institution to monitor compliance with human rights law and adjudicate state failures of enforcement.

To achieve practical implementation of these measures, states themselves must ultimately agree to them. The best strategy to inducing state action is a bottom-up-and-across approach-persistent and energetic pressure on domestic and international political elites (e.g., the chief executive of the government, foreign minister or secretary of state, the ambassador to the United Nations, the foreign relations committee of the legislature, and corporate executives) by concerned citizens, public interest groups, and NGOs zealously advocating the effective enforcement of the universal rights of women both at home and abroad. These advocates have the expertise, experience, and will to promote greater enforcement of women's rights and greater representation of women in power structures within the state and in international institutions. By shaping popular attitudes (which are broadly favorable to democracy, human rights, and equal representation) in the most influential countries, providing expertise, and exerting political pressure, feminists can shift political elites' perceptions of the optimal policy choices. If political elites will not take women's interests seriously out of a sense of moral obligation, they may do so to protect their self-interest.

VII. CONCLUSIONS

The criticism of international law theory itself offered by Charlesworth and her colleagues in the American Journal of International Law is helpful insofar as it identifies a serious systemic procedural inequity that women are significantly (though not entirely) excluded from state participation in the formation of international law. However, this criticism does not offer an alternative theory of international law. Nor does it challenge international law per se; it merely challenges the equity of the composition of its organs as well as some of the substantive results of the world public order. After all, human rights are only one part of international law. In any case, this criticism is weakened by the fact that most feminists have, so far, largely ignored the progress of the international legal system in its substantive standards protecting women's rights. The argument that international law is really just "international men's law" would have been much more convincing prior to 1945. Charlesworth, Chinkin, and Wright really do not take issue directly with the international legal system except insofar as it reflects the pattern of male dominance at the state level.

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A critique of the international legal system must also assess the extent to which international law has incorporated a "woman's voice" reflective of women's experiences and has, in fact, protected the rights it promises them on paper. Such a critique must conclude that, since the Second World War, international law has increasingly emphasized equality, inclusiveness, cooperation, caring about individuals, and other aspects of the ethic of care, but that progress remains inadequate. As discussed above, the causes of gender bias in international law are linked to the economic and political disempowerment of women within states, and to the dominance of financial profit over human rights in the international agenda. International law has slowly improved in recognizing women's human rights and is adopting an "ethic of care" to balance the traditional "ethic of justice," but the commitment of states to human rights concerns has not progressed adequately. Many of the poor countries of the world are getting poorer, and, in the vast majority of these less industrialized countries, the social, economic, and political situation of women has not significantly improved relative to men since the end of the Second World War. While attention to women's interests has increased greatly in industrialized states (and continues to improve), rape, the domestic assault of women, and political and economic inequality remain severe problems.314 Wealthier states should establish a fund and offer technical assistance to less wealthy states to ensure compliance with human rights norms, particularly with respect to women. On the diplomatic level, the richer and more powerful states focus more on international economic matters primarily benefiting men than on pressuring other states-particularly dictatorships-to respect women's rights and other human rights and protect their citizens from gender-based discrimination. The fall of communism seems to have shifted this focus slightly, but there has been no momentous change, despite the fact that the democratic states no longer perceive a need to fund less economically developed states-regardless of their human rights records-to prevent them from falling under the sway of the Soviet Union. The solution to gender bias in international law is, therefore, not only to increase the representation of women in international organizations, but to augment their political and economic representation in the states that compose international society. As long as women are underrepresented in Nepalese politics and business, women's rights will be underenforced in Nepal. Certainly, any reform within states will be helpful. But on the international level, states should establish institutions focusing on compliance with human rights norms and women's rights particularly. States' tools

314. See DONALD G. DUTTON, THE DOMESTIC ASSAULT OF WOMEN 6-7 (rev. ed., 1995).

This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 732 HUMAN RIGHTS QUARTERLY Vol. 22 for encouraging women's representation in other states are largely limited to diplomacy and leading by example, and to drafting and adhering to their own treaties codifying the rights of women under international law. However, these treaties must be binding under international law, should disallow derogations, and should require states to take concrete steps toward implementing them. The debate between liberal feminists and postmodernists about the criticism of foreign cultural practices and the universality of women's rights is characterized by unjustified extremes. The international law governing women's rights, like human rights law itself, may be ethnocentric to some degree, but is hardly "colonialist." Cultural practices harmful to women are appropriate for international human rights law enforcement if (1) such action is based upon a consistent philosophy of harm and human dignity, (2) the action is undertaken with a broad knowledge of the cultural context of the allegedly harmful practice, (3) that context is based at least partly upon a dialogue between cultural insiders and outsiders, and (4) the party offering criticism is open to considering criticism of her or his own cultural practices. Such action is consistent with the feminist values of inclusivity and dialogue, and, although it may result in a hierarchization of values, that hierarchization will not be a product of ethnocentricity per se, but of a philosophy of human rights that transcends race, ethnicity, and gender. There is no question that the human rights philosophy must itself be the product of some culturally socialized beliefs (e.g., the value of freedom of speech, education, or sound ecology), but this does not necessarily negate the validity of the philosophical system, unless it results in a theory that is narrow-minded, self-contradictory, or empirically unsound. Most importantly, reform should be directed to the inadequate enforcement of international human rights law. Women suffer disproportionately when human rights laws go underenforced. In contrast, the disproportionate emphasis on international economic law enforcement benefits men disproportionately, given their control over the world's economic assets. While the international community has not agreed upon the creation of a human rights enforcement authority with direct police powers, international law can leverage improvement in state attention to women's interests through a variety of mechanisms, from economic sanctions to public opinion. International fora provide women with the opportunity to broad- cast their concerns worldwide, establish women's interests on the international agenda, and engage in a multilogue that may lead to agreement upon human rights norms that transcend cultural differences, as Nader has opined.315

315. Nader, supra note 118.

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An expanding core of human rights, including the rights of women, has traveled from support in public opinion to the rhetoric of elites to international legal instruments and the formation of some monitoring and reporting institutions. It is time for a telling additional step of holding states accountable for the realization of the standards they espouse. Feminists should not gratuitously reject international law and its processes. Neglect of the existing tools of international law supporting the advancement of women, rejection of "masculine" institutions and social control techniques, or categorical rejection of assistance based upon its source in the "wrong" gender or ethnicity waste a major asset for the advancement of the feminist political and social agendas.

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