In this blog post, Disha Pareek a student of RGNUL, Punjab discusses the need for an increase in the scope of international law so as to include a feminist approach. The blog post also talks about the provisions enshrined in the available documents of international law regarding the same.
Genesis of feminist jurisprudence
The development of feminist jurisprudence in the recent years has made a rich and fruitful contribution to the development of law and legal theory. Time and again, it has been realized that gender has not been a pressing issue in the arena of international law.
But the last 20 years have seen a continuous debate on women’s issues being addressed by different treaties, protocols, and agreements all around the globe. The fundamental rule of international law is respect for human rights and fundamental freedom without any discrimination, and hence, speedy and comprehensive elimination of discrimination against women is a priority task of the international community.
The need of feminist jurisprudence
- Discrimination is global: The discriminatory nature of the behaviour that women receive transcends national frontiers.
- In many societies, including India, women are considered inherently inferior, intellectually and physically weak to men.
- Many countries deny inheritance and property rights to women.
- The worst amongst all is that when civil order breaks down, women are most vulnerable to torture, physical abuse and rape, and slavery.
- Therefore, it can be seen that countries through their respective municipal laws have not been able to tackle the problems of discrimination against women, so a need arose to establish a common set of laws, principles, and regulations applied to all the countries.
Contribution of international movements
There are a lot of international documents contributing a lot to improve the socio-economic-politico status of women in international frontiers. Some of them are:
- The Universal Declaration of Human Rights(UDHR)- Various Articles of the covenant cover different aspects like Right to life, a ban on slavery, a ban on torture, equality before the law, covering Articles 3, 4, 5 and 7 respectively.
- Secondly, by Article 14 of European Convention on Human Rights (ECHR), the rights and freedoms can be ensured without any discrimination of any sort.
- SAARC has now and then, raised the issue of violation of rights of women. The years 1991-2000 were designated as SAARC Decade of the Girl Child.
Role of International Organizations
Convention on the Elimination of Discrimination Against Women (CEDAW)
The all-comprehensive covenant covers a different aspect of the legal theory. It attempts to establish universal standards on rights of women. Some of them are:
- Representation in public life and the issue of nationality: Article 7 ensures participation of women in public and political life; this article was needed because women were denied even the basic right of ‘Right to Vote’ and participation in elections.
- Issues of discrimination and equality: As per Article 2 of the Convention, state parties condemn and eliminate discrimination against women. According to Article 2(b), state parties are obliged to adopt appropriate legislative and other measures. In a popular case of Mauritius, Shirin Aurumuddin & 19 other Mauritian Women v. Mauritius, a claim under the ICCPR, 2 pieces of legislations on immigration and deportation created gender discrimination against women and accordingly, as per the provisions of CEDAW, the legislations were amended.
- Educational, employment and health rights: Women, all over the globe are denied educational and professional opportunities. Article 10 and 11 tries to eliminate discrimination on these grounds. Article 11(2) ensures that women are not dismissed from their jobs due to pregnancy.
- Social and Economic rights: Article 13 represents important provisions relating to socio-economic rights, including, right to family benefits, right to bank loans, mortgage and other forms of financial credit and right to participate in recreational activities.
Commission on Status of Women (CSW)
Soon after the establishment of United Nations, the Economic and Social Council (ECOSOC), by Article 68 of the UN Charter set up CSW.The main function of the commission is to prepare recommendations and reports to the Council on Status of Women on promoting women’s rights in political, economic, social, and educational fields. The primary objective of the commission is to promote the implementation of the principle that men and women shall, and not just should have equal rights.
The Commission consist of 45 members and are elected by ECOSOC for a term of 4 years. The members act as representatives of states and do not act in their personal capacity. The CSW is highly credited for establishing the new standard setting mechanism.
International Labour Organisation
Since the inception of the concept of international human rights, one of the biggest problems faced by proponents of women’s rights is to promote gender mainstreaming. In spite of that, ILO was an early advocate of women’s rights, because, women require protection, particularly in vulnerable employment situations like during maternity period, and in the hazardous working environment. In its Convention no. 3, ‘Maternity Protection 1919’ and Convention no. 103, ‘Maternity Protection, 1952’ lays down guidelines for the protection of women at the time of maternity.
Reservations by the state parties
One of the major drawbacks of international law, also called as the Law of Nations is that there is the absence of mandatory clause to be followed universally by the member-states. Therefore, time and again, reservations have been made by the state parties upon any clause or clauses as per their whims and fancies. Although some restriction is permitted, there is no upper or lower limit up to which reservation can be made.
All these years, after initiatives of different institutions and individuals, to foster human rights, which was successful to an extent, many societies hold their religious, cultural and societal ordinance in the highest esteem. And if any country shuns its internal norms and tries to adopt international standards, it is labelled as an attempt to impose western cultural imperialism. Islamic states cause the main hurdle in this respect.
The People’s Republic of Bangladesh does not bind itself by Article 2, 16(1)(c) due to their conflict with Sharia laws. But later, due to international pressure, the reservations were removed in 1997.
In the light of significant violations of women’s rights, many international organizations, in collaboration with individual states, have taken some initiatives. Some of them are:
- World Humanitarian Summit, organized by UN Women on 23-24 May in Istanbul. Leaders from the Member States, the UN, and multilateral actors, and civil society will come together to endorse commitments to improve humanitarian action worldwide, including women’s rights issues.
- The Vienna Declaration and Programme of Action, adopted by World Conference on Human Rights, 1993
- Nairobi Forward-Looking Strategies for the Advancement of Women, 1985
- Beijing conference or The Fourth World Conference on Women, 1995. The objective being to review progress made in the field since Nairobi Conference
All the conventions are called ‘International Bill of Rights’ covering all the aspects of women’s rights; now there is a set of universal principles and guidelines to be followed worldwide. But the major criticism of such covenants is the ‘reservation clause’, by virtue of which any country can put restriction(s) to any clause of any covenant, and there are no sanctions if any country violates any principle of the Agreement, only criticism from other countries only follows it. Hence, strict sanctions should be imposed on countries violating any provision of any sort.
 Frances Olsen, Feminist Legal Theory, NYU Press, 1995.
 Jerry Bergman, Darwin’s teaching of Women’s Inferiority, Harvard University Press.
Article 14, European Convention on Human Rights.
United Nations (1979) Convention on the Elimination of all Forms of Discrimination against Women, United Nations, and Treaty Series.
 Children and Women labor abuse around the globe, Human Rights Council, University of Macedonia.
Article 68, Charter of the United Nations.
 Convention 103, Maternity Protection, 1952, Adoption: Geneva, 35th ILC session, 28 June, 1952.
Krivenko, E.(2009), Islamic view of Women’s Rights: An International Lawyer’s Perspective, Journal of East India and International Law, Vol. 2 p. 103-122.
World Conference on Human Rights, 14-25 June 1993 Vienna, Austria.