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A CRTTICAL APPRAISAL OF THE EFFICACY OF INTERNATIONAL LAW AS A TOOL TO ACHIEVING GENDER EQUALITY
ABSTRACT
Law is often perceived as an instrument for social change. Though there are constitutional and legal provisions for gender equality in Nigeria, such provisions do not fully contemplate issues of particular concern to women such as reproductive rights since male indicators are constantly used to measure achievements in human rights protection. This research examines the efficacy of law as a tool to achieving gender equality. The research employs the doctrinal and non-doctrinal research methods.
The research explains that Problems such as male dominance in political/legal structures and lack of the political will to tackle some of the problems will create practical obstacles to the realization of gender equality and the realization of the full potential of the law. In this respect, legal protection for women will be difficult where practical measures are not implemented domestically. Similarly, honoring international commitments subsequently becomes problematic as they do not guarantee change nationally and they, too, are sidelined. In consequence, gender equality will not be given priority domestically and aimed at protecting women and women’s rights will become ineffective, scant and/or not enforced. The research concludes that the only way to achieve gender equality is through a multi-level approach domestically and internationally in order to guarantee the needed change with regards to gender equality.
CHAPTER ONE
1.0. INTRODUCTION:
Gender equality and protection of the law with respect to women are enjoyed by very few women and relying on the State to promote and make such provisions is not enough. The realization of gender equality and protection of the law can only be obtained through combined efforts at the international level, by states which must create meaningful international obligations; the national level, by the same states to give effect to such international obligations; and the ground level, through individuals and non-governmental organizations that provide the impetus for governments to forge and implement international and national commitments. For the purpose of this research, equality of opportunity (de jure or formal or abstract equality) and equality of outcome (de facto or substantive equality) are central to an understanding of gender equality.1
1.1. STATEMENT OF THE PROBLEMS:
Gender issues have made their appearance from as early as the seventh century when women sought to reinterpret the scriptures which deemed women intellectually inferior by nature and given to sin.2 Women fought for universal suffrage in the early 1 900s and have constantly battled for equality and are still struggling even three centuries after that. The basis of the struggle for gender equality is firmly rooted in the notion that gender equality is a fundamental human right and also that women’s rights are human rights. What exactly does equality on the basis of gender constitute?3 Even where ‘formal’ gender equality is guaranteed in national constitutions or legal systems which provide for procedural equality, there is a gap between this and substantive equality which takes into account the actual lived experiences, needs and interests of
1Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: ManchesterUniversity Press, 2000), p. 217. UNICEF has produced a report that reveals startling global gender inequalities throughout a girl’s/woman’s life cycle. See UNICEF, The State of the World’s Children. Women and Children: The Double Dividend of Gender Equality (New York, UNICEF 2006, pp 4-5.
2Gerda Lemer, The Creation of FenzEnst Consciousness: From the Middle Ages to Eighteen-Seventy (New York: Oxford University Press, 1993), p.13.
3The Department of Economic and Social Affairs of the United Nations defines gender equality as “equal opportunities, rights and responsibilities for women and men… It implies that the interests, needs and priorities of both women and men are taken into consideration”. United National, Department of Economic and Social Affairs, The World’s Women 2005: Progress in Statistics (New York: United Nations, 2006), p. 1.
women.4 An individual’s right to equality should not include only notions of abstract equality but also substantive equality where he or she will necessarily have to be treated differently in order to protect his or her right to equality.5
At the national level, women are confronted with the seemingly unending struggle to attain gender equality because of male elitism and its stronghold in the power/governance structure.6 National policies of even the developed world are generally formulated by men, yet they are referred to as national policies despite the fact that women are under-represented in the policy making process. This is now extended to the international level, particularly in policymaking, where women are directly affected. At the international level, the problem persists as attempting to gain consensus on gender issues is even more difficult due to the varied cultural and religious backgrounds of the nations that comprise the international community.
The role of women in society is often defined within the context of cultural and religious parameters. Cultural and religious practices generally have negative impacts on women and girls but are integral to the social glue necessary for defining
4
See Karin Van Marie, “The Capabilities Approach; ‘The Imaginary Domain’ and Asymmetrical Reciprocity’: Feminist Perspectives on Equality ad Justice”, Feminist Legal; Studies, 11 ‘:2003), pp. 266-27.
Equal rights will not always be appropriate, as in the case of pregnancy where a gender specific right would be more suitable. 5 Chariesworth and Christine Chinkin, The boundaries of international law, pp. 10 and 32.
6
“Development Index (GDI) and at 22 out of 75 countries with a value of 0.66 for i:he Gender Empowerment Measure (GEM). See United Nations Development Programme. Human Development Report 2006. Beyond scarcity: Power, poverty and the global water crisis (New York: UNDP, 2006), tables 24-25, pp. 364 and 368. The IGD is not a measure of gender inequality. Rather, it is a measure of human development that adjust the human development index (ND!) to penalize for disparities between women and men in the three dimensions of the HDI: a long and healthy life, knowledge and a decent standard of living. The greater the gender disparity in basic human development, the lower is a country’s GD! relative to its HDI. Trinidad and Tobago’s GD! value, 0.805 should be compared to its HDI value of 0.809. !ts GD! value is 99.5% of its I-WI value. Out of the 136 countries with both HD! and GDI values, 60 countries have a better ratio than Trinidad and Tobago’s. the GEM was intended to measure women’s and men’s abilities to participate actively in economic and political life and their command over economic resources. !n contrast to the GD!, which is concerned with well-being, the GEM focuses on agency. It measures three dimensions in this area: political participation and decision-making power, economic participation and decisions-making power, and command over economic resources. These indicators are, of course, not without their limitations as they are, inter alia, generally skewed due to income figures, not always based on gender disaggregated data, or do not capture important dimensions of gender discrimination in human development, such as violence against women. See pp. 279-280. See also UNDP [online], “Human Development Report 2006: Human Development Indicators. Country Fact Sheets: Trinidad and Tobago”, [cited 06 October 2007J. Available from Internet:
http://hdr.undp.org/hdr2006!statistics/couuntries/countryjact_sheets/cty_fs_TTO.html.
society, particularly for the shaping of male culture identity.[1] This is not to say that specific conversations for the general protection of women and children or for the elimination of discrimination against women do not exist because they do, and these are apart from the general human rights conversations which already include these seemingly minority categories. Evidence would suggest that these conversations are not taken seriously by the state as they are not incorporated into domestic law and enforced, as seen for example, with the perpetuation of discriminatory practices against women. As an integral subject of general equality, women are supposedly afforded equal protection of the law at the national level. They are the primary victims of domestic violence and rape; however even when such issues are legislated, they are adequately dealt with because the realm of family life is considered sacrosanct and outside the scope of state intervention and state bodies generally refuse to intervene. Trying to raise this as a human rights issue at the international level has faced many obstacles. In the same manner that the state will not intervene in so called “private” matters of the family, international law equally lacks the capacity to find individuals culpable of violations in private matters. The United Nations Charter guarantees nonintervention into the domestic affairs of a state, except in cases of gross domestic violations of human rights or genocide.[2]
Additionally, public international law only recognises the state as a subject and individuals
wishing to have an audience at the level of international law must do so through the agency of their state. In the case of human rights conversations, however, individual agency may be allowed. Under the Convention on the Elimination of All Forms of Discrimination Against Women, one of six core human rights conventions,[3] an optional protocol was adopted by the General Assembly in 1999 to afford individuals as well as groups and non-governmental organisations the right to report violations by the state of the main convention directly to the Committee on the Elimination of Discrimination Against Women. This right is, of course, circumscribed by the state’s willingness to accede to the protocol. In the absence of accession, it poses particularly problems for women as abuses meted out in the home are strictly theoretically outside of the sphere of international law due to the
public/private divide and the notion of the sanctity of the family. This is further aggravated yet by the fact that the political, legal, social, cultural and domestic structures are dominated by men.
1.2. AIM AND OBSECT1VES
Essentially, the aim of this research is to assess the strengths and weaknesses of international law instruments with respect to concrete issues of gender inequality and specific areas of concern to women. The objectives of this research work are to:
- Carry out a critically assessment of international law as an instrument to assist women in their fight for equality and protection of the law against marginalization;
- Assess the availability of international law instruments for the promotion of gender equality;
- Examine the effectiveness of international law as an instrument to effect change in the context of women’s rights; and
- Carry out an assessment of the effectiveness of international institutions in the context of gender equality and the protection of the rights of women.
- Assess whether the examination of rights as part of the development of international law also contemplates the specific issue of women’s rights and, in particular, the right to gender equality.
- METHODOLOGY OF RESEARCH:
The researcher adopts both the doctrinal and non-doctrinal research methods. Doctrinal research deals with retrieval of all necessary source materials from primary and secondary sources, dealing with the subject matter .in this wise, published texts (foreign and indigenous), journals, laws reports (foreign and indigenous), treaties and laws that are of direct relevance to gender equality are relied upon.
The non-doctrinal method of research involves personal contacts and interviews with lecturers, international law experts and resource persons who have in one way or the other contributed to this area of the law.
- LITERATURE REVIEW
Although, several textual works abound in this area of research, it is important to note that despite the extreme research in this area, none of the work examined has dealt comprehensively with the efficacy of law as a tool to achieving gender equality. Therefore, the researcher has examined several works in this study in order to ascertain the areas that are still fallow and unploughed.
For example, Zillah Eisenstein’s10 work, titled “The Radical Future Of Liberal Feminism”, sees patriarchy as a political structure which seeks to control and subjugate women so that their possibilities for making choices about their sexuality, childrearing, mothering, loving, and laboring are curtailed. The work emphasized that patriarchy is a system of oppression that recognizes the potential power of women and the actual power of men. That its purpose is to destroy women’s consciousness about her potential power, which derives from the necessity of society to reproduce itself. It was also stated in this work that the priorities of patriarchy are to keep the choices limited for women so that their role as mothers remains primary and that if the system of patriarchy is not fully encompassed within the law, a legalistic definition of patriarchy is limited and insufficient. It was further shown in the work that a woman’s subjection to man is reinforced by the relations of property and inheritance, as the redefinition of patriarchal power within the family is based partially on the new distinctions being drawn between religion, civil society, the family and the state.
However, one of the short -comings about the work is that the work did not treat the efficacy of law as a tool to achieving gender equality. The work also exposed the fact that the feudal society was patriarchal and the transition to capitalism did not destroy patriarchy but only redefined it in liberal terms. The work also revealed that fathers believed to be the masculinist underpinnings of the discipline. The book also examined what the discipline might look like if the central realities of women’s day- to-day lives were included in its subject matter. The book also exposed the fact that men’s experiences form the basis of most knowledge about International politics and that these gender hierarchies remain in place. Thus, the book is an attempt to make the discipline of international relations more relevant to women’s lives. The material in
10ZilIah Eisenstein, The Radical Future of literal feminism, (London. Longman, 1981)
the book has been presented in a way that is accessible to readers in both the discipline of feminist studies. The book provides a comprehensive study on feminist perspectives on international relations. The book also reconceptualize the definition of global security using a feminist perspective and opined that, while it is obvious that not all women are feminists, feminist theories are constructed out of the experiences of women in their many and varied circumstances, experiences that have generally been rendered invisible by most intellectual disciplines. The book also made it clear that the world of international politics is a masculine domain and that theoretical perspective depends on a broader range of human experience are important for women and men alike, as we seek new ways of thinking about our contemporary dilemmas. However, the book did not discuss the efficacy of laws as a tool to achieving gender equality.
Judith butler11 in her book Gender trouble feminism and the subversion of identity opined that the presumed universality and the unity of the subject of feminism is effectively undermined by the constraints of the representational discourse in which it functions. That the premature insistence on a stable subject of feminism, understood as a seamless category of women, inevitably generates multiple refusals to accept the category.
The book disclosed the fact that the distinction between sex and gender serves ______________________
11Judith Butler Gender Trouble (New York: Routledge; 1999)
the argument that whatever biological intractability sex appears to have, gender is culturally constructed hence, gender is neither the causal result of sex nor seemingly fixed as sex. It also discusses the means through which sex and gender is given and asked whether it is natural, anatomical, chromosomal or hormonal.
This book referred to the work of Simone de Beauvoir12 where Beauvoir suggested in the second sex that “one is not born a woman, but, rather, becomes one” and that gender is “constructed”. A review of this book has clearly highlighted the need for a research work to bring into focus the major concern of this research work which is the efficacy of law as a tool to achieving gender equality.
Courtney W. Howland,13 edited a book titled religious fundamentalism and the human rights of women. The book recognizes that human rights issues need input from many different disciplines to achieve the greatest level of credibility and
legitimacy. The book gives a base and structure from which to consider the challenges to women’s rights posed by religious fundamentalism, it emphasized
that it is particularly crucial to establish women’s right at the heart of human rights jurisprudence. Finally the book focuses on one of the most difficult challenges facing human rights today as progress in area is the key for guaranteeing the equality of women worldwide. The book explores the acute problems that religious fundamentalist movements around the world are posing for women’s equality and liberty rights. It addresses the challenge of religious fundamentalism from distinct but mutually reinforcing perspectives. First, an international human rights perspective that aims to strengthen women’s right throughout the world; second, a national law perspective that deals with issues and remedies in individual countries; third, a grassroots perspective that looks to non-legal remedies and alternatives, and fourth, a theological and philosophical perspective that offers alternatives to fundamentalist interpretation of religious doctrines.
12Simone de Beauvoir, sexuality, Existentialist Feminism and the second sex, (London: Vintage, 1997)13Courtney w.
F-lowland, Religious fundamentalism and the human rights of women, (New
York: St Martins Press;)
Ann Elizabeth Mayer’s14 work, Cultural particularism as a bar to women’s rights: Reflections on the middle Eastern Experience represents another commendable effort at presenting an interesting work on this area of the law. The work shows that all women are entitled to the rights set forth in international covenants and conventions such as the 1966 international covenants on civil and political rights and the convention on the elimination of all forms of discrimination against women (CEDAW) which has been in force since 1981. The work examines “Islamic particularism” to justify the denial of civil and political rights to middle eastern Muslim women and expresses the view that discrimination against women constitutes a misguided application of cultural relativism, as many discriminatory features of middle eastern law are directly traceable to religious precepts, Despite these facts, however, the work also failed to provide a proper legal study of the efficacy of law as a tool to achieving gender equality.
Another legal work reviewed by the researcher is Black Women: Shaping Feminist Theory by Bell Hooks15. The work provides that feminist in the United States has never emerged from the women who are most victimized by sexist oppression; women who are daily beaten down, mentally, physically and spiritually women who are powerless to change their condition in life. That they are a silent majority and a mark of their victimization is that they accept their lot in life without visible question, without organized protest, without collective anger or rage.
A review of this legal work has clearly highlighted the need for a research work to bring into focus the efficacy of law as a tool to achieving gender equality.
Another work worthy to be reviewed is the work of Annabelle Lever16 titled, Must privacy and sexual equality conflict? A philosophical examination of some legal evidence. This work examines claims about the relationship of rights to privacy and equality in light of some reasoning. In this work, it was argued that, the right to privacy is fundamentally incompatible with the freedom and equality of women. The work has shown that, there is nothing about valuing privacy which requires us to treat existing privacy rights as just, anymore than valuing equality or democracy need commit us to overlooking inequality and undemocratic government. It is also shown in the work that, the rights to privacy and equality need not conflict, although the right to privacy can justify inequality and that
14Ann Elizabeth Mayer, Cultural Particularism as a bar to women’s rights. Reflections on the middle eastern experience, (New York: Routledge, 1996.15Bell Hooks, Femist Theory: Margin center (Boston:
South End Press, 1984). 17Annabelle Lever, Must Privacy and sexual equality conflict? A philosophical Examination of some Legal Evidence, Published in social Research: Ar international Quarterly of the social sciences (vol 67 no4), Winter 2000
the majority’s account of the right to privacy justifies the oppression of women. However, this work did not discuss the efficacy of law as a tool to achieving gender equality.
Simon de Beauvoir’s16 work on sexuality, existentialist feminism and the second sex, sets out a feminist existentialism which prescribes a moral revolution. It is shown in this work that existence precedes essence, hence one is not born a woman, but becomes one. That the social construction of women as the quintessential other is fundamental to women’s oppression. Further, it was asserted in this work that women are as capable of choice as men, and this can choose to elevate themselves moving beyond the ‘immanence’ which they were previously resigned and reaching ‘transcendence’, a position in which one takes responsibility for ones self and the world, where one chooses one’s freedom. It was argued in this book that men had made women the ‘other’ in society by application of a false aura of “mystery” around them. That men used this as an excuse not to understand women or their problems and not to help them, and that this stereotyping was always done in societies by the group higher in the hierarchy to the group lower in the hierarchy. Thus, it is believed that for feminism to move forward, this assumption must be set aside. However, the work did not examine the efficacy of law as a tool to achieving gender equality.
Connell17 in his work titled The State, Gender and Sexual Politics, wrote on genders and sexuality. According to him, gender is a collective phenomenon, an aspect of social institutions and is internal and external in relation to the state. That sexuality is part of the domain of human practice organized (in part) by gender relations. While sexual politics is the contestation of issues of sexuality by the social interests constituted within the gender relations. To him, the state is a part of a wider social structure of gender relations and that each empirical state has a definable “gender regime” that is the precipitate of social struggles and is linked to the wider gender order of society. This work also opines that women and men tend
___________________
16Simone de Beauvoir, sexuality, Existentialist Feminism and the second sex, (London: vintage, 1997) 17 connel, R, The state gender and sexual politics, Review of international studies Vol.19, No. 5 (oct.1990).
to occupy particular positions within the state, and work in ways structured by gender relations. However, the writer did not discuss the efficacy of law as a tool to achieving gender equality.
Adam Jones18 in his work titled, “Does ‘Gender’ make the world go round?” feminist critiques of international relations discuses too glibly of ‘feminist scholarship’. According to this author, the feminist critique has subsumed an historical- revision project. Independently of whether they seek to jettison existing theoretical frame works, feminists, by definition reclaim women as subjects of history, politics, and international relations. However, a review of this work has shown that the work did not examine the efficacy of law as a tool to achieving gender equality. Therefore, this dissertation tends to examine the law in this regards.
18Adam Jones,”Does’Gender’ make the world go round?” Review of international studies Feminist critiques of international relations studies, vol.22, No.4 (Oct, 1996).
[1] Jill Steans, Gender and International Relations: An Introduction (New Jersey: Rutgers University Press, 1998), pp. 14-125.
[2] Chapter 1, Article 2: 7, United Nations Charter, 26 June 1945, entered into force 24 October 945
[3] Philip Aiston, “Richard Lillich Memorial Lecture: Promoting the Accountability of Members of the New UN Human Rights Council”, Journal of Transnational Law and Policy, 15:1 (2006)m p. 61.
