Women’s Rights as Human Rights

OMISSION OF WOMEN
The ancient Stoics’ notion of natural rights, that human beings are created with certain inalienable rights, did not encompass women. When the Christian Church leader St. Thomas Aquinas (c. 1225-1274) was exposed to ancient Greek philosophy — largely through the writings of the Muslim philosophers Avicenna (Ibn Sina, 980-1037) and Averroes (Ibn Rushd, 1126-1198) who studied ancient Greek philosophy, reconciled reason with faith and championed equality and religious tolerance — he incorporated natural rights theory into his teaching. However, he ignored Averroes’ egalitarian approach that opposed the unequal treatment of sexes and considered the reduction of women’s value to childbearing and rearing as detrimental to the economic advancement of society and thus causing poverty.³ Instead, Aquinas revived Aristotle’s misogynous perception of woman as “misbegotten man” and wondered why God would create woman, a defective creature, in the first production of things;⁴ while other church leaders later questioned if women had souls, that is, if they were fully human.

In modern times, progressive philosophers, such as Jean-Jacques Rousseau (1712-1778), could promote political freedoms and rights, but reject the notion of equality of the sexes. The revolutionary fervour of the eighteenth century that opposed oppression led to the French Declaration of the Rights of Man and Citizen (1789). However, the articulation of human rights in this document, which continued to inspire people all over the world for centuries, could not escape sexism prevalent at the time and omitted women. Nevertheless, a few elite women, such as French playwright and essayist Olympe de Gouges (1748-1793) and English philosopher Mary Wollstonecraft (1759-1797), raised their objections and defended women’s rights by issuing The Declaration of the Rights of Woman (1790) and A Vindication of the Rights of Women (1791), respectively. The collaboration of Harriet Taylor Mill (1807-1858) with her husband John Stuart Mill (1806-1873) resulted in writings that advocated women’s rights and political equality.⁵

Yet, gender biases prevailed throughout the twentieth century. Even members of the Commission that drafted the 1948 Universal Declaration of Human Rights were willing to employ the word “man” in reference to the holder of the rights. When the Soviet delegate, Vladimir Koretsky, objected to using the words “all men” as “historical atavism, which preclude us from an understanding that we men are only one half of the human species”, the Commission Chair, Eleanor Roosevelt, defended the wording by arguing: [in English] “When we say ‘all men are brothers’, we mean that all human beings are brothers and we are not differentiating between men and women.”⁶ Thus, the language was maintained for some time. The final draft mostly employed the gender-neutral terms of “human being”, “everyone” and “person”, and the Preamble included a specific reference to the “equal rights of men and women”, thanks largely to the efforts of two female Commission members, Hansa Mehta of India and Minerva Bernardino of the Dominican Republic.⁷

However, the Universal Declaration and the subsequent human rights documents adopted by the United Nations and other intergovernmental organizations have continued to employ the nominative and possessive pronouns “he” and “his”, in line with the established tradition and understanding that male nouns or pronouns would stand for the female ones as well. Despite their clearly and repeatedly stated anti-discrimination clauses, which specify that sex as a characteristic or status cannot be used as grounds for discrimination or for denial of human rights, documents issued by the United Nations fell short of ensuring that human rights are equally applicable to both sexes.⁸ Gender gaps were visible even in the United Nations, which did not have women in high office posts, as they were concentrated in clerical and lower-paying jobs, thus maintaining occupational segregation. Starting in the 1970s, however, some significant steps towards addressing gender disparities have been taken by various intergovernmental and non-governmental organizations and government agencies.

THE CEDAW: AN INTERNATIONAL TREATY FOR 
 WOMEN’S RIGHTS
A very important stimulus was the UN General Assembly resolution of December 1972, declaring 1975 as the International Women’s Year. In 1975, the first UN world conference on women, held in Mexico City, declared 1976 to 1985 as the United Nations Decade for Women. The intensive efforts and actions undertaken during the Decade included organizing more conferences on women, the creation of specialized agencies, such as the United Nations Development Fund for Women (UNIFEM) and the UN International Research and Training Institute for the Advancement of Women (INSTRAW), elevating the Branch of the Advancement of Women to a “Division” status and putting women’s rights and concerns on the agenda of other conferences and organizations. Arguably, the most important development that took place during the Decade was the preparation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted by the Assembly in 1979.

CEDAW was the culmination of a long process, but was given impetus in 1973 by the UN Commission on the Status of Women (CSW). In its working paper, the Commission stated that neither the Declaration on the Elimination of Discrimination Against Women (1967) nor the legally binding human rights treaties had been effective in advancing the status of women. It also argued for a single comprehensive convention that would legally bind States to eliminate discriminatory laws, as well as de facto discrimination. With 30 articles organized in six parts, CEDAW defines “discrimination against women” in its first article: “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex, which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

The subsequent 15 articles of the Convention (Articles 2 to 16) specify the areas of discrimination, such as laws, legal structure, political and public life, education, employment, health care, rural environment, marriage and family, in which States parties should take measures to eliminate discrimination. The last two parts (Articles 17 to 30) refer to the administration of the implementation of the Convention. “For the purpose of considering the progress made in the implementation”, Article 17 creates a Committee on the Elimination of Discrimination against Women, which functions as a monitoring and advisory agency. The Committee evaluates the periodic reports submitted by States parties, questions government delegations that present the report, guides and advises States parties in meeting the objectives of the Convention, and issues general recommendations that help interpret the intention and scope of the Convention. The general recommendations issued by the Committee have been important for elaborating on the provisions of the Convention and for drawing attention to some gender-specific human rights violations and the attitudes and practices that disregard the value of women. By stressing such issues as gender-based violence, unequal pay for work of equal value, undervalued and unremunerated domestic activities of women, polygamy and other marital practices that disadvantage women and violate their dignity, the general recommendations have broadened the scope of CEDAW and made it a living document. In other words, some limitations in the wording of the Convention, such as treating man as a measure by requiring States parties to ensure that women enjoy a series of rights “on equal terms with men”, or failing to make explicit references to some violations that are experienced mainly by women, are redressed by CEDAW through the general recommendations.

The popularity of CEDAW, as reflected in its high rate of ratification, has been encouraging. It entered into force on 3 September 1981, less than two years after the General Assembly adopted it on 18 December 1979. According to the Office of the High Commissioner for Human Rights, as of 15 February 2008, 185 countries constituting 96 per cent of UN Member States have become parties to the Convention. However, ratification, accession or succession by 78 countries (42 per cent of States parties) involved declarations or reservations, which allow them to limit their treaty obligations.⁹ Since more States have placed reservations on this Convention than on any other human rights treaties,¹⁰ CEDAW appears to be “the human rights instrument least respected by its States parties”.¹¹ Reservations can be withdrawn later; so far, 14 States parties have withdrawn their reservations and a similar number withdrew or modified theirs with regard to some provisions. However, reservations justified by the claim that the culture or religion of the country conflicts with the provisions of the Convention are not likely to be withdrawn in the near future. Such broad reservations undermine “the object and purpose” of the treaty and leave it inapplicable for all practical purposes.

Cultural or religious objections to the provisions can be challenged by two interrelated arguments: first, it should be pointed out that the United Nations human rights regime, including regional ones, are essentially counter-culture; and second, although there may be tensions between goals (e.g., the preservation of culture versus the elimination of discriminatory cultural norms) or between two or more human rights (e.g., people’s right as opposed to women’s rights to self-determination), the international human rights regime requires them to be resolved by upholding the principles of universality and equality in dignity.

PROMOTION OF HUMAN RIGHTS AS A COUNTER-CULTURE
Although recognition and respect for some rights articulated in the Universal Declaration on Human Rights can be found in the cultural references and religious texts of many communities, the traditional cultural norms and practices also include numerous discriminatory stipulations. The novelty of the Declaration and subsequent human rights documents is not only universalism — the notion that all people hold certain rights by virtue of being human — but is also the desire to end all forms of violations that have been allowed in existing cultures. In other words, international human rights follow a reactive pattern: as violations are noticed, the rights violated within prevailing cultures are enumerated in declarations and treaties to bring them under protection. In the case of women, many human rights violations and discrimination have been not only culturally permissible, but often encouraged or demanded by cultural norms. That is why CEDAW makes specific references to culture, as well as traditions and customs embodied in cultures, and emphasizes the need to change discriminatory cultural norms, values and practices.

• It stresses that “a change in the traditional role of men, as well as the role of women, in society and in the family is needed to achieve full equality between men and women” (Preamble);
• States Parties . agree . “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women” (Article 2(f));
• States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men (Article 3);
• States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women (Article 5). (Emphasis mine.)

TENSIONS BETWEEN COMPETING RIGHTS
The universality of human rights, and especially women’s rights, is often challenged by cultural relativists. Relativist arguments, especially when combined with charges of cultural imperialism, pose a major dilemma for the international human rights community. How can peoples’ cultures and their right to self-determination be recognized when several aspects of those very cultures systematically violate a number of human rights? This question is particularly important for women’s rights. Since all contemporary societies are patriarchies, promoting women’s rights inevitably conflicts with patriarchal “cultural” values, religious norms and other hierarchical structures in all countries. Thus, following a strict rule of cultural relativism would keep women’s rights “alien” virtually to all societies, and the emancipatory aspects of the international human rights regime would be undermined and jeopardized in the name of cultural preservation.

With regard to culture and religion, we need to ask the following questions: Who speaks on behalf of the people and religion? Who defines the meaning of culture or interprets the sources of religion and develops doctrines? Cultures, of course, are neither monolithic nor static, but within each culture there are people who would benefit from making it monolithic and keeping it static. In other words, cultures are based on power structures, and by setting norms and assigning values they also perpetuate those structures. Culturally (and officially) promoted values privilege some members of society and disadvantage others, and the privileged ones would tend to use their power to sustain those values that would justify and preserve their privileged positions. Thus, without any democratization of the interpretation and decision-making processes, cultural relativism and preservation of culture end up serving only as shields protecting the privileged people.

By the same token, all religious texts and oral traditions are received in a cultural context and filtered through and fused with the prevailing cultural norms. Always open to interpretation, their messages can be subverted and mitigated by the existing power structures. Thus, religions can embody contradictory norms, which are selectively used and reinterpreted both by the privileged and those who challenge their understanding of religion and its requirements. It is needless to note that in patriarchal systems, it is the voice of the privileged men that dictates cultural and religious norms, even though women may help in their transmission and perpetuation. Egalitarian and emancipatory interpretations by women and their advocates tend to be disregarded or suppressed.

WHAT NEEDS TO BE DONE?
Human rights are closely linked to culture, and the expansion, full recognition and protection of rights would demand the transformation of cultural norms and their material foundations. Thus, compliance with international human rights would require a shift in cultural mores, as well as political commitment. The advocacy of human rights has to involve: (1) analyzing cultural norms in terms of their conformity with human rights principles; (2) acknowledging the diversity of the interpretation of cultures and religious sources; and (3) demanding that States parties to conventions be specific about their reservations, indicating when and how they will remove their reservations. Universalists usually attempt to advance their arguments against relativist claims by pointing out that several rights embodied in the Universal Declaration and other human rights instruments have existed and have been respected in the cultural and religious traditions of most societies. Although such assertions can be empirically supported, as already noted, the traditional cultural norms and practices also include numerous discriminatory stipulations. Thus, both aspects of cultures (egalitarian-emancipatory and discriminatory-oppressive) should be acknowledged, and all cultures analysed as to where and how they observe the principle of universality. Since human rights are about human dignity, the principle of universality means establishing the dignity of all and calls for equal treatment. Cultures therefore should be examined to identify their contradictions with regard to the principle of equality. Once revealed, the “egalitarian” aspects of cultures can be highlighted and linked to international human rights in terms of principles.¹²

Critical assessment of cultures and egalitarian interpretation of cultural sources already exist, but these alternative voices tend to be repressed at home and ignored in international debates. Nations and other members of the international human rights community have to break away from the habits of tolerating cultural discrimination in the name of respect for differences, attributing violations solely to the culture, equating culture with religion and treating cultures as monolithic and static. While there has been considerable attention on interfaith and inter-communal conflicts and domination, e.g. rights of religious and ethnic minorities, there has been no effort to address the intra-communal differences and hegemonies. Acknowledging the diversity within a culture and religious community by States parties and in international forums would provide support to the alternative voices and help democratize the interpretation process.

The relativist arguments and reservations placed on treaties can be countered by pointing out that international human rights norms demand such a change of customs and traditions, and what is presented as religious requirement is open to interpretation. It should be demanded of States parties that make such claims, not only to fully explain and specify their reservations, but also to stipulate a programme that would lead to their removal. The expert committee that oversees the implementation of CEDAW has already taken some action on these lines. For example, it has issued several recommendations to press States parties that placed “blanket reservations”, declaring they would implement CEDAW as long as its provisions do not contradict the Islamic law Shari’a, to clarify their points of reservation.¹³ The Committee also problematized the issue of interpretation: “. . . at its 1987 meeting, the CEDAW Committee adopted a decision requesting that the United Nations and the specialized agencies promote or undertake studies on the status of women under Islamic laws and customs, and in particular on the status and equality of women in the family, on issues such as marriage, divorce, custody and property rights and their participation in public life of the society, taking into consideration the principle of El Ijtihad (interpretation) in Islam.”¹⁴

Not surprisingly, the States parties affected by the decision denounced it as a threat to their religious freedoms and rejected the Committee’s recommendation, but the Committee has been persistent in pressing this issue. In 1994, it amended the guidelines for the preparation of reports to provide additional and specific guidelines for States parties that have entered substantial culture- and religion-based reservations. Jane Connors provides a summary:¹⁵ “Such States should report specifically with regard to their reservations, why they consider them to be necessary, their precise effect on national law and policy, and whether they have entered similar reservations to other human rights treaties which guarantee similar rights. Such States are also required to indicate plans they might have to limit the effect of the reservations or withdraw them and, where possible, specify a timetable for withdrawing them. The Committee made particular reference to . . . [some States], indicating that the Committee considers such reservations to be incompatible with the object and purpose of the Convention and requiring a special effort from such countries who are directed to report on the effect and interpretation of their reservations.”

In its persistent effort, the Committee should also encourage shadow reports, which not only include the assessments of what has or has not been done by the reporting State towards implementing the Convention, but which also present alternative interpretations of the culture and religious sources. Inviting such reports would equip the Committee with the information needed to effectively question States parties’ justification for their reservations and allow them to recognize the diversity within their society. It would also support women and women’s rights advocates by validating their right to interpret their cultural and religious sources.