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Feminist Approaches to International Law

Published online by Cambridge University Press:  27 February 2017

Hilary Charlesworth ,
Christine Chinkin  and
Shelley Wright
Shelley Wright
Affiliation:
University of Melbourne Law School, University of Sydney Law School
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Extract

The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.

Type
Research Article
Information
American Journal of International Law , Volume 85 , Issue 4 , October 1991 , pp. 613 - 645
Copyright
Copyright © American Society of International Law 1991

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References

1 See, e.g., Olsen, The Family and the Market, 96 Harv. L. Rev. 1497 (1983); Karst, Women’s Constitution, 1984 Duke L.J. 447; Lahey & Salter, Corporate Law in Legal Theory and Legal Scholarship: From Classicism to Feminism, 23 Osgoode Hall L.J. 543 (1985); Scales, The Emergence of Feminist Jurisprudence: An Essay, 95 Yale L.J. 1373 (1986); Minow, The Supreme Court October 1986 Term—Justice Engendered, 101 Harv. L. Rev. 47 (1987); Grbich, The Position of Women in Family Dealing: the Australian Case, 15 Int’l J. Soc. L. 309 (1987); Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3, 29–30 (1988); Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 831 (1990); R. Graycar & J. Morgan, The Hidden Gender of Law (1990).

2 See generally D. N. MacCormick, Legal Reasoning and Legal Theory (1978); J. W. Harris, Legal Philosophies (1980).

3 E.g., Gordon, New Developments in Legal Theory, in The Politics of Law 281 (D. Kairys ed. 1982).

4 For a discussion of the major differences between feminist jurisprudence and the “liberal” and “critical” schools of jurisprudence, see West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988); see also West, Feminism, Critical Social Theory and Law, 1989 U. Chi. Legal F. 59; Polan, Towards a Theory of Law and Patriarchy, in The Politics of Law, supra note 3, at 294, 295–96.

5 S. Harding, The Science Question in Feminism 194 (1986); see also Bartlett, supra note 1, at 880–87.

6 Hartsock, Feminist Theory and the Development of Revolutionary Strategy, in Capitalist Patriarchy and the Case for Socialist Feminism 56, 58 (Z. R. Eisenstein ed. 1979); see also Rhode, Gender and Jurisprudence: An Agenda for Research, 56 U. Cinn. L. Rev. 521, 522 (1987); Gross, What is Feminist Theory?, in Feminist Challenges: Social and Political Theory 190, 196–97 (C. Pateman & E. Gross eds. 1986). Some feminists dispute this description of feminism. Catharine MacKinnon, for example, has argued:

Inequality on the basis of sex, women share. It is women’s collective condition. The first task of a movement for social change is to face one’s condition and name it. The failure to face and criticize the reality of women’s condition, a failure of idealism and denial, is a failure of feminism in its liberal forms. The failure to move beyond criticism, a failure of determinism and radical paralysis, is a failure of feminism in its left forms. … As sexual inequality is gendered as man and woman, gender inequality is sexualized as dominance and subordination. … The next step is to recognize that male forms of power over women are affirmatively embodied as individual rights in law.

C. Mackinnon, Toward a Feminist Theory of the State 241–44 (1989).

Some continental European, particularly French, feminists have pursued a different set of concerns from those of Anglo-American feminists. They have undertaken the task of deconstructing the dominant masculine modes of speech and writing. “We must reinterpret the whole relationship between the subject and discourse, the subject and the world, the subject and the cosmic, the microcosmic and the macrocosmic,” writes Luce Irigaray. “And the first thing to say is that, even when aspiring to a universal or neutral state, this subject has always been written in the masculine form ….” Irigaray, Sexual Difference, in French Feminist Thought: A Reader 118, 119 (T. Moi ed. 1987). Although male language and social structures have also concerned Anglo-American feminists, they have generally not approached the issue by focusing on a wholly new type of discourse in which new feminine meanings, associated with the undiscovered potential of the female body, are seen as the potential source of a reconstructed world. Id. at 129. A brief introduction to French feminist thought can be found in Dallery, The Politics of Writing (The) Body: Ecriture Feminine, in Gender/Body/Knowledge 52 (A. M. Jaggar & S. R. Bordo eds. 1989).

7 E.g., Holmes, A Feminist Analysis of the Universal Declaration of Human Rights, in Beyond Domination: New Perspectives on Women and Philosophy 250 (C. Gould ed. 1983); A. Byrnes, Can the Categories Fit the Crimes? The Possibilities for a Feminist Transformation of International Human Rights Law (paper delivered at Conference on International Human Rights and Feminism, New York, Nov. 18, 1988); Neuwirth, Towards a Gender-Based Approach to Human Rights Violations, 9 Whittier L. Rev. 399 (1987); Bunch, Women’s Rights as Human Rights: Toward a Re-vision of Human Rights, 12 Hum. Rts. Q. 486(1990).

8 See, e.g., E. Showalter, A Literature of Their Own: British Women Novelists from Bronte to Lessing (1977); R. Ruether, Sexism and God-Talk: Toward a Feminist Theology (1983).

9 C. Gilligan, In a Different Voice: Psychological Theory and Women’s Development (1982).

10 Id. at 25–51.

11 Id. at 164.

12 Id. at 164, 174.

13 See, e.g., Menkel-Meadow, Portia in a Different Voice: Speculations on Women’s Lawyering Process, 1 Berkeley Women’s L.J. 39 (1985); idem., Excluded Voices: New Voices in the Legal Profession Making New Voices in the Law, 42 U. Miami L. Rev. 29(1987); Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543 (1986). Cf. Bartlett, supra note 1, at 854–58. For an argument that Hans Morgenthau’s influential work in international relations, with its hierarchical ordering of morality, parallels the work of the psychologist Lawrence Kohlberg, which is challenged by Carol Gilligan, see Tickner, Hans Morgenthau’s Principles of Political Realism: A Feminist Reformulation, 17 Millennium 429, 433 (1989).

14 See, e.g., Menkel-Meadow, Towards Another View of Legal Negotiation; The Structure of Problem Solving, 31 U.C.L.A. L. REV. 754 (1984); Rifkin, Mediation from a Feminist Perspective, 2 Law & Inequality 21 (1984). Not all legal feminists support such an approach. E.g., Bottomley, What is happening to family law? A feminist critique of conciliation, in Women in Law 162 (J. Brophy & C. Smart eds. 1985); Shaffer, Divorce Mediation: a Feminist Perspective, 46 U. Toronto Fac. L. Rev. 162 (1988).

15 For a critical analysis of the empirical work of Gilligan and her notion of a dichotomy between male and female moral reasoning, see Mednick, On the Politics of Psychological Constructs, 44 Am. Psychologist 1118, 1119–20 (1989); see also C. Fuchs Epstein, Deceptive Distinctions: Sex, Gender, and the Social Order 76–83 (1988).

16 C. Gilligan, supra note 9, at 171; see generally N. Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender (1978).

17 C. Smart, Feminism and the Power of Law 75 (1989).

18 C. Mackinnon, Feminism Unmodified: Discourses on Life and Law 38–39 (1987). Compare Gilligan, Reply [to Critics], 11 Signs 324 (1986).

19 See, e.g., A. Cassese, International Law in a Divided World 105–25 (1986).

20 See generally Third World Attitudes Toward International Law: An Introduction (F. Snyder & S. Sathirathai eds. 1987).

21 See A. Cassese, supra note 19, at 105–25.

22 See Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 Int’l & Comp. L.Q. 850 (1989); Bedjaoui, Poverty of the International Legal Order, in International Law: A Contemporary Perspective 152, 157–58 (R. Falk, F. Kratochwil & S. Mendlovitz eds. 1985).

23 G. Kennan, American Diplomacy, 1900–1950, at 53–54(1953); cf. Jaquette, Power as Ideology: A Feminist Analysis, in Women’s Views of the Political World of Men 9, 22 (J. Stiehm ed. 1984) (noting the similarity between the “female” strategy of persuasion rather than confrontation and the strategies of small states in a weak position in the international system).

24 S. Harding, supra note 5, at 165.

25 Id.

26 Id. at 170.

27 Id. at 171.

28 Id. at 172–73; see also C. Mackinnon, supra note 18, at 39–40.

29 S. Harding, supra note 5, at 173–74.

30 Id. at 174–76.

31 Id. at 186.

32 Brock-Utne, Women and Third World Countries—What Do We Have in Common?, 12 Women’s Stud. Int’l F. 495, 496–97 (1989).

33 Id. at 497.

34 Id. at 500–01.

35 K. Jayawardena, Feminism and Nationalism in the Third World passim (1986); C. Enloe, Making Feminist Sense of International Politics: Bananas, Beaches and Bases 42–64 (1989).

36 Quoted in C. Bunch, Passionate Politics 297 (1987). Another example of this gender-blind focus is the comment of Nehru cited by Cassese to exemplify the developing world’s rejection of the traditional legal order: “The spirit of the present age is opposed to any kind of domination of one over the other, whether it is national domination, economic, class or racial. There is a strong urge to resist this kind of domination.” T. Mende, Conversations with Mr Nehru 44 (1956), quoted in A. Cassese, supra note 19, at 56.

37 In her study of the “curious coincidence” between African and feminine world views, Sandra Harding also notes that neither Africanists nor feminists have acknowledged the parallels in each other’s epistemologies. S. Harding, supra note 5, at 177–79.

38 There are, of course, significant differences within the “First” and “Third” World feminist movements. Although the discussion here is on a general level, these differences need to be studied in any detailed examination of international law. See Lazreg, Feminism and Difference: The Perils of Writing as a Woman on Women in Algeria, 14 Feminist Stud. 81 (1988); Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses, 30 Feminist Rev. 61 (1988); Strathern, An Awkward Relationship: The Case of Feminism and Anthropology, 12 SIGNS 276 (1987).

39 The tension between some First and Third World feminists over the correct approach to the issue of female genital mutilation is an example. See Savane, Why we are against the International Campaign, 40 Int’l Child Welfare Rev. 38 (1979); R. Morgan, Sisterhood Is Global 1–37 (1984); Boulware-Miller, Female Circumcision: Challenge to the Practice as a Human Rights Violation, 8 Harv. Women’s L.J. 155(1985).

40 See C. Bulbeck, Hearing the Difference: First and Third World Feminisms 3–6 (paper delivered at Women’s Studies Conference, University of Melbourne, September 1990).

41 See Narayan, The Project of Feminist Epistemology: Perspectives from a Nonwestern Feminist, in Gender/Body/Knowledge, supra note 6, at 256.

42 C. Enloe, supra note 35, at 65–92.

43 Id. at 44.

44 “Western secular thought is a crucial factor in fashioning a consciousness and devising structures that would make possible an escape from the domination of Western political power.” K. Jayawardena, supra note 35, at 6.

45 C. Enloe, supra note 35, at 48.

46 K. Jayawardena, supra note 35, at 8.

47 Id. at 14.

48 Halliday, Hidden from International Relations: Women and the International Arena, 17 Millennium 419, 424 (1988).

49 See Chinkin, A Gendered Perspective to the International Use of Force, 12 Austl. Y.B. Int’l L. (1992, forthcoming).

50 K. Jayawardena, supra note 35, gives accounts of feminist movements in Turkey, Egypt, Iran, Afghanistan, India, Sri Lanka, Indonesia, the Philippines, China, Vietnam, Korea and Japan. Cf. J. Chafetz & A. Dworkin, Female Revolt: Women’s Movements in the World and Historical Perspective (1986), especially chapter 4, which describes, inter alia, “first wave” women’s movements in China, Japan, India, Indonesia, Persia/Iran, Egypt, the Caribbean islands, Mexico, Argentina, Brazil, Chile, Peru and Uruguay.

51 This is not an experience unique to Third World women. See the account of attitudes toward women of the revolutionary movements in the United States in the 1960s, in R. Morgan, Going Too Far: The Personal Chronicle of a Feminist (1977).

52 An example is the position of women in Afghanistan since 1979. See, e.g., An Afghan Exile, Her School and Hopes for Future, N.Y. Times, June 12, 1988, §1, at 14, col. 1:

Westerners who have studied Afghan society, as well as many Afghan men, say education for women has been damaged by its association with the Communist coup and the subsequent Kabul regimes. …

The Government that took power after the coup in April 1978 immediately associated itself with feminism …. Women’s groups became propaganda tools for the Kabul regime ….

53 This problem now may also arise in Central and Eastern Europe, where feminists face unique problems in their own search for development and democracy.

54 See, e.g., H. Afshar, Women, State and Ideology: Studies from Africa and Asia 4 (1987). Examples of women who are politically active, often regarding issues that would be characterized in the West as feminist, and who have been punished for it through arrest, torture and detention are found in Singapore and Malaysia in 1987. On Singapore, see Asia Watch, Silencing All Critics (1989). On Malaysia, see Amnesty International, “Operation Lallang”: Detention without Trial under the Internal Security Act (1988).

55 Brock-Utne, supra note 32, at 500.

56 In March 1991, women headed their country’s government in 4 of the 159 member states of the United Nations. In mid-1989, at cabinet level only 3.5% of the ministries in 155 countries were held by women, and 99 nations had no women ministers. UN Dep’t of Public Information, United Nations Focus: Women in Politics: Still the Exception?, November 1989. See generally Halliday, supra note 48. States are slow to make women permanent representatives to the United Nations: in March 1990, 4 out of 149 were women. The four states represented by women were Barbados, New Zealand, Senegal and Trinidad and Tobago. The names of the permanent representatives of ten nations were not available.

57 See B. Reardon, Sexism and the War System 15 (1985).

58 See R. B. Russell, A History of the United Nations Charter 793–94 n.24 (1958); Editorial, The United Nations’ Women at 40, Equal Time, 40th Special Anniversary Issue, 1985, at 1.

59 In 1946 the Commission on the Status of Women was established to promote the equal rights of women and to eliminate sex discrimination. ESC Res. 2/11 (June 21, 1946). By 1975, the level of female participation in professional positions within the United Nations and its specialized agencies was so low that one of the goals of the United Nations Decade for Women (1976-1985) was to improve female representation in the sought-after professional posts subject to geographic distribution. “It is on these geographic posts which most of the attention of the General Assembly’s Fifth Committee is focused because with these jobs goes the power.” Equal Time, July 1985, at 5. On the “renewed commitment by the international community to the advancement of women and the elimination of gender bias,” see Forward-Looking Strategies for the Advancement of Women to the Year 2000 (adopted by the World Conference of the UN Decade for Women, Nairobi, Kenya, July 15–26, 1985), UN Doc. A/CONF. 116/12 (1985).

In 1978 a target of 25% women in professional UN posts by 1982 was established. It had not been reached by 1986. Stephen Lewis, then Ambassador and Permanent Representative of Canada to the United Nations, said in the Fifth Committee of the General Assembly: “Progress in the field of women’s opportunities and rights in this arena … is so minutely incremental, it’s like a parody of social change.” Equal Time, July 1985, at 5. The target was subsequently reformulated by the General Assembly to 30% by 1990, and then to 35% by 1995.

60 Equal Time, March 1986, at 8–9. A few of the UN agencies deserve special mention. Women are the primary suppliers of child care throughout the world, yet in 1989 the United Nations Children’s Fund, the agency responsible for the welfare of children, had 4 senior women officials out of a total of 29. More than half the food grown in Africa is produced by women (see S. Charlton, Women in Third World Development 61 (1984)), yet the Food and Agriculture Organization had no women senior officials out of 51 positions in 1989. Health issues, especially infant and child mortality rates, are a major concern of women, yet in 1989 the World Health Organization employed at most 4 senior female officials out of 42 overall. In all situations of economic dysfunction, women and children suffer the most (see Riley, Why are Women so Poor?, Equal Time, March 1987, at 18; cf. A. Dworkin, Right Wing Women 151–52 (1983)); yet there were no senior women decision makers in the International Monetary Fund in 1989. The majority of the world’s refugees are women, but in 1989 only 1 of the 28 senior posts in the Office of the United Nations High Commissioner for Refugees was held by a woman. In 1990 the first woman High Commissioner, Professor Sadako Ogata, was appointed.

61 In 1985 the Secretary-General appointed a Co-ordinator for the Improvement of the Status of Women to a term of 12 months. This period was subsequently extended. The Secretary-General’s report, Review and Appraisal of the Implementation of the Nairobi Forward-Looking Strategies for the Advancement of Women, UN Doc. E/CN.6/1990/5 [hereinafter Nairobi Review], indicates that between 1984 and 1988 the total increase in the representation of women in professional and management positions in the United Nations was 3.6%, to a total of 21% of the professional staff. At the senior management level in 1988, however, only 4% of the staff were women. Id. at 84–86. In March 1990 the figure for women in posts subject to geographical distribution was 27.7%. UN Rev., August 1990, at 4. Although by the mid-eighties over 40% of the Secretariat staff were women, they were mainly in lower-status secretarial and clerical positions. United Nations, Dep’t of Internat’l Economic and Social Affairs, Compendium of Statistics and Indicators on the Situation of Women 1986, at 558–77 (Statistical Office Social Statistics and Indicators Series K, No. 5, 1989). The important and prestigious positions of Under-Secretary-General and Assistant Secretary-General are almost entirely held by men. In 1990 two women held the position of Under-Secretary-General and no women were Assistant Secretaries-General.

62 Equal Time, July 1985, at 5.

63 B. Urquhart & E. Childers, A World in Need of Leadership: Tomorrow’s United Nations 29 (1990); see also id., at 61.

64 Mme. Suzanne Bastid was a judge ad hoc in Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libya), 1985 ICJ Rep. 192 (Judgment of Dec. 10).

65 South West Africa, Second Phase (Ethiopia v. S. Afr.; Liberia v. S. Afr.), 1966 ICJ Rep. 6 (Judgment of July 18).

66 Statute of the International Court of Justice, Art. 9. On the changes in the composition of the Court, see E. McWhinney, The International Court of Justice and the Western Tradition of International Law 76–83 (1987).

67 In 1991, as in 1989, there were 2 women (out of 18) on the Economic, Social and Cultural Rights Committee, 1 (out of 18) on the Committee on the Elimination of Racial Discrimination, 2 (out of 18) on the Human Rights Committee, and 2 (out of 10) on the Committee against Torture. See 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, 8 n.26 (1989). The Sub-Commission on Prevention of Discrimination and Protection of Minorities has 6 women out of 26 members. Thus, there is a total of 13 women out of 90 “independent experts” in the UN human rights system, apart from the CEDAW Committee.

68 GA Res. 34/180 (Dec. 18, 1979) (entered into force Sept. 3, 1981). See also Declaration on the Elimination of Discrimination against Women, GA Res. 2263 (XXII) (Nov. 7, 1967).

69 A. Byrnes, Report on the Seventh Session of the Committee on the Elimination of Discrimination Against Women and the Fourth Meeting of States Parties to the Convention on the Elimination of All Forms of Discrimination Against Women (February-March 1988), at 13 (International Women’s Rights Action Watch 1988).

70 Id. Another reflection of the low status of women’s concerns within the United Nations system is the apparently low priority the Women’s Convention is given on the human rights agenda. At its seventh session in 1987, the CEDAW Committee claimed to have been provided with far worse working conditions than other human rights committees. Id. at 16. See also Byrnes, supra note 67, at 56–59. Byrnes has observed:

The fact that CEDAW has been given less time than other comparable bodies while covering economic and social rights as well as civil and political rights is perhaps the reflection of a less than full commitment to the pursuit of the goals of the Convention or at least a serious underestimate of the extent of the work to be done.

A. Byrnes, supra note 69, at 20.

71 See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 56, para. 125 (Advisory Opinion of June 21), where it was stated that the nonrecognition of South Africa’s administration in South West Africa should not be allowed to have an adverse impact on the people of Namibia. In the Anglo-Norwegian Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Judgment of Dec. 18), and Fisheries Jurisdiction (UK v. Ice.), Merits, 1974 ICJ Rep. 3 (Judgment of July 25), the impact of changed fishing zones on the livelihood of people in the various states who engaged in fishing was taken into account by the Court.

72 UN Charter Art. 2(7).

73 E.g., South West Africa, Second Phase, 1966 ICJ Rep. 6 (Judgment of July 18). Cf. Western Sahara Case, 1975 ICJ Rep. 12, 77 (Advisory Opinion of Oct. 16): “economics, sociology and human geography are not law” (Gros, J., sep. op.).

74 For a fuller discussion, see Charlesworth, The Public/Private Distinction and the Right to Development in International Law, 12 Austl. Y.B. Int’l L. (1992, forthcoming).

75 H. Eisenstein, Contemporary Feminist Thought 11–26 (1984); Rosaldo, Women, Culture, and Society: a Theoretical Overview, in Women, Culture, and Society 17 (M. Z. Rosaldo & L. Lamphere eds. 1974); J. Elshtain, Public Man, Private Woman (1981); The Public and the Private (E. Gamarnikow et al. eds. 1983); Pateman, Feminist Critiques of the Public/Private Dichotomy, in Public and Private in Social Life 281 (S. I. Benn & G. F. Gaus eds. 1983).

76 Ortner, Is Female to Male as Nature is to Culture?, in Women, Culture, and Society, supra note 75, at 72.

77 Pateman, supra note 75, at 288. See also Rosaldo, The Use and Abuse of Anthropology: Reflections on Feminism and Cross-Cultural Understanding, 5 Signs 409 (1980); Goodall, “Public and Private” in Legal Debate, 18 Int’l J. Soc. L. 445 (1990).

78 Imray & Middleton, Public and Private: Marking the Boundaries, in The Public and the Private, supra note 75, at 12, 16.

79 See H. Eisenstein, supra note 75, at 8; K. Millett, Sexual Politics 228–30 (1970).

80 E.g., E. Janeway, Man’s World, Women’s Place: A Study in Social Mythology (1971); J. Elshtain, supra note 75.

81 Olsen, Feminism and Critical Legal Theory: An American Perspective, 18 Int’l J. Soc. L. 199 (1990); Thornton, Feminist Jurisprudence: Illusion or Reality?, 3 Austl. J. L. & Soc’y 5, 6–7 (1986).

82 K. O’Donovan, Sexual Divisions in Law (1986); Stang Dahl& Snare, The coercion of privacy, in Women, Sexuality, and Social Control 8 (C. Smart & B. Smart eds. 1978).

83 See Crimes against Women: Proceedings of the International Tribunal 58–67, 110–75 (D. Russell & N. Van de Ven eds. 1984).

84 K. O’Donovan, supra note 82, at 7–8.

85 E.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 7, 999 UNTS 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 3, 213 UNTS 221 [hereinafter European Convention]; American Convention on Human Rights, Nov. 22, 1969, Art. 5, reprinted in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.65, doc. 6, at 103 (1985).

86 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (Dec. 10, 1984), draft reprinted in 23 ILM 1027 (1984), substantive changes noted in 24 ILM 535 (1985) [hereinafter Torture Convention]; Inter-American Convention to Prevent and Punish Torture, Dec. 9, 1985, reprinted in 25 ILM 519 (1986); European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Council of Europe Doc. H (87) 4, reprinted in 27 ILM 1152 (1988).

87 See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

88 Torture Convention, supra note 86, Preamble.

89 Id., Art. 1(1).

90 See J. Burgers & H. Danelius, The United Nations Convention Against Torture 45–46 (1988).

91 A. Byrnes, supra note 7, at 10.

92 See Amnesty International, Women in the Front Line: Human Rights Violations Against Women 45–46 (1991).

93 Rodley, The Evolution of the International Prohibition of Torture, in Amnesty International, The Universal Declaration of Human Rights 1948–1988: Human Rights, The United Nations and Amnesty International 55, 63 (1988).

94 See Amnesty International, supra note 92, passim.

95 Violent attacks resulting in permanent physical damage have been held to meet the requisite level of severity. E.g., The First Greek Case, 12 Y.B. Eur. Conv. on Hum. Rts. 499 (1969); Bassano Hernandez & Massera v. Uruguay, Report of the Human Rights Committee, 35 UN GAOR Supp. (No. 40), Ann. VII, at 124, UN Doc. A/35/40 (1979). Rape and sexual assault may not, however, be provable in the same way as other physical harm, and the allegation of such abuse itself stigmatizes the victim. See Amnesty International, supra note 92, at 3.

96 Bunch, supra note 7, at 490–91.

97 See A. Byrnes, supra note 7, at 10.

98 See [1979] 2 Y.B. Int’l L. Comm’n 90, UN Doc. A/CN.4/SER.A/1979/Add.1; [1980] 2 id. at 14, 70, UN Doc. A/CN.4/SER.A/1980/Add.1. Article 19(3)(c) does state that an international crime may result from “a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide, apartheid.” Historically, however, oppression of women has not been regarded in this light. See also International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (J. Weiler, A. Cassese & M. Spinedi eds. 1989); United Nations Codification of State Responsibility (M. Spinedi & B. Simma eds. 1987).

99 An example at the opposite extreme was the demand of the Ceausescu regime in Romania that all married women undergo regular medical examinations by public health officials to determine whether they were pregnant or had had an abortion. The purpose was to achieve an explicit state goal: for each married woman to have at least four children.

100 See K. Barry, Female Sexual Slavery (1984); Kappeler, The International Slave Trade in Women, or, Procurers, Pimps and Punters, 1 Law & Critique 219 (1990); C. Enloe, supra note 35, at 19–41, 65–92.

101 C. Mackinnon, supra note 18, at 40–41.

102 See Equal Time, March 1989, at 22–23 (report on UNESCO Conference on the Elimination of Trafficking in Women and Children, New York, 1988).

103 Article 6 of the Women’s Convention, supra note 68, provides that state parties should “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” See also B. Whitaker, Slavery: Report 11–20, UN Doc. E/CN.4/Sub.2/1982/20/Rev.1, UN Sales No. E.84.XIV.1 (1984); Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Mar. 21,1950, 96 UNTS 271; Reanda, Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action, 13 Hum. Rts. Q. 202(1991).

104 For a brief history of the international prohibition of slavery, see A. Cassese, supra note 19, at 52–54.

105 2 G. Scelle, Précis de droit des gens 55 (1934), translated and quoted in id. at 53.

106 C. Mackinnon, supra note 18, at 179.

107 Equal Time, supra note 102, at 22.

108 For a list of these Conventions, see Hevener, An Analysis of Gender Based Treaty Law: Contemporary Developments in Historical Perspective, 8 Hum. Rts. Q. 70, 87–88 (1986).

109 One author has analyzed the Conventions dealing with women according to whether their purpose is protective (viewing women as in need of special protection), corrective (redressing previous gender imbalance) or nondiscriminatory (aiming at formal equality between the sexes). Hevener, supra note 108. Some of the earlier Conventions that were intended to be protective of women’s roles as child bearers and rearers are now being reappraised. For example, in 1988 the Australian Government announced its withdrawal from ILO Convention (No. 45) concerning the Employment of Women on Underground Work in Mines of all Kinds, June 21, 1935, as modified by Final Articles Revision Convention, 1946, 40 UNTS 63, which was originally regarded as protective, on the basis that the Convention now appears discriminatory because it denies women access to certain forms of employment. The instrument of denunciation was deposited by Australia on May 20, 1988, to take effect a year later. Commonwealth of Australia, Treaty List 1988, at 28 (1989).

110 As of May 1991, 105 states had ratified or acceded to the Convention, according to the UN Information Office, Sydney, Australia. For a helpful guide to the literature on the Convention, see Cook, Bibliography: The International Right to Nondiscrimination on the Basis of Sex, 14 Yale J. Int’l L. 161 (1989).

111 Women’s Convention, supra note 68, Art. 1.

112 See, e.g., M. Halberstam & E. Defeis, Women’s Legal Rights: International Covenants an Alternative to ERA? (1987); D’Sa, Women’s rights in relation to human rights: a lawyer’s perspective, 13 Commonwealth L. Bull. 666, 672–74 (1987).

113 For a discussion of this approach, see Lacey, Legislation Against Sex Discrimination: Questions from a Feminist Perspective, 14 J. L. & Soc’y 411 (1987).

114 C. Mackinnon, supra note 18, at 34.

115 See Dowd, Work and Family: The Gender Paradox and the Limitation of Discrimination Analysis in Restructuring the Workplace, 24 Harv. C.R.-C.L. L. Rev. 79 (1989).

116 MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence, 8 Signs 635 (1983).

117 Women’s Convention, supra note 68, Art. 6.

118 Id., Art. 14.

119 Id., Art. 18.

120 Opened for signature Mar. 7, 1966, 660 UNTS 195, reprinted in 5 ILM 352 (1966).

121 Supra note 85. For an analysis of these differences, see Reanda, Human Rights and Women’s Rights: The United Nations Approach, 3 Hum. Rts. Q. 11 (1981); Meron, Enhancing the Effectiveness of the Prohibition of Discrimination against Women, 84 AJIL 213 (1990).

122 Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1989, at 170–79, UN Doc. ST/LEG/SER.E/8 (1990) [hereinafter Multilateral Treaties]. For a discussion of reservations generally in the context of the Women’s Convention, see Byrnes, supra note 67, at 51–56; Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 Va. J. Int’l L. 643 (1990); Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination against Women, 85 AJIL 281 (1991).

123 E.g., the reservations made by Egypt to the Women’s Convention. With respect to Article 2, which condemns all forms of discrimination against women, the general reservation states that “Egypt is willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Sharia.” Egypt made a particular reservation to Article 16, which requires parties to take steps to eliminate discrimination against women with respect to marriage and family relations during marriage and on its dissolution, on the ground that the Shari’a requires a man to pay “bridal money” to his wife, to maintain her during marriage and to make a payment on divorce, whereas women do not have any parallel obligations. For this reason the Shari’a promotes “comple mentarity” between spouses by restricting a wife’s right to divorce to judicial proceedings, while not so restricting that of a husband. Multilateral Treaties, supra note 122, at 172–73.

124 See the statements of objection to the Islamic reservations by the Federal Republic of Germany, Mexico and Sweden in id. at 179–84.

125 See Cook, supra note 122, at 701.

126 See id. at 693–96.

127 See id. at 696–702.

128 Id. at 708 nn.303, 304.

129 The 1986 meeting of state parties expressed concern about the compatibility of some reservations with the Convention and asked the Secretary-General to seek the views of state parties. Subsequent meetings have not pursued this issue. See id. at 708; Clark, supra note 122, at 283–85.

130 See Cook, supra note 122, at 644 n.5; Clark, supra note 122, at 283.

131 Wishik, To Question Everything: The Inquiries of Feminist Jurisprudence, 1 Berkeley Women’s L.J. 64 (1985).

132 Littleton, Feminist Jurisprudence: The Difference Method Makes (Book Review), 41 Stan. L. Rev. 751, 764 (1989).

133 Some members of the critical legal studies movement have engaged in a parallel, but distinct, critique of rights. See, e.g., Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984); Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. Rev. 379.

134 Gross, supra note 6, at 192; C. Smart, supra note 17, at 138–39.

135 C. Smart, supra note 17, at 139.

136 Id. at 144.

137 Id.

138 Id. at 146–57. For a discussion of the feminist ambivalence toward gendered laws such as statutory rape laws, see Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387 (1984).

139 C. Smart, supra note 17, at 145; Lacey, supra note 113, at 419.

140 See, e.g., Cranston, Are There Any Human Rights?, Daedalus, No. 4, 1983, at 1, 12.

141 C. Smart, supra note 17, at 145; E. Kingdom, The right to reproduce (paper delivered at 13th Annual Conference of the Association for Legal and Social Philosophy, Leeds, Apr. 4–6,1986), quoted in id. at 151; see also Fudge, The Public / Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles, 25 Osgoode Hall L.J. 485 (1987).

142 European Convention, supra note 85, Art. 8.

143 C. Smart, supra note 17, at 145.

144 E.g., International Covenant on Civil and Political Rights, supra note 85, Art. 18.

145 See, e.g., Arzt, The Application of International Human Rights Law in Islamic States, 12 Hum. Rts. Q. 202, 203 (1990). See generally A. Sharma, Women in World Religions (1987). Cf. Sullivan, Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination, 82 AJIL 487, 515–17 (1988).

146 UN Doc. E/1987/SR.11, at 13, quoted in A. Byrnes, supra note 69, at 6. Cf. An-Na’im, Rights of Women and International Law in the Muslim Context, 9 Whittier L. Rev. 491 (1987).

147 A. Byrnes, supra note 69, at 6.

148 GA Res. 42/60, para. 9 (Nov. 30, 1987).

149 A. Byrnes, supra note 69, at 6–7. On these events, see also Clark, supra note 122, at 287–88.

150 Universal Declaration of Human Rights, GA Res. 217A (III), Art. 16(3), UN Doc. A/810, at 71 (1948). Cf. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, Art. 10(1), 993 UNTS 3; International Covenant on Civil and Political Rights, supra note 85, Art. 23. See Holmes, supra note 7, at 252–55.

151 African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3/Rev.5, reprinted in 21 ILM 59 (1982) [hereinafter Banjul Charter]. See Wright, Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions, 12 Austl. Y.B. Int’l L. (1992, forthcoming).

152 Banjul Charter, supra note 151, Art. 20.

153 Id., Art. 21.

154 Id., Art. 22.

155 Id., Art. 23.

156 Id., Art. 24.

157 Jacobs & Tracy, Women in Zimbabwe: Stated Policies and State Action, in Women, State Ideology: Studies from Africa and Asia 28, 29–30 (H. Afshar ed. 1988).

158 In particular contexts, some black and Asian feminists have argued that the family should be the rallying point for struggle. For example, Valerie Amos and Pratibha Parmar write: “In identifying the institution of the family as a source of oppression for women, white feminists … reveal[] their cultural and racial myopia, because for Asian women in particular, the British state through its immigration legislation has done all it can to destroy the Asian family ….” Amos & Parmar, Challenging Imperial Feminism, 17 Feminist Rev. 3, 15 (1984).

159 Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 417 (1987).

160 Id. at 431. See also Schneider, The Dialectic of Rights and Politics: Perspectives from the Women’s Movement, 61 N.Y.U. L. Rev. 589 (1986). Compare Hardwig, Should Women Think in Terms of Rights?, 94 Ethics 441 (1984).

161 See text at notes 74–86 supra.

162 For a fuller analysis of this theme, see Charlesworth, supra note 74.

163 Alston, Making Space for New Human Rights: The Case of the Right to Development, 1 Harv. Hum. Rts. Y.B. 3 (1988); Rich, The Right to Development: A Right of Peoples, in The Rights of Peoples 39 (J. Crawford ed. 1988).

164 E.g., Brownlie, The Rights of Peoples in Modern International Law, in The Rights of Peoples, supra note 163, at 1, 14–15.

165 GA Res. 41/128, Art. 1(1) (Dec. 4, 1986).

166 Id., Art. 2(3).

167 Id., Art. 5.

168 Thomas & Skeat, Gender in Third World Development Studies: An Overview of an Underview, 28 Austl. Geographical Stud. 5, 11 (1990); see also J. Henshall Momsen & J. Townsend, Geography of Gender in the Third World 16 (1987).

169 GA Res. 41/133 (Dec. 4, 1986).

170 See M. Waring, Counting for Nothing 134 (1988).

171 See United Nations, World Survey on the Role of Women in Development 19–20 (1986); J. Henshall Momsen & J. Townsend, supra note 168, at 15; Nairobi Review, supra note 61, at 8–10.

172 The first major study was E. Boserup, Woman’s Role in Economic Development (1970). For a valuable survey of this literature, see Thomas & Skeat, supra note 168.

173 M. Waring, supra note 170, at 13.

174 Id. at 83.

175 Id. at 27.

176 Id. at 25.

177 UN Doc. A/40/519, para. 210, at 99 (1985), quoted in id. at 177 (emphasis added).

178 An example is the aid program of the United States foreign aid agency, USAID, after a Sahelian drought. The herds were reconstituted, but only by replacing cattle owned by heads of family, i.e., men. Cattle owned by the nomadic women, used in dowry and bride wealth payments, were not replaced, which reduced the independence of the women. M. Waring, supra note 170, at 144.

179 A World Bank report on development projects it sponsored acknowledged that it had supported women’s projects almost exclusively in the areas of “health, hygiene, nutrition and infant care.” World Bank, World Bank Experience with Rural Development, 1965–1986, at 89 (1987).

180 S. Charlton, supra note 60, at 61.

181 Thomas & Skeat, supra note 168, at 8.

182 See Molyneux, Women’s Emancipation under Socialism: A Model for the Third World, 9 World Dev. 1019(1982).

183 See Thomas & Skeat, supra note 168, at 11.

184 E.g., Analytical compilation of comments and views on the implementation of the Declaration on the Right to Development prepared by the Secretary-General, UN Doc. E/CN.4/AC.39/1988/L.2, paras. 59–63; Report prepared by the Secretary-General on the Global Consultation on the Realization of the Right to Development as a Human Right, UN Doc. E/CN.4/1990/9, paras. 15, 42, 51, 52, 59 [hereinafter 1990 Report].

185 The section of the Secretary-General’s report entitled “Obstacles to the implementation of the right to development as a human right,” for example, mentions failure to respect the right of peoples to self-determination, racial discrimination, apartheid, foreign occupation, restrictions on transfers of technology and the consumption patterns of industrialized countries as serious barriers to the realization of the right to development, but it contains no reference to sex discrimination. 1990 Report, supra note 184, paras. 27–35. Compare the detail of Article 14 of the Women’s Convention, supra note 68.

186 International Covenant on Civil and Political Rights, supra note 85, Art. 1; International Covenant on Economic, Social and Cultural Rights, supra note 150, Art. 1.

187 See Reisman, The Resistance in Afghanistan Is Engaged in a War of National Liberation, 81 AJIL 906 (1987).

188 By contrast, the United States used the repression of women in Iran after the 1979 revolution as an additional justification for its hostility to the Khomeini regime.

189 C. Enloe, supra note 35, at 57.

190 N.Y. Times, Mar. 27, 1988, §1, at 16, col. 1.

191 Id. The total enrollment in UN schools is 104,000 boys and 7,800 girls.

192 See, e.g., K. Jayawardena, supra note 35, at 17–19.

193 As demonstrated by the objectives of The Women’s Union, founded in 1974. Cumming, Forgotten Struggle for the Western Sahara, New Statesman, May 20, 1988, at 14 (“Women are at the heart of the revolution; their own struggle for rights doesn’t have to wait until the war is over, the two are indivisible”).

194 Western Sahara Case, 1975 ICJ Rep. 12 (Advisory Opinion of Oct. 16).

195 Cumming, supra’ note 193, at 15. Whether the electoral victory in Algeria of a fundamentalist party in 1990 will change the situation in these camps remains to be seen.

196 GA Res. ES-6/2 (Jan. 14, 1980).

197 For further discussion of the relevance of the position of women to the international law on the use of force, see Chinkin, supra note 49.

198 Thornton, supra note 81, at 23.

199 Boyle, Book Review, 63 Can. B. Rev. 427 (1985).

200 Id. at 430–31.

201 Papers given at a conference on gender and international law held at the Centre for International and Public Law, Australian National University, August 1990, dealt with some of these areas. The papers will be published in the Australian Year Book of International Law (1992). See also Greatbatch, The Gender Difference: Feminist Critiques of Refugee Discourse, 1 Int’l J. Refugee L. 518 (1989).

202 Gross, supra note 6, at 197.

203 E.g., C. Smart, supra note 17, at 25, 81–82.

204 UN Charter, Preamble.