THE RIGHTS-BASED STRATEGY TO ADDRESS GENDER HIERARCHIES: WORK IN PROGRESS

In essence, the integration of a gender perspective into the human rights framework has meant a stronger focus on the manifold ways in which women experience human rights violations because they are women. With a few exceptions, this has not implied a comprehensive understanding of gender as a social structure that affects all humans and of sexism as a form of oppression that generally benefits (some) men (more than others); according to Charlesworth (Reference Charlesworth, Caglar, Prügl and Zwingel2013), the dominant paradigm of gender in international law still is that women have to be enabled to reach the same level of self-determination as men.Footnote ¹

While this may sound like a flawed approach to eradicating gender-based discrimination, the process of pulling women's issues out of their seclusion and emphasizing their centrality to the meaning of human rights has to be understood as a remarkable (if slow and cumbersome) endeavor. When CEDAW came into being, it was isolated in all possible dimensions—in terms of content, as women's issues were understood to be connected to development policies, not human rights; in terms of institutional support, as CEDAW was not served by the same UN administrative section as the other human rights bodies; and in terms of resources, as it had to function under conditions that did not allow it to fulfill even its most basic functions. Since the mid-1990s, CEDAW has increasingly gained the recognition it deserves vis-à-vis the other treaty bodies. This was by no means an automatic development, but the result of unremitting advocacy work of CEDAW experts, UN “femocrats,” and governmental and non-governmental CEDAW supporters (Zwingel Reference Zwingel, Caglar, Prügl and Zwingel2013).

Far-reaching integration of gender sensitivity is one among other transformations of the human rights framework toward more legitimacy and strength within a post-Cold War context. For one, it has become more inclusive and sensitive toward intersectional discriminatory structures, even if full inclusiveness is not reached, as the controversies around human rights and non-heterosexual identities indicate (Sanders Reference Sanders and Forsythe2009). Second, human rights have gained more institutional representation, embodied in the creation of the High Commissioner for Human Rights in 1994, the increase in the number of Special Rapporteurs with specialized human rights mandates, and the replacement of the Commission for Human Rights with the Human Rights Council, which has proven to be a more legitimate body than its predecessor. Most important with respect to the increased visibility of human rights is probably the ever increasing participation of non-governmental organizations and national human rights institutions. Finally, the UN human rights framework has also started to explore critically its own limitations, in particular the premise of territorial state responsibility. In an increasingly globalized world, and given the variety in state capabilities, it often makes no sense to hold only the state accountable where human rights violations occur—for example, when powerful non-state actors cause such violations. Likewise, it may be shortsighted to limit a state's responsibilities to its own territory if actions of that state or persons within its jurisdiction violate human rights elsewhere (Carey, Gibney, and Poe Reference Carey, Gibney and Poe2010).

All in all, the international mechanisms to promote and protect human rights have become more visionary and better funded. CEDAW has both contributed to and benefitted from this development; it has been a leader among the treaty bodies in developing an understanding of human rights violations perpetrated by non-state actors and of intersectional dimensions of discrimination. As for the latter, the CEDAW Committee has reinforced the Convention's comprehensive definition of discrimination against women (CEDAW Article 1) through General Recommendations specifying the meaning of women's rights in a diversity of contexts.Footnote ² These attempts to push the dialogue further and make it more useful for women around the world have come from Committee experts, but they would be unthinkable without the strong civil society input that CEDAW has attracted over time. Non-governmental organizations are the core force in creating the Committee as a continuously critical arbiter for the rights of women against state interests. Of course, there are limits to the positions the Committee can take. One such limit is the “currency of legitimacy” within an intergovernmental context: It is important for the Committee's authority to be taken seriously by states. A problem in this context is the rise of anti-feminist voices in several UN bodies. These voices, both governmental and non-governmental, promote values that reject ideas of gender equality or self-determination of women, often in the field of the family and private relationships (Buss Reference Buss, Tétreault and Denemark2004). They also openly criticize the women's rights framework and call CEDAW a group of “radical feminists.” As CEDAW depends on the recognition of state actors, it has a strong interest in avoiding such labeling, which could lead to undue moderation.

To summarize the discursive dimension of international women's rights: We are looking at a body of thinking that has, in itself, grown and has become a more comprehensively recognized dimension of the human rights discourse as a whole. It is, however, an inconclusive discourse driven by new impulses as well as challenges that do not proceed on a linear progression toward perfection. Nonetheless, the international women's rights framework provides useful guidance toward inclusive human dignity in a world of increasingly complex and widening inequalities that affect women in profound ways. Its practical value depends on the degree to which it can establish convincing normative connections to other contexts and in how far it can trigger transformative action. Treaty ratification is a first connecting step that allows domestic engagement with the treaty. Yet the interesting questions are, what steps are taken subsequently? Who exactly takes these steps? And what factors make the translation of international norms into domestic contexts more or less meaningful?

CEDAW has been used as an instrument to enhance domestic agency in a number of ways. The default implementing actor according to treaty logic is the government—and indeed, governments have moved impressively in the field of legislative changes, for example, in regard to gender-based violence and equal employment policies. This is not to be underestimated, even if there is often little evidence of de facto change as a consequence. Increasingly, judiciary bodies take notice of international human rights treaties and their significance for domestic contexts. Non-governmental initiatives have covered a broad range of implementation strategies: They are directly involved in government-induced change through lobbying and awareness raising of government representatives, the judiciary, parliamentarians, or civil servants and, thus, help create the knowledge necessary for legal and policy change. In addition, they teach women about their rights and establish connections between different organizations so that collaboration along the lines of women's rights is more likely and women's voices become louder. In short, women's rights activists spend their time creating an enabling environment for the notion of women's rights to take hold. This is mostly “non-measurable,” but also invaluable, work.

To understand the translation of women's rights, we also have to look at broader context factors—in particular, non-supportive ones. If a state's default reaction to international women's rights is rhetorical support but lack of serious commitment, then this constellation enables strategies of persuasion. If dominant forces in a domestic setting are outright hostile to women's rights or a subset thereof, then activists often reframe international norms in domestic “vernaculars” to circumvent rejection. Confrontation may have long-term positive effects by widening the discursive space, but it often leads to the de-legitimization of that position in the short run. In the case of complete lack of interest in international norms, activists have a lot of groundwork to do in order to produce public attention in the first place.

IMPROVING THE RIGHTS-BASED STRATEGY

I offer two suggestions to expand the potential of the rights-based strategy to confront gender hierarchies, one of which focuses on strengthening discourse and the other on making enforcement mechanisms more far reaching. First, the notion of recognition and respect of rights is an underestimated dimension in the human rights discourse that needs more weight. Such recognition requires a comprehensive process of radically rethinking traditions. One of the cases brought to the CEDAW Committee's consideration under the Optional Protocol to the Convention—Sahide Goekce (deceased) v. Austria, 5/2005Footnote ³—may clarify what such rethinking effectively means: Sahide Goekce was killed by her husband after years in which he had escalated the use of violence against her. Austrian law enforcement officials were aware of the ongoing violence, including the fact that the man owned a gun. Sahide Goekce did not die because Austria lacks legislation in regard to domestic violence. She died, first and foremost, because the perpetrator considered her his property instead of a human being entitled to rights. But she also died because Austrian law enforcement officials, after pondering the necessity to protect her versus the right of her husband's freedom of movement, decided not to interfere. This decision shows complete ignorance of the degree to which domestic violence threatens life and physical integrity of the victim. Consequently, the CEDAW Committee came to the conclusion that the laws in place were sufficient but that the Austrian state's responsibility to protect women from domestic violence required a more comprehensive understanding of these laws by law enforcement officers. Underlying this assessment is a twofold idea: first, that a state needs to make human survival and dignity a top priority; and, second, that it has to determine what kind of measure—that is, withdrawal or interference—best serves this goal and act accordingly. Of course, it would be more far-reaching to unlearn the idea that another human being could be considered one's property. This is, in effect, one of the long-term goals of the rights-based strategy.

The second suggestion is more practical: We need to rethink the UN human rights framework from the receiving end and with a view to enhance implementation. The underlying principle for all UN human rights instruments is to keep challenges to state sovereignty modest in order to gain intergovernmental legitimacy. Significant human rights implementation, however, needs a network of actors within and beyond the UN system, a division of labor of human rights realization. The development of NGO involvement in the treaty bodies' work over the last decades is clearly a process that has helped establish such a network: Non-state actors were first not conceived as part of the monitoring or implementation procedure, but their vital critical function is now widely acknowledged.Footnote ⁴ The 2006 Convention of the Rights of Persons with Disabilities even demands an independent domestic institution to monitor states' follow-up activities. The idea that critical oversight of state action needs a structure beyond mere willpower is a hopeful development.

A lot more useful elements could be added—for example, a creative focus on extraterritorial responsibilities of highly developed states. So far, treaty bodies have focused on the extent to which foreign aid practices are connected to the promotion of human rights. A bolder strategy could hold states responsible for overseeing compliance of transnational corporations (TNCs) with human rights standards outside of their territory. Typically, TNCs home states push such responsibilities toward the state in which the TNC physically operates, but this constellation has proven to enable all kinds of human rights violations affecting workers and the wider community.Footnote ⁵ Women would benefit tremendously from such an approach, as they are often the preferred workers employed by TNCs because they can be paid less than men. Thus, a sound development of extraterritorial responsibilities would help prevent human rights violations produced by Western (business) interests abroad which, in turn, could disturb the hypocritical self-construction of many Western states as virtuous in terms of human rights (vs. the “others”). Maybe this approach would also help overcome the post 9/11 myth of Western public discourse that the real division between “us” and “them” is “how they treat their women.”